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CIVIL PROCEDURE
INTRODUCTION
The first thing that we will take up in Civil Procedure are basic concepts. We are going to discuss the legal concept of courts.
As you will know, whenever we talk of procedural law, we have no choice but to involve courts in our discussion.
Let’s try to have a mental picture of courts. If I (Dean Iñigo) say ‘courts’, please tell me the scene that comes into your mind.
What do you see? There is a table, a gavel, there is someone sitting there. Then below, there are lawyers sitting down. That is how
everybody pictures a court. But actually, what was pictured out was a courtroom and not a court.
Similar example: How can you picture a corporation? A corporation, as you know in Persons, is a juridical entity. It is a creature
of the law. It is a person under the law but it has no physical existence. But what you see in a corporation is a building and people
who are running the office business. Well, that is the office of the corporation.
A corporation cannot run without people running it. But a corporation can own properties, kaya you see the building, the office,
the equipments there. The president or the vice-president are the officers of the corporation. But the officers are not the
corporation, they run the affairs of the corporation. Ganoon din ang court. A court has no physical existence, only a legal one.
Q: What is a court?
A: A court is an entity or body vested with a portion of the judicial power. (Lontok vs. Battung, 63 Phil. 1054)
Q: Why ‘portion’ only?

A: This is because the Constitution provides that “the judicial power shall be vested in one Supreme Court (SC) and in such
other lower courts as may be established by law.” (Art. VIII, Section 1, 1987 Constitution.
The reason that the law creates different courts is to divide the cases or judicial power among them so that one court may not
be burdened with so many cases. So, judicial power is not exercised only by one court, but by several courts. It is like a cake. You
slice the cake into parts – this part is for you, this part is mine. So, kanya-kanya tayo ng trabaho. You cannot put the burden only in
one court.
For example, you want to sue your debtor for not paying a loan. You mean to tell me that you will go to the SC? All cases in the
Philippines will have to filed there? NO. You cannot do it. You have to start from certain courts in you city or municipality.
Ngayon, pag-sinabi mo kung saan ako mag-file, sa Regional Trial Court (RTC) ba? O sa Municipal Trial Court (MTC)? Of
course, depende yan on how much you are claiming. If you are claiming so much, dito ka. If you claim is lower, dito ka naman. Why
is that? Because each has its own work. Each one has its own portion – what is yours is yours, what is mine is mine.
Thus, each court has its own jurisdiction and may only try cases within its jurisdiction. No court has all the power of the
judiciary but only a portion of it. So there is a division of labor.
Just as corporations cannot act without its officers, a court cannot function without a judge. But do not say that the court and
the judge mean the same thing. The judge is the person or officer who presides over a court.
Q: Distinguish court from judge.

A: The following are the distinctions:
1.) Court is the entity, body, or tribunal vested with a portion of the judicial power, while judge is the person or officer who
presides over a court. Judges are human beings – they die, they resign, they retire, they maybe removed. The court
continues to exist even after the judge presiding over it ceases to do so.
2.) The two concepts may exist independently of each other, for there may be a court without a judge or a judge without
a court. (Pamintuan vs. Llorente, 29 Phil. 342)
EXAMPLE: The present Supreme Court (SC), the justices presiding over it are not the same justices who
presided it in the early part of this century yet the Court in some decisions states that “as early 1905, ‘WE’ have
already ruled such as such…” Why do they use ‘WE’? They are talking about the court, they are not talking about
themselves. The court is continuous. It does not die alongside with the justices who presided on it.
Q: Classify courts in general.

A: Generally, courts may be classified as:
1.) Superior Courts and First-Level courts (inferior courts);
2.) Courts of Original jurisdiction and Courts of Appellate jurisdiction;
3.) Civil Courts and Criminal Courts;
4.) Courts of law and Courts of equity;
5.) Constitutional Courts and Statutory Courts.
SUPERIOR COURTS vs. FIRST-LEVEL COURTS
Q: Distinguish superior courts from inferior courts.

A: SUPERIOR COURTS, otherwise known as courts of general jurisdiction, are those which take cognizance of all kinds
cases, whether civil or criminal, and possess supervisory authority over lower courts.
FIRST-LEVEL COURTS (inferior courts), otherwise known as courts of special or limited jurisdiction, are those which take
cognizance of certain specified cases only. (14 Am. Jur. 249)
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Q: What courts are superior or inferior?
A: It DEPENDS on what viewpoint you are looking. If you are looking from the viewpoint of the Constitution, there is only one
superior court – the Supreme Court.
From the real viewpoint, the Court of Appeals (CA) maybe inferior to the SC but it is a superior court for it exercises
supervision over RTC. In the same manner that the RTC might be inferior to the SC and the CA but it has also power of supervision
over MTC. The jurisdiction of the RTC is varied. It is practically a jack of all trade. The RTC has also the power of supervision over
MTC.
A superior court may therefore handle civil, criminal cases while an inferior court may try specified cases only. The SC, CA
including the RTC are considered as superior courts.
The MTC is a first-level (inferior) court so that its power is limited to specified cases despite of the law which expanded the
jurisdiction of the MTC. It is already at the bottom. Wala ng under pa sa kanya.
In 1996 Bar: Explain the hierarchy of courts in the Philippines. Practically, the judicial level is being asked by the examiner.
ORIGINAL COURT vs. APPELLATE COURT
Q: Distinguish original court from appellate court.

A: ORIGINAL COURTS are those where a case is commenced, while APPELLATE COURTS are those where a case is
reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
So, if you are filing a case for the first time, that case is filed in an original court. But the case does not necessarily end there.
You may bring the case to the appellate court which has the power to change the decision of the original court.
Q: Is the SC an original or appellate court?

A: The SC is both an original and an appellate court. Some people have the impression that you cannot file a case there for
the first time – that you have to file it somewhere else, then doon (SC) mo i-akyat. But when we study the jurisdiction of the SC, we
will be able to know that it is not only an appellate court, but also an original court. The SC has original jurisdiction on cases of
certiorari, prohibition, mandamus, etc. There are certain cases where one may file directly to the SC.
Q: Is the CA an original or appellate court?

A: The same is true with the CA. It is both original and appellate court. (Section 9, BP 129) When we study the jurisdiction
of the CA, you will see that it is both an original and an appellate court. There are cases which are elevated to it from the RTC, but
there are also cases which are filed there for the first time.
Q: How about the RTC? Is the RTC an original or appellate court?

A: The RTC is also both original and appellate court. You can file certain cases there for the first time, and there are also
decisions of the MTC which are appealable to the RTC.
Q: How about the MTC? Is the MTC an original or appellate court?

A: The MTC however, is a 100% original court. It is the lowest court in the hierarchy. There are no cases appealed to it.
There is no such animal as barangay court. The barangay captains do not decide cases, they only conciliate.
CIVIL COURTS vs. CRIMINAL COURTS
Q: Distinguish civil courts from criminal courts.

A: CIVIL COURTS are those which take cognizance of civil cases only, while CRIMINAL COURTS are those which take
cognizance of criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd Ed., p. 301)
All the courts in the Philippines are both civil and criminal courts. They can handle both types of cases. The SC decides civil
and criminal cases. The same thing with the CA, RTC and MTC.
So, in the Philippines, there is no such thing as a 100% criminal court or civil court. Unlike before, during the 70's there are
some special courts which were existing but were abolished by BP 129. There was the old Circuit Criminal Court. As the name
implies, it is purely a criminal court.
But with the abolition of those special courts, all their powers were transferred to the present RTC. Right now, there is no such
thing as a 100% civil court or a 100% criminal court. So, all our courts are both civil and criminal courts at the same time.
COURTS OF LAW vs. COURTS OF EQUITY
Q: Distinguish Courts of Law from Courts of Equity.

A: COURTS OF LAW are tribunals only administering the law of the land, whereas COURTS OF EQUITY are tribunals which
rule according to the precepts of equity or justice, and are sometimes called “courts of conscience.” (Ballentine’s Law Dict., 2nd
Ed., p. 303)
Courts Of Law dispose cases according to what the law says – I will decide your case by what the law says. Yan ang court of
law! When we say Courts Of Equity, it adjudicates cases based on the principles of equity. Principle of equity means principles of
justice, fairness, fair play.
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Q: Are the Philippines courts, courts of law? Or courts of equity? Do they decide cases based on what the law says? or, do
they decide cases based on the principle of justice and fairness?
A: In the Philippines, our courts are both courts of law and of equity. In the case of substantive law, there is a thin line
which divides the principle of law from the principle of equity because principles of equity are also found in the principles of law.
Equity is what is fair and what is just and equitable. Generally, what is legal is fair.
As a matter of fact under the Civil Code, when the law is silent, you decide it based on what is just and fair. Kaya nga may
kasabihan na EQUITY FOLLOWS THE LAW. In the Philippines you cannot distinguish sometimes the principle of law and the
principle of equity because principles of equity are also written in the law. Example: The principle of estoppel, laches or solutio
indebiti. One cannot say that they are purely principles of equity since they are also found in our law. Under the Civil Code, when
there is no applicable law, courts still have to decide according to customs and general principles.
Example: ESTOPPEL. Estoppel is an equitable doctrine – that it is not fair that you disown your own representation after
misleading somebody. But if you look a the Civil Code, meron mang chapter diyan ba! – estoppel! So if you apply estoppel, you
cannot say that you are applying a principle not found under the law.
Example: LACHES – the half-brother of prescription – if you delay a certain right then you must have no right. That is more of
equity, rather than of law.
Example: SOLUTIO INDEBITI. No one should enrich himself at the expense of another. That is a principle of equity. But if
you look at the Civil Code, it's there!
The SC, when deliberating, focuses more on justice and equity – where reason can always be found. The SC once said that
equity follows the law. In the case of :
ALONZO vs. INTERMEDIATE APPELLATE COURT

May 28, 1987, J. Cruz
HELD: “The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of
law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law?
Thus queried, we do not equivocate. The answer is that we do neither because we are a court both of law and of
justice. We apply the law with justice for that is our mission and purpose in the scheme of our Republic.”
So the SC described it self both as a court of law and court of equity. I have already talked with so many justices of the SC
before. And I asked them on how do they deliberate on cases when somebody files an appeal or petition. They told me, if you want
to convince the SC to hear your case… because the tendency of some lawyers is that they will file their petition and they will cite
the law. Meaning, backed-up by statutory provisions ba. A justice of the SC told me that that is a wrong approach. Do not tell us
what is the law. We know more law than you do! When you file a petition, fairness must be on your side! Because when we
deliberate and we agree that your side seems to be the correct one, to decide on your favor is more than just to decide on the other
side. Then, we will even look for the law to support our decision. So, you don't have to tell us what is the law, we will look for it. And
if there is no law, we will make it for you, by interpreting… because we are a court more of equity than of law. But when we look on
the equity, we will look for the law and chances are, there is the law to follow.
CONSTITUTIONAL COURTS vs. STATUTORY COURTS
Q: Distinguish Constitutional Courts from Statutory Courts.

A: CONSTITUTIONAL COURTS are created directly by the Constitution itself, while STATUTORY COURTS are created by
law or by the legislature.
In our country, there is only one Constitutional court – the Supreme Court. Even the Sandiganbayan is not considered
a Constitutional court because it was not created by the Constitution directly. The 1973 Constitution ordered Congress to
create Sandiganbayan. It was law that created Sandiganbayan (PD 1486). There is a provision in the 1973 Constitution which
says, “There should be created a Sandiganbayan.”
The CA, RTC, and the MTC are created by the Congress. Thus, Congress has the power to abolish the said courts but
it can never abolish the Supreme Court.
So there is only one Constitutional court. All the rest, from the CA down and all other special courts, are only creatures of
Congress. In political law, the power to create carries with it the power to abolish. That is why, BP 129 abolished all existing courts
at that time (CFI, CA, Juvenille, etc.) and RTC, IAC, MTC were created. That was the judicial reorganization of 1980 under BP 129.
But there is only court which the Batasan Pambansa could not touch – the Supreme Court.
They have no power to abolish the SC because it is created by the Constitution. Pareho lang tayong tabla eh. Congress is also
created by the Constitution. So if you want to abolish the SC, you must call for a constitutional convention to change the
Constitution.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, you must know that the courts of justice have what we call inherent powers. Just like
the State have certain inherent powers, whether written or not, these things are understood to have them – Police power, power of
taxation, and power of taxation.
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Courts have also inherent powers. Their very existence automatically necessitates the existence of these powers. Now, that
was already asked in the Bar before – what are the inherent powers of the court?
Q: What are the inherent powers of the court?

A: Section 5 Rule 135 of the Rules of Court of the provides:
Section 5. Inherent powers of courts. Every court shall have the power:
(a) to preserve and enforce order in its immediate presence;
(b) to enforce order in proceedings before it, or before a person or persons empowered to conduct a
judicial investigation under its authority;
(c) to compel obedience to its judgments orders, and processes, and to the lawful orders of a judge
out of court, in a case therein;
(d) to control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons
in any manner connected with a case before it, in every manner appertaining thereto;
(e) to compel the attendance of persons to testify in a case pending therein;
(f) to administer or cause to be administered oaths in a case pending therein, and in all. other cases
where it may be necessary in the existence of its powers;
(g) to amend and control its process and orders so as to make them conformable to law and justice;
(h) to authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of
the original, and to restore, and supply deficiencies in its records and proceedings.
There are many powers enumerated. Some of them are common sense. Every court has the power to see to it that everything
of his order is enforced; to compel obedience to his order. Common sense yan. You are inutile if you cannot even enforce your own
judgment! So I've been telling some judges here, eh. Sometimes we talk about this: they say, it seems that I don't have the power
under the Rules of Court. It's beyond my power. I made a decision but I cannot see how was it enforced.
Parang pampalakas-loob ang Rule 135, Section 5 because you can see there the powers that you do not know you have.
These are inherent eh – hindi puwedeng alisin sa iyo iyan. Otherwise, maging inutil ka – I have the power to decide but I do not
know how to enforce my decision. That is a sign of impotence (Charles, pinaringgan ka ni Dean!). As a matter of fact, the next
section (Section 6, Rule 135) tells us how to carry out your judgment. If you do not know how to carry out your judgment because
the law is silent, Section 6 says, look for a way. Hanapan mo ng paraan!
SITUATION: Suppose I have the power to decide and I render a decision. I want to enforce the decision, how do I enforce?
Well, usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to enforce? For example a judge has rendered a decision, and the
law is silent on how to enforce it, do you mean to say that the order is unenforceable because the law is silent?
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into effect – When by law jurisdiction is conferred on a court or a
judicial officer, all auxiliary writs, processes and all other means to carry it into effect maybe employed
by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not
specifically pointed out by law or these rules, any suitable process or mode of proceeding may be
adopted which appears conformable to the spirit of said law or rules.
What Section 6 is trying to say is that when you have the power to decide, you have the power to enforce. And if the law
is silent, you have to think how to do it. Be creative. Provided you conform with the spirit of the rule. So you do not make the order
useless simply because there is no rule. In other words, try to look for a way on how to enforce you judgment. That is part of your
power.
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that I want to emphasize before we leave this subject of court is Section 3 of the Interim Rules.
Question: The court of Davao will issue a writ or a process. Can that writ or process be enforced in Cebu or Manila? Or only in
Davao? Or only in Region IX? Hanggang saan ba ang enforceability ng aking writ or processes? You have to distinguish what kind
of writ or process you are talking about.
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. -

a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction issued
by a regional trial court may be enforced in any part of the region.
b) All other processes whether issued by the RTC or MetTC, MTC, and MTC may be served
anywhere in the Philippines, and, the last three cases, without a certification by the judge of the RTC.
Q: What is the area of enforceability of writs and processes of the courts?

A: Under Section 3 of the Interim Rules, you have to distinguish what kind of writ or process you are talking about:
a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction, it can be enforced
anywhere within the region. So at least, RTC can enforce it within the region and it cannot enforce those writs
outside the region.
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EXAMPLE: If you are illegally detained, you can ask the court to issue a writ of habeas corpus. Now, a person is
detained in Bansalan and the family is here in Davao City. They filed a petition for habeas corpus in Makilala, North
Cotabato. Makilala is in Region 12 and the RTC of Bansalan is part of the 11th judicial region. Thus, the judge in
Makilala cannot issue the writ of habeas corpus due to the fact that Bansalan belongs to the 11th judicial region while
Makilala is in the 12th judicial region. The RTC of Tandag, Surigao is Region 12 and therefore can issue a writ of
habeas corpus to be enforced in Makilala which is hundreds of miles away because they are of the same judicial region.
And yet the RTC of Bansalan cannot issue a writ to be enforced in Makilala, North Cotabato, which is the next town,
because that is not part of their region. The law is very clear: writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction issued by a trial court may be enforced in any part of the region.
b) Section 3 further says, all other writs are enforceable anywhere in the Philippines. Suppose the MTC issues a
warrant for the arrest of the accused in the criminal case, and he fled to Baguio City, such warrant can be
enforced there. This includes summons, writs of execution or (search warrants).
JURISDICTION IN GENERAL
The word JURISDICTION is derived from 2 Latin words: 1.) JURIS – law; 2.) DICO – to speak, or to say. So, in effect, when
you say jurisdiction, literally translated, it means, “I speak by the law.” It means that you are saying “I speak with authority” because
when you invoke the law, then your act is authorized. Even in old times when the representatives of the king or the sovereign will
try to arrest somebody or will try to enter your house, they open up in the name of the law. They will always invoke “in the name of
the law.”
So when you say, “I speak by the law” I will do it in the name of the law. It connotes authority or power. You cannot be wrong.
How can you be wrong if you are doing it in the name of the law? So more or less jurisdiction simply means authority or power. So
more or less that is the whole concept of jurisdiction. It simply means authority or power. That is precisely what jurisdiction is all
about.
JURISDICTION simply means the power of the court to hear try and decide a case. In its complete aspect, jurisdiction
includes not only the powers to hear and decide a case, but also the power to enforce the judgment. (14 Am. Jur. 363-364)
Q: What is the effect if the court has no jurisdiction?

A: If a court has no jurisdiction, it has no power or authority to try a case and that is a concept you already know in Criminal
Procedure. Without jurisdiction, the trial is null and void as well as the judgment.
Let’s go to a criminal case. Can you file an information for murder before the MTC? Or can you file an information for slight
physical injuries before the RTC? There is something wrong there. If a slight physical injury case is filed against you in the RTC,
what will you do? If I’m the lawyer of the accused why will I allow my client to be arraigned and to be tried when everything is null
and void. Kapoy-kapoy lang ako. So I’ll file a motion to quash under Rule 117. That’s the same thing in civil cases. If you file a civil
case before a court that has no jurisdiction, then it can be dismissed for lack of jurisdiction.
JURISDICTION vs. EXERCISE OF JURISDICTION
Now, let us not confuse jurisdiction with certain terms related to it.
Q: Distinguish jurisdiction from exercise of jurisdiction.

A: The authority to decide a case, not the decision rendered, is what makes up jurisdiction. It does not depend upon the
regularity of the exercise of that power or upon the rightfulness of the decision made. Where there is jurisdiction over of the person
and subject matter, the resolution of all other questions arising in the case is but an exercise of jurisdiction. (Herrera vs. Barreto, 25
Phil. 245)
In other words, JURISDICTION is the authority. If I have no authority, I cannot act. And if I have authority, I can act.
Now, if the court has authority, it will try the case and render judgment.
Now, what the court will do later, like try the case and render judgment is merely an EXERCISE OF ITS JURISDICTION.
So the trial and judgment are all products of the exercise of jurisdiction. You cannot talk of exercise without having first the
authority. It is a useless procedure when you say “I will exercise something which I do not have.”
Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction?

A: Definitely, a court acting as such may commit errors or mistakes. That is why the action of the court can be questioned later
in a higher court. A court can commit an error which is either an error of jurisdiction or an error of judgment.
EXAMPLE: A case of murder was filed in the MTC. The accused, Ken Sur, files a motion to quash because MTC has no
jurisdiction over cases of murder. Eh, ‘yong judge iba man ‘yong libro niya, “No, I have jurisdiction.” So the court denied the motion
to quash. Meaning, the judge has decided to assume jurisdiction. So, meaning from the very start mali na. Now what do you call
that? When the court without authority assumes authority over the case that is called ERROR OF JURISDICTION – the
court committed an error of jurisdiction.
EXAMPLE: Suppose the case for murder is filed in the RTC where the court has jurisdiction. So walang mali, everything is
correct. But in the course of the trial, you cannot avoid mistakes being committed like for example, the court misinterpreting the
provision of the RPC saying that this is a requirement, this is not a requirement for the crime. Meaning misapplication or
misinterpretation of the RPC as well as misinterpretation of the rules of evidence – wrong interpretation of the law. And the accused
was convicted but actually tingin mo mali man ito, di ba! Under the law, this elements was not considered or this element was
considered as present. Do you say the decision of the judge is null and void? NO, the judgment is valid kaya lang mali. So, you
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do not say the court committed an error in the exercise of jurisdiction, and that is called an ERROR OF JUDGMENT. And
that was also asked in the bar.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.

1.) When a court acquires jurisdiction over the subject matter, the decision or order on all other questions arising in the
case is but an exercise of jurisdiction; Errors which the court may commit in the exercise of such jurisdiction are
merely ERRORS OF JUDGMENT; whereas,
When a court takes cognizance of a case over the subject matter of which it has no jurisdiction, the court commits an
ERROR OF JURISDICTION.
2.) ERRORS OF JURISDICTION are reviewable by certiorari; whereas,

ERRORS OF JUDGMENT are reviewable by appeal.
Meaning, when a court has no jurisdiction but insists in handling the case, that is a mistake by the trial court. It is called an
error of jurisdiction.
Now, suppose a court has jurisdiction over the case but the decision is wrong – it applied the wrong provision of the law, or
interpretation of evidence. This is not an error of jurisdiction because the court has authority. But in the exercise of its jurisdiction, it
committed several errors. This is now what you call an error of judgment.
Q: What is the use of distinguishing error of jurisdiction from error of judgment?

A: The difference is in the remedy taken. Actually, it is still an error. If it is an error, it can be corrected by a higher court. The
importance, however, as we will see later, is that there is a definite procedure for correcting a mistake and other procedures which
we will know later where the court commits an error of judgment and an error of jurisdiction.
In error of judgment, if the judgment is wrong, it is a valid judgment. Your remedy is to APPEAL the wrong judgment
to a higher court. But when a court commits an error of jurisdiction, where it insists on handling a case when it has no
authority, I can question its actuation not necessarily by appeal, but by resorting to “extraordinary remedies,” which refer
to the remedy of CERTIORARI or PROHIBITION. (Araneta vs. Commonwealth Ins. Co., L-11584, April 28, 1958; Nocon vs.
Geronimo, 101 Phil. 735)
The principle came out in the bar. This error should have been raised on ordinary appeal, not by certiorari because certiorari is
only confined to correcting errors of jurisdiction or grave abuse of discretion. The governing rule is that the remedy of certiorari is
not available when the remedy of appeal is available. And when the remedy of appeal is lost, you cannot revive it by resorting to
certiorari because certiorari is not a substitute for the lost remedy of appeal.
So, the remedies given by the law are different. These are basic terms which you should remember.
Q: In whom is jurisdiction is vested?

A: Jurisdiction is vested with the court, not in the judge. A court may have several branches, and each is not a court
distinct and separate from the others. So, when a case is filed before a branch, the trial may be had or proceedings may continue
before another branch or judge. (Tagumpay vs. Moscoso, L-14723, May 29, 1959)
EXAMPLE: The RTC of Davao is composed of several branches – eleven to twelve judges. But technically, there is only one
court – the RTC of Davao. We do not consider branches as separate courts.
Q: Now, if the case is filed and is assigned to Branch 8, can that case later be transferred and continued in Branch 9?
A: Ah YES, because you never leave the same court. You are still in the same court. This is because jurisdiction is not
with the judge. It is with the court itself.
TYPES OF JURISDICTION:
Types of jurisdiction:
1.) General Jurisdiction and Special or Limited Jurisdiction;
2.) Original Jurisdiction and Appellate Jurisdiction; and
3.) Exclusive Jurisdiction and Concurrent or Coordinate Jurisdiction;
1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION
a.) GENERAL JURISDICTION is the authority of the court to hear and determine all actions and suits, whether civil,
criminal, administrative, real, personal or mixed. It is very broad – to hear and try practically all types of cases. (14
Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
b.) SPECIAL or LIMITED JURISDICTION is the authority of the court to hear and determine particular cases only. Its
power is limited. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
So, the court is authorized to hear and try certain specified cases. Limitado pa ang power niya. And when
you go over the Judiciary Act, studying the jurisdiction of the different courts, in civil cases you will see that the
jurisdiction of some courts like the RTC, masyadong far ranging. It covers many things whereas the jurisdiction
of the MTC, makipot. Very narrow bah because it is a court of limited or special jurisdiction.
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2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
a.) ORIGINAL JURISDICTION is the power of the court to take cognizance of a case at its inception or commencement.
(Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) One can file the case there for the first time.
b.) APPELLATE JURISDICTION is the power vested in a superior court to review and revise the judicial action of a
lower court. (Ballentine’s Law Dict., 2nd Ed., pp. 91 and 917) If one court has the power to correct the decision of a
lower court, the power of this court is appellate. This is because it commenced somewhere else and it is just
reviewing the decision of the said lower court.
EXAMPLE: Maya Quitain will file a civil case in the RTC and that court will take cognizance and try it. You
are invoking the original jurisdiction of the RTC. After trial, Maya lost the case, so Maya decided to appeal the
decision of the RTC to the CA. The case is now there. It is now in the CA and you are now invoking its
appellate jurisdiction.
3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION
a.) EXCLUSIVE JURISDICTION is that possessed by a court to the exclusion of all others.
Q: Sugar JJ filed a collection case against John Vera, for an unpaid loan of P5,000. The judiciary law says,
if you file a civil case to collect an unpaid loan below P200,000 300k and 400k in MM, you should file it with the
MTC. Can Sugar JJ file it in the RTC?
A: NO. Therefore the jurisdiction of the MTC is EXCLUSIVE. It does not share its power with other courts.
b.) CONCURRENT or COORDINATE JURISDICTION is that possessed by the court together with another or other
courts over the same subject matter, the court obtaining jurisdiction first retaining it to the exclusion of the
others, but the choice of court is lodged in those persons duly authorized to file the action. (Villanueva vs. Ortiz, 58
O.G. 1318, Feb. 12, 1962)
Example: Thaddeus Tangkad wants to file a case or petition in court. Then, he looks at the law and the law
says that you can file it in this court or, kung ayaw mo diyan, puwede din dito, diyan or doon – Thaddeus
Tangkad can file it in this court or in other courts. Therefore, he has the right to choose where to file. So if
Thaddeus files it in court #2, and it assumes now jurisdiction, out na ang court #1 and court #3. If he files it in
court #3, out na yong #1 and #2. Now this is what you call CONCURRENT jurisdiction because you can file the
case in two courts or more at your choice.
Now, last time we were classifying courts and you learned that the SC is meron palang original jurisdiction.
Ito palang CA also has original jurisdiction. Ang RTC obviously is more of an original court than an appellate
court.
Q: Are there certain types of cases or petitions where I can file it directly with the SC or file with the CA or
file it with the RTC?
A: YES and the best example is a petition for HABEAS CORPUS. The SC, CA and RTC share
concurrent jurisdiction to entertain petitions for habeas corpus. Makapili ka. I-file mo SC, puwede. Kung
gusto mo sa CA, puwede din. Kung i–file mo sa RTC, puwede. In effect, these are the instances when the SC,
CA and RTC exercise concurrent jurisdiction.
ELEMENTS OF JURISDICTION IN CIVIL CASES
In your study of criminal procedure where you also studied the law on jurisdiction, there are also some elements of jurisdiction
in criminal cases. Otherwise, the proceeding will be illegal. Jurisdiction over the subject matter; Jurisdiction over the person of the
accused; and the third is territorial jurisdiction, i.e. the case should be filed in the place where the crime was committed. In civil
cases meron din iyong counterpart.
Q: What are the elements of jurisdiction in civil cases?

A: The following: SPRI
a.) Jurisdiction over the subject matter ;
b.) Jurisdiction over the person of the parties to the case;
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
Q: Now, what happens if in a particular case one of these is missing?

A: The proceedings become questionable. The proceedings become void. The judgment is not binding. That is the effect of
lack of jurisdiction. The proceedings are tainted with illegality and irregularity. Alright, let’s go over them one by one.
A. JURISDICTION OVER THE SUBJECT MATTER
Q: Define jurisdiction over the subject matter.

A: Jurisdiction over the subject matter is the power of the court to hear and determine cases of the general class to
which the proceedings in question belongs. (Banco Español-Filipino vs. Palanca, 37 Phil. 291)
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In other words, it is the jurisdiction over the nature of the action. Now, you know already the various types of civil
cases such as actions for nullity of marriage, action publiciana, action reivindicatoria, etc. This is what we call the
NATURE OF THE ACTION.
Now, if the nature of the subject matter of the action, e.g. annulment of marriage, where will you file it? It should not be filed in
the wrong court or else it will be dismissed. The counterpart of that in Criminal law is e.g. offenses punishable by death penalty
cannot be tried with the MTC. Annulment cases should be filed in the RTC otherwise it will be dismissed for lack of jurisdiction
over the subject matter.
Q: How is jurisdiction over the subject matter acquired or conferred?

A: Jurisdiction over the subject matter is conferred by law and is never acquired by consent or submission of the
parties or by their laches. This is a matter of legislative enactment which none but the legislature can change. (MRR Co. vs Atty.
Gen. 20 Phil. 523; Otibar vs. Vinson, L-18023, May 30, 1962) It cannot be acquired by an agreement between the parties, waiver,
failure to object (silence).
Q: Now, suppose I want to file a case against you and under the law that should be filed in the RTC. But both of us believe that
the judges of the MTC like Judge Cañete knows more, he is more competent than the other judge there. “Maganda siguro dito na
lang tayo sa MTC.” “O sige, we sign an agreement, magpirmahan tayo that we will file the case by agreement in the MTC.” By
agreement, doon sa MTC natin i-file. Did the MTC acquire jurisdiction over the case because the parties agreed?
A: NO, agreements between parties cannot change the law. Jurisdiction is conferred by law, not by agreements of the
parties. Jurisdiction over the subject matter cannot be agreed upon. It is acquired by or conferred to the court by law –
either the Constitution or the Judiciary Law. The parties cannot agree to have the case submitted to another court.
Q: Now, suppose I will file a case against you in a wrong court. Ikaw naman hindi ka kumibo. Actually what you should do there
is file a motion to dismiss (or in criminal cases a motion to quash.) But hindi ka nagkibo “Sige lang. I will not complain.” So is it
okey? Since you did not object, you did not file a motion to dismiss, you did not file a motion to quash, did the ‘wrong’ court
acquired jurisdiction over the case?
A: NO. Jurisdiction cannot be conferred by silence of the parties or by waiver. Estoppel or waiver or silence or failure
to object cannot vest jurisdiction in the wrong court because jurisdiction over the subject matter is conferred by law. And
when the court has no jurisdiction, the court by itself has the power to dismiss, “Why will I burden myself for trying a case,
when I have no jurisdiction?”
The ONLY exception is when there is estoppel by laches, as laid down in tile TIJAM vs. SIBONGHANOY (April 15,
1968). The issue of jurisdiction was not questioned for an unreasonable length of time. BUT the rule is, it can be raised at
any stage of the proceeding even for the first time on appeal. And even the parties may not raise it, the court motu propio
has the authority to dismiss it.
Q: How is jurisdiction over the subject matter determined?

A: It is determined by the allegations of the complaint. It does not depend upon the pleas or defenses of the defendant
in his answer or motion to dismiss. (Cardenas vs. Camus, L-19191, July 30, 1962; Edward J. Nell Co. vs. Cubacub, L-20842,
June 23, 1965; Serrano vs. Muñoz Motors, L-25547, Nov. 27, 1967)
B. JURISDICTION OVER THE PERSON
Q: Define jurisdiction over the person.

A: Jurisdiction over the person is the power to render a personal judgment through the service of process or by
voluntary appearance of a party during the progress of a cause. (Banco Español-Filipino vs. Palanca, 37 Phil. 291)
Q: In criminal cases, how does the court acquire jurisdiction over the person of the accused?
A: By having him (1) arrested; (2) by service of the warrant of arrest; or (3) by his voluntary surrender.
Q: Even if he is not arrested, can the court try an accused without the accused being arrested?
A: Of course not, because the court has not acquired jurisdiction over his person. Arestuhin mo muna. Then puwede siyang
mag-bail kung gusto niya. After na-arrest, naglayas, nagsibat? Bahala ka i-try in absentia. There will be a valid decision because
the court has already acquired jurisdiction. Of course we cannot enforce the decision until we caught him. Pero pagnahuli, ka
diretso ka na sa prisuhan. You say, “I was not able to give my side. I was not able to confront and cross-examine the witness
against me.” Eh, bakit ka naglayas? Pasensiya ka! That’s the concept of trial in absentia. But for trial in absentia to proceed in
criminal cases, you must first arrest him. You cannot try him without being arrested. You must arrest him and arraign him first. The
same thing in civil cases. It must be that the court must acquire jurisdiction over this person.
Normally, when we say jurisdiction over the parties, we are referring to the PLAINTIFF – the one suing, and the DEFENDAN'T
– the one being sued. For the decision to be valid, the court must obtain jurisdiction over the person of the plaintiff and the
defendant. Otherwise, the decision will not bind the parties over whom the court has not acquired jurisdiction.
That is why jurisdiction over the parties is the power of the court to render a personal judgment which will bind the parties to
the case. What is the use of rendering a decision if the parties are not bound? It must have effect.
Q: How does the court acquire jurisdiction over the plaintiff?

A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing his
complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523)
Q: How does the court acquire jurisdiction over the defendant?

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A: Jurisdiction over the person of the defendant is acquired:
1.) upon service on him of coercive process in the manner provided by law; or
2.) by his voluntary submission to the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523)
First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS

IN THE MANNER PROVIDED BY LAW
The first instance when a court acquires jurisdiction over the person of the defendant is through a service upon him
of the appropriate court process which in civil law is called service of summons. This is the counterpart of warrant of arrest in
criminal procedure.
So if the defendant was never served with summons, any judgment rendered by the court will not bind him. Even if he is the
loser in the case, judgment cannot be enforced because the court did not acquire jurisdiction over his person.
The same principle holds true in criminal cases. A court cannot try and convict an accused over whose person the court never
acquired jurisdiction. In criminal cases, the court acquires jurisdiction over the person through the issuance of a warrant of arrest.
The warrant cannot have its effect even if it was issued, if the same had not been served, i.e. by effecting the arrest of the accused
by virtue of a warrant.
Q: In criminal cases, how can the warrant of arrest be effected?

A: Once an information has been filed in court, the court issues a warrant. Then, the arresting officer will arrest the accused.
The court acquires jurisdiction by ENFORCEMENT OF SERVICE for effective arrest of the accused pursuant to the warrant of
arrest.
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE

JURISDICTION OF THE COURT
Another way to acquire jurisdiction over the person of the accused even if the accused is not arrested is through VOLUNTARY
SURRENDER. Since there is no more need for the warrant, the court will recall the same. In civil cases, it is the voluntary
submission of the defendant to the jurisdiction of the court.
Q: Defendant was served with summons improperly or irregularly therefore, he could question the jurisdiction of the court over
his person. But instead, he did not question the jurisdiction of the court despite the defective service of court process. Did the court
acquire jurisdiction over the person of the defendant?
A: YES, because jurisdiction over the person can be acquired by:
a.) waiver;
b.) consent; or
c.) lack of objection by the defendant. (MRR Co. vs. Atty. Gen. 20 Phil. 523)
This is unlike the jurisdiction over subject matter wherein the case could be dismissed upon filing in the wrong court. The SC
said that when you remained silent despite the defects, your silence has cured the defect. Meaning, the jurisdiction over your
person was acquired by waiver, or consent, or lack of objection.
Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the defendant?
A: Lack of jurisdiction over the person of the defendant may be cured by waiver, consent, silence or failure to object,
whereas jurisdiction over the subject matter cannot be cured by failure to object or by silence, waiver or consent. (MRR
Co. vs. Atty. Gen. 20 Phil. 523)
C. JURISDICTION OVER THE RES
RES is the Latin word for “thing.”
Q: Define jurisdiction over the res.

A: Jurisdiction over the res is that acquired by the court over the property or the thing in contest, and is obtained by
seizure under legal process of the court whereby it is held to abide such order as the court may make. (Banco Español-
Filipino vs. Palanca, 37 Phil. 291)
Q: A and B quarreled over a piece of land. What is the res of the case?
A: The piece of land is the res of the case.
Q: However, res may not be tangible. For example, Weng Kolotski is an illegitimate child. She wants to be acknowledged by
her father. Thus, she filed a case against her father for compulsory recognition. What is the res?
A: The res is the status of the child because it is the object of the litigation.
Q: Why is jurisdiction over the res important?

A: Sometimes it is a substitute for jurisdiction over the person. There are instances when the court cannot acquire
jurisdiction over the defendant like when he is abroad. But if the court acquires jurisdiction over the res, the case may go
on. Even if the court cannot acquire jurisdiction over the person of the defendant, jurisdiction over the res becomes a
substitute over the person.
EXAMPLE: Even if the defendant is a non-resident who is out of the country and the object of litigation is here in the
Philippines, then acquisition of jurisdiction over the res confers jurisdiction to the court even if the defendant is abroad.
The res here is where the judgement can be enforced.
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That is why in Rule 14, there is an extra-territorial service of summons. But based on a SC ruling, the extra-territorial service
of summons is not for the purpose of acquiring jurisdiction over the person of the defendant but is merely how to comply
with the due process clause.
D. JURISDICTION OVER THE ISSUES
Q: Define jurisdiction over the issues.

A: Jurisdiction over the issue is the authority to try and decide the issues raised by the pleadings of the parties.
(Reyes vs. Diaz, 73 Phil. 484)
Q: What are pleadings?

A: They are governed by Rule 6.
Rule 6, Section 1 - Pleadings are the written allegation of the parties of their respective claims and
defenses submitted to the court for trial and judgment.
In a civil case, the parties before the trial file in court pleadings. That is where you state your position.
EXAMPLE: Francis “Paloy” Ampig will sue you to collect a loan. So Paloy will file a complaint in court. That is a pleading.
Then you have to answer Paloy’s complaint in court. You say that you do not owe him anything because you already paid him. So
you prepare your answer in writing in court and that is also called a pleading. Based on what Paloy said in his complaint and your
answer, we will now know what they are quarreling about.
For example: Paloy says you borrowed money, you never paid him. Now according to your answer, “No. I already
paid him.”
Q: Now what is the issue?

A: The issue is, whether the obligation still existing or is it already extinguished by payment. So that is the issue. So that is
where we will know what we will try in this case.
Q: Suppose after the trial, the court said that the obligation has been extinguished by condonation. Now where did the court
get that? Your defense is payment, and the decision now it was extinguished by condonation. Is the decision correct?
A: The decision is WRONG because the parties did not raise condonation as the issue. The case was decided on an
issue that was not even raised by the parties. So the court never acquired jurisdiction over the issue. In other words, the
court should only rule on what the parties raised in their pleadings. That is what we call jurisdiction over the issue. The
court should only rule on what the parties claim.
So, the court is supposed to rule on the issue raised and not those not raised by the parties.
Take note that jurisdiction over the issues in civil cases is acquired after defendant has filed an answer. In criminal
cases, jurisdiction over the issues is acquired upon filing of a complaint. For a decision to be effective, the court must ac quire the
jurisdiction over the subject matter, the person, the res in case the defendant is not around, and the last is jurisdiction over the
issue.
Q: Distinguish jurisdiction over the subject matter and jurisdiction over the issues.
1.) Jurisdiction over the subject matter is the power to hear and try a particular case, while
Jurisdiction over the issues is the power of the court to resolve legal questions involved in the case;
2.) Jurisdiction over the subject matter is acquired upon filing of the complaint, while
Jurisdiction over the issues of the case is acquired upon filing of the answer which joins the issues involve in the
case.
EXAMPLE: I am the plaintiff, I will file a case in court to collect an unpaid loan. From the moment I file the case,
the court has acquired jurisdiction over the subject matter. Now, you are summoned. File ka naman ng sagot mo,
“Wala akong utang, bayad na.” Then the court has now acquired jurisdiction over the issue. One is acquired upon
filing of the complaint and the other one is acquired after the filing of the answer by the defendant.
HIERARCHY OF THE COURTS
In the 1996 BAR: One of the questions in Remedial Law was: State the hierarchy of the Courts in the Philippines.
a.) Regular courts
SUPREME COURT
COURT OF APPEALS
REGIONAL TRIAL COURTS
MetTC MTCC MTC MCTC
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Note:
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Digos, Panabo
MCTC- circuitized areas because it is impractical and expensive to maintain one MTC in every municipalities.
b.) Special courts
There are also Special Courts which are also considered part of the judiciary. These are:
1. Court of Tax Appeals (RA 1125)
2. Sandiganbayan (PD 1486 as amended)
3. Sharia District Courts and the Sharia Circuit Courts (PD 1083 , also known as the Code of Muslim Personal
Law);
4. Family Courts
We are concerned only of the jurisdiction of the REGULAR COURTS.
JURISDICTION OF THE SUPREME COURT
The highest court of the land is the Supreme Court. It was not affected by the Judiciary Law (BP 129) which reorganized the
judiciary in 1983. Being a constitutional court, its jurisdiction is found in the fundamental law itself. The SC is both an original and
appellate court.
a.) ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5 , paragraph 1 of the 1987 Constitution enumerates the ORIGINAL jurisdiction of the SC:
Section 5. The Supreme Court shall have the following powers:
[1] Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, over petitions for certiorari, prohibition, mandamus, quo warranto , and habeas corpus.
Now, it is still premature for us to discuss now what do you mean by certiorari, prohibition, mandamus, quo warranto because
that is discussed exhaustively in the study of Special Civil Actions. But you are more acquainted with habeas corpus. It is a special
proceeding. If you are illegally detained, you can file a petition for habeas corpus directly before the SC because it has original
jurisdiction.
So that is the first provision in the Constitution dealing with the jurisdiction of the SC. However, the SC is not only an original
court, it is also an appellate court.
b.) APPELLATE JURISDICTION OF THE SUPREME COURT
The appellate jurisdiction is found in Section 5, Paragraph (2), Article VIII 1987 Constitution:
2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
c) All cases in which the jurisdiction of any lower court is in issue.
d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
e) All cases in which an error or question of law is involved.
a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
So if the RTC in a certain civil case declares the law as unconstitutional since it has the power to do so, the same has
to be appealed directly to the SC. It cannot pass through the CA because the SC has exclusive appellate jurisdiction
regarding the matter.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
This is related to the legality of tax cases – whether a tax or tax penalty is legal or not. However, whatever decision
the lower court gives, it has to be appealed directly to the SC.
(c) All cases in which the jurisdiction of any lower court is in issue
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EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no jurisdiction over a case. The aggrieved party, it if wants to
raise that joint, it must go to the SC. When the issue is purely jurisdiction, the SC shall have exclusive appellate jurisdiction.
Now, when the law says all cases in which the jurisdiction of any lower court is in issue, the cases involve 100% pure
jurisdiction as an issue. There are no factual issues involved. If the issue of jurisdiction is mixed with a factual issue, the
appeal should be in the CA without prejudice to the filing of the same with the SC later. So, this is 100% issue of
jurisdiction. No factual issue is involved.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
We will not dwell on this. This is more on Criminal Procedure. We are only interested in civil cases.
(e) All cases in which only an error or question of law is involved.
Take note that ONLY an error or question of law is involved. So, if there is a mixed question of law and a question of
fact, appeal must be filed with the CA. You only go to the SC if the appeal is 100% legal. That applies to both criminal and
civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
The best example of questions of law where the issues are purely legal are classroom problems. The question is:
Who is right? A or B? Reasons. You apply the law. But as to what happened, the facts are already given. Based on
these facts who is correct? Yun ang tinatawag na question of law.
Pero if the facts are still vague, that is not a question of law, that is a question of fact. Example: Lyle filed a case against
Aivy to collect an unpaid loan. According to Lyle, Aivy borrowed money from him and it’s already overdue and she has not paid.
Aivy admits she borrowed money from Lyle but says she has already paid. Now, the question in the exam: Who is telling the truth?
My golly! How can you answer the question who is telling the truth? In other words, I have to hear them. Yun ang tinatawag
na question of fact – what happened, pinag-aawayan pa. When you go to SC in civil cases, you are not there to ask the SC to
determine who is telling the truth. You are asking who is right under the law.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE

JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
“Each Commission shall decide by a majority vote x x x. Unless otherwise provided by this Constitution or by
law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.”
The COMELEC, COA and the CSC act also as courts of justice. They have powers to decide certain cases within their
jurisdiction. Election cases, sa COMELEC man yan ba. Claims against the government – COA. Or disallowance on disbursement
by government officers or removal from government service – CSC.
Now, according to Section 7, any decision, order or ruling of these commissions may be brought to the SC on certiorari, etc.
So you will see that the decisions of the constitutional commissions are reviewable by the SC.
However, Congress amended the Judiciary Law particularly Section 9 on the jurisdiction of the CA by now making
decisions of the CSC no longer appealable to the SC directly but appealable to the CA. So based on the present law, out
of the three constitutional commissions, the only ones whose decisions are appealable directly to the SC are those of the
COMELEC and the COA
When that law was passed where the decisions of the CSC are appealable to the CA, first I was stunned. I said there is
something queer here because the CSC is a constitutional body and the CA is not. So why will a decision of a constitutional body
be reviewable by a non-constitutional body? And I said parang it might violate the Constitution. Under the Constitution, decisions
of the constitutional commissions are appealable to the SC. Does Congress have the power to change that by making it
appealable to the CA?
So I had to look at the provision again to find out whether this is possible. But pwede naman pala. You look at the provision,
“Unless otherwise provided by this Constitution or by law..” Meaning, the decisions are appealable to the SC unless otherwise
provided by law. The Constitution itself gave Congress the power to change it. So there is no problem.
Article VII, Section 4, last paragraph, 1987 Constitution:
“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns,
and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.”
If there’s an electoral protest for the President and Vice-President, the matter is not to be decided by the COMELEC but by the
SC. This is what is called as the SC acting as the Presidential Electoral Tribunal. The only case so far was that filed by
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Defensor-Santiago but which was dismissed, the SC ruled that when she ran for the Senate, she has already technically
abandoned her interest for the Presidency.
Article VII, Section 18 (3), 1987 Constitution – Commander-in-Chief Clause
“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or
extension thereof, and must promulgate its decision thereon within thirty days from its filing.”
So, the SC, in an appropriate proceeding filed by any citizen review the sufficiency of the factual basis of the proclamation of
martial law. Meaning, the SC can inquire into the basis on why martial law is declared.
Which therefore abandons the Political Question doctrine laid down in many earlier cases that it is the prerogative of the
President to determination, at his discretion, the sufficiency of the factual basis of the proclamation of martial law or the suspension
of the privilege of the writ or the extension thereof.
So this particular provision of the Constitution came about in 1987 to check the supposed excesses during the time of Marcos,
though it came too late. It may well take another 100 years to produce another Marcos.
Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts
but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.
Congress may change or even remove the jurisdiction of the RTC or CA. The law can change them because
jurisdiction over the subject matter is conferred by law. However, Congress does not have the power to lessen or deprive
the Supreme Court of its jurisdiction under Section 5, Article VIII.
However Article VI, Section 30 states:
“No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.”
Thus , Congress cannot lessen but it can increase the SC’s powers and jurisdiction, PROVIDED it is with the latter's
advice and concurrence.
The provision under the Ombudsman Law (RA) with regards to the Ombudsman’s disciplining power appealable directly to the
SC, was declared unconstitutional by the SC because it increased the SC’s jurisdiction and was passed without the advise and
concurrence of the SC.
So more or less, these are the scattered provisions of the Constitution dealing with the SC’s jurisdiction.
[Note: PLEASE REFER TO THE HANDOUT HEREIN ATTACHED FOR A COMPLETE OUTLINE OF THE SUPREME
COURT'S JURISDICTION.]
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions for the issuance of writs of certiorari, prohibition and
mandamus as defined in Rule 65 against the following: the CA, the COMELEC, COA, Sandiganbayan, Central Board of
Assessment Appeals, NLRC or the Secretary of Labor under the Labor Code.
The cases where its original jurisdiction is CONCURRENT with the CA are likewise petitions for the issuance of writs of
certiorari, prohibition, mandamus against the following: the SEC, the CSC, the different boards, tribunals or agencies which
replaced the old Public Service Commission (e.g. LTFRB). Also, issuance of writ of certiorari against the RTC and other
quasi-judicial agencies, courts, instrumentalities and commissions.
CONCURRENT with the RTC are those actions affecting ambassadors and other public ministers and consuls. This is based
on the Judiciary Law and the Constitution.
CONCURRENT with the CA and RTC are those involving habeas corpus, quo warranto, and writs of certiorari, prohibition, and
mandamus against inferior courts and bodies. For example, a petition for mandamus against the MTC of Davao City can be filed
with the SC, CA, or RTC although the policy of the Supreme Court is that it should be filed with the RTC based on the hierarchy of
the courts. (Vergara vs. Suelto, 156 SCRA 758)
Finally, with the advent of the new law (RA 8249), there is now a CONCURRENCE between the SC and the Sandiganbayan in
so far as petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other ancillary writs in aid of the
Sandiganbayan's APPELLATE JURISDICTION. Amended by rule 65 Sandiganbayan whether or not in its exercise of its
appellate jurisdiction
b.) APPELLATE JURISDICTION OF THE SUPREME COURT:
1.) Automatic review of death penalty. So when the RTC imposes the death penalty, whether the accused appeals or not, the
case will be elevated to the SC;
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2.) Ordinary appeal from the RTC direct to the SC. This only applies to criminal cases where the penalty of reclusion perpetua
or life imprisonment is imposed or other offenses which arise out of the same occurrence or committed by the accused on
the same occasion;
3.) Appeal by Certiorari under Rule 45. When it comes to appeal by Certiorari, there are three types:
3.1.) From the CA or all appeals from the CA are certiorari which is different from the certiorari in Rule 65.
3.2.) From the RTC direct to the SC. Now, this is not ordinary appeal because this only applies to criminal cases. In civil
cases, if you want to go directly to the SC, you can do so by appeal by certiorari, provided that the following
conditions are met:
a.) If no question of fact is involved and the case involves the constitutionality or legality validity of any tax,
impost, etc., or jurisdiction of the lower courts is in issue ( Article VIII, section 5 par.(2)
b.) only an error or question of law involved (supra);
c.) a judgment rendered upon an award under the Arbitration Law (RA 876)
d.) appeal on pure questions of law in cases of appeal to the RTC from inferior courts. So, from the MTC to
the RTC – ordinary appeal. From the RTC, on pure questions of law, to the SC – appeal by certiorari.
3.3.) Appeal from other courts or administrative agencies liked appeal from the Sandiganbayan to the SC, from the Central
Board of Assessment Appeal or from the Ombudsman.
JURISDICTION OF THE COURT OF APPEALS
BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the Judiciary Reorganization Act of 1980. BP 129 was passed in 1983
by the former Batasang Pambansa which practically abolished all the regular courts at that time, and also with the special courts
except the SC which cannot be abolished by Congress. What was also spared was the Court of Tax Appeals which was likewise
not affected.
In lieu of these, other courts were created. The constitutionality of BP 129 was challenged as violative of the security of tenure
of the judges. But its constitutionality was sustained in the case of DELA LLANA vs. ALBA, 112 SCRA 294.
The CA is composed of over 50 justices but I think new divisions were created. They decide cases by a division of three.
Before BP 129, the court was also called the “Court of Appeals,” the counterpart of the present CA, though the CA now is
different and more powerful than the old one. BP 129 abolished the old CA and created another court which was called the
INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the EDSA Revolution, President Aquino, pursuant to her law-making
powers, issued E.O. #33 amending the Judiciary Law and changed the name of IAC to CA (referring to the jurisdiction of the IAC).
Many people thought that the CA of President Aquino under E.O. #33 is actually the IAC under another name only, pinalitan
lang ng pangalan. But in a case decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
210 SCRA 589 [1992]
HELD: E.O. # 33 created an entirely new court. Therefore, the IAC existed only for three years – from 1983 to
1986. Hence, President Aquino not only re-baptized or re-christened the IAC but she actually abolished the IAC and
created a new CA.
“It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the
Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was created in the
wake of the massive reorganization launched by the revolutionary government of Corazon C. Aquino in the aftermath
of the people power (EDSA) revolution in 1986.”
So, in effect, Section 9 which defines the second highest court of the land has been amended twice. First, by E.O. #33. And
then on February 1995, it was amended again by RA 7902, known as “The Act expanding the jurisdiction of the CA.”
The essential features of the CA’s jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
[1] Section 9, paragraph 1, BP 129
Section 9 – Jurisdiction – The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes whether or not in aid of its appellate jurisdiction.
Does the language sound familiar to you? “Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, quo warranto.” Did you hear that before?
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Under the original jurisdiction of the Supreme Court the language is the same, eh. Now, we take the same provision for the
second time. So, if I would like to file a petition for habeas corpus, where will I file it?
Q: If I file it with the Supreme Court, is it allowed?
A: Yes, because the Constitution says so.
Q: But suppose I will instead file it with the CA, is it also allowed?
A: Yes, under Section 9, paragraph 1.
So what is the conclusion? The SC and the CA exercises concurrent jurisdiction to entertain petitions to issue writs of
mandamus, prohibition, certiorari, habeas corpus, and quo warranto.
Alright, so I will go to a specific SITUATION: I’m a clever lawyer, and I will file a petition for quo warranto. In order to be sure I
will get what I want, I will prepare two identical petitions. Since concurrent man sila, I will file before the SC and the other one with
the CA. Sigurista ba – kung madisgrasya sa isa, meron pang isa.
Q: Can I do that? Meaning, I will file one petition before the SC, I will file another petition, pareho-pareho – I will invoke the
jurisdiction of the two courts at the same time. Now, suppose I will do that, what do you think will happen to me?
A: The consequence is found in Section 17 of the Interim Rules. That’s why, as I said, the Interim Rules are still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No petition for certiorari, mandamus,
prohibition, habeas corpus or quo warranto may be filed in the IAC if another similar petition has been
filed or is still pending in the SC. Nor may such petition be filed in the SC if a similar petition has been
filed or is still pending in the IAC, unless it is to review the action taken by the IAC on the petition filed
with it. A violation of this rule shall constitute contempt of court and shall be a cause for the summary
dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or
party concerned.
So, eto, you believe you are a clever lawyer, so you will file two identical petitions. Do you know what will happen to you
according to the provision? Once the CA learns that you filed an identical petition with the SC, the CA will dismiss the petition
before it. And once the SC also learns that you also filed before the CA, the SC will also dismiss the one you filed before it. So you
end up with nothing because both courts will dismiss.
And not only that, both courts will declare you in contempt of court and if you are a lawyer, disciplinary actions may be tak en
against you. That is what you will get if you think you are clever. It turns out that you placed yourself in a frying pan. In other
words, this is what is called abhorrent, contemptible practice of FORUM SHOPPING. Have you heard that term before – forum
shopping? ‘Yun bang sabay-sabay kang mag-file ng case. You will invoke the jurisdiction of two or more courts simultaneously.
That is an act of contempt of court (Rule 7, Section 5).
EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS
(2) “Exclusive” jurisdiction over actions for annulment of judgments of Regional Trial Courts;
Yes, you will notice again that this type of action belongs to the original jurisdiction of the CA. But there is something that you
will notice. In paragraph 2, it says there – “exclusive jurisdiction.” In paragraph 1, the word “exclusive” is not present. As already
explained earlier in paragraph 1, the jurisdiction of the CA is concurrent with the SC. In paragraph 2, the original jurisdiction of the
CA is exclusive with the CA. You can only file this type of action before the CA such as an action for annulment of judgments of
the RTC’s.
Q: Actions for annulment of judgments of RTC’s, an action to annul a judgment of the RTC. Now, is this similar to an appeal?
Is this the same as appealing the decision of the RTC to the CA?
A: No, because in appeal, you are invoking the appellate jurisdiction of the CA. Here in paragraph 2, it is not appellate
jurisdiction. Original ito, eh. Meaning, you are filing an action before the CA for the first time. And the nature of the action is to
annul a judgment of the RTC.
Well, you are familiar with the Civil Law about actions of annulment of contracts. So, if there is such a case of annulment of
contract, there is also such a case as annulment of judgments of the RTC’s and you come to wonder:
Q: What would be the ground? What will be the ground to annul the judgment of the RTC and how do you distinguish it from
an appeal?
A: The present 1997 Civil Procedure now contains a specific rule on this. Before 1997, the guidelines on annulment of
judgment of the RTC’s are SC decisions. There is no specific rule, ba. But ‘yung guidelines are based on jurisprudence.
Right now, starting July 1, 1997, there is now a specific rule on annulment of judgments of RTC. And that is Rule 47. That is
an entirely new rule. So that is enacted precisely to implement Section 9 Paragraph 2. Of course, we will discuss that rule very
much later.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Now we’ll go the 3rd. Paragraph 3 is the most popular jurisdiction of the CA. Appellate, eh. This is what is often involved.
Most of the cases which land in the CA are appealed cases. Alright, so paragraph 3 defines the appellate jurisdiction of the CA.
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(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards
of the RTCs and quasi-judicial agencies, instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Social Security Commission, the Employees Compensation
Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of
the SC in accordance with the Constitution, the Labor Code of the Philippines under PD 442, as
amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4)
of the fourth paragraph of Sec. 17 of the Judiciary Act of 1948.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now, if you will analyze paragraph 3, you will notice that the
CA is a powerful court because it has exclusive appellate jurisdiction over all final judgments, decisions, resolution, orders or
awards of RTC’s. So as a general rule, if the RTC, anywhere in the country renders a decision and you want to appeal, whether
civil or criminal, chances are it will go the to CA. It is a powerful court, eh – all RTC’s eh – exclusive pa.
And not only RTC’s. The law says “and quasi-judicial agencies, instrumentalities, boards or commissions…” Not only
decisions of the RTC but quasi-judicial, this is what you call administrative bodies. Administrative bodies are not actually
part of the executive branch but they act just like courts of justice. They can decide cases and there are hundreds of administrative
agencies in the Philippines. And therefore, if you lost a case before anyone of these bodies, or tribunals, you appeal the decision
not with the SC, but to the CA.
The amendments by RA 7902 is even more specific by adding this phrase, “including the SEC, SSS, the Employees
Compensation commission and the Civil Service Commission (CSC).” That is the addition. Gi-klaro ba.
CSC – this is what I’ve notice before…I told you before. Before this law was passed, under the Constitution, decisions of the
CSC are appealed to the SC together with the COMELEC and the COA. But with the passage of RA 7902, the appeal from the
CSC has been transferred to the CA, so what is left behind in the Constitution is the COMELEC and the COA na lang.
For a while there I thought that this was wrong because the CSC is a constitutional body and its decisions shall be appealed to
a non-constitutional body like the CA. So, how do we reconcile this with the Constitution, Article IX-A, Section 7, where it states that
the ruling of each commission shall be reviewed by the SC? However, the same provision states that: “Unless otherwise provided
by this Constitution or by law.” And the law is the RA 7902. So, this is how we reconcile it, in other words, the Constitution and the
law can provide for a different mode.
Obviously, the purpose of this statute is to unburden the SC with so many cases. At least transfer some of the workload to the
CA. That is the obvious purpose.
The phrase “except those falling within the appellate jurisdiction of the Supreme Court…”means all cases should be appealed
to the CA except those which belong to the SC under the Constitution. We know that already. When the issue is the
constitutionality of the law, treaty, legality of any tax, the jurisdiction of any lower court – yan, hindi puwede sa CA.
Diretso yan sa SC.
And also “except those falling under the Labor Code of the Philippines.” A labor case is not supposed to be filed in court but
with a quasi-judicial agency known as the NLRC and you start in the local level – from the Labor Arbiter, then the decisions of the
Labor Arbiter are appealable to the NLRC and then from there, where will you go?
Q: Is the decision of the NLRC appealable before the CA? Because it is also a quasi-judicial agency and under the law, all
decisions of quasi-judicial agencies are supposed to be appealed to the CA.
A: NO. The decision of the NLRC is an exception – except those under the appellate jurisdiction of the SC under the
Constitution and in accordance with the Labor Code (PD 422). So conclusion: NLRC decisions cannot be appealed to the CA and
the only way to elevate it is to the SC by what we call certiorari, not appeal. Also, decisions of the Secretary of Labor, under the
Labor Code are not reviewable by the CA, but they are reviewable directly by the SC. - amended
And then there is the phrase, "the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4)
of the fourth paragraph of Section 17 of the Judiciary Act of 1948.” So, in other words, the new Judiciary Law still makes some
reference to the old law. This shows that the entire 1948 Judiciary Law has not been totally repealed. Some provisions are still
intact because of the reference.
Now what is this subparagraph 1 of the third paragraph? It only applies to criminal cases. EXAMPLE: A person is sentenced to
reclusion perpetua, his co-accused is sentenced to reclusion temporal or prison mayor, and all of them will appeal, all of them
should be sa SC na. Otherwise, you will be splitting the appeal into two parts.
Subparagraph 4 of the fourth paragraph of Section 17. When by appeal from the RTC is on pure legal question, SC
yan.
Q: Suppose nasagulan ng questions of fact, I will appeal questions of fact and questions of law.
A: Under the 1948 Judiciary Law, you cannot appeal directly to the SC. You must appeal to the CA.
The same thing on when the issue is on the constitutionality of a treaty, law, legality of tax, when the jurisdiction of
the lower court is in issue, as explained here in this paragraph of the Judiciary Act of 1948, if the appeal is 100%
constitutional issue, jurisdictional or legality issue – appeal is to the SC under the Constitution. But if it is mixed with
questions of fact, do not go to the SC. You go first to the CA. That is what the paragraph is all about. Alright, so that takes
care of the jurisdiction of the CA.
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[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform
any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the
CA must be continuous and must be completed within three (3) months unless extended by the Chief Justice. (As
amended by RA 7902)
This paragraph shows that the present CA that we have now is a more powerful court than before. It is a unique court. Aside
from being an appellate court, it also acts as a trial court. It may receive evidence but only those evidence which were overlooked
by the trial court. It can order a new trial or conduct a new trial itself.
Q: If an issue of fact is tried before the RTC, can I always ask the CA to allow me to present evidence? Does it mean to say
now that since the CA is a very powerful court, it can take the place of the RTC? Meaning, if I’m a party instead of presenting my
case before the RTC, I will not, “Doon na lang sa CA.”
A: That is already interpreted in the case of
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT
125 SCRA 522 [1983]
HELD: The power of the CA to receive evidence refers only to incidental facts which were not 100
percent touched upon, or matters which were simply overlooked by the trial court. You cannot opt not to
present evidence before the RTC. It only refers to incidental facts.
“Evidence necessary in regards to factual issues raised in cases falling within the Appellate Court’s original and
appellate jurisdiction contemplates ‘incidental’ facts which were not touched upon, or fully heard by the trial or
respondent Court. The law could not have intended that the Appellate Court would hold an original and full trial of a
main factual issue in a case, which properly pertains to Trial Courts.”
JURISDICTION OF THE
REGIONAL TRIAL COURTS
Ito ang third level, ‘no? And by going over their jurisdiction, you will see that it is a court of general jurisdiction and it is actually
the workforce of the whole judiciary. ‘Yan…talagang mabigat ang trabaho nitong RTC. Their workload is terrible. Before,
somebody asked me, “Dean, gusto mong mag-judge sa RTC?” Inyuha na na! (Burawi nyo!) Inyo na nang trabaho na ‘yan because
there are 2 things there when you get the job of the RTC judge: Of course, you want to excel, you want to do your job properly and
efficiently, you will die early because of the workload. Or, you end up as one who is lazy. You end up with administrative cases for
laziness, left and right. So mabuti pa, huwag ka na lang magtrabaho diyan, kasi mabigat ang trabaho diyan.
Q: How many RTC’s are there in the Philippines, from Northern Luzon to Southern Mindanao? In your opinion?
A: You look at the opening clause of Section 13:
Section 13 (1) Creation of Regional Trial Courts – There are hereby created thirteen (13) Regional Trial
Courts, one for each of the following regions: x x
So the Judiciary law has divided the country into 13 areas which is called JUDICIAL REGION. From the 1st to the 12th,
the 13th is actually in the National Capital Region (NCR), Metro Manila. Every division is divided into branches and the
number of branches keep on increasing by law.
So, to what region do we belong? We are in the 11th judicial region. So there is one RTC for the 11th judicial region, pero bakit
‘yun ganoon? Davao City lang, more than 10 na? Well, here is where you will go back to your fundamentals. A court is not the
same as a judge. ‘Yan…
Actually, what the law says is that, there are 13 RTCs, and every court is divided into branches. So, kung branches siguro,
malapit nang maging 1000 throughout the country. So there are 13 courts with almost 1000 judges. Now, as a matter of fact, if you
want to know exactly how many there are, you refer to your Section 14. Actually, this has been amended many times because from
1980 up to the present, Congress passed laws. In fact when the law took effect, according to Section 14, there are originally 29
RTC judges commissioned for the 11th judicial region – 29 originally.
Now, from what I know, based on the amendment in 1991, it was increased from 29 to 41. So there are supposed to be 41
RTC judges for the 11th judicial region. As I said, unless from 1991 to the present dinagdagan na naman nila.
So 41 RTC judges shall be commissioned for the 11th judicial region. There should be 6 branches which sits thereafter for the
province of Davao del Norte, which sits at Tagum, Nabunturan and Panabo. Four branches which sit thereat for the province of
Davao Oriental which sits at Mati, Bagangga and Butuan. Sixteen branches which sit thereat for the province of Davao del Sur.
And the City of Davao which sits at Davao City, Digos, Malita and Bansalan. Then 10 branches whish sit thereat for the province of
South Cotabato and the City of General Santos which sit at General Santos City, Koronadal [the City of Eumir, Francis and Mortz],
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Surallah, and Polomolok. And 5 branches which sit thereat for the province of Surigao del Sur which sit at Tandag, Ginanga, Bislig
and Kantilan. So that is how they are distributed within the 11th the juridical region.
Q: So, since there are 41 of them scattered throughout the 11th judicial region, from Surigao to South Cotabato, for example, I
would like to file a case against my neighbor based in Davao. So i-file ko sa Polomolok, anyway that’s the same court, eh. Or a
criminal in Davao City file-an sa Mati. Anyway, the same court na. Are you allowed to do that?
A. The answer is NO! Every branch of the RTC has its own area of responsibility. Except in Davao City, or in chartered
cities, the authority of every branch here is throughout Davao City. But sa probinsya, hati-hati ‘yan eh, and the provision there is
Section 18 of BP 129.
BP 129, Section 18 . Authority to define territory appurtenant to each branch – The Supreme Court shall
define the territory over which a branch of the Regional Trial Court shall exercise its authority. The territory thus
defined shall be deemed to be the territorial area of the branch concerned for purposes of determining the venue
of all suits, proceedings or actions, whether civil or criminal, as well as determining the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts over which the said branch may exercise appellate
jurisdiction. The power herein granted shall be exercised with a view to making the courts readily accessible to
the people of the different parts of the region and making the attendants of litigants and witness as inexpensive
as possible.
‘Yan, so in the province every branch has its own defined area. So, for example if you are from Nabunturan, you cannot file a
case in Panabo. Kalayo-layo niyan. There is a branch there in Nabunturan. Doon ka mag-file. Kanya-kanya ng responsibility.
Now, the law says, the SC has the power to define the area of its branch for purposes of supervising that area and the MTC
there. Now, as early as 1983, the SC has already come out with administrative order throughout the Philippines defining the area
of responsibility of each branch. Sometimes I need that, eh, because there are cases to be filed outside Davao City, especia lly
Cotabato Province. And you have to be updated kung sang branch ba ako pupunta nito. Sometimes you have a hard time, eh. For
example, the case originated in Babak, part of Davao del Norte, saan ba ito i-file? Panabo or Tagum? I need to consult that
circular. ‘Yan…that will be very helpful. Now you please correlate Section 18 of the Judiciary Law with the Interim Rules Section 2
because Section 2 of the Interim Rules is related to this, eh.
Interim Rules, Sec. 2. Territorial Jurisdiction of Courts. -

a) MetTCs, MTCs and MCTCs shall exercise their jurisdiction in the city, municipality or circuit for
which the judge thereof is appointed or designated.
b) A Regional Trial Court shall exercise its jurisdiction within the area defined by the SC as the
territory over which the particular branch concerned shall exercise its authority, in accordance with Sec.
18 of BP 129.
Yaan! So every RTC shall have authority. Alright, these are what you call administrative provisions.
Now, let’s go to the jurisdiction of the RTC:
EXCLUSIVE ORIGINAL JURISDICTION– Section 19 as amended by RA 7691

CONCURRENT ORIGINAL JURISDICTION with other courts – Section 21
APPELLATE JURISDICTION – Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE RTC
Sec. 19 Jurisdiction in civil cases – Regional Trial Courts shall exercise exclusive original jurisdiction:
[1] In all civil actions in which the subject of the litigation is incapable of pecuniary estimation.
What does it mean? When the subject of the litigation is not expressed in terms of pesos, centavos. Alright.
In most cases that we know, the demand of the plaintiff is expressed in terms of amount, eh. EXAMPLE: A creditor will file a
case for the collection of the unpaid loan from the defendant. Ang nakalagay sa demanda niya, that after trial that the court should
order the defendant to pay him the sum of P500,000 na utang with interest. So, the subject is expressed in terms of amount of
damages ba, the court shall award to the defendant damages amounting to half a million. Karamihan ng kaso ganyan.
But here, in this civil case, the subject of the civil case is not capable of pecuniary estimation. It cannot be estimated
or calculated in pesos.
EXAMPLE is an action for annulment; rescission of contract; an action for specific performance; an action for
declaratory relief by express provision of the law now; an action for the permanent injunction against somebody;
[2] In all civil actions which involve the title to, or possession of, real property or any interest therein,
where the assessed value of the property involved exceeds P20,000 or for civil actions in Metro Manila,
where such value exceeds P50,000 except actions for forcible entry into and unlawful detainer of lands
and buildings; original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal
Circuit Trial Courts;
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So real actions outside of forcible entry and unlawful detainer. The best example would be accion publiciana, accion
reinvidicatoria, quieting of title, provided the value of the property exceeds P20,000.00 based on the assessed value of the
property.
So, for a lesser value, MTC has jurisdiction. This is why MTCs now has jurisdiction over accion publiciana when the
value of the property is P20,000 or less. But kung forcible entry and unlawful detainer, klaro yan – walang RTC.
Now, if in Metro Manila, then value is P50,000. But outside Metro Manila, the assessed value is only P20,000.
[3] In all civil actions in admiralty and maritime jurisdiction where the demand or claim exceeds One
Hundred Thousand pesos (P100,00.00) [now PhP 200,000.00] or, in Metro Manila, where such demand or
claim exceeds Two Hundred Thousand pesos (P200,000.00)[now, PhP 400,000]. (exceeds 300k - 400k)
EXAMPLE: The shipper will ship to you in Davao goods involving common carrier. While in transit, the goods are lost or they
are totally damaged. You would like to file a claim or a case against the carrier, what kind of a case? That is an admiralty or
maritime case.
Q: If you are going to file a case against the shipping company, where will you file it? RTC or MTC?
A: It depends on how much is your claim. If your claim of the damaged or lost cargo exceeds P200,000, sa RTC; if it is
P200,000 or less, sa MTC. In Metro Manila, the jurisdiction is higher – it should be over P400,000. Now do not confuse this with
No. 2 because that involves LAND with more than P20,000 value.
Take note that prior to August 16, 1999, the claim should exceed P100,000 or P200,000 in Metro Manila as the case may be.
Now, the claim is adjusted to P200,000 and P400,000, respectively pursuant to Section 5 of RA 7691 which took effect last August
15, 1995:
RA 7691, Sec. 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned in
Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be adjusted to
Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such jurisdictional amounts shall be
adjusted further to Three hundred thousand pesos (P300,000.00): Provided, however, That in the case of
Metro Manila, the abovementioned jurisdictional amounts shall be adjusted after five (5) years from the
effectivity of this Act to Four hundred thousand pesos (P400,000,00).
So after August 16, 1999 (5 years from the effectivity of RA 7691) yung P100,000.00 naging P200,000 na. Yung P200,000 in
Metro Manila, naging P400,000. Then after another 5 years (2004), aakyat na naman ang jurisdiction ng MTC. So from the original
P100,000.00 magiging P300,000 na yan. Automatic ha.
[4] In all matters of probate, both estate and intestate, where the gross value of the estate exceeds
One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in probate matters in Metro Manila, where such
gross value exceeds Two Hundred Thousand pesos (P200,000.00) [now P400,000]. (exceeds 300k - 400k)
In the subject of Wills and Succession, when a person dies, his estate, his property will be settled for the benefit of his creditors
and heirs. That is what you call either as testate or intestate proceedings depending on whether the deceased left a will or none.
Q: Where should the estate of the deceased person be settled, RTC or MTC?
A: It depends on how much is the gross value of his estate. If it exceeds P200,000, RTC. If it is P200,000 or less, it should be
with the MTC. In Metro Manila again, it is doubled, the gross should be more than P400,000. And again, this will automatically
increase after 5 years from 1999.
[5] In all actions involving the contract of marriage and marital relations.
Most of these cases are under the Family Code.
Q: What are the possible actions which you can imagine involve the contract of marriage and marital relations?
A: Annulment of marriage, legal separation, declaration of nullity, dissolution of the absolute community of husband
and wife, and action for support. These cases are the ones arising under the Family Code, where it arises out of a marital
relationship.
Take note that these cases are NO LONGER covered by the RTC because under RA 8369 (Family Courts Act of 1997),
these cases should now be tried by the FAMILY COURTS.
RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
xxxxxx
d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those living together under different status and agreements,
and petitions for dissolution of conjugal partnership of gains;
xxxxxx
Now, in areas where there are no family courts, the cases shall be adjudicated by the RTC. So certain branches of the
RTC will act as family courts (acting family courts.
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We shall skip first no. 6. We will return to that later. Let’s go to no. 7.
[7] In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile
and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law;
Before BP 129, these were special courts existing before 1980. Among these courts were the so called Juvenile and Domestic
Relations Courts (JDRC). Then you have the Court of Agrarian Relations (CAR) which tried the cases involving tenancy,
agricultural lessor, agricultural lessee, agricultural lands. When BP 129 was enacted, the CAR and the JDRCs were abolished.
Cases which they used to handle were automatically transferred to the RTC. That was after BP 129 took effect.
What were the cases which were usually falling within the original jurisdiction of the former JDRC? Usually, those involving
family and children, like support filed by the child against his father, compulsory recognition, custody of children, adoption
proceedings – these are the cases which are usually heard by the JDRC.
Under BP 129, all of these are now within the jurisdiction of RTC. HOWEVER, this has been amended again by RA 8369
(Family Courts Act of 1997) These cases are now under the jurisdiction of the FAMILY COURTS: (See Sections 5 [b], [c], [e],
[g])
RA 8369, SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
xxxx
b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
c) Petitions for adoption of children and the revocation thereof;
xxxx
g) Petitions for declaration of status of children as abandoned, dependent or neglected children,
petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration
of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No.
56, (Series of 1986), and other related laws;
xxxxx
But the law transferring the jurisdiction of the CAR to the RTC became partially obsolete with the enactment of the
Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15, 1988). Under the CARL, all agrarian disputes between
landlord and tenant, lessor and lessee were transferred to the DAR particularly the DAR Adjudication Board (DARAB),
making them quasi-judicial cases . So, from CAR to RTC, from RTC to DARAB
So the RTC has NO jurisdiction, EXCEPT in the following 2 cases:
1.) Cases where the issue is PAYMENT OF JUST COMPENSATION, for, the property which has been taken under
CARP law;
EXAMPLE: If you are a landowner and your agricultural land is placed under the CARP coverage, the
government will fix the payment for you. The trouble is that you did not lot agree on the amount of payment.
Agrabiyado ka sa compensation ng gobyerno. Now, you go to RTC and you ask for higher compensation.
2.) Prosecution of criminal offenses for violation of the CARL;
So these are the only agrarian cases which still belongs to the RTC. This was explained by the SC in the case of
QUISMUNDO vs. COURT OF APPEALS

201 SCRA 609 [1991]
HELD: “Wth the enactment of Executive Order No. 229, which took effect on August 29, 1987, the Regional
Trial Courts were divested of their general jurisdiction to try agrarian reform matters. The said jurisdiction is now
vested in the Department of Agrarian Reform. Said provisions thus delimit the jurisdiction of the regional trial
courts in agrarian cases only to two instances:
1.) petitions for the determination of just compensation to landowners; and
2.) prosecution of criminal offenses under said Act.
[8] In all cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs or the value of the property in controversy exceeds One Hundred Thousand
pesos (P100,000.00) [now P200,000] or, in such other cases in Metro Manila, where the demand, exclusive of
the above-mentioned items exceeds Two Hundred Thousand pesos (P200,000.00)[now P400,000] (exceeds
300k - 400k)
The best example is money claim. Most cases which go to court now are money claims – an action to collect sum of money.
Q: Unpaid loan – you would like to collect an unpaid loan of your debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over P200,000 outside Metro Manila – RTC, in Metro Manila, double the
amount – P400,000. If the amount that you are collecting is only P200,000 or less obviously, you file your case in the MTC.
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If the value of the claim is > P200,000 – RTC
If the value of the claim is = or < P200,000 – MTC
So this is the same as number [3] and [4] where the jurisdiction of the MTC was raised from P20,000 to P100,000. And under
the present law, it is now P200,000. But again, this is subject to the automatic increase in jurisdiction by 2004.
Q: Suppose the principal amount that you borrowed from me is P300,000, the interest is P30,000. And you are collecting
P10,000 for moral damages, another P10,000 for expense of litigation, etc. So my total claim is P350,000. Where will I file the
case?
A: MTC pa rin. In determining the jurisdictional limit of P300,000, do not include the interest, damages, attorney’s fees,
etc. So you deduct those from the principal claim even if you put them in your complaint because the law says, “xxx
exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs xxx.”
Q: What are litigation expenses and costs?
A: Costs are not the same as attorney’s fees and litigation expenses. Actually, attorney’s fees and litigation expenses are part
of damages. Costs are governed by Rule 141, while attorney’s fees and litigation expenses are governed by the Civil Code.
Because there is some confusion there, akala ang costs and litigation expense, pareho. No, they are not the same.
ACTIONS PURELY FOR DAMAGES
SITUATION: Suppose the action is purely for damages, like breach of contract of carriage. Instead of bringing you to your
destination, you ended up in the hospital. You now sue the common carrier for damages and your claim is P1 million for injuries,
moral, exemplary, etc. Now, because the law says the jurisdiction of the RTC is above P300,000 but do not include damages. The
claim in this case is P1 million, all for damages. Now, where will you file the case?
Somebody said it should be in the MTC because in determining the jurisdiction of the RTC, you do not include damages. If that
is the interpretation, I said, all damage suits cannot be tried by the RTC because remember, you pay filing fee for these cases but
the jurisdiction is limited to the MTC. That is absurd! I do not believe that kung puro damages wala ng jurisdiction ang RTC.
Otherwise, all damage suits should be filed in the MTC.
This question has been clarified by SC Circular No. 09-94: “Guidelines in the Implementation of RA 7691 Extending the
Jurisdiction of the MTCs” where the SC said that the provision excluding damages applies only if the damages are
INCIDENTAL to the action. If the main cause of action is 100% damages, you include it in determining the P300,000
jurisdictional limit of the MTC.
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but she survived. She claims for damages for breach of
contract of carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages exceeded P200,000. Since the case is purely for damages, it is included
in determining the jurisdiction of the court.
The rule is, you only exclude the damages if it is a secondary claim. But if damages is the primary or only claim, you
determine whether the total claim for damages is above P300,000, or equal to or less than P200,000. Yaaann!
The SC said in this Circular, “the exclusive damages of whatever kind” in determining the jurisdiction under Section 19
paragraph [8] applies to cases where the damages are merely incidental to or a consequence of the main cause of action.
However, if the claim for damages is the main cause of action, the amount of such claim should be considered in
determining the jurisdiction.
EXAMPLE: Inay will file a case against Janis to recover a piece of land worth P20,000.00 only. But her claim for damages
exceeds P300,000. So, you will notice ang claim for damages is incidental lang. Ang main action is to recover a piece of land.
Q: In what court will Inay file a civil case where she wants to recover a piece of land with value of only P20,000?
A: MTC because of paragraph [2]. But ang damages naman is P300,000? MTC pa rin iyan because such damages,
being incidental, is not included in determining the jurisdiction of the RTC.
However, if my actions against you is purely damages, like I will file a case against you for damages arising from
vehicular collision and I will claim P350,000 for damages, it should be in the RTC. That is the explanation. The term
“excluding damages” applies only if the damages are purely incidental to the case. But if the action is purely damages,
then you observe the P300,000 jurisdictional limit.
Now, the law says, “exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or THE
VALUE OF THE PROPERTY IN CONTROVERSY exceeds P300,000….”
Q: What is the property in controversy?

A: Obviously here, the property is PERSONAL PROPERTY not real. If the property sought to be recovered is real, apply
paragraph [2] of Section 19 on recovery of real property.
Q: In the subject of Sales, the unpaid seller would like to rescind the sale and get back the unit. Where will the unpaid seller
file the case?
A: If above P300,000 sa RTC ka. It if is only P300,000 or less, sa MTC. So this is an example of “the value of the
[personal] property in controversy.”
Q: (By a classmate, Review class) Who shall determine the value or how should the value be determined?
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A: You will learn the answer when we reach Rule 16 on Motion to Dismiss. In determining the jurisdiction of the court, in the
meantime, which will prevail? You will learn later that the allegations of the complaint will prevail.
Like for example, I will file a case against you for an unpaid loan of P250,000. Then you say in your motion to dismiss, “No!
ang utang ko sa iyo is not P150,000, but only P80,000. Therefore, the RTC has no jurisdiction.” So there is now a conflict with what
I’m saying and with what you are saying.
With that, we will discuss the conflict later. Now, we do not know who is telling the truth. For the moment, the rule is, you
follow the plaintiff because jurisdiction is determined by the allegations of the complaint. It is the complaint which will
determined whether the court has jurisdiction over the subject matter. It is not based on what the defendant is saying.
That is the answer there.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA

120 SCRA 89 [1983]
FACTS: A entered into an agreement with B where A deposited the sum of P50,000 with B. After certain
conditions are complied B has to return the amount to A. According to A the conditions are already complied with but
B still refuses to return the money. So A filed a complaint which he denominated as sum of money and since he is
only asking for the return of P50,000, A filed the case in the MTC.
ISSUE #1: Whether or note the MTC has jurisdiction over the case.
HELD: The MTC has NO jurisdiction. It should be filed in the RTC. It is not an action to collect a loan. You
are not recovering a loan. You are compelling him to comply with the agreement – to return the money after
certain condition are complied with, di ba? You are trying to enforce your agreement. therefore your action is
an action for SPECIFIC PERFORMANCE which should be tried by the RTC under paragraph [1].
“When a party to a contract has agreed to refund to the other party a sum of money upon compliance by
the latter of certain conditions and only upon compliance therewith may what is legally due him under the
written contract be demanded, the action is one not capable of pecuniary estimation.” So it is cognizable by
the RTC.
ISSUE #2: But according to the plaintiff, when he filed the complaint, it is entitled “for sum of money” which
should fall under paragraph [8]. Is the plaintiff correct?
HELD: NO. The plaintiff is wrong. The title of the action is not determinative of the court. Just like the rule
on contracts where the nature of the contract is not determined by the title but by stipulation.
“The factual allegations in the complaint seeking for the performance of an obligation of a written
contract which is a matter clearly incapable of pecuniary estimation prevail over the designation of the
complaint as one for the sum of money and damages.”
[6] In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
judicial or quasi-judicial functions
Practically, this makes the RTC the universal catcher – what does not belong to anyone of you, belongs to me. That’s what
this provision is saying.
EXAMPLE: An employee, Inday Locsin, files a case against the employer, Kenneth Lim, to claim non-payment of wages,
overtime pay, ECOLA and reinstatement for illegal termination. Under the Labor Code, dapat sa NLRC. So it does not belong to
RTC but if there is no vesting to NLRC, then it goes to the RTC.
A case which does not belong to any other court. Let’s try to connect it with something you know.
Q: If you want to file an action for annulment of judgment of RTC, where will you file your action?
A: CA only – an exclusive original jurisdiction of the action for annulment of the judgment of the RTC.
Q: Suppose Karen will file an action for annulment of judgment of the MTC. Does it belong to the CA?
A: NO! What the law says is: annulment of judgment of RTC, and not MTC. How about Supreme Court? Lalong wala. Saan
ka pupunta? There is really no provision in BP 129 which goes that way. I don’t think you can go to NLRC.
Wala kang mapuntahan, saan ka tatakbo? Sa RTC because it does not belong to the jurisdiction of any other court. It should
fall under paragraph [6] That is why, this, there are problems reaching the SC on jurisdiction – whether a case belongs to this, to
the regular court or to a special quasi-judicial body. And we are going to go over some of these cases.
SANDOVAL vs. CANEBA

190 SCRA 77 [1990]
FACTS: The quarrel in this case involves the owner of the subdivision and the buyer. Later on, the buyer refused
to pay the unpaid installments. The subdivision developer filed a case for the collection of unpaid installments over the
subdivision lots. Now, if you look at the law, parang money claims sa RTC or MTC.
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HELD: The regular courts have no jurisdiction. That should be decided by the Housing and Land Use
Regulatory Board (HLURB) formerly known as NHA. Under PD 957, it is the HLURB not the RTC or MTC which
has the jurisdiction to hear a case involving non-payment of installments over subdivision lots.
The counterpart of this case was the case of
CT TORRES ENTERPRISES, INC. vs. HIBIONADA

191 SCRA 268 [1990]
FACTS: This is also the case between the buyers of a subdivision lot against the subdivision developer. Only
this time baliktad – it is the subdivision lot buyers who are suing the developer of the subdivision. The subdivision lot
owners filed against the subdivision developer for not maintaining properly the roads of the subdivision. So they filed a
case for specific performance with damages to compel the developer to comply with the contract to maintain the
roads.
HELD: The jurisdiction is with the HLURB and not with the regular courts. But according to the plaintiff “But
I’m also claiming for damages so that it should be filed before the regular courts. How can the HLURB award
damages? Only the regular courts can award the damages.” Can the HLURB award damages? According to the SC:
“The argument that only courts of justice can adjudicate claims resoluble under the provisions of the Civil Code is
out of step with the fast-changing times. There are hundreds of administrative bodies now performing this function by
virtue of a valid authorization from the legislature. This quasi-judicial function, as it is called, is exercised by them as
an incident of the principal power entrusted to them of regulating certain activities falling under their particular
expertise.”
So quasi-judicial bodies are now authorized to award damages.
As a matter of fact in Labor Relations, the question is asked whether the NLRC is authorized to grant damages also to an
employee, moral and exemplary, which normally is only awarded by courts. The Labor Code says yes. In other words, even
damages now can be awarded by administrative bodies such as NLRC.
FAJARDO vs. BAUTISTA

232 SCRA 291 [1994]
FACTS: Isabelo and Marita Jareno and the owners and developers of a subdivision. Fajardo and others, as
buyers, signed separate contracts each designated a contract to sell under which for consideration therein stated, the
Jarenos bound themselves to sell to Fajardo et al the of subject thereof, and after the latter shall have paid the
purchase price and interest shall execute in favor of Fajardo et al the corresponding deeds of sale.
When these contracts to sell are still ongoing the Jarenos sold these lots to other buyers and the title was
transferred to the second buyer. So when Fajardo et al learned about it, they filed separate complaints with the RTC
for annulment of the sale to the other buyers.
Now, according to Fajardo, the jurisdiction of the case belongs to the RTC and not with the HLURB because the
title of the lots are transferred to the other buyers. It is no longer under the name of Jareno. Secondly, their action is
for the annulment of title to a third person. Thirdly, these third persons are not the developers; fourthly, under the
Judiciary Law, actions involving title to a real property are to be tried by the RTC.
HELD: The RTC still has NO jurisdiction because the case involved unsound real estate business practice
on the part of the subdivision owners and developers. Under the law, unsound real estate business practice
is under the HLURB. The practice in the case is not a sound real estate business – I am a developer, I enter
into a contract with you and then later on I sold the contract to a third person, that is unsound!
“By virtue of P.D. 1344, the HLURB has the exclusive jurisdiction to hear and decide the matter. In
addition to involving unsound real estate business practices, the complaints also involve specific
performance of the contractual and statutory obligations of the owners or developers of the subdivision.” So
it is still with the HLURB and not with the regular courts.
BENGUET CORPORATION vs. LEVISTE

204 SCRA 99 [1991]
FACTS: A mining company entered into a operations agreement for management with another mining company.
Then later on, one wants to file a case for rescission of the agreement for one reason or another. So it was filed with
the RTC.
HELD: The RTC has NO jurisdiction again because PD 1281 vested with the Bureau of Mines with
jurisdictional supervision and control over all issues on mining claims and that the Bureau of Mines shall
have the original exclusive jurisdiction to hear and decide cases involving the cancellation and enforcement
of mining contracts.
The trend is to make the adjudication of mining cases a purely administrative matter. Another case is the case of
MACHETE vs. COURT OF APPEALS

250 SCRA 176 [1995]
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FACTS: This case involves the collection by the landowner of unpaid back rentals from his leasehold tenants.
The landowner filed the money claims before the RTC.
HELD: The RTC has no jurisdiction over cases for collection of back rentals for the leasehold tenants.
This is an agrarian dispute which exclusively cognizable by the DARAB.
“The failure of petitioners to pay back rentals pursuant to the leasehold contract with landowner is an
issue which is clearly beyond the legal competence of the trial court to resolve. The doctrine of primary
jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over
which is initially lodged with an administrative body of special competence.”
Let’s go to Professional Regulation Commission (PRC). That is the government body which administers all government
examination for professionals except members of the law profession. Sa medicine, CPA, engineer, lahat andiyan sa kanila,
including plumber and marine officers. Basta lahat ng merong examination sa kanila yan except sa bar which is under the
jurisdiction of the SC. Now, this is what happened in the case of
LUPANGCO ET AL vs. COURT OF APPEALS

160 SCRA 848 [1988]
FACTS: Lupangco et al were BS Accounting graduates and reviewing to take the CPA exams in 1985.
There were some anomalies (leakages) in the 1985 CPA Board Examination. By next year, the PRC passed a
resolution prohibiting CPA examinees to attend review classes or conferences because of leakages. They are
prohibited from receiving any handouts, review materials or any tip from any school, college or university. That was
Resolution No. 105 of the PRC.
So petitioners Lupangco et al, all CPA reviewers filed an injunction suit against the PRC and to declare the
resolution unconstitutional. They filed it with the RTC. The PRC moved to dismiss alleging that the RTC has no
jurisdiction over the case because the one which has the jurisdiction is the CA – exclusive jurisdiction to review any
decision, order, ruling or- resolution of any quasi-judicial body. And the PRC is a quasi-judicial body. So their
resolution can only be questioned before the CA and not with the RTC.
HELD: The PRC is WRONG because PRC is not only a quasi-judicial body, it is also a quasi-legislative
body. It also acts as legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is a resolution pursuant to it purely administrative
function. It is a measure to preserve the integrity of licensure examination. Therefore, it does not belong to the CA. It
is not the type of resolution contemplated by Section 9.
“The authority of the CA to review all resolutions of all quasi-judicial bodies pursuant to the law does not cover
rules and regulations of general applicability issued by the administrative body to implement its purely administrative
policies and functions like Resolution No. 105 which was adopted by the PRC as a measure to preserve the integrity
of licensure examinations.” So that is not the resolution reviewable by the CA.
Now, under what provision under Section 19 can we justify the jurisdiction of the RTC in the case. The SC said:
It is under paragraph 1 where the case is incapable of pecuniary estimation or, it may fall under paragraph 6
where the case is not within the exclusive jurisdiction by any court, tribunal or- body exercising Judicial or
quasi-judicial functions.
So, if it is not reviewable by the CA, in what court can you question the resolution? Definitely, not the CA, definitely not the SC.
I don’t think it’s with the NLRC. So it will fall under the jurisdiction of the RTC. Or, it can also fall under paragraph [1,] where
the subject matter of the suit is not capable of pecuniary estimation because what is the nature of the demands is to
declare unconstitutional this resolution. So it belongs to the jurisdiction of the RTC.
BERNARDO vs. CALTEX PHIL. INC.

216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute between an operator or dealer and an Oil company
regarding dealership agreement, the case shall be under the jurisdiction of the Energy Regulatory Board
(ERB). So any dispute regarding their relationship agreement except disputes arising out of the relationship
as debtor and creditor. So if the dispute arose out of the relationship as bebtor and creditor, it should be filed
with the RTC.
Now what happened here is that on December 5, 1990, Bernardo, a dealer of Caltex, ordered gasoline from
Caltex. So he ordered in the morning. At 6:00 at night on the same day, there was a price increase. So when the
gasoline was delivered the following day, Caltex charged Bernardo for the increased price. Bernardo refused to pay
and he he filed a case before the RTC. Caltex argued that the case should be filed with the ERB.
HELD: The RTC has jurisdiction because “a contract of sale of petroleum products was here perfected
between Caltex and its operator/dealer Bernardo; that in virtue of the payment admittedly made by Bernardo,
Caltex became a “debtor” to him in the sense that it was obligated to make delivery to Bernardo of the
petroleum products ordered by him; and that the only issue is the manner by which Caltex shall perform its
commitment in Bernardo’s favor. It is rather one cognizable by the Regional Trial Court, as a dispute indeed
‘arising out of their relationship as debtor and creditor.’”
“What the controversy is all about, to repeat, is simply the prices at which the petroleum products shall be
deemed to have been purchased from Caltex by Bernardo in December 5, 1990. This is obviously a civil law question,
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one determinable according to the provisions of the Civil Code and hence, beyond the cognizance of the Energy
Regulatory Board.”
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original jurisdiction:
[1] In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and
injunction which may be enforced in any part of their respective regions;
Q: What is the difference between the original jurisdiction of the RTC in Section 21 and the original jurisdiction of the RTC in
Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction, whereas in Section 21 you have the original jurisdiction but
CONCURRENT with other courts.
Thus “original” jurisdiction stated in Section 21 is also shared with the SC and CA. Therefore , the SC, CA, and RTC have
original concurrent jurisdiction under Section 21. Like issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus, etc. This is concurrent with the CA and the SC. Such writs may be issued by (a) the RTC under Section 19; (b) CA under
Section 9; and (c) SC under Article VIII Section 5 of the Constitution. The 3 courts share concurrent jurisdiction over these cases.
However the only difference is that writs issued by an RTC can only be enforced in the same region where the RTC
belongs. Unlike writs issued by the SC and CA, they can be enforced anywhere in the Philippines.
[2] In actions affecting ambassadors and other public ministers and consuls.
The SC and RTC have original concurrent jurisdiction in actions affecting ambassadors, other public ministers and
consuls. Section 21 paragraph 2 states only of the concurrent original jurisdiction of the SC and RTC. Section 19 on the
jurisdiction of CA does not include the action stated in section 21 paragraph 2 as part of its (CA’s) jurisdiction.
APPELLATE JURISDICTION OF THE RTC
Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate jurisdiction over all
cases decided by MetTCs, MTCs and MCTCs in their respective territorial jurisdictions. Such cases shall
be decided on the basis of the entire record of the proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by the parties or required by the RTCs. The decision of
the RTCs in such cases shall be appealable by petition for review to the CA which may give it due course
only when the petition show prima facie that the lower court has committed an error of fact or law that
will warrant a reversal or modification of the decision or judgment sought to be reviewed.
Now take note that the RTC also has appellate jurisdiction under Section 22. These are cases decided by the MTC. So they
act as a sort of ‘court of appeals.’ The RTC exercises appellate jurisdiction over all cases decided by the MTC in their respective
territorial jurisdiction.
Q: How will the RTC decide on the appeal?

A: It shall be decided on the basis of the entire record of the proceedings had in the court of origin (MTC) such as
memoranda and/or briefs as may be submitted. This means that witnesses will not be made to appear again in the appeal.
It is only a matter of reviewing the testimony, stenographic notes, evidence presented, memoranda and briefs by the RTC
judge.
Q: What are memoranda and briefs?

A: It is where the appealing party will argue that the decision is wrong and try to convince the judge that the decision is wrong,
and the other party to counter act that the decision is correct.
Q: Assuming that the case is originated in the MTC and subsequently dismissed by the RTC on appeal, is the decision by the
RTC rendered pursuant to its appellate jurisdiction appealable to the CA?
A: YES, but the mode of appeal is now different. The decision of the RTC in such cases shall be appealable by petition to
review to the CA. The CA may or may not give it due course.
Q: What is the difference between an appeal made from the RTC to CA and appeal from the MTC to RTC, which is dismissed
the same and subsequently appealed to the CA?
A: The former (RTC – CA) is in pursuance to the original jurisdiction of the RTC. The latter (MTC-RTC-CA) is in pursuance to
the appellate jurisdiction of the RTC. (They are governed by different rules)
To illustrate:
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Pursuant to original jurisdiction of the RTC: Pursuant to appellate jurisdiction of the RTC:
COURT OF APPEALS COURT OF APPEALS
Ordinary appeal Petition for Review

(Rule 41) (Rule 42)
RTC RTC
Ordinary Appeal
(Rule 40)
MTC
Unlike in a case under the original jurisdiction of the RTC, where an appeal to the CA is a matter of course. Meaning,
for as long as your appeal is on time and properly made, the CA will entertain it.
It is different, however, in a case under the appellate jurisdiction of the RTC, even if your appeal is on time and
properly made, there is no assurance that the CA will entertain the appeal. The CA may give it due course only when your
petition for review shows prima facie evidence that the lower court has committed as error of fact or law that will warrant
a reversal or modification of the decision or judgment sought to be reviewed.
Now, statistically for the past 20 years, the rate of petitions for review from the RTC which are given due course is only 15%-
17%. For every 100 petitions for review, 15 are given due course, 85 are thrown out. They did not pass the test under Section 22.
It is really a difficult process.
Summary of RTC jurisdiction:

1.) As to the EXCLUSIVE original jurisdiction – Section 19 (BP 129);
2.) As to its original CONCURRENT jurisdiction – Section 21 (BP 129);
3.) As to its APPELLATE jurisdiction – Section 22 (BP 129)
JURISDICTION OF THE
MUNICIPAL TRIAL COURTS
Actually, when you know the jurisdiction of the RTC, automatically you know the jurisdiction of the MTC. In criminal cases for
example, sa RTC, imprisonment of more than 6 years until death penalty. So, necessarily 6 years or below, sa MTC. Same with
civil cases.
Summary of jurisdiction of MTC:

A.) As to original jurisdiction – Section 33
B.) As to delegated jurisdiction – Section 34
C.) As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in
civil cases. - Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:
1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases, where the value of the personal property,
estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) or, in
Metro Manila where such personal property, estate, or amount of the demand does not exceed four
hundred thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind, attorney's fees,
litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest,
damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the
determination of the filing fees: Provided further, That where there are several claims or causes of
actions between the same or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes
of action arose out of the same or different transactions.
Well if you know the jurisdiction of the RTC on money claims and probate cases, automatically you will also know that of the
MTC. Under the law, it is only the principal claim or the main claim which is computed. Interest, damages of whatever kind,
attorneys fees, litigation expenses and cost are not included in determining the jurisdiction.
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Even if the amount of damages and attorney’s fees do not determine jurisdiction, they must still be specifically
alleged in the complaint for the purpose of payment of docket fees. Thus, the higher the amount one is claiming the
higher the filing fee.
So with that , we will now go to decided cases involving docket fees.
JURISPRUDENCE ON THE FILING FEE IN CIVIL CASES:
Rule 111, the filing of criminal action, the civil aspect is deemed instituted. If it claims for moral and exemplary damages,
the filing fees should be paid immediately. If not stated, then it will be a lien in the judgment. Compensatory damages are
exempt from the filing of the fee.
Technically, a complaint in a civil case is not considered as filed unless you pay the complete amount of the docket
fee. Even if a complaint is filed, say, on December 1 and the payment is made only on the December 4, the complaint is
deemed officially filed on the December 4 when the payment of the whole amount is effected.
This is so material for the purpose of prescription. Suppose today December 1 is the last day for the filing of the complaint and
the whole amount is not fully paid. ON December 2, the action is prescribed already. Thus, the court acquires no jurisdiction over
the case until the filing of the fee for the whole amount is made.
In the case of
MANCHESTER DEVELOPMENT CORP. vs. CA
149 SCRA 562
FACTS: The plaintiff files a complaint and paid the docket fee but he did not specify the amount of the damages
he was claiming. He contended that he is claiming for moral damages in such amount as the court will grant.
Respondent contended, on the other hand, that it cannot be done, there is a necessity to state the exact amount of
the damages in order to determine the correct amount of the docket fee. So the plaintiff amended the complaint and
paid the balance of the docket fees.
ISSUE: Whether or not the subsequent amendment cures the defect?
HELD: No, the defect is incurable. Thus, the action has to be dismissed. The court acquires no jurisdiction over
the case. The remedy is to re-file the complaint and pay again the complete amount of the docket fee. The prior
payment made is forfeited in as much as the defect in the first complaint is incurable.
So based on the MANCHESTER ruling, you cannot cure the defect by merely amending the complaints. The moment the case
is filed, the court acquires jurisdiction. You cannot by yourself confer jurisdiction. Very harsh noh? However, the SC, after reflecting
on what it said in the case of MANCHESTER, realized the harshness of their decision. This Manchester ruling was relaxed in the
subsequent case of SUN INSURANCE OFFICE which now the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS

170 SCRA 274 [1989]
HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action.
Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may
allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive counterclaims, third party claims and similar pleadings, which
shall not be considered filed until and unless the filing fee prescribed therefore is paid. The court may also
allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or
reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and
payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the
pleading, or if specified the same has been left for determination by the court, the additional filing fee
therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect the additional fee.
For example, I make a partial payment of the docket fee because of inadequacy of money. Under the SUN INSURANCE
ruling, kung kulang ang bayad, huwag namang i-dismiss ang kaso! Give the party a reasonable time to pay the balance. “When
the filing of the initiatory (complaint) pleading is not accompanied by the payment of the docket fees, the court may allow
the payment of the fee within a reasonable time but in no case beyond the prescriptive period.” Meaning, if by the time you
paid the balance, nag prescribe na ang cause of action, ah wala na! So, provided that the action has not prescribed.
The same rule applies to permissive counterclaims. So this answers the question:
Q: Is the defendant obliged to pay the docket fee?

A: It DEPENDS: if the counterclaim is permissive, dapat magbayad ka. If the counterclaim is compulsory, libre yan!
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And the third rule laid down in Sun Insurance: if the judgment awards a claim not specified in the pleadings, the filing
fee therefor shall be a lien in the judgment. It shall be the responsibility of the clerk of Court or his duly-authorized deputy
to enforce the lien, assess and collect the additional fee.
Q: When can this possibly happen?

A: That can happen for example if I ask for damages. A man was hospitalized because of physical injuries. Nag file siya ng
kaso. Sabi ng court, may damages ito. So the court acknowledged the claim of P300,000. But after the case is filed, di pa rin siya
nakabayad sa hospital. After filing, marami pang gastos! So in other words he might ask from the court another P 50,000.
Q: Can the court award the P 50,000?

A: Yes, because the additional expenses came only after the filing of the case. The additional expenses occurred only
after filing the case. So nagkulang ngayon ang docket fee. Bayaran mo, don’t dismiss the case!
The Sun Insurance is a leading case on docket fee. It was followed with a third case in December 1989 which further clarified
the SUN INSURANCE ruling. This is the case of
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE

180 SCRA 433 [1989]
NOTE: When this case was filed, wala pa yong INSURANCE. The guiding rule was still MANCHESTER. But
while this was pending lumabas na yong SUN INSURANCE.
FACTS: The case was for recovery of land with damages (accion publiciana). So it is not purely for damages. So
how will you assess the filling fees? Based on the value of the land, binayaran ng plaintiff ang docket fee. Defendant
moved to dismiss based on MANCHESTER because the plaintiff did not specify in the complaint how much damages
he was claiming. Now the RTC of Tagum denies the motion to dismiss. The defendant goes to the SC citing
MANCHESTER.
Of course sabi ng SC wala na ang Manchester because of Sun Insurance. But here is another rule:
HELD: Dalawa ang filing fee: the assessed value of the land and for the damages. There are two (2)
options here: (1.) Kung nabayaran ang docket fee for the recovery of land pero wala ang para sa damages, do
not dismiss the entire case! That is crazy if you will dismiss the entire case kasi nagbayad man siya ng
docket fee for the recovery of the land. Just do not consider the claim for the damages. Or, (2.) second
option, citing SUN INSURANCE, give him reasonable time to pay the balance. So that's the case of TACAY.
“Where the action involves real property and a related claim for damages as well, the legal fees shall be
assessed on the basis of both (a) the value of the property and (b) the total amount of related damages
sought. The court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied
by the payment of the requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of
the time of full payment of the fees within such reasonable time as the court may grant, unless, of course,
prescription has set in the meantime.”
Now, there are other interesting cases on the issue on docket fees.
FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS

171 SCRA 674 [1989]
FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex, Mobil, etc.) of the Philippines for infringement of
patent with prayer for the payment of reasonable compensation for damages. According to him, these companies
used in their operation a certain type of machine which he claimed he invented. His patent was infringed. Thus, all
these companies are all liable to him for royalties. The estimated yearly royalty due him is P236,572. Since the
violation has been for many years already, his claims reached millions. The trial court ordered him to pay
P945,636.90 as docket fee. He had no money so he questioned it. So sabi rig court: “We will allow you to file the case
and the docket fee is deductible from whatever judgment of damages shall be awarded by the court.” So, parang file
now pay later.
HELD: There is no such thing as file now pay later. No justification can be found to convert such payment
to something akin to a contingent fee which would depend on the result of the case. Hindi pwede sa gobyerno
yan! Example is kung matalo ka sa kaso – the case is dismissed. Tabla ang gobyerno? So, di pwede yan!
“Filing fees are intended to take care of court expenses in the handling of cases in terms of cost of supplies, use
of equipments, salaries and fringe benefits of personnel, etc., computed as to man hours used in handling of each
case. The payment of said fees therefore, cannot be made dependent on the result of the action taken, without
entailing tremendous losses to the government and to the judiciary in particular.”
Alam ninyo, ang dapat sana n'yang ginawa, nag file sya ng motion to allow him to litigate as a pauper. In legal ethics, pwede
yan sa abogado – yung contingent fee: “Attorney, will you handle my case? Wala akong pera. I will offer a contingent fee.” “Okay,
I’ll handle your case. Pag-talo, wala kang utang. Pag panalo, kalahati sa akin.” Yan! Pwede yan. Pero sa gobyerno, wala yan
because usually the judiciary gets its budget from the filing fees.
LACSON vs. REYES

182 SCRA 729
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FACTS: There was a case filed and then the lawyer filed a motion to direct the plaintiff to pay him his attorney’s
fees – a motion for payment of attorney’s fees. So sabi ng court: “Attorney, magbayad ka ng docket fee.” “Bakit?
Motion nga lang yan, may docket fee pa? Grabeeh!”
HELD: No, bayad ka uli. “It may be true that the claim for attorney's fees was but an incident in the main
case, still, it is not an escape valve from the payment of docket fees because as in all actions, whether
separate or as an offshoot of a pending proceeding, the payment of docket fees is mandatory. The docket fee
should be paid before the court would validly act on the motion.”
SUSON vs. COURT OF APPEALS

278 SCRA 284 [August 21, 1997)
FACTS: Mortz filed a case against Charles in Leyte. After filing, the court dismissed the case because it should
be filed in Cebu. Mortz wrote a letter to the Office of the Court Administrator (OCA) asking that the docket fee paid in
Leyte be considered applicable to Cebu. OCA granted his request.
Charles questioned it because of the rule that the payment of docket fee is jurisdictional.
HELD: “The OCA has neither the power nor the authority to exempt any party not otherwise exempt
under the law or under the Rules of Court in the payment of the prescribed docket fees. It may be noteworthy
to mention here that even in the Supreme Court, there are numerous instances when a litigant has had to re-
file a petition previously dismissed by the Court due to a technicality (violation of a pertinent Circular), and in
these instances, the litigant is required to pay the prescribed docket fee and not apply to the re-filed case the
docket fees paid in the earlier dismissed case.”
“In the case at bar, in the strict sense, Mortz’s complaint cannot be deemed to have been ‘re-filed’ in Cebu City
because it was not originally filed in the same court but in the RTC Leyte. Thus, when Mortz’s complaint was
docketed by the clerk of court of the RTC Cebu City, it became an entirely separate case from that was dismissed by
the RTC of Leyte due to improper venue. As far as the case in Cebu is concerned, while undoubtedly the order of
dismissal is not an adjudication on the merits of the case, the order, nevertheless, is a final order. This means that
when private respondent did not appeal therefrom, the order became final and executory for all legal intents and
purposes.”
DE LEON vs. COURT OF APPEALS

287 SCRA 94 [March 6, 1998]
FACTS: The question for decision is whether in assessing the docket fees to be paid for the filing of an action for
annulment or rescission of a contract of sale, the value of the real property, subject matter of the contract, should be
used as basis, or whether the action should be considered as one which is not capable of pecuniary estimation and
therefore the fee charged should be a flat rate of P400.00 as provided in Rule 141, Section 7(b)(1) of the Rules of
Court.
Polgas argued that an action for annulment or rescission of a contract of sale of real property is a real action and,
therefore, the amount of the docket fees to be paid by Dagul should be based either on the assessed value of the
property, subject matter of the action, or its estimated value as alleged in the complaint.
Since Dagul alleged that the land, in which they claimed an interest as heirs, had been sold for P4,378,000.00 to
Polgas, this amount should be considered the estimated value of the land for the purpose of determining the docket
fees.
Dagul countered that an action for annulment or rescission of a contract of sale of real property is incapable of
pecuniary estimation and, so, the docket fees should be the fixed amount of P400.00 in Rule 141, Section 7(b).
HELD: Dagul is correct. “In determining whether an action is one the subject matter of which is not capable of
pecuniary estimation, this Court has adopted the criterion of first ascertaining the nature of the principal action or
remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary
estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the
amount of the claim. “
However, where the basic issue is something other than the right to recover a sum of money, or where
the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have
the defendant perform his part of the contract (specific performance) and in actions for support, or for
annulment of a judgment or to foreclose a mortgage, this Court has considered such actions as cases where
the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts
of first instance.”
“The rationale of the rule is plainly that the second class cases, besides the determination of damages, demand
an inquiry into other factors which the law has deemed to be more within the competence of courts of first instance,
which were the lowest courts of record at the time that the first organic laws of the Judiciary were enacted allocating
jurisdiction.”
“Actions for specific performance of contracts have been expressly pronounced to be exclusively cognizable by
courts of first instance and no cogent reason appears, and none is here advanced by the parties, why an action for
rescission (or resolution) should be differently treated, a "rescission" being a counterpart, so to speak, of ‘specific
performance’.”
“In both cases, the court would certainly have to undertake an investigation into facts that would justify one act or
the other. No award for damages may be had in an action for rescission without first conducting an inquiry into
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matters which would justify the setting aside of a contract. Issues of the same nature may be raised by a party against
whom an action for rescission has been brought, or by the plaintiff himself.”
“It is, therefore, difficult to see why a prayer for damages in an action for rescission should be taken as the basis
for concluding such action as one capable of pecuniary estimation — a prayer which must be included in the main
action if plaintiff is to be compensated for what he may have suffered as a result of the breach committed by
defendant, and not later on precluded from recovering damages by the rule against splitting a cause of action and
discouraging multiplicity of suits.”
“Thus, although eventually the result may be the recovery of land, it is the nature of the action as one for
rescission of contract which is controlling.”
“Since the action of Polgas against Dagul is solely for annulment or rescission which is not susceptible of
pecuniary estimation, the action should not be confused and equated with the ‘value of the property’ subject of the
transaction; that by the very nature of the case, the allegations, and specific prayer in the complaint, sans any prayer
for recovery of money and/or value of the transaction, or for actual or compensatory damages, the assessment and
collection of the legal fees should not be intertwined with the merits of the case and/or what may be its end result.”
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph [1]:
“Provided further, That where there are several claims or causes of actions between the same or
different parties, embodied in the same complaint, the amount of the demand shall be the totality of the
claims in all the causes of action, irrespective of whether the causes of action arose out of the same or
different transactions.”
What do you call that rule? The TOTALITY RULE.
ILLUSTRATION: Joinder of causes of action. The defendant secured from me two or more loans. Let’s say, apat na utang
covered by four (4) promissory notes and all of them are due and he has not paid me any. Let's say each note covers a principal
amount of P75,000. Now, I decided to file one complaint embodying my four causes of action against him although I have the
option also to file four separate complaints. If you will look at the value of each claim which is P75,000 that is triable by the MTC.
But if you will add the four claims that will be P300,000.00.
Q: Which will prevail? The amount of each of the claim or the total?
A: The total amount will prevail. So it should be filed in the RTC. That is the totality rule.
Never mind that there are four (4) separate loans because the law says “irrespective of whatever the cause of action
arose out of the same or different transactions.” Now in that example, there is only one plaintiff and one defendant. The
plaintiff has four claims against the same defendant. Now suppose there are 4 plaintiffs suing the same defendant in what
is called in procedure as joinder of causes of action and joinder of parties.
EXAMPLE: There are four (4) passengers riding on a public vehicle. They were all injured when the bus met an accident and
all of them were hospitalized. So after they were discharged, the four of them wanted to sue the bus company for damages arising
from contract of carriage or culpa contractual. Since they hired the same lawyer, the lawyer said, “Why will I file 4 complaints?
Isahin na lang. I will join them.” In effect, he joined 4 causes of action.
Q: The same question will arise. What will be now the basis of jurisdiction? The claim of every plaintiff or the total claims of the
4 plaintiffs?
A: The total claims. You apply the totality rule because the law says “where there are several claims or cause of action
between the same or different parties.” So whether the parties are the same or the parties are different embodied in the
same complaint the amount of the demand shall be the totality of the claims the totality rule applies in both situations.
We will now go to paragraph [2] of Section 33.
[2] Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That
when, in such cases, the defendant raises the question of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. x x x x”
This is related to the Law on Property – FORCIBLE ENTRY (recovery of physical possession, e.g. squatting) and
UNLAWFUL DETAINER (e.g. you eject a lessee does not pay his rent.) – MTC lahat iyan. The two cases should not be
confused with accion publiciana which is also the recovery of possession but that is a better right. Now, in unlawful
detainer, the plaintiff also prays not only to eject the defendant but also to claim for back rentals or the reasonable
amount of the use and occupation of the property in case of forcible entry.
Q: Suppose the unpaid rentals already amount to almost half a million pesos – so, unlawful detainer plus back rentals of half a
million. Where should the case be filed?
A: The case should still be filed with the MTC. What determines jurisdiction is the nature of the action, and not the amount of
recoverable rentals. Kahit na one (1) million pa yan, MTC pa rin yan.
Q: In an action for forcible entry or unlawful detainer, can the party present evidence of ownership?
A: The general rule is NO because the MTC cannot adjudicate ownership. That has to be threshed out in the proper civil action
in the RTC. But if evidence of ownership is presented in the forcible entry or unlawful detainer case, it is only incidental and it is
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only resolved to determine the issue of possession. But the declaration of ownership is not final – that is only prima facie. The
question of ownership must be litigated in a separate action in the RTC.
Let us now proceed to the third paragraph of Section 33 as amended by R.A. 7691:
[3] Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property or any
interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand
pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty
thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That in cases of land not declared for tax purposes, the value of such property
shall be determined by the assessed value of the adjacent lots. (As amended by RA 7691)
Aside from forcible entry and unlawful detainer, MTCs have now jurisdiction over other real actions like accion
publiciana and accion reinvidicatoria cases where the assessed value of the land should be P20,000 or less. In Metro
Manila, it is P50,000 or less. That is the amendment brought about by RA 7691 which expanded the jurisdiction of the
MTC.
B.) DELEGATED JURISDICTION OF THE MTC
Sec. 34. Delegated Jurisdiction in Cadastral and Land Registration Cases. - MetTCs, MTCs and
MCTCs may be assigned by the Supreme Court to hear and determine cadastral or land registration
cases covering lots where there is no controversy or opposition, or contested lots where the value of
which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the
affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from
the corresponding tax declarations of the real property. Their decisions in these cases shall be
appealable in the same manner as decisions of the RTCs. (As amended by RA 7691)
Review: These are related to your study of Land, Titles and Deeds (The Property Registration Decree) When you file a petition
for land registration, the object is to have your property registered and fall under the Torrens System of the Land Registration.
Patituluhan ba! Now, what is the difference between a land registration proceeding and a cadastral proceeding? Cadastral is
compulsory registration.
Q: Now, what is this delegated jurisdiction all about?

A: It refers only to cadastral and land registration cases which involve the titling of property under the Torrens system or
cadastral land registration.
Under the Property Registration Decree, only the RTC has authority to entertain land registration and cadastral cases. But
now, Section 34 gives the Supreme Court the authority to DELEGATE MTCs to hear and decide land registration and cadastral
cases under the following conditions:
1.) when there is no controversy or nobody is contesting your petition; or
2.) even if the petition is contested where the value of the land to be titled does not exceed P100,000.
In which case, these MTCs can decide and their decisions are appealable directly to the CA. Para bang acting RTC
sila ba. That’s what it is called delegated jurisdiction. ‘Delegate’ means it really has to be assigned to you.
Now do not confuse this P100,000 (Section 34) with the P20,000 under Section 33. Section 34 deals with cadastral and land
registration cases. Section 33 involves civil cases (accion publiciana, etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases. - In the absence of all the Regional Trial Judges in
a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may
hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the
province or city where the absent Regional Trial Judges sit.
This is what we call special jurisdiction. That only applies to two (2) types of cases: (1) Habeas corpus and (2) hearing of
petitions for bail.
Remember that habeas corpus is not within the jurisdiction of the MTC. It is with the RTC. Also, the hearing on petition for bail,
RTC yan because the offense may be a heinous one, but under the law on criminal procedure you can file a petition for bail to have
your temporary freedom while the case is going on. That’s supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are sick or all of them are attending a convention (this actually
happened in Davao in 1990) Section 35 provides that the MTC, in the absence of RTC judges, can hear and decide on habeas
corpus case petitions and applications or petitions for bail in criminal cases. So acting pa rin yan because they are urgent and the
liberty of a person is at stake.
That is allowed because of the urgency of the situation. There is no need for a SC authorization. However, this is only allowed
in the absence of the RTC judges. But if the RTC judge comes back, he has to take over the petition.
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So with that we are through with the jurisdiction of our courts. So we will now proceed to remedial law proper.
CIVIL PROCEDURE PROPER
Laws are classified as either Remedial or Substantive Law. Remedial Law is also known as Adjective or Procedural Law.
REMEDIAL LAW vs. SUBSTANTIVE LAW
Q: Distinguish Remedial law from Substantive law?

A: SUBSTANTIVE LAW is that branch of the law which creates, defines and regulates rights. (Bustos vs. Lucero, 81 Phil. 640;
Ballentine’s Law Dict., 2nd., pp. 66, 1023) Like the Civil Code, the rights of children, husband and wife, creditor and debtor are all
found there.
REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion.
(Ibid) Example of Remedial Law is the Rules of Court.
So a right is useless unless you enforce it. And the manner of enforcing rights is now prescribed by remedial law. Like in civil
cases, my neighbor borrowed from me but until now, despite several demands, he refused to pay. Under the law on Obligations
and Contracts, I have the right to collect. But how do I collect? Is it by writing a letter to the judge, “Dear Judge…”? or Is it by
calling him on the phone? I-text ko kaya? Di puwede yan! There must be a procedure. That is where the Civil Code leaves you
behind and that is where the Rules of Court will take over. So the 2 laws go hand in hand. That is what the SC said in the 1992
case of
DE DIOS vs. COURT OF APPEALS

212 SCRA 519 [1992] Cruz, J.
HELD: The 2 laws have a symbiotic relationship. They go hand in hand – one supports the other. They are not
antagonistic towards each other.
“Procedural rules are designed to insure the orderly and expeditious administration of justice by providing for a
practical system by which the parties to a litigation may be accorded a full and fair opportunity to present their
respective positions and refute each other's submissions under the prescribed requirements, conditions and
limitations. Adjective law is not the counterfoil of substantive law. In fact, there is a symbiotic relationship between
them. By complying faithfully with the Rules of Court, the bench and the bar are better able to discuss, analyze and
understand substantive rights and duties and consequently to more effectively protect and enforce them.”
ASPECTS OF REMEDIAL LAW
Q: Give the two (2) aspects of Remedial Law.

A: There are 2 aspects of Remedial Law:
1.) PUBLIC ASPECT – one which affords a remedy in favor of the State against the individual (e.g. criminal procedure)
or in favor of the individual against the State (e.g. habeas corpus) on the other hand,
2.) PRIVATE ASPECT – one which affords a remedy in favor of an individual against another individual, like the rules on
civil procedure. (Gamboa’s Introduction to Philippine Law, 6th Ed., pp. 97-99)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE PHILIPPINES
The origin of our law on procedure is American. Forget the law on procedure during the Spanish regime. But the first known
ancestor of the law on Civil Procedure was the old Act 190, otherwise known as the Code of Civil Procedure, which was enacted on
August 7, 1901 by the United States and Philippine Commission.
And that was the law until 1940 because on July 01,1940 the SC enacted the Rules of Court which we now call the Old Rules
of Court. That continued for another 24 years until January 01, 1964 when the SC enacted the Revised Rules of Court repealing
the Old Rules of Court. And that continued for another 33 years until July 01,1997 where the SC enacted and which took effect on
that day (July 01, 1997) the New Rules on Civil Procedure.
SUMMARY:
1.) First Law – August 07, 1901 – Act 190 – Code of Civil Procedure (40 years)
2.) Second Law – July 01, 1940 – Old Rules of Court (24 years)
3.) Third Law – January 01, 1964 – Revised Rules of Court (33 years)
4.) Fourth Law – July 01, 1997 – New Rules of Civil Procedure.
SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE
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Well of course the sources are almost the same as the prior law. The old Rules of Court is also a source. Many provisions
were taken from the 1964 Rules, substantive law like the Civil Code and jurisprudence. And of course SC circulars. Many circulars
are now incorporated under the new rule. So those are the main sources.
SOURCES:
1.) Previous Rules of Court;
2.) Jurisprudence;
3.) New Civil Code;
4.) SC Circulars
RULE-MAKING POWER OF THE SUPREME COURT
The Rules of Court (1940, 1964, 1997) have all been enacted by tile SC. It is law, not enacted by Congress but enacted
by the SC.
Q: What is the authority of the SC to enact a law when actually the role of the judiciary is only to interpret the law? Is this not
a violation of the separation of powers?
A: The authority of the SC in enacting the prior rules and the present rules is what you call its rule-making power which
provision was found in the 1935, 1973 and 1987 Constitutions. Based on the present law, the rule-making power of the SC is
expressed in Article VIII, Section 5, paragraph [5] which is substantially the same as the 1935 and 1973 Constitutions. Only
everytime they amend the Constitution, it is getting longer and longer.
Rut the pertinent portion which has not been changed is that the SC “shall have the power to promulgate rules on
pleading, practice and procedure.” That is the authority of the SC in enacting the Rules of Court. But you should know
also the limitations.
LIMITATIONS TO THE RULE-MAKING POWER OF THE SC
The Constitution has also placed limitations on these powers. As currently worded, one limitation provided for by the Article is
“the rules of procedure to be enacted by the SC shall provide for a simplified and inexpensive procedure for the speedy
disposition of cases.” The second one is: “the rules shall be uniform for all courts of the same grade.” And the third is:
“the rules shall not diminish, increase or modify substantive rights.”
LIMITATIONS :
1. The Rules of Court shall provide a simplified and inexpensive procedure for the speedy disposition of cases;
2. The Rules of Court shall be uniform for all courts of the same grade; and
3. The Rules of Court shall not diminish, modify or increase substantive rights.
Substantive rights are created by substantive law so the Rules of Procedure should not increase, diminish or modify them. In
effect, the Rules of Court should not amend the substantive law. It can only interpret substantive law but should not change it
completely. Those are the limitations. With that we are now ready to tackle the 1997 rules on civil procedure.
Rule 01
GENERAL PROVISIONS
SECTION 1. Title of the Rules. These Rules shall be known and cited as the Rules of Court.
SEC. 2. In what courts applicable. These Rules shall apply in all the courts, except as otherwise provided
by the Supreme Court.
Section 1 provides the title of the Rule – Rules of Court. And Section 2, “these rules shall apply in all the courts except as
otherwise provided by the Supreme Court.” Meaning, applicable to all courts except when the SC say otherwise. For example: The
SUMMARY RULES on procedure which is applicable to some cases in the MTC.
Another example of when the SC say otherwise is Section 4 – that the rules shall not apply to election cases, land
registration, cadastral, naturalization, insolvency proceedings and other cases not herein provided for except by analogy.
That is formerly Rule 143. Ngayon nilagay nila sa umpisa. The placement is better so that we will see it immediately. That is
actually not a new provision. That’s an old one. It used to be in Rule 143, now it is in Rule 1.
Sec. 3. Cases governed. These Rules shall govern the procedure to be observed in actions, civil or
criminal, and special proceedings.
xxxxxx
Now, some people are asking me, “Akala ko ba civil procedure ito, bakit merong criminal? How come it mentions criminal
cases and definitions when it is supposed to be 1997 Rules on Civil Procedure?
33
NO, Rule 1 is the general provision for the entire Rules of Court. You look at the title, “These rules shall be known as the
‘Rules of Court.’” This is the common denominator from the first to the last Rule. That’s why it says there ‘special proceedings,’ ‘civil
cases’ and ‘criminal cases.’ Now we are not interested in criminal cases of course. Civil action na larg tayo muna.
xxxxx
(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil
actions, subject to the specific rules prescribed for a special civil action.
xxxxx
Well the definition of a civil action is there. The definition now becomes shorter compared to the previous definition. It’s the
same definition. It has only been shortened.
A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress
of a wrong. So, that is the purpose of a civil suit – to enforce or protect your right or you sue somebody for the purpose of
preventing or redressing a wrong.
CLASSIFICATION OF CIVIL ACTIONS
Q: Classify civil actions.

A: The following:
I. As to NATURE (Section 3 [a])

a.) Ordinary Civil Actions
b.) Special Civil Actions
II. As to CAUSE or FOUNDATION:

a.) Real Actions
b.) Personal Actions
c.) Mixed Actions
III. As to PLACE OF FILING

a.) Local Actions
b.) Transitory Actions
IV. As to OBJECT
a.) Action In Personam
b.) Action In Rem
c.) Action Quasi In Rem
I. CIVIL ACTION; CLASSIFICATION AS TO NATURE
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
The special civil actions are governed by Rules 62 to 71. And the actions not among those mentioned is automatically ordinary.
And even at this stage, you should be able to give already what. are the special civil actions. So, it is a matter of looking at the table
of contents.
Rules 62 to 71: Interpleader, Declaratory Relief, Certiorari, Prohibition, Mandamus, Quo Warranto, Expropriation, Foreclosure
of Mortgage, Partition, Forcible Entry, Unlawful Detainer and Contempt. There is a new one – Review of Final Decisions or
Resolutions of the COMELEC and COA under Rule 64. But actually it says there, it is governed by Rule 65. So in other words
Certiorari (Rule 65) pa rin although it’s a new rule now. Rule 64 is entitled Review of Decisions of the COMELEC and the COA, but
it shall he governed by Rule 65 on Certiorari .
Q: What is so important in distinguishing a special civil action from an ordinary civil action?
A: What makes an action special is simply because of the fact that there are some specific rules prescribed for them
which are not found in other rules. But to say that the rules on ordinary civil actions do not apply to special civil actions is
false. The law is very clear. Both are governed by the rules on ordinary civil actions subject to the specific rules.
Therefore, in case of conflict between the specific rule governing a particular type of civil action and the ordinary, then you
follow the specific provision. But if the rules on special civil actions are silent, apply the ordinary rules.
Give an example of a case where in the absence of a special provision in the rules on special civil actions the court had to
apply the rules on ordinary civil actions by analogy. The case of
AMBERTI vs. COURT OF APPEALS

195 SCRA 659 [1991]
34
FACTS: This case involved a petition for certiorari (special civil action under Rule 65) and then before the
respondent could answer the petition, he withdrew the petition. And then later on he changed his mind. He re-filed the
petition. The question that was asked by the SC is when you file a special civil action for certiorari and then before the
other party could answer you withdraw it, is the withdrawal with or without prejudice? Can you re-file it?
There is no rule in Rule 65 answering that question so the SC had to resort to the ordinary rules by analogy.
HELD: Certiorari is similar to appeal although it is not really an appeal. And the SC looked at the law on
appeal. What happens when you perfect your appeal and then later on you withdraw your appeal? What will
happen to the order or judgment? Rule 50 says that if you withdraw the appeal, the judgment appealed from
will now become final and executory. Therefore, since it is now final and executory, you cannot change it
anymore.
“Applying the foregoing rules in a supplementary manner (or by analogy), upon the withdrawal of a
petition in a special civil action before the answer or comment thereto has been filed, the case shall stand as
though no appeal has been taken, so that the judgment or order of the lower court being questioned
becomes immediately final and executory. Thus, a resolution granting the withdrawal of such a petition is
with prejudice and petitioner is precluded from bringing a second action based on the same subject matter.”
So that’s a perfect example of the application of ordinary rules in special civil actions.
Now, there are other classifications of civil actions which are not expressly stated in Section 3. The only one stated there is
ordinary and special.
II. CIVIL ACTIONS; CLASSIFICATION AS TO CAUSE OF FOUNDATION:

REAL, PERSONAL or MIXED ACTIONS
An action is either a real or personal action. And that is important because of Rule 4 – the venue for real actions is different
from the venue for personal actions.
A REAL ACTION is briefly described as an action where the issue or the subject involved is title, ownership, possession or
interest over a real property like accion publiciana, forcible entry, unlawful detainer, foreclosure of mortgage or real property,
partition of real property. (c.f. Section 19, BP 129 – controversy relates to real property)
On the other hand, when the issue is not one of those – meaning, it is founded on privity of contract, or on quasi-delict, such as
actions for a sum of money, or damages, for the enforcement or resolution of a contract, or for recovery of personal property, these
are the PERSONAL ACTIONS. (Casilan vs. Tomassi, 90 Phil. 765; Cachero vs. Manila Yellow Taxicab, 101 Phil. 523; Bautista vs.
Piguing, L-10006, Oct. 31, 1957)
Some text writers give a third classification: the MIXED ACTIONS where there is a mixture of real and personal actions. Mixed
actions are such as pertain in some degree to both real and personal and, therefore, are properly reducible to neither of them,
being brought for the specific recovery of land and for damages sustained in respect of such land. (Dela Cruz vs. Seminary
of Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages. So that’s a mixed action. Although it is more of real rather
than personal. If the damage is only incidental, then it is more of a real action rather than a personal action like the case of
TACAY. The claim for damages is incidental, the main purpose is recovery of possession of land.
III. CIVIL ACTIONS; CLASSIFICATION AS TO THE PLACE OF FILING:

LOCAL ACTIONS and TRANSITORY ACTIONS
A LOCAL ACTIONS is an action which can only be instituted in a particular place whereas a personal action follows the
residence of the parties. Good examples of local actions are real actions. Real actions are also automatically local actions. They
can only be instituted in the place where the property is situated. This is already provided by law (e.g. accion publiciana, forcible
entry, unlawful detainer – can only be filed where the land is situated.)
TRANSITORY ACTIONS are those which follow the party wherever he may reside. (1 Am. Jur. 430) Personal actions are
transitory – it is based on where the plaintiff or where the defendant resides at the option or election of the plaintiff. It is based on
the residence of the parties.
We will go to the fourth classification as to object of the suit.
IV. CIVIL ACTIONS; CLASSIFICATION AS TO OBJECT:

ACTIONS IN PERSONAM, IN REM and QUASI IN REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
How do we differentiate one from the other? The SC in the past has given the definition in some cases which definition
appears in many books as quoted by authors. But the trouble with these definitions, sometimes, the more you read it the more you
don’t understand what the definition is all about. For example:
“If the technical object of the suit is to establish a claim generally against some particular persons, with a
judgment which, in theory, at least, binds his body. or to bar some individual claim or objection, so that only certain
35
persons are entitled to be heard, the action is IN PERSONAM.” (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs.
Robles, 81 Phil. 421)
But, “if the object of the suit is to bar indifferently all who might be minded to make an objection of any sort
against the rights sought to be established, and if anyone in the world has a right to be heard on the strength of
alleging facts which, if true, show an inconsistent interest, the action is IN REM.” (Grey Alba vs. Dela Cruz, 17 Phil.
49; Sandejas vs. Robles, 81 Phil. 421)
To simplify the definition:
ACTION IN PERSONAM – any judgment that the court will render in that case binds only the parties to the action and their
privies or their successors-in-interest.
ACTION IN REM – any judgment with the court will render in the case binds not only the parties to the case but the whole
world, then the action is in rem.
To follow the language of the SC in the case of:
CHING vs. COURT OF APPEALS

181 SCRA 9
HELD: “Actions in personam and actions in rem differ in that the former are directed against specific
persons and seek personal judgments, while the latter are directed against the thing or property or status of
a person and seek judgments with respect thereto as against the whole world.”
Action in personam; EXAMPLE:
ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng court: “Alright Momma Jessa,
you are the winner and you are entitled to the land.” Now, here comes Baby Maya. Momma Jessa says, “Wala na iyan, tapos na
iyan. In the case, that was already decided that I am entitled.” Sabi ni Baby Maya, “Ah, that is between you (Momma Jessa) a nd
Little Lulu. But I’m different. I have evidence to prove that my right is better than yours. I am not bound by that decision.”
Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on Baby Maya?
A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment where she is not a party. Hence,
the action between Momma Jessa and Little Lulu is an action in personam.
Action in Rem; Example:
ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage. Suppose the husband
(Joshua) files a case against his wife (Tekla) to annul their marriage. After trial, the court rendered judgment annulling the marriage
of Joshua and Tekla. It became final. Now, the status of the parties is SINGLE na naman because the marriage is annulled. Joshua
meets another girl, Maying, and courted her and told Maying, “I would like to marry you.” Maying said, “I cannot marry you because
I know you are married. How can I marry you when you are already married?” Joshua said, “Not anymore. I’m no longer married
because my marriage with Tekla is already annulled and here is the decision. So, I’m single.” According Maying, “No, I am not
bound by that judgment because I was not a party to that case.”
Q: When the court ruled in the case between Joshua and Tekla that the marriage is annulled and that now you are single,
is the judgment binding on anybody?
A: YES. Your status is single and whether you are a party in the case or not, you are bound by the judgment because it is
directed against the whole world. Your status is to be respected.
ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the Tenor ( most outstanding
student of Pavarotti… ), to be considered a recognized child and the court said, “Yes, you are declared a child of the defendant,”
Rod the Tenor is now compelled to recognize you. Your status as a recognized child is not only binding on your father but is
binding on the whole world. Your status is no longer unrecognized.
Take note, an action in rem and in personam have often been confused with the classification of real and personal action. They
sound almost the same. That an action in personam is also a personal action, or, when an action is in rem it is also a real action – it
is not true. That is a different classification. An action could be as to cause – it could be real. As to object, it could be in personam.
In the same manner, it could be personal action but an action in rem. So, these are two different classification.
ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of land. It is a REAL action.
In real action, the subject is possession or ownership of real property. Any judgment therein binds only the parties, and
not the whole world. So, it is also an action IN PERSONAM. It is a real action as to cause, but as to object, it is in
personam.
ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL action because it does
not involved his property. It is about status. But it is also IN REM because the judgment therein is binding the whole
world.
So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges interchange one with the other.
Last year, I was reading the SCRA, I cannot remember the decision where before deciding, the SC gave a lecture: The trouble with
this case, the basic error of the court is that it confused real action with an action in rem and an action in personam with a per sonal
action a real action could be in personam and a personal action could be in rem. So do not be confused.
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QUASI IN REM
Text writers gave a sort of third classification as to object. This is called action quasi in rem. “QUASI” means almost. So, ‘quasi
in rem’ is almost in rem. Actually, it is in personam but almost in rem.
Q: Define action quasi in rem.

A: An action quasi in rem is actually in personam because it is directed only against a particular individual but the
purpose of the proceeding is to subject his property to the obligation of lien burdening it. The object of the case is the
sale or other disposition of property of the defendant over which you have a right or lien over the property.
EXAMPLE: Foreclosure of Mortgage. Somebody borrows money from you and mortgages his land as security for the loan.
Then later, he cannot pay. You decide to institute foreclosure proceedings over the mortgage property. I presume you know the
object of the foreclosure. If the property is foreclosed, the property over which you have a lien – a right because it is mortgaged to
you – that property will be sold at public auction and the proceeds will be given to the mortgagee or creditor in payment of the
obligation.
ILLUSTRATION: An action to foreclose a mortgage is the best example of a civil action quasi in rem because there is a
defendant (mortgagor) and the object of the case is to have the property mortgaged sold or disposed of in order to satisfy
the mortgage lien of the mortgagee. It is in personam because it is directed only against person who mortgaged to you.
But once the property is foreclosed, practically everybody has to respect it. Wala ka ng right doon sa property. Naunahan
ka na. That’s why it is called quasi in rem.
Or, to borrow the language of the SC in simplifying the term quasi in rem, quasi in rem means ‘against the person in respect to
the res, against the mortgagor in respect to the thing mortgaged.’
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
Q: Define a special proceeding.

A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular
fact. (2a, R2)
Special proceedings should not be confused with a civil action. Special Proceedings are governed by Rules 72-109 of the
Rules of Court. You look at the table of contents and you will see them. That is a third year subject.
BAR QUESTION: Distinguish a civil action from a special proceeding.

A: The following:
1.) A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the prevention
or redress of a wrong, whereas,
A SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right, or a particular fact;
2.) In a CIVIL ACTION, there are two (2) definite and particular adverse parties, the party who demands a right, called a
plaintiff, and the other whom the right is sought, called a defendant, whereas,
In a SPECIAL PROCEEDING, while there is a definite party petitioner, there is no definite adverse party as the
proceeding is usually considered to be against the whole world;
3.) A CIVIL ACTION requires the filing of formal pleadings, whereas

In a SPECIAL PROCEEDING, relief may be obtained by mere application or petition;
4.) The period to appeal in CIVIL ACTIONS is generally 15 days and the requirement is the filing of a notice of appeal,
whereas
In SPECIAL PROCEEDINGS the period to appeal is 30 days and aside from notice of appeal, the law requires the
filing of a record on appeal.
Of course the basic distinction is found in Section 3 – a civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong. Whereas, a special proceeding is a remedy
by which a party seeks to establish a status, a right, or a particular fact.
The object of a civil action is to enforce or protect a right or to prevent or redress a wrong. But the object of a special
proceeding is only to establish a status, a right or a particular fact.
If a creditor sues the debtor to collect an unpaid loan, is that a civil action or a special proceeding? That is a civil action
because the creditor wants to enforce or protect his right to collect. The creditor is compelling the debtor to pay. It is adversarial.
A good example of a special proceeding is a petition for ADOPTION. It is a special proceeding because the purpose is to
establish a status of parents and child who were not related to each other. In other words, to create a relation of parents and child
under the law between two people. The procedure in the law of adoption will be studied in the subject on special proceedings.
37
There was one article which I read about adoption. This is how the author describes adoption:
“Adoption is one of the sacred mysteries of the law. It concerns the making of a natural person as a
legitimate child of another person without the intervention of sex. A man becomes a father of the child he did not
sire. A woman becomes the mother of a child she did not bear. It is through the magic or fiction of the law that
adopters become parents of children unrelated to them by blood, or if related, the relationship is one of
illegitimacy.”
So you can adopt you own illegitimate child for the purpose of improving his status. So, when you file a petition for adoption,
you are not suing somebody to enforce or protect a right or prevent or redress a wrong. The purpose is to create a status of parent
and child between 2 people who are not related to each other.
And when you file a petition for adoption, you are not filing a case against anybody. Wala ka namang kalaban, eh. There is a
petitioner, the one who files, but there is no definite party. But it is directed against the whole world because once the adoption is
granted, then, as far as the whole world is concerned, they have to respect the status that this is now your child. Kaya nga, it is in
rem. Generally, special proceedings are in rem.
But since it is directed against the whole world, anyone in the world can come forward and oppose the petition. Kaya nga may
publication. You go to court and file your opposition. So wala kang kalaban na particular person but in reality, anybody in the world
can come forward and oppose it. That's the difference between a special proceeding and a civil action.
Sec. 4. In what cases not applicable. - These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by
analogy or in a suppletory character and whenever practicable and convenient. (R143a)
The Rules of Court do not apply to certain proceedings in court. A good example is Section 2 – these rules shall apply in all the
courts except as otherwise provided by the SC.
Q: What court proceedings where the Rules of Court are not applicable?
A: Election cases, land registration cases, cadastral cases, naturalization cases, insolvency proceedings, and other cases not
herein provided for except by analogy of for suppletory purposes.
In these cases, the Rules of Court are suppletory in character. In case of conflict between election law and the Rules of Court,
forget the Rules of Court. But when the Election Code is silent, you apply the Rules of Court by analogy or for suppletory purposes.
There are some election cases which fall within the jurisdiction of the courts, not necessarily COMELEC. For example, violation
of election code where the party may be adjudged to go to jail. That is a criminal case. That is governed by the rules on criminal
procedure. It is more on imprisonment.
Sec. 5. Commencement of an action. - A civil action is commenced by the filing of the original
complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced
with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for
its admission, if necessary, is denied by the court. (6a)
Q: When is a court action deemed commenced?

A: A civil action is commenced by the filing of the original complaint in court . Of course this is not really complete.
The filing of the original complaint in court must be accompanied by the payment of the correct docket fee. A complaint is
not deemed filed until the docket fee is paid. This is important to determine the exact date that the action has commenced
because it is from that moment that the running of the prescriptive period is interrupted.
The second sentence of Section 5 states that, “If an additional defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such later pleading…”
Example: Today (November 19, 1997), I filed a complaint against A. So, the action is commenced on Nov. 19, 1997. However
next month, say, December 19, if there is an additional defendant, the date of the commencement of the action with regards to the
additional defendant is not the date when the original action is filed, but on the date when he was included in the amended
pleading.
Last section. How do you interpret or construe the Rules of Court?
Sec. 6. Construction. - These Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding. (2a)
So, the Rules of Court shall be interpreted liberally in order to promote their object which is to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding. The purpose of Procedural Law is to hasten
litigation. So you do not interpret it to prolong a case. That is based on the principle of liberal construction. According to the SC in
one case commenting on this:
38
DE GUZMAN vs. SANDIGANBAYAN
256 SCRA 171, (en banc)
HELD: “The Rules of Court was conceived and promulgated to set forth guidelines in the dispensation of
justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots
of technical rules, shorn of judicial discretion. That is precisely why courts in rendering real justice have always
been, as they in fact ought to be, conscientiously guided by the norm that when on the balance, technicalities
take a backseat against substantive rights, and not the other way around. Truly then, technicalities, should give
way to the realities of the situation.”
So, the purpose of procedure is to help the hand that dispenses justice and not to tie these hands. Otherwise, the courts will
become mere robots. And, as much as possible, courts should avoid technicalities. To give way to the realities of the situation.
In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s thrust.” (Alonzo vs. Villamor, 16 Phil. 315) Hindi yan
espadahan na ang unang magsaksak, daog . That is not the concept of litigation. You do not lie in ambush. That’s another
pronouncement.
That’s why the SC said in another case:
SANTOS vs. COURT OF APPEALS

198 SCRA 806
HELD: Procedural “rules are not intended to hamper litigants or complicate litigation but, indeed, to provide for a
system under which suitors may be heard in the correct form and manner and at the prescribed time in a peaceful
confrontation before a judge whose authority they acknowledge. The other alternative is the settlement of their conflict
through the barrel of a gun.”
Meaning, the purpose of the rules is for people to fight each other in a civilized way. If you cannot accept the judicial sys tem,
what is your alternative? The only alternative is to shoot your opponent. We will settle our conflict through the barrel of a gun.
Barilan na lang tayo. So if you do not accept the system of justice, that is your alternative.
For all its shortcomings and its defects, the judicial system is still the civilized way of dealing with your opponent.
BAR QUESTION: When may lapses in the literal observance in the Rules of Court be excused?
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL

77 Phil. 523
HELD: Lapses in the literal observance of a rule of procedure will be overlooked:

1.) when they do not involved public policy;
2.) when they arose from an honest mistake or unforeseen accident;
3.) when they have not prejudiced the adverse party; and
4.) when they have not deprived the court of its authority.
One final note, while it is true that the Rules of Court should be liberally construed as a general rule, there are certain
provision which according to the SC, should be strictly construed because they were intended precisely to minimize
delay.
1. Reglementary periods
2. appeal
A good example would be provisions which prescribe the time during which certain acts are going to be done, like the
filing of an answer, because iif you will disregard this, it will promote more delay rather than expediiite litigations.
Another example is the filing of a notice of appeal. Hindi mo pwedeng palitan yan. These are the provisions which are
to be strictly construed because while it is true that the Rules of Procedure are to be liberally construed, it is not a license
to completely ignore these rules. Even the SC made the warning. Like in the cases of
ANTONIO vs. COURT OF APPEALS

167 SCRA 127
HELD: “It is the common practice of litigants who have no excuse for not observing the procedural rules to
minimize the same as mere technicalities. Then they cry for due process. These procedural rules are in fact intended
to ensure an orderly administration of justice precisely to guarantee the enjoyment of substantive rights.”
LIMPOT vs. COURT OF APPEALS

170 SCRA 367
HELD: “Procedural rules are not be belittled or dismissed simply because their non-observance may have
resulted in prejudice to a party's substantive rights, as in this case. Like all rules, they are required to be followed
39
except only when for the most persuasive of reasons they may be relaxed to relaxed to relieve a litigant of an injustice
not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. While it is
true that a litigation is not a game of technicalities, this does not mean that the Rules of Court may be ignored at will
and at random to the prejudice of the orderly presentation and assessment of the issues and their just resolution.”
This reminds me of a lawyer who did not comply with the rules and he was arguing that the rules should be liberally construed.
And then the judge says: “There is a thin line between liberal construction of the rules and gross ignorance of the rules!” Yaan! It is
either you did not follow the rules strictly or you do not really know the rules.
ORDINARY CIVIL ACTIONS
Rule 02
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil action must be based on a cause of
action. (n)
Section 1 of Rule 1 is entitled cause of action. That is an entirely new title, which is not found in the 1964 Rules. Section 1
expresses the principle that every ordinary civil action must be based on a cause of action. That is a new provision but it i s a
fundamental principle all along – you cannot have a case unless you have a cause of action.
As a matter of fact under Rule 16, one of the grounds for a motion to dismiss is that your pleading states no cause of action.
Sec. 2. Cause of action, defined. - A cause of action is the act or omission by which a party violates a
right of another. (n)
Now, for the first time, Section 2, which is also a new provision, has incorporated the definition of what is a cause of action.
However, again, it is not a new principle because even under the 1964 Rules we must such definition is already recognized.
Q: Define cause of action.

A: CAUSE OF ACTION is an act or omission by which a party violates a right of another.
Cause of Action; ELEMENTS:
Q: What are the ELEMENTS of cause of action ?

A: There are supposed to be 3 main elements: ROVID
1. a right pertaining to the plaintiff;

2. a correlative obligations of the defendant; and
3. violation of plaintiff's right by the defendant (also called delict)
You remove one of these and there is no cause of action. You think of any case under the sun, it must have all these elements.
Now, there is a fourth element added by some cases and commentators – the element of damage suffered by the plaintiff. So
based on that, these are the elements of a cause of action:
1. a RIGHT pertaining to the plaintiff;

2. a CORRELATIVE OBLIGATIONS of the defendants;
3. a VIOLATION of plaintiff’s right; and
4. DAMAGE suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief are you asking for? There can be no action where no
injury is sustained.
As a matter of fact, in a recent case, the SC remarked that wrong without damage or damage without wrong does not
constitute a cause of action since damages are merely part of the remedy allowed for the injury caused by a beach or wrong.
There can be damage without injury in those instances in which the loss harm was not the result of a violation of a
legal duty. These equations loss are after all called “damnum absque injuria.” Another latin maxim, “accio non datur non
damnificato”, which means there could be no action where no injury is sustained. So that is part of the definition of cause
of action. Damage without injury does not create any cause of action.
So the elements are: right, obligation, violation and damage. These are the four elements of a cause of action. You cannot
imagine of any civil case where the 4 elements are not present.
EXAMPLE: A debtor borrows money from creditor. Then, it is already due. Ayaw pa ring magbayad. Let’s try to find out the
elements.
RIGHT - the right of the creditor to get back his money;
40
OBLIGATION – The defendant has the obligation to pay back the loan under the law on contracts;
VIOLATION or delict or wrong – the account fell due and the debtor is supposed to pay the creditor, but the former did
not pay the latter;
DAMAGE. – the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a complaint against somebody, you do not prepare the complaint by
enumerating the elements. In other words, nasa istorya man yan ba. It is up for the defendant to analyze. It is the duty of the
lawyer to analyze the complaint whether the 4 elements are present.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You are crossing the street and a driver just bump you there.
And you are hospitalized. You fail to report for work.
RIGHT – it is the right of every person not to be molested. You have the right to walk peacefully and not to be harmed;
OBLIGATION – it is the obligation of every person driving to be careful so that he will not bump other people. You do not
have to enter into a contract with a person saying you will not bump him;
DELICT or wrong – because of your recklessness, you violated his right by injuring him;
DAMAGE – I have to spend money in the hospital and I lost my income.
The 4 elements are present. So there is a cause of action. In other words, you cannot imagine a civil case where the 4
elements are not present.
ANOTHER EXAMPLE: Defendant borrowed money from you last year payable in November 1998. And despite demands, still
he has not paid you. Now, is there a cause of action?
RIGHT – the creditor has the right to collect;

OBLIGATION – every debtor has the obligation to pay;
DAMAGE – I have not recovered the money;
DELICT or wrong – there is NO delict yet.
Why? There is no delict yet because the account is payable next year pa. So, it is still premature to file a collection case now
because one element is missing. So, if I am the lawyer of the defendant, I will question your complaint. It is not based on a cause
of action. That is dismissable under Rule 16.
CAUSE OF ACTION vs. RIGHT OF ACTION
And of course, as part of the study of cause of action, we must be able to differentiate it from the so-called right of action.
These are basic fundamental issues in Civil Procedure: Distinguish a cause of action from a right of action (bar question).
Q: Define right of action.

A: Right of action is the right of the plaintiff to bring an action and to prosecute that action to final judgment. (Marquez
vs. Varela, 92 Phil. 373)
Q: What are the ELEMENTS of a right of action?
A: There are two (2) elements:
1.) the plaintiff must have a good cause of action; and

2.) the must have performed all conditions precedent to the filing of the action.
So, you cannot have a right of action unless you first have a cause of action. That is why the SC said in the case of
DE GUZMAN, JR. vs. COURT OF APPEALS

192 SCRA 507
HELD: “The right of action springs from the cause of action, but does not accrue until all the facts which
constitute the cause of action have occurred. When there is an invasion of primary rights, then and not until then does
the adjective or remedial law become operative, and under it arise rights of action. There can be no right of action
until there has been a wrong – a violation of a legal right – and it is then given by the adjective law.”
So, there can be no right of action until there has been a wrong, a violation of a legal right. There can be no right of action
unless there is first a cause of action.
And you must comply with the conditions precedent. You cannot file a case unless you comply with certain conditions and the
best illustration of this element is the case of
PHIL. AMERICAN GENERAL INSURANCE CO. vs. SWEETLINES

212 SCRA 194
FACTS: This involves a shipped cargoes from Manila to Davao but the goods were damaged. Based on
damaged cargoes, the consignee filed a case against the carrier. Actually, in the bill of lading, there is a stipulation
that if the consignee wants to file a case arising from the contract of carriage against the carrier, the consignee must
41
first send a notice of loss to the carrier and then if the carrier will not honor it, and that is the time the consignee can
file a case before the court. Now, he went to court directly without filing a notice of loss to the carrier.
ISSUE: Whether or not there is a right of action.
HELD: There is NO right of action because the consignee did not comply with the conditions precedent.
“The right of action does not arise until the performance of all conditions precedent to the action. Performance or
fulfillment of all conditions precedent upon which a right of action depends must be sufficiently alleged, considering
that the burden of proof to show that a party has a right of action is upon the person initiating the suit.”
“More particularly, where the contract of shipment contains a reasonable requirement of giving notice of loss of or
injury to the goods, the giving of such notice is a condition precedent to the action for loss or injury or the right to
enforce the carrier’s liability.”
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF ACTION.

1.) Cause of action is the delict or wrong committed by the defendant, whereas
Right of action refers to the right of the plaintiff to institute the action;
2.) Cause of action is created by substantive law (e.g. rights under the Civil Code), whereas
Right of action is regulated by procedural law;
“Right of action is a remedial right belonging to some persons, while cause of action is a formal statement of
the operative facts that give rise to such remedial right.” (De Guzman vs. CA, supra)
3.) Right of action may be taken away by the running of statute of limitations, by estoppel or other circumstances which
do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His failure to pay is the cause of action. After 10
years, the right to collect has prescribed and you cannot recover anything. Actually, what is barred is his right of
action, not the cause of action because the moment he does not pay, there is already a wrong and you
cannot erase a wrong. The cause of action is not affected by prescription. In fact, the Civil Code provides that
the obligation is converted into natural obligation, which is based on equity rather than a right.
Because sometimes, you say that the action has prescribed. So you are invoking the law on prescription. But what
has prescribed? Is it the cause of action? No. The cause of action does not prescribe. What has prescribed is the right of
action. Yaan!
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. - A party may not institute more than one suit for a
single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Q: What is splitting a single cause of action?

A: Splitting a cause of action is the practice of dividing one cause of action into different parts and making each part a
subject of a different complaint. (Bachrach vs. Icariñgal, 68 Phil. 287)
That practice is expressly prohibited by law as expressed in Section 3, “A party may not institute more than one suit for a
single cause of action.” The rule is simple: If there is one cause of action, you file only one case. You cannot file two,
three or four cases arising out of one cause of action, otherwise you are splitting it.
EXAMPLE: In a suit under a promissory note, you file a case to collect the principal; another action to collect the interest;
another action to collect attorney’s fees. So, there is only one note and you sue me three times but there is only one cause of
action. Now, under the law, you have split your cause of action. You should file only one case to recover the principal and the
interest as well as the attorney’s fees.
EXAMPLE: Damage (injury) suit: Carlo, while walking was bumped by a vehicle. He filed one case against the owner of the
vehicle for reimbursement of hospital expenses; one case to recover his expenses for medicine; another one for doctor’s fees; then
another case for the lost income. Practical by you have filed four cases arising from one cause of action. Isang banggaan lang,
naging apat ang kaso? Again, the Carlo here has engaged in the prohibited practice of splitting cause of action. The correct
procedure is that he should file one action and demand the recovery of all these expenses and the lost income.
Sec. 4. Splitting a single cause of action; effect of. - If two or more suits are instituted on the basis of
the same cause of action, the filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others. (4a)
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Q: And what are the effects of splitting a cause of action?
A: Under Section 4, the following are the effects:
1.) The filing of one is available as a ground for the dismissal of other. That is what you call LITIS PENDENTIA –
there is another action pending between the same parties for the same cause. This is one ground for dismissal
of a case (Rule 16 – Motion to Dismiss, Section 1 [e])
So you file a case. And while it is pending, you file another case against the same party with the same
cause of action. Under Section 4, one of them is subject to dismissal.
2.) a judgment upon the merits in any one is available as a ground for the dismissal of the others. That is what you
call barred by prior judgment or RES ADJUDICATA, which is also a ground for dismissal under Rule 16, Section
1 [f].
EXAMPLE: A case was already decided a long time ago. Now, you are reviving the same case – you are filing
again. Under Section 4, the judgment in the first case years ago would be cited as a basis for the dismissal of the
second case.
Q: What is the reason or philosophy for the rule against splitting a single cause of action?
A: The rule against splitting a cause of action is intended to prevent repeated litigations between the same parties in regard to
the same subject of controversy; to protect the defendant from unnecessary vexation; and to avoid the costs incident to numerous
suits. (Bachrach vs. Icariñgal, supra; Bacolod City vs. San Miguel, Inc., L-25134, Oct. 30, 1969)
Actually, the reason is common sense eh – to protect the defendant from unnecessary vexation. Why create two cases when
you have only one cause of action? And why make me spend more? Magasto yung balik-balik sa court. It becomes an expensive
process. And why should you harass somebody when he only committed one wrong? You file a case against him but do not harass
him more than once. Nemo debet vis vesare procuna em iyadens cusa – “No man shall be twice vexed for one and the same
cause.”
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?

A: The singleness of a cause of action is determined by the singleness of the delict or wrong committed by the
defendant and not by the number of remedies that the law grants the injured party. Meaning, a single delict may give rise
to two or more possible remedies but it does not mean to say the injured party can avail of all those remedies
simultaneously or one after another. (Bachrach vs. Icariñgal, supra; David vs. De la Cruz, L-11656, April 18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach of contract could give rise to a civil action for specific
performance or a civil action for rescission of contract. However, it does not mean to say that the injured party can file both or one
after the other. Otherwise, he will be splitting his cause of action.
EXAMPLE: There is the Recto Law (on Sales) on the remedies of an unpaid seller of personal properties. I think the law grants
three remedies – (1) rescind the contract of sale; (2) exact fulfillment of obligation; and (3) foreclosure of mortgage. But even the
law on Sales is very clear: the choice of one automatically bars resort to the other because it will be against splitting the cause of
action.
EXAMPLE: Credit Transactions: A bank has two (2) possible remedies against a debtor for non-payment of a loan secured by
a mortgaged say, piece of land: (1) foreclose the mortgage on the land; or (2) file an action to collect the loan. Here, the bank
cannot file a case the debtor to collect the loan and at the same time file an action to foreclose the mortgage for it will be splitting
the cause of action. So it is either you enforce the principal contract of loan, or, you enforce the accessory contract of mortgage.
This is what happened in the case of
DANAO vs. COURT OF APPEALS
154 SCRA 446
FACTS: The Danao spouses borrowed money from the bank, mortgaged their property and then they failed to
pay. The bank filed a civil action to collect the loan. After filing a civil action to collect the loan, the bank instituted an
action to foreclose the mortgage.
HELD: “Anent real properties in particular, the Court has laid down the rule that a mortgage creditor may institute
against the mortgage debtor either a personal action for debt or a real action to foreclose the mortgage. In other
words, he may pursue either of the two remedies, but not both.”
“Evidently, the prior recourse of the creditor bank in filing a civil action against the Danao spouses and
subsequently resorting to the complaint of foreclosure proceedings, are not only a demonstration of the prohibited
splitting up of a cause of action but also of the resulting vexation and oppression to the debtor.”
So those are examples of splitting a cause of action and illustrations of the rule that one cause of action may give rise to two
or more remedies but it does not follow that you can avail of all those remedies. One is enough, otherwise, you will be spli tting
again you cause of action.
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RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION
Now, with respect to splitting a cause of action, you must familiarize yourselves on how this rule is applied to breach of contract
and if there are several stipulations. Sometimes it is easy to determine whether there is one cause of action. Sometimes it is
difficult. Sometimes you get confused, ‘ano ba ito? Isa lang ba ito o more than one?’
RULE #1 (General Rule):

A contract embraces only one cause of action because it may be violated only once,
even if it contains several stipulations. (Quioque vs. Bautista, L-13159, Feb. 28, 1962)
EXAMPLE: Pauline enters into a contract with Nudj which contains 3 stipulations: (#1) that next month, Pauline will deliver to
Nudj 100 sacks of rice; (#2) on the same date, Pauline will also deliver to Nudj 100 sacks of corn; and (#3) on the same date,
Pauline will also deliver to Nudj 100 sacks of sugar. When the day arrived, nothing was delivered. So three stipulations were
violated.
Q: How many causes of action does Nudj have against Pauline?

A: ONE. The contract is only one cause of action even if it contains several stipulations. The cause of action is not based on
the number of paragraphs violated but on the contract itself.
RULE #2 (Exception to the General Rule):

A contract which provides for several stipulations to be performed at different times
gives rise to as many causes of action as there are violations. (Larena vs. Villanueva, 53
Phil. 923)
EXAMPLE: A loan with a promissory note where the principal amount is payable in installment. There is one promissory note
where the loan is P300,000. And then the first installment is payable this year (1997). And then the second installment is payable in
1998 and the third installment is payable in 1999 without any acceleration clause. So, there is only one contract of loan but the
principal is payable in three installments at different times.
For non- payment of the first installment this year (1997), the creditor can file one case. So P100,000 for 1997 – one
cause of action.
Q: Next year, he did not pay the second installment, can the creditor file another case?
A: YES, because this time it is the exception. Every installment is one cause of action even if there is only one note.
Remember that they are to be performed at different times.
RULE #3 (Exception to the exception):

All obligations which have matured at the time of the suit must be integrated as one
cause of action in one complaint, and those not so included would be barred. (Larena vs.
Villanueva, 53 Phil. 923)
EXAMPLE: In 1997, the debtor did not pay but the creditor did not file any case, pinabayaan lang niya. Then in 1998, the
second installment was not also paid. So dalawa na. The total claim now is P200,000. So the creditor said, there are two unp aid
installments—1997 and 1998! So dalawa na, I will file two cases.”
Q: Is the creditor correct?

A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the creditor has not filed any case
for the collection of the first installment, this time, when he files for collection of the unpaid second installment,
everything must be integrated. So there should only be one complaint for P200,000 representing the first and second
installments. If you do not file a claim for one, it is deemed barred.
So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You should only file one action
for P300,000 and you go back to the general rule.
RULE #4 (Exception to Rule #2):

However, when the failure to comply with one of several stipulations in a continuing
contract constitutes a total breach, a single cause of action for damages, actual as well
as prospective, arises from such breach. (Blossom & Co. vs. Manila Gas Corp., 55 Phil.
226)
EXAMPLE: This year the first installment fell due. So the creditor demanded payment for the first installment from the debtor
which the latter denied,! The signature in the note is not mine!”
Now, in that kind of statement, he is not only repudiating the first installment. He is repudiating the entire note. So
under rule #4, the creditor can file a case for the entire loan of P300,000 because it has been repudiated. If you only file
only one for the P100,000 which fell due, then next year, file na naman, it will be useless because he will still maintain the
same position, “Wala akong utang sa iyo! Tigas ng ulo!” So you do not wait anymore for the 2nd and 3rd installments to
fall due. You file only one case for the entire breach. There is a total breach for a continuing obligation and there is now
only one cause of action for the entire promissory note
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So theses are the basic principles of cause of action that I want you to remember.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against an opposing party, subject to the following
conditions:
xxxxx
A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against
an opposing party (opening paragraph of Section 5)
Q: What do you mean by joinder of causes of action?

A: Joinder of causes of action is the provision of the Rules which allows a party to join in one pleading two or more
causes of actions against the opposing party.
PROBLEM: In 1994, the debtor secured a loan of P50,000 payable in 1997. In 1995, a second loan of P50,000 payable in
1997 and then in 1996, another loan of P50,000 payable in 1997. So there are three debts that will fall due in 1997. In 1997 when
they became due, the creditor filed 3 cases against the debtor – one case for every promissory note.
Q: Were the cases properly filed?

A: YES because there were 3 promissory notes. But the creditor can file one complaint to join the three loans. This is
called joinder of causes of action. This is different from the case of an installment where there is only one loan although
payable in three installments.
In the problem above, there are 3 loans, 3 promissory notes in 3 different years. So there are 3 causes of action. And when
you file one case for every promissory note, you are not violating the rule against splitting a cause of action. You are actually not
filing more than one case because there is one case for every loan. However, while you are allowed to file three cases, Section 5
allows you to file only one case and that is called joinder of causes of action.
THE PRINCIPLE: You cannot file more than one case when you have only one cause of action but the law allows you
to file one case for more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one complaint for the 3 promissory notes?
A: NO, because joinder of causes of action is permissive. He may or may not. So the creditor may file 3 complaints for the
3 promissory notes, or, file only one complaint asserting the 3 claims for the 3 promissory notes.
ALTERNATIVE and CUMULATIVE Joinder of Causes of Action
Q: How may causes of action be joined?

A: Causes of action may be joined either: (a) alternatively or (b) cumulatively.
An ALTERNATIVE JOINDER exists when your cause of action is either one or the other. You are not seeking relief from both
but either one.
A CUMULATIVE JOINDER exists when you are seeking relief for all your causes of action.
ALTERNATIVE joinder; Example:

Aileen is the importer of the goods that were shipped on board a carrier. Upon reaching Davao City, they were departed with
the arrastre or stevedoring operator. The goods were delivered to Aileen in a damaged condition, and then reklamo siya sa
arrastre or stevedoring. Then the arraster says, “Damaged na dati yan when it was unloaded from the carrier.” Then when
Aileen went to the carrier, Carrier: “No, the damage happened in their (arrastre’s) custody.”
Now, the Aileen here has two (2) possible causes of action: (1) an action against the stevedoring operator under the
contract of depositary under the law on Credit Transaction; Or, (2) an action against the carrier under the Law on
Transportation. So there are 2 possible causes of action.
Q: Can Aileen file a complaint incorporating the two (arrastre and the carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because Aileen is not claiming from both of them, but either one or
the other. Aileen is not sure so she decided to file a case against both of them. At least isa sa kanila matamaan man ba.
ALTERNATIVE joinder; Another Example:

Chams is a passenger riding on a public utility vehicle which collided with another vehicle and she is not sure who is
at fault. If the fault lies with the other vehicle, and the driver of the bus where Chams was riding is not at fault, then her
cause of action against the other vehicle is quasi-delict. But if the fault lies with the driver of the bus where she was riding,
her cause of action is culpa contractual. So she has 2 possible causes of action.
Q: Is it possible for Chams to file one complaint naming both the drivers or both operators as defendants?
A: YES. Either of them is liable to her. That is alternative joinder of causes of action.
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CUMULATIVE JOINDER; Example:
Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes from the John “The Yellow Man”. Pches is not
claiming from either promissory notes but she is claiming all.
ANOTHER EXAMPLE: Roy “The Councilor,” an illegitimate child files a case against his father for compulsory
acknowledgment as illegitimate child and support. There are two causes of action which are gained: an action for
recognition and also for support. This is not alternative actions but rather, these are cumulative. The child is asking for
BOTH relief.
That is why the manner of joining the defendants alternatively or otherwise should be correlated with Rule 3, Section 13 and
Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a right of relief against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A party may set forth two or more
statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense
or in separate causes of action or defenses. When two or more statements are made in the alternative
and one of them if made independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. (2)
Q: When is joinder of causes of action allowed?

A: Under Section 5, joinder of causes of action is allowed under the following conditions: PSRA
a.) The party joining the causes of action shall comply with the rules on joinder of parties;
b.) The joinder shall not include special civil actions or actions governed by special rules;
c.) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the
joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
d.) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (5a)
a.) The party joining the causes of action shall comply

with the rules on joinder of parties
We will meet joinder of parties when we reach Rule 3, Section 6 which provides that two (2) or more persons can join
as plaintiffs in one complaint or can be joined as defendants in one complaint, provided there is a common question of
fact or law involved in that case.
EXAMPLE: Two or more passengers riding on the same bus, met an accident. All of them were injured. So lahat sila may
cause of action noh? Every passenger who gets injured has a cause of action. So they decided to file a damage suit.
Q: Can they be joined in one complaint?

A: YES because there is a common question of fact or law. They are riding on the same bus, meeting the same accident,
against the same operator. So there is a joinder of parties under Rule 3. And if the joinder of parties under Rule 3 is proper, then
their causes of action can also be joined under Rule 2 because the condition is: “shall comply with the rules on joinder of parties.”
Q: Suppose these passengers were riding on different buses owned by the one operator. They are on different trips. One is
going to Mati; one is going to General Santos; and one is going to Cotabato. All of them met an accident. Well of course the same
kind of case: damage suit, breach of contract against the same operator. Now, can their causes of action be joined?
A: NO. They cannot be joined because there is no common question of fact or law. The defense of the operator here is
different from his defense there. Meaning, passenger A has nothing to do with the complaint of passenger B because
there is no common denominator between them. So if you cannot join them under Rule 3, the joinder of causes of action
under Rule 2 is also improper.
b.) The joinder shall not include special civil actions

or actions governed by special rules
So, a joinder shall not include special civil actions or actions governed by special rules. The reason here is simple:
Special Civil Actions are governed by certain rules which do not apply to ordinary civil actions. So a special civil action
cannot be joined with an ordinary civil action, or, an ordinary civil action cannot be joined with an action governed by
special rules such as Election cases, naturalization cases, insolvency cases. In the 1983 case of
UNION GLASS AND CONTAINER CORP. vs. SEC

126 SCRA 31
FACTS: (This is still a good ruling) A stockholder of a corporation who is also the creditor of the corporation
decided to file one complaint against the corporation asserting several causes of action, among them is his rights as a
stockholder under the Corporation Code and also his rights as a creditor under the Civil Code.
46
HELD: The joinder is improper. In the first place, one is governed by a quasi-judicial body (SEC). So how can the
RTC try a case when the cause of action is pertaining to the SEC and it is governed by the special rules of the SEC?
So you cannot join that.
c.) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the
joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein
PROBLEM: Maceste encroached on two parcels of land belonging to me. In one parcel of land, the assessed value of that is
only P20,000. In another parcel of land, the assessed vaue is P1 million. I would like to file a case of action publiciana against him.
Dalawa eh – there are 2 lands encroached. The first accion publiciana is triable by the MTC (P20,000). The other accion publiciana
is triable by the RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC will prevail.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he encroached in
another land of mine in Davao City with an assessed value of P1 million. You will notice that in the Tagum land, the jurisdiction is in
the MTC for the case accion publiciana and the venue is Tagum because the property is situated there. In the other case, the
jurisdiction is in the RTC and the venue is Davao City.
Q: Can I file a case against Maceste joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be filed in Davao City.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million. And then he encroached in
another land of mine in Davao City with an assessed value of P1 million also. You will notice that in the Tagum land, the jurisdiction
is RTC for the case accion publiciana. In the other case, the jurisdiction is also in the RTC of Davao City. So both actions, RTC.
Q: In which RTC will you file the case joining the causes of action?
A: Either Tagum or Davao City because both are RTCs.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he encroached in
another land of mine in Davao City with an assessed value of P20,000 also. In the Tagum land, the jurisdiction is MTC for the case
accion publiciana. In the other case, the jurisdiction is also in the MTC. So both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of action falls within the jurisdiction of said court and the
venue lies therein. One of them belongs to the RTC. In the example, both belong to the MTC.
PROBLEM: Maceste encroached on my land more than one year ago and the land has an assessed value of only P20,000. So
if I will file an accion publiciana, it has to be filed with the MTC. On the other hand, Aaron encroached my other parcel of land more
than one year ago and the assessed value of the land is P1 million. So my cause of action there is also accion publiciana but triable
by the RTC. so I decided to file a case naming both of them as defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties. This time the parties are not the same. Plus the fact that
you might violate paragraph [a] – there is no common question of fact and law between them.
PROBLEM: Maceste encroached on my land in Davao City on month ago and then he encroached on another land of mine
(assessed value of P1 million) in Davao City two years ago. Therefore, one case is forcible entry triable by the MTC and the latter is
accion publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong to MTC and RTC?
A: NO, you cannot join them because of paragraph [b] – a forcible entry is special civil action which is also governed
by the Summary Procedure. You cannot join a special civil action. So what is violated here is not paragraph [c] but
paragraph [b].
d.) where the claims in all the causes of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE. There is nothing new here. So judiciary law, totality rule, basta
sums of money.
SEC. 6. Misjoinder of causes of action. - Misjoinder of causes of action is not a ground for dismissal
of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action where joined in one complaint when they should no be joined.
EXAMPLE: A case joining an accion publiciana case and a forcible entry case which is not proper because a special
civil action (forcible entry) cannot be joined. In this case there is misjoinder of causes of action.
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Under Section 6, if there is misjoinder, you do not dismiss the case. The remedy is to ask the court that the misjoined
case be severed and tried separately. Now, ang counterpart nito which is still present is misjoinder of parties under Rule 3,
Section 11:
RULE 3, Sec. 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder of parties
ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage of the action and on such terms as are just. A claim against
a misjoined party may be severed and proceeded with separately. (11a)
So misjoinder of parties and misjoinder of causes of action are not grounds for dismissal of an action. Just remove the
misjoined cause of action or the misjoined party.
Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:
I. Real Parties in Interest

II. Representative Parties
III. Permissive Parties
IV. Indispensable Parties
V. Necessary Parties
Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to
the original defending party, the defendant in a counterclaim, the cross-defendant, or other third (fourth, etc.)-
party defendant. (1a)
Q: Who may be parties to a civil case?

A: Only natural or juridical persons or entities authorized by law may be parties in a civil action. So, you cannot sue
or be sued unless you are a person. A dead man cannot sue and he cannot be sued because he has no more personality.
That is why in one case, Brod Pito sued the firm name, “Paningkamot Store.” So, it is “Brod Pito vs. Paningkamot Store.” The
SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng tindahan iyan. The correct procedure is you sue the owner
because he is the real person. But the defect is not really substantial. It is only a formal defect that can easily be corrected.
“ENTITIES AUTHORIZED BY LAW”
Q: Give an example of an entity authorized by law which can be sued although it is not a person.
A: The best example is Section 15 of this rule.
Section 15. Entity without juridical personality as defendant.- When two or more persons not
organized as an entity with juridical personality enter into u transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant the names and addresses of the persons composing said entity
must all be revealed.
Another example of an entity authorized by law which may not be a natural or juridical person is a labor union under
the Labor Code. It is an entity authorized by law to file a case in behalf of the of its members. Although it may not have
been incorporated under the Corporation Law but registered under the Labor Code.
Q: Who are the plaintiffs, defendants?

A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant, the cross-claimant, the third
(fourth, etc.)- party plaintiff. So, the word ‘plaintiff’ covers them.
The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or
other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections 6, 8 & 11.
I. REAL PARTIES IN INTEREST
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Sec 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (2a)
Q: Who is a real party in interest?

A: A real party in interest is the party who stands to be benefited or injured by the judgment in the suit. (Section 2)
That is a new sentence taken form jurisprudence because the prior rule never gave a definition of real parties in interest but
jurisprudence gives a definition. That definition is taken from the leading case of SALONGA VS. WARNER BARNES & CO. (88
Phil. 125). That is exactly how it is defined and that definition has been repeated through the years.
every action must be prosecuted or defended

in the name of the real party in interest
So a complaint is dismissible if it is not made in the name of the real party in interest.
In an action to recover a piece of land , you do not file a case against tenant. He is not the real party in interest. You
must file the case against the owner of the land.
When you are riding in a bus which collided and you were injured, do not file a case against the driver for damages. Your
contract in not with the driver. Your contract is with the operator. So you file a case of culpa contractual against the owner or
operator.
GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the contract. So strangers, as a rule,
have no business suing in a contract because they are not real parties in interest.
EXCEPTION: When there is a stipulation in the contract favorable to a third person (stipulation pour autrui – Art. 1311,
NCC) Example: Third-Party Liability (TPL) in insurance. A insured his car with B for TPL. A bumped C. C can file a case
against A and B to recover from the insurance contract.
BALIWAG TRANSIT vs. COURT OF APPEALS

169 SCRA 649 [1989 BAR]
FACTS: A student who was riding in one of the Baliwag buses met an accident. So, an action was filed where the
parents and the injured boy were the co-plaintiffs against Baliwag Transit. While the case was going on, the boy
entered into amicable settlement with the bus company. Based on the settlement, Baliwag moved to dismiss the case.
The parents objected, “We are objecting because we are also plaintiffs. We didn’t know about the settlement. We
were the ones who spent money, therefore it should not be dismissed simply because our son is withdrawing the
case.”
HELD: The parents are not the real party in interest. The were not the passengers. The real parties in a contract
of carriage are the parties to the contract itself. “In the absence of any contract of carriage between the transportation
company and the parents of the injured party, the parents are not real parties in interest in an action for breach of
contract.”
SALONGA vs. WARNER BARNES

88 Phil. 125 [Bar Problem]
FACTS: Aiza Guadolope decided to go abroad but she has properties in the Philippines. So she executed a
special power of attorney in favor of Ken A. Sabayah: “You have the full power to administer, to collect all my money;
to withdraw my money in the bank; with full power to sue these people who owe me; with the authority to hire a
lawyer; and enter into a contract. Practically, you are my alter ego.” And then Aiza went abroad.
Ken started to manage the property. One of the tenants failed to pay rentals. So in accordance with the authority,
he hired a lawyer. In preparation of the complaint, it was stated that, “ Ken, plaintiff vs. Lewee Yoda, defendant.”
ISSUE: Is the action properly filed?
HELD: NO. The real property in interest is the principal, the owner of the property. Ken is only an
attorney-in-fact. An attorney-in-fact cannot use in his own name because he is not the real party in interest.
Ken is given the authority to sue, to manage, hire a lawyer but not as the plaintiff because the real party in
interest is Aiza. The complaint should be name as “Aiza, plaintiff vs. Leewee Yoda, defendant.” Yaan!
Q: Suppose Ken, the lawyer will amend the complaint: “Ken, as attorney-in-fact of Aiza, plaintiff vs. Leewee Yoda, defendant”
is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The more reason na nahalata
ka that he is not the real party in interest. If Ken wants to include the his name, it should be: “Aiza, plaintiff, represented
by Ken, his attorney-in-fact vs. Leewee Yoda, defendant.”
Q: Does the law require Aiza to come here to file the case?
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A: NO. Take note that the law does not require the principal (A) to come back to file the case because, the law does
not say “every action must be prosecuted and defendant BY the real party in interest.” Hindi naman sinabing “by” eh. So
an attorney-in-fact can prosecute or defend a party but in the name of the real party in interest. The real party in interest
has submitted to the jurisdiction of the court by filing the complaint through his lawyer.
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest. A representative may be a trustee of an express
trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in
his own name and for the benefit of an undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to the principal. (3a)
Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you are not the real party in
interest. But Section 3 allows one who is not a real party in interest to sue and be sued in behalf of somebody else. It is possible if
you can qualify as a representative party.
Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in behalf of the minor. A minor
cannot use and be sued but she is the real party in interest. The law allows the parents to come in and also be the plaintiff. The
parents are what we the representative party. The law still requires for the minor to be included in the case. The law states that
“the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.”
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an express trust, or executor or
administrator of the estate of a deceased person. When a person dies, what survives after him is his estate which represent
everything that is left behind. This later on will be given to his heirs. But for the meantime under the law on succession, the executor
or administrator will take charge of his property.
Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate, you should sue the estate through
the administrator or executor.
CHING vs. COURT OF APPEALS

181 SCRA 9
FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The problem is, she cannot locate
John’s whereabouts. Also, Maya was not certain whether John is dead or alive. So, to play it safe, what the Maya did
was to file a case against the “defendant and/or the estate of defendant.” Maya obtained a judgment against the
‘defendant and/or the estate of defendant.’
Later on when the judgment was enforced, it turned out that the John was already dead (tsk! tsk!) but he has
properties left behind. So, they started to take hold of their properties. Now, the heirs of the John challenged the
decision.
ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the estate of the defendant.”
HELD: The decision is void. “The decision of the lower court insofar as the deceased is concerned, is void for
lack of jurisdiction over his person. He was not, and he could not have been validly served with summons. He had no
more civil personality. His juridical personality, that is fitness to be subject of legal relations, was lost through death
(Arts. 37 and 42 Civil Code).”
“The same conclusion would still inevitably be reached notwithstanding joinder of B’s estate as co-
defendant. It is a well-settled rule that an estate can sue or be sued through an executor or administrator in
his representative capacity.”
So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the administrator of his estate.
So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract involves things belonging to the principal.
The agent cannot sue because the principal is the real party in interest. But when an agent acts in his own name and
for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT when the contract involves things belonging
to the principal. Under the exception, the principal has really to be included. The agent cannot file a case where the
principal will lose his property without being named as part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as provided by law. (4a)
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Normally, the husband and the wife should sue and be sued together. Even if the wife borrowed money alone and you want to
sue the woman, still the husband should be included. Why? In the property relationship between the husband and wife, they are
governed by absolute community or conjugal partnership. Whether you like it or not, the implication of the wife is also the
implication of the husband because of the property relationship.
In the same manner, if the wife wants to collect, even if the husband does not know anything about it, the husband should still
be named as party plaintiff, on the ground again that in the income that she can get redounds to the benefit of the conjugal
partnership.
And there were decided cases in the part where even if for example, a wife sues without the husband, the defect is not
fatal but merely format. The complaint should not be dismissed. All that is to be done is to amend the complaint
impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code), and under Article 111,
Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or otherwise dispose of his or her
exclusive property without the consent of the other spouse and appear alone in court to litigate with
regard to the same. (Family Code)
Sec 5. Minor or incompetent persons. - A minor or a person alleged to be incompetent, may sue or be
sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (5a)
Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents and considered as
representative party. Incompetent persons includes insane people or mentally retarded people. They are supposed to be under the
custody of other persons, the guardians. If no guardian, the court has to appoint a guardian called the guardian ad litem.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or against any right to relief in respect to
or arising out of the same transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or
to all such defendants may arise in the action; but the court may make such orders as may be just to
prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder of causes of action
because when there is proper joinder of parties, necessarily there is also automatic joinder of causes of action. But there could be
joinder of causes of action without joinder of parties.
Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be joined together as
defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against or against the parties joined in respect to or arising out of the
same transaction or series of transactions; and
2.) There is a question of law or fact common to the parties joined in the action.
PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an accident. All of them want
to sue the operator of the carrier for damages arising out of the breach of contract of carriage. Under the Law on Transportation, it
possible for each passenger to file his own case because our causes of action are different from each other. But can they be joined
together in one complaint against the common carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured passengers: the
evidence is identical; the issues whether the carrier is at fault are the came; the witnesses for both parties will be the
same; the report will be the same; the defense of the operator against one party will be the same defense as against the
other passenger. So, since there is a common denominator on their causes of action, they can be joined.
It would be different if the passengers were riding on different buses belonging to the same company, and all of them
met an accident. What happened to Passenger No. 1 does not concern Passenger No. 2. The evidence will not be the
same. So, there is no common denominator – no common question of fact. Therefore, they cannot be joined.
PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings. They were allegedly
involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis, Thad and Sheriff. Now, the five of them want to sue the
Inquirer for damages arising from libel. Is it possible for the five (5) people named in the article to file only one complaint against the
editor and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a different issue. So there is
a common question of act law in their cause of action.
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PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing injury to other passengers. So,
there are three offended parties : the owner of the vehicle, the driver of the vehicle , and the passenger. There are three(3) causes
of action. Can they join in one complaint against Myra, the owner of the car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.
Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It is not mandatory but
optional although the law encourages permissive joinder of parities.
Q: Why does the law encourage joinder of parties?

A: The following are the reasons:
1.) to promote convenience in trial;

2.) to prevent multiplicity of suits;
3.) to expedite the termination of the litigation; and
4.) to attain economy of procedure under which several demands arising out of the same occurrence may be
tried together thus avoiding the repetition of evidence relating to facts common to the general demands.
Now, take note that when there is joinder of parties, there is automatically a joinder of causes of action. That is why one of the
conditions of limitations in joinder of causes of action is you must observe the rule on joinder of parties. If joinder of parties is
improper under Rule 3, the joinder of causes of action is also improper under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES OF ACTION. BUT THERE
CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
Paano yun?
EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure three (3) loans from me.
Q: How many causes of action do I have if Melissa will not pay me?
A: Three (3) man ba!
Q: Now, can I join them in one complaint?

A: Yes.
Q: Is there joinder of causes of action?

A: Yes.
Q: Is there joinder of parties?

A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of parties because there is only one plaintiff and one
defendant. But if you join parties in Rule 3, automatically, there is joinder of causes of action. This is the relationship of
these two provisions.
Finally, the last two types of parties to the action are the so-called indispensable parties and necessary parties. (Section 7 and
Section 8, respectively)
INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action. (8a)
Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now they change the word from
‘proper party’ to ‘necessary party.’ This readopts the old name under the 1940 Rules. Under the old rules, the parties were either
indispensable or necessary. Then under the 1964 Rule, it was changed from ‘necessary’ to ‘proper.’ Now, under the new rule, back
to its old name: ‘necessary party.’
Q: Distinguish indispensable from necessary party.

A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence being a sine qua non of the
exercise of judicial power, for without him, no final determination can be had of the action. (Borlasa vs. Polistico, 47 Phil. 345)
A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole controversy and avoid
multiplicity of suits, but if for some reason or another he cannot be joined, the court may proceed without him and the judgment
shall not prejudice his rights. (Ibid.)
Q: Give examples of indispensable party.
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A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De Lara vs. De Lara, 2 Phil.
294) In an action for annulment of partition, all of the heirs must be made parties. (Caram vs. CA, 101 Phil. 315) In an
action for recovery of ownership of land, the person who claims to be the owner of the land is the indispensable party
defendant and not the one in possession as tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)
Q: Give examples of necessary party.

A: In an action for collection of debt instituted by the creditor against the surety, the principal debtor is merely a
necessary party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt instituted by the creditor against the debtor,
the guarantor or surety is merely a necessary property. (Ibid.) In an action for foreclosure of a real estate mortgage
instituted by the first mortgagee, the second mortgagee is merely a necessary party. (Somes vs. Gov’t of Phil., 62 Phil. 432)
REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to the creditor is only
secondary. Meaning, the guarantor is only liable to the creditor if the principal debtor cannot pay like when the debtor is
insolvent. On the other hand, a surety is principally liable to the creditor whether or not the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed money from the creditor, then
another acted as the surety. Now, suppose the debtor will not pay, the creditor files now a case against the surety without the
debtor. The debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will he do next? He will now sue the
principal debtor for reimbursement. Meaning, there is still a future case. Thus, there could be no complete relief between those who
are parties. So, the debtor is a necessary party, and not indispensable. But it is advisable to join the debtor in one case, para pag
nag-claim ang creditor from the surety, the latter can automatically claim from the debtor. Pang-one time ba!
PROBLEM: Kuya Mortz borrowed money from Doña Eugenia a.k.a. Genie. Ate Maya is the guarantor. The Doña Genie filed a
case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be insolvent, the creditor will now file
another case against the guarantor.
REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the creditor can collect the whole
obligation from any of the debtors without prejudice to the right of the latter for reimbursement of his share in the obligation from his
co-debtors. On the other hand, in joint obligation, the creditor can only get from a debtor the latter’s share in the whole obligation.
Meaning, the creditor cannot compel the debtor to pay the share of his co-debtor. Kanya-kanya tayo.
PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doña Eugenia is the creditor. Both did not pay
Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doña Eugenia can only collect from Manuel up to P50,000 only because of their joint obligation. Cathy is only
necessary insofar as Manuel’s share is concern. But Manuel is indispensable party insofar as his share is concern.
Q: But if Doña Eugenia wants to collect the entire P100,000, what should she do?
A: She should file a case against both Manuel and Cathy.
PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doña Eugenia is the creditor. Both did not
pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doña Eugenia the whole amount of the debt because of solidary obligation. Then
Manuel can proceed against Cathy for reimbursement. Be is merely necessary party.
Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party. (8a, 9a)
If you do not implead a necessary party, you must give an explanation why did you not implead him. The law requires
as much as possible that all parties be impleaded to avoid multiplicity of suits. EXAMPLE: Tato “The Hunk” files a case against
Andre “The Hippie”, a surety, without including Sheriff “The Punk” as the debtor. In the complaint of Tato, he shall explain why he is
not including Sheriff.
Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the court from proceeding
with the action. The judgment rendered shall be without prejudice to the rights of such necessary party.
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However, if the court finds no valid reason for not impleading a party, the court may order the inclusion of the
necessary party under Section 9. And take note that under the new rules, the failure to comply with the order of inclusion
without justifiable cause shall be deemed a waiver of the claim against such (necessary) party.
EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the court, and later on, Andre
cannot also pay Tato, there is no way now for Tato to go against Sheriff anymore because he (Tato) failed to comply with the order
of inclusion without justifiable cause.
Sec. 10. Unwilling co-plaintiff. If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. (10)
This is particularly true with INDISPENSABLE parties – the case cannot proceed without you.
EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover property which they
believe was owned by their parents. Then, brother 4 say to sister 1, “Let us file a case.” But sabi ni sister 1, “Pilitin mo muna ako.”
Then she says, “Ayoko nga, hindi mo ako pinilit eh!” Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?

A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling plaintiff, name him as
defendant whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is
ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage of the action and on such terms as are just. Any claim
against a misjoined party may be severed and proceeded with separately. (11a)
This is similar to Section 6 of Rule 2 – misjoinder of causes of action is not a ground for dismissal of an action. Misjoinder or
non-joinder at parties is not a ground for a motion to dismiss because at any stage of the case, the court can order a misjoined
party to be removed or a party not joined to be included.
Q: Do you know what ‘MISJOINDER of parties’ mean?

A: It means that two or more parties should not be joined but they are improperly joined. A good example is, if there is
no common question of fact or law. Meaning, you do not have any business to be here but you are joined or misjoined.
That is what we call misjoinder of parties. It is also known as “spurious class suit.”
Well, ‘NON-JOINDER’ is different. A party who should be joined was not joined such as a necessary party.
Q: What happens if a party is misjoined or if there is a non-joinder, should the case be dismissed?
A: Not, that is not a ground for dismissal.
Q: So what is the remedy then?

A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of the party who should
be joined. And that is not a defect which should cause the dismissal of the case because the can always issue an order
ordering the removal of a misjoined party or the inclusion of joinder of a party who should be included.
Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an action? Like for example, I have a
case against somebody in the class, the trouble is in the meantime, I cannot identify who among you who did the wrong to me. So I
will file a case against all of you. Anyway later on, I can dump you kung hindi ka talaga sabit. Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according to the SC, the party was joined in good faith believing that
he was a defendant but actually it turned out to be wrong. So, you have no right to sue anybody just like that. That is not an excuse
for suing any party left and right. In the case of
REPUBLIC vs. SANDIGANBAYAN

173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 “does not comprehend whimsical and irrational dropping or adding of parties in a
complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder of parties. No one
is free to join anybody in a complaint in court only to drop him unceremoniously later at the pleasure of the
plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction that it was
proper and the subsequent dropping is requested because it turned out that such inclusion was a mistake.”
CLASS SUIT
SEC. 12. Class suit. When the subject matter of the controversy is one of common or general interest
to many persons so numerous that it is impracticable to join all as parties, a number of them which the
court finds to be sufficiently numerous and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene
to protect his individual interest. (12a)
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As a GENERAL RULE, if there are several real parties in interest, they shall be included in the case whether
indispensable or necessary. Example: There are 30 of us. The general rule is that all parties in interest, indispensable or
necessary shall be included.
EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the rest. That is also known
as the “doctrine of virtual representation.” The concept of a class suit was first enunciated in the old case of
BORLAZA vs. POLISTICO

47 Phil. 345
FACTS: This case has something to do with raffle. A group of people decided to form an association which they
called “Turnuhang Polistico.” You become a member of this association by contributing a certain sum of money. And
then every Sunday after mass, half of the collection will go to the treasurer of the association. The other half will be
raffled off. This has been going on for months and years. The time came when the funds of the association became
very big. Some of the members, in behalf of all the members, decided to file a case against the officers to render an
accounting of all the amounts. The real parties in interest would be the members.
ISSUE: Is the suit filed by some members in behalf of some members proper?
HELD: YES, because if We will require all the members to appear, it will be quite impossible. Therefore,
some members must be made to sue but only in behalf of all the members who are not around and it is
impracticable to bring them all to the court. A number of them may sue for the benefit of all.
Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?

A: Under Section 12, the following are the conditions of a valid class suit:
1. The subject matter of the controversy is one of common or general interest to many persons (such as the
funds of the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to bring them all before the court.
In which case a number of them which the court finds to be sufficient and numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Example is a taxpayer’s suit – filed in behalf of all the taxpayers in
the Philippines. And there is no specific number of persons that is provided by law.
Now, we will go to some interesting cases on class suit decided by the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC.

72 SCRA 347 [1976]
FACTS: This concerns the big property of the Araneta’s in Quezon City. It has been the subject matter of
litigation for the past years – 3 or 4 decades. It is a big track of land in Quezon City occupied by so many people who
want to acquire it. They are questioning the title of the Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the Araneta is very big, they
subdivided it – kanya-kanyang lote. Then a case was filed by Sulo ng bayan Association against Araneta to annul the
title of the latter.
ISSUE #1: Whether or not the action was file in the name of the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 – “the action must be prosecuted and
defended in the name of the real parties in interest.” The members occupying the land are the plaintiffs. The
association is not the one occupying the lot. So, the first question is, who should be the plaintiff? It should be the
members.
ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a class suit: In a class suit, the
subject matter is of common interest to all. Meaning, lahat tayo is interesado. To illustrate:
You are Occupant No. 1, which lot do you occupy? “Here (a particular lot).” Meron ka bang interest
diyan? “Meron.” Do you have an interest in that (another lot) portion? “Wala.” If that is so, then the
subject matte is not of common interest. The interest of one occupant is only on the lot he occupies.
Meaning, “My neighbor does not have an interest on the lot I occupied.”
What should be done is that all of them to sue together to cover the entire property, for each one has a lot. So, in that
case, Section 6 should be applied – permissive joinder of parties because there is a common question of fact. This is
more of permissive joinder of Parties rather than a class suit. That’s why you can confuse Section 6 with Section 12. But the
permissive joinder of parties kailangan, lahat kayoi nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but
they can join together. Unlike in a class suit, the subject matter is of interest to everybody and we cannot all be joined
because we are so numerous.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO LINES

May 19, 1989
RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines.
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FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was an attempt to file a
class suit in behalf of everyone who were drowned including those who were not identified.
HELD: That cannot be. The survivors have no interest in the death of other passengers. The interest in
this case is individual. What would have been proper is permissive joinder of parties because of common
question of tact or law, but not class suit.
OPOSA vs. FACTORAN

224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys duly represented by their parents. They filed a case
against then DENR Secretary Factoran. The prayer in the case is to order the DENR to cancel all existing Timber
License Agreements (TLA’s), to cease and desist from proceeding, accepting, processing, renewing all accruing new
TLA’s. So, in effect, it prays for a total log ban in the country to preserve the remaining forest all over the Philippines.
These young boys sue with their parents. They are suing in their behalf, in behalf of the other citizens who are of
their age because they stand to suffer if the environment will be deteriorated. They say that they are entitled to the full
benefit, use and enjoyment of the natural resources of our country’s rich tropical rainforests. They say, the case was
tiled for themselves and others for the preservation of our rainforest and we are so numerous that it is impracticable to
bring all plaintiffs to court. They say that they represent their generations and generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a special and novel element. The personality
of the minors to sue for the succeeding generations is based on the concept of inter-generational responsibility insofar
as a balanced and healthful ecology is concerned. Every generation has a responsibility to preserve the ecology. The
minors’ right to a sound environment constitute at the same time the performance of the obligation to ensure the
protection of the rights or the generations to come.
Q: In case of doubt, should a class suit be allowed?

A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit is an exception to the
general rule that all parties should be included.
CADALIN vs. POEA ADMINISTRATOR

238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should be allowed with caution because the fact that you
represent others is only a fiction of law. For all you know, those others may not want to be represented. So okey lang
kung manalo ang kaso. Eh kung matalo ang kaso? All others start blaming you. That is why the court is extra-cautious
in allowing class suits because they are the exceptions to the condition sine qua non requiring joinder of all
indispensable parties.
In an improperly instituted class suit, there would be no problem it the decision secured is favorable to the
plaintiffs. The problem arises where the decision is adverse to them. In which case, the parties who are impleaded
through their self-appointed representatives would surely plead denial of due process.
Q: Distinguish a representative suit from a class suit.

A: In the case of
LIANA’S SUPERMARKET vs. NLRC

257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of hundreds of employees. Is this a
representative suit or a class suit?
HELD: “What makes the situation a proper case for a class suit is the circumstance that there is only one
right or cause of action pertaining or belonging in common to many persons, not separately or severally to
distinct individuals. The object of the suit is to obtain relief for or against numerous persons as a group or as
an integral entity, and not as separate, distinct individuals whose rights or liabilities are separate from and
independent of those affecting the others.”
In a representative suit, there are different causes of action pertaining different persons.
“In the present case, there are multiple rights or causes of action pertaining separately to several, distinct
employees who are members of respondent Union. Therefore, the applicable rule is that provided in Rule 3 on
Representative Parties. Nonetheless, as provided for in the Labor Code, a legitimate labor organization has the right
to sue and be sued in its registered name. This authorizes a union to file a representative suit for the benefit of its
members in the interest of avoiding an otherwise cumbersome procedure of joining all union members in the
complaint, even if they number by the hundreds.” For convenience, the Labor Code allows a union to file a
representative suit.
It is important to note the following:

1. CLASS SUIT
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2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit in behalf of the entire
corporation because intra-corporate remedy is useless.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is
entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief
against one may be inconsistent with a right of relief against the other. (13a)
Alternative defendants is also related to alternative causes of action – even if your right against one is inconsistent with your
right to relief against the other party, you may file a suit against the alternative defendant. (c.f. Rule 2, Section 5 – Joinder of
Causes of Action)
You filed a case against the operators of two vehicles. In effect, your cause of action is either culpa aquiliana or culpa
contractual. Is that not inconsistent? The law says, “although a right to relief against one may be inconsistent with a right against
the other.” In other words, even if the two causes of action is inconsistent with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only question is, who among the two will
be held liable.
Although the law is silent, if there is such a thing as “alternative defendants,” there is no reason why the grounds for
“alternative plaintiffs” should not be allowed.
Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of defendants. When
several persons are uncertain as to who among them is entitled to relief from a certain defendant, they may join as
plaintiffs in the alternative. This is also sanctioned by the rule on permissive joinder of parties (Pajota vs. Jante, L-6014, Feb. 8,
1955). Thus, the principal and his agent may join as plaintiffs in the alternative against a defendant. If the agency is
proved, the relief is awarded to the principal. If not, award is then made to the agent.
Sec. 14. Unknown identity or name of defendant. Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may
require; when his identity or true name is discovered, the pleading must be amended accord. (14)
Q: Can you sue somebody who is unknown?

A: YES, under Section 14.
BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a car, say a Toyota Altis, 2001
model, color blue. Now, so far, he could not determine who is the owner. If you are the lawyer of the Leyva, how would you sue the
defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my complaint, “Leyva ‘the
rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with plate number so and so.” And later if you discover
the true identity of the owner, we can amend the complaint to place the name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an unknown accused.
RULE 110, SEC. 7. Name of the accused. – The complaint or information must state the name and surname
of the accused or any appellation or nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court,
such true name shall be inserted in the complaint or information and record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as
an entity with juridical personality enter into a transaction, they may be sued under the name by which they are
generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity must all be
revealed.
Rule 1, Section 1 provides that only natural of juridical persons may be sued.
Entity without juridical personality as defendant. Under the old law, this was known as suing two or more persons involved in a
business under a common name. When two or more persons transact in a business under a common name, they may be sued
under their common name.
Q: Who are really the defendants here? A: The persons involved.
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Now, it is worded in this manner: “When two or more persons not organized as an entity with juridical personality,” instead of a
‘common name.’ You cannot sue the entity because it has no juridical personality. But you do not also know the members of that
entity, so the law allows you to file a case against the entity.
Under the second paragraph of Section 15, when the defendants file an answer, they must file under their names as they are
really the real parties in interest. When the lawyer answers the complaint, he is duty-bound to provide the names of all the
defendants.
Q: How do you summon this kind of defendant?

A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without juridical personality. When persons associated in an entity
without juridical personality are sued under the name by which they are generally or commonly known, service
may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the
office or place of business maintained in such name. But such service shall not bind individually any person
whose connection with the entity has, upon due notice, been severed before the action was brought. (9a)
Correlate this with Rule 36, Section 6:
Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two or
more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper
names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in interest.

EXCEPTIONS: (When may an action be filed without naming all the parties in involved?)
1. Class suit (Section 12, Rule 3);

2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is
not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named
shall fail to appear within the specified period, the court may order the opposing party, within a specified
time, to procure the appointment of an executor or administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs. (16, 17a)
First of all, there are cases when a party to a pending action dies and the claim is not thereby extinguished (this is what t hey
called an action which survives as we will explain later) and there are certain actions where if a party dies, the claim is
automatically extinguished. Meaning, the death of a party causes death of the action. But these are very few. Majority of ca ses
when the party dies, the case or the cause of action continues.
It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of the party thereof. He
must inform the court and give the name and address of his legal representative/s (e.g. administrator of executor of the
estate)
Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically terminated by the death of
the client because the lawyer-client relationship is personal. But procedurally, you must tell the court and you must give
the name of the legal representative. The latter may re-hire the lawyer but under a new contract.
The purpose there is for substitution so that the legal representative will be ordered substituted. And there is a new provision
under the new rules. That is, failure of the counsel to comply with his duty shall be a ground for disciplinary action. That is not found
in the prior rule. So, the lawyer can be subjected to disciplinary action.
So the provision continues, “the heirs of the deceased may be allowed to be substituted for the deceased without
requiring the appointment of an executor or administrator. And the court may appoint a guardian ad litem for the minor
heirs.
So, other than the legal representative, before anything else, the representative refers to the executor or
administrator, and the other alternative will be the heirs, such as the surviving children, wife or spouse.
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Although there was a case decided by the SC way back in 1986 in the case of
LAWAS vs. COURT OF APPEALS

146 SCRA 173
HELD: “The priority of substitution would be the executor or administrator not the heirs. The heirs would
only be allowed to be substituted if there is an (1) unreasonable delay in the appointment of administrator or
executor, or (2) when the heirs resort to extrajudicial partition. But outside of those two reason, the law
always gives priority to the administrator or executor.”
Under the rule, priority is given the legal representative of the deceased. That is, the executor or the administrator of
his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito ang heirs o!” “OK! Substitute!” Actually, that is wrong
based on LAWAS case. The priority is given to the administrator or executor. It is only when there is unreasonable delay in the
appointment, or when the heirs resort to extrajudicial partition because there is no more administrator or executor in extrajudicial
settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment. case. The defendant died while the case is going on. What is the procedure? There
should be substitution. But there was no substitution in the case for ten years, until it was decided. The court was not
informed of the death of the defendant. Until finally, there was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of judgment, is the
judgment jurisdictionally detective? Because here, the case continued eh, in which somebody is already dead.
HELD: NO, “the judgment is valid where the heirs themselves appeared before the trial court and participated in
the proceedings. Therein, they presented evidence in defense of the deceased defendant. It is undeniably evident
that the heirs themselves sought their day in court and exercised their right to due process.”
In other words, when there was a defect the heirs however cannot used that because they themselves appeared and
continued the case. So, in effect, there was estoppel.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules is the effect of the death of the defendant in a money claim
– action to collect a sum of money.
Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry of final judgment in the court in which
the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person. (21a)
The best example here is an action to collect an unpaid loan. And while the case is pending the defendant died. What will
happen to the case? The law says: If the defendant dies before the entry of the final judgment in the court at the time of
death, it shall not be dismissed but it shall instead be allowed to continue until entry of final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it will be dismissed. Eh, paano
'yung utang? Now, you file a case against the estate of the deceased under the Rules on Special Proceedings. But definitely the
civil case hindi na matuloy . . . patay na iyon when the defendant dies.
Now, under the NEW RULE, the case will not be dismissed but rather, the case will now continue until entry of final
judgment. That is a radical change of procedure! So case will not be dismissed. It shall be allowed to continue until entry
of final judgement. Meaning, until it becomes final and executory.
Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute? Can you move to execute the
decision against or buy the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment obtained by the plaintiff therein shall be enforced in the
manner specially provided in these Rules for prosecuting claims against the estate of a deceased person.”
Q: And what is that procedure?

A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies, what will happen to the
case?
A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE or an ACTION WHICH
SURVIVES?
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1.) ACTION WHICH DOES NOT SURVIVE
An action which does not survive is an action which is abated upon the death of a party. The case cannot go on once
a party dies. And normally, that refers to actions which are purely personal in character like an action for annulment
of marriages, an action for declaration of the nullity of marriage or, an action for legal separation, or an action for
support. These are the cases arising from the Family Code.
Example: The husband files a case against the wife for annulment of marriage or legal separation. One of
them dies. Wala nang substitution, TAPOS NA! When one of the parties dies, the marriage is dissolved. There is
nothing to annul because the marriage is already dissolved. So, these are the actions which are purely personal .
Q: So, what is the effect of the death of the party in actions which does not survived?
A: The case is dismissed!
However, these cases are very few. Majority of the cases are damage suit, recovery of possession, recovery of land, recovery
of unpaid loans, etc. So, these are what you call actions which survive. Meaning , if a party dies, you cannot say that the case
is terminated upon the death of the party. So, ano ang mga kaso na iyan?
2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If it is a contractual claim,
who died – is it the plaintiff or is it the defendant? If the defendant is the one who died, when did he die?
2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal representatives will proceed. So, there is
substitution.
2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry of final judgment or
after entry? This is where Section 20 will come in.
2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of Rule 3. Meaning, the
case shall not be dismissed but shall be allowed to continue until entry of final judgment. And the favorable
judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules
for prosecuting claims against the estate of a deceased person, and that is Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment but before execution (after the judgment
became final but before there could be levy or execution) you cannot move to execute. Again, you apply
Section 5 of Rule 86 which is the governing rule – you file your judgment as a claim against the estate of the
deceased defendant. [Section 5, Rule 86 - Please refer to your codals.] The purpose there is, so that the
creditor will share with the other creditors pro-rata in the distribution of the estate.
2a2c) If the defendant died after levy or execution but before the auction sale – meaning, the property
was already levied by the sheriff bago pa namatay – we will now apply Section 7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of the death of party, execution may
issue or be enforced in the following manner:
xxxxxx
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his
property, the same may be sold for the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or administrator for any surplus in his
hands. (7a)
Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is an excess, the
excess shall be delivered to the administrator of executor.
2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:

EXAMPLE: an action for recovery of property, real or personal like replevin, forcible entry,
unlawful detainer, action publiciana, action reinvidicatoria, or action for damages, (damages that is
not the same for transaction of money because damages arising from culpa aquiliana is one not
arising from contract.)
If a party dies in an action which survives which is a non-contractual money claim, obviously, there
is substitution of parties. So, what are these non-contractual money claims which survive? These are
those mentioned in Section 7 of Rule 86 and Section 1 of Rule 87. That is in the study of Special
Proceedings on settlement of the estate of a deceased person.
So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO THE OUTLINE HEREIN
ATTACHED.]
Note: What Section 20 says is that: before the case can be decided and the defendant dies (in actions involving
money claims) the case shall not be dismissed but shall instead be allowed to continue until entry of final judgment. BUT
CONTINUE AGAINST WHOM? Against the deceased? Now, to my mind, you correlate this with Section 16 --- there should
still be substitution.
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But assuming, there was no substitution and the heirs fought in the case; there is waiver because the defect is
procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what Section 20 emphasized is that, the action
shall not be dismissed but shall continue – to emphasize that it is now different compared with the prior RULE. But obviously, there
will always be a substitution
Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an
action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office,
the action may be continued and maintained by or against his successor if, within thirty (30) days after
the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the
court by any party that there is a substantial need for continuing or maintaining it and that the successor
adopts or continues or threatens to adopt or continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be
given reasonable notice of the application therefor and accorded an opportunity to be heard. (18a)
This applies only when the public officer is party to an action in his official capacity. If he (1) dies; (2) resigns; or (3)
cease to hold office, there will be a succession.
Q: What will happen to the case?

A: The following:
1.) If the successor intends to continue with the policy.

EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere as a hazard. If Mayor Pascua
dies, Vice-Mayor Angeles becomes the mayor. If Vice-Mayor Angeles who is now the mayor says that he will
continue with the demolition, he will be substituted and he is given 30 days to comment.
2.) If the successor does not adopt the policy, the case will be dismissed.
Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court,
upon motion with notice, may allow the action to be continued by or against the incompetent or
incapacitated person assisted by his legal guardian or guardian ad litem. (19a)
EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes insane. (tsk! tsk!) The case will
continue but Kenneth has to be assisted by his guardian ad litem Thad.
This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was already insane before the case is
filed. [inborn na yan eh!]
Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or
against the original party, unless the court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original party. (20)
EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is pending, Leweh sold the land to
Erec. Erec now assumes the risk and takes the property subject to the outcome of the case.
Q: Can the case continue against Leweh?
A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable;
2.) Leweh can be removed and Erec will be substituted; or
3.) Leweh can stay and Erec will be added.
In all 3 cases, Erec will be bound by the judgment.
Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an
indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has
no money or property sufficient and available for food, shelter and basic necessities for himself and his
family.
Such authority shall include an exemption from payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court may order to be furnished him. The amount of the
docket and other lawful fees which the indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before judgment is rendered
by the trial court. If the court should determine after hearing that the party declared as an indigent is in
fact a person with sufficient income or property, the proper docket and other lawful fees shall be
assessed and collected by the clerk of court. If payment is not made within the time fixed by the court,
execution shall issue for the payment thereof, without prejudice to such other sanctions as the court may
impose. (22a)
In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights, no person shall be denied
access to courts by reason of poverty.
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In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (ex-party application) to allow him
to litigate as an indigent litigant. But if the indigent wins, he has to pay the fees – file now, pay later) – the amount shall be a lien on
any favorable judgment.
The third paragraph is new. The other party may contest the claim of the indigent if he is really an indigent or not.
Sec. 22. Notice to the Solicitor General. In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may
require the appearance of the Solicitor General who may be heard in person or through a representative
duly designated by him. (23a)
EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for declaration of nullity on the
ground of psychological incapacity. Kenneth alleges that Article 38 of the Family Code is unconstitutional. So the court will rule on
the validity of the law in which case, the Solicitor General has to be involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose duty is to defend all the official
acts of the Government.
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Rule 4
VENUE OF ACTIONS
Q: Define venue.
A: VENUE is the place where the action must be instituted and tried. (Ballentine’s Law Dict., 2nd Ed., p. 1132)
EXAMPLE: The venue of the action is in Davao, or the venue of the action is in Manila. If you file the action in other places,
that is improper or wrong venue. In criminal cases, that is called territorial jurisdiction – the place where the crime was committed.
But in civil cases, venue is not the same with jurisdiction. We do not call it territorial jurisdiction. We call it venue.
This is where it is important to determine whether the action is real or personal for the purpose of venue. The venue of real
action is stated in Section 1 and the venue for personal action is stated in section 2.
VENUE OF REAL ACTIONS
Section 1. Venue of real actions. Actions affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein
the real property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the
municipality or city wherein the real property involved, or a portion thereof, is situated. (1[a], 2[a]a)
While it is true that the rule on venue is new however, the rule on venue even before 1997 as earlier as August 1, 1995, Rule 4
of the 1964 Rules has already been amended by the administrative Circular No. 13-95, but now it incorporated under the Rules of
1997.
Now, when the action is real, we distinguish whether it is forcible entry and unlawful detainer or action publiciana or
action reinvidicatoria. If it is accion publiciana or reinvidicatoria, the proper venue is the one which has jurisdiction over
the area wherein the real property involved or a portion thereof is situated. Of course, the RTC is divided into areas. every
branch has its own designated area of responsibility.
Q: Why does the law say “tried in the proper court?”

A: It is because proper court will now be the MTC or the RTC, depending on the assessed value of the property. If the
assessed value is P20,000 or less, MTC yan. If it is over P20,000, it should be in the RTC.
Now in the case of forcible entry and unlawful detainer, paragraph 2 will apply – that is, MTC – it is in the municipality
or city wherein the real property involved or a portion thereof is situated. So, kung saan iyong real property, doon din ang
venue. Now, it is possible that for a property be in the boundary of two towns. Example: one half is part of Davao City and the
other half is in the municipality of Panabo. So, if you would like to file a case for forcible entry against somebody, you
have two choices. You can file it in the MTC of Panabo or in the MTC of Davao City.
Now, let’s go to personal actions.
VENUE OF PERSONAL ACTIONS
Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff
or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants
resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.
(2[b]a)
Iyan ang tinatawag natin na TRANSITORY ACTION. The venue will now depend on the residence of the parties. In the civil
action, the venue is
(1) the place where the plaintiff resides or
(2) where the defendant resides, at the election of the plaintiff. So, puwede kang pumili sa dalawa.
Now, suppose, there are four (4) plaintiffs and 4 defendants and the 4 plaintiffs reside in 4 different cities or municipalities. So
ang choice mo ng venue ay walo (8) becuae the law says, “where the plaintiff or any of the principal plaintiffs or where the
defendant or any of the principal defendants reside…”
So, kung maraming defendants at iba-iba ang lugar at maraming plaintiffs, the residence of each one could be the proper
venue.
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because there is such a thing as nominal defendant and nominal
plaintiff – iyun bang formal lang.
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EXAMPLE of a nominal party: When a party wants to file a case to annul an execution sale of to annul a levy, normally it
pleads the sheriff as party. But the sheriff is not the principal party but is only a NOMINAL PARTY. So, the residence of the sheriff
is not considered the sheriff being a nominal party only.
So, just imagine if there are 4 plaintiffs and 4 defendants, iba-ibang cities. There 8 choices of venue. That is the original
concept of forum shopping. I will cite the original case which traced the history of forum-shopping na kung saan ako convenient,
doon sko mag-file. That is the original concept – which is legal and legitimate. The trouble is, the concept of forum shopping
degenerated into a malpractice , where a lawyer, mag-file ng case, sabay-sabay. Ayan! That is why there is a SC case which I will
later discuss where Justice Panganiban cited the history of forum shopping. (Dean is referring to the case of FIRST PHILIPPINE
INTERNATIONAL BANK vs. CA (252 SCRA 259), January 24, 1996)
Forum shopping is legitimate and valid but the trouble is, the practice acquired another unsavory meaning, where a lawyer will
file simultaneous cases. Kaya nga nasira – from a legitimate practice to an act of malpractice. That is the history of forum shopping.
However, there are instances when it is easy to distinguish whether the action is real or personal and there are also instances
when it is difficult.
EXAMPLE: An action for annulment of a contract of sale or rescission of contract of sale of real property. Generally, an action
for annulment or rescission is a personal action. But suppose , I will file a complaint to annul or rescind a contract of a deed of sale
over a parcel of land. I’m from Davao and you’re from Davao. But I would like to annul the sale of a land which I made to you one
year ago which land is situated in Digos and the purpose of my action is to recover the ownership of that land. Then, that is a real
action because the primary object of the suit is to recover the ownership of real property, di ba? It seems to be personal
but in reality it is a real action. So the venue is governed by Section 2.
But there are also actions na King tingnan mo parang real but in reality, they are personal actions. Like what happened in the
case of
LA TONDEÑA DISTILLERS INC vs. PONFERRADA

264 SCRA 540 [1996]
FACTS: Judee entered into a contract where she committed herself to sell her land to Maying. And Judee even
placed a lis pendens on the property. But later Judee said, “Gua bo ai!” (chinese for ‘ayoko na!’) Nag-back out ba! So
Maying will file a case against Judee for specific performance to compel her to sign the deed of sale.
Ang question diyan, ano ba ito? real or personal action? Because if it is real action, the complaint should be filed
in the place where the land is situated. If the action is personal, it can be filed in Davao City where both of them are
residents.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not questioning my ownership. Here, the plaintiff
recognizes that the defendant is still the owner. Kaya nga he is still filing the case to compel him to sell.
Thus, it should be filed in the residence of the parties. “The complaint is one for specific performance with
damages. Private respondents do not claim ownership of the lot but in fact recognized title of defendants by
annotating a notice of lis pendens. In one case, a similar complaint for specific performance with damages
involving real property, was held to be a personal action, which may be filed in the proper court where the party
resides. Not being an action involving title to or ownership of real property, venue, in this case, was not improperly laid
before the RTC of Bacolod City.” (Adamos vs. Tuazon 25 SCRA 30 [1968])
So it is not really an action affecting title or ownership because you are still recognizing the title of the owner of the
property. It is different when I’m no longer recognizing it, like recovery or reinvidicatoria. These are gray areas, or
sometimes very hard to distinguish whether the action is real or personal.
Q: [Taken from Remedial Law Reviewer by Nuevas] Where several or alternative reliefs are sought in an action, and the reliefs
prayed for are real and personal, how is venue determined?
A: Where several or alternative reliefs are prayed for in the complaint, the nature of the action a s real or personal is
determined by the primary object of the suit or by the nature of the principal claim. Thus, where the purpose is to nullify
the title to real property, the venue of the action is in the province where the property lies, notwithstanding the alternative
relief sought, recovery of damages, which is predicated upon a declaration of nullity of the title. (Navarro vs. Lucero, 100
Phil. 146)
Where a lessee seeks to establish his right to the hacienda, which was subsequently sold, for the purpose of gathering the
crops thereon, it is unnecessary to decide whether the crops are real or personal property, because the principal claim is recovery
of possession of land so that he may gather the fruits thereof. (LTC vs. Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES
We will now go the issue of residence. Where is the residence of the parties? Because residence in law could mean
DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR PHYSICAL RESIDENCE.
Alam mo, iyong legal domicile, you may not be there but there is intention to go back there someday. Alright, with the
exception of only one case, the word ‘residence’ and ‘venue’ has been uniformly interpreted by the SC to mean ACTUAL or
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PHYSICAL RESIDENCE not legal domicile. Alright, there are so many case already: CO vs. CA (70 SCRA 296); FULE vs. CA
(14 SCRA 189); HERNANDEZ vs. RURAL BANK OF THE PHIL (81 SCRA 75); RAYMOND vs. CA (166 SCRA 50); ESCUERTE
vs. CA (193 3CRA 54).
Pareho ang ruling niyan. EXCEPT for one case decided way back in 1956 – the case of
CORRE vs. CORRE

100 Phil 221
FACTS: An American who resides in San Francisco who came to the Philippines rented an apartment in Manila
to sue his wife who is a Filipina. The wife is from Mindanao. And then the American husband filed the case in Manila
because residente man daw siya in Manila – because he rented daw an apartment in Manila. Now, if you follow the
rule, tama man ang husband ba.
HELD: You are not a resident of Manila. Your residence is in San Francisco – that is your domicile. So that is to
compel the American to file the case in the residence of the wife rather than the wife going to Manila.
So the case of CORRE is the only exception where the SC said, “residence means domicile.” All the rest, physical! In the case
of CORRE, maybe the SC there was just trying to help the Filipina. If we will interpret the rule on venue as physical, it is the Filipina
who will be inconvenienced. If we say legal residence is the venue, it is the American husband who would be forced to go to the
Mindanao to file. And we should favor our own kababayan. Yan siguro ang nangyari because that was the only exception eh.
RESIDENCE OF A CORPORATION
Under Rule 1, a corporation can sue and be sued. But what is the residence of a corporation? Under the corporation law, the
residence of a corporation is the place where its head or main office is situated – yung head office ba which is usually stated in
the articles of incorporation.
Now, let’s go to some interesting cases on this issue:
CLAVECILLA RADIO SYSTEM vs. ANTILLON

19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla questioned the venue because its head office is
in Manila. The plaintiff argued that it can be sued because it has a branch in Cagayan.
ISSUE: Is a corporation a resident of any city or province wherein it has an office or branch?
HELD: NO. Any person, whether natural or juridical, can only have one residence. Therefore, a
corporation cannot be allowed to file personal actions in a place other than its principal place of business
unless such a place is also the residence of a co-plaintiff or defendant.
The ruling in the case of ANTALLON was reiterated in the 1993 case of YOUNG AUTO SUPPLY CO. vs. COURT OF
APPEALS (223 SCRA 670)
Because the law said “where the plaintiff or any of the principal plaintiffs..” So if the corporation is suing with someone
from Davao, even if my head office is in Manila, I can file because of the residence of my co-plaintiff or the residence of the
defendant. But outside of that, a corporation cannot sue outside of its head office because its residence is there. That is the case of
YOUNG AUTO SUPPLY.
“OR IN THE CASE OF A NON-RESIDENT DEFENDANTS WHERE HE MAY BE FOUND”
Suppose the defendnt is not residing here in the Philippines but is just on vacation and you want to sue him. What is now the
point of reference?
Did you notice the phrase “or in the case of a non-resident defendants where he may be found.” Now what does that
mean? It means to say that the defendant is not actually residing in the Philippines but he is temporarily around because he is
found in the Philippines. Example is a balikbayan who is still on vacation.
PROBLEM: Suppose a Filipino who is already residing abroad decided to come back this Christmas for a vacation. When he
landed at the Manila Domestic Airport and you are his friend and the first thing he requested you is, “wala pa akong Philippine
peso, puro pa dollars. So pahiramin mo muna ako. I will pay you in one week’s time once I have my dollars exchanged to pesos.”
How much do you want? He borrowed from you P15,000.00. One week later, still he has not paid you and obviously it seems he
will not pay you. So you decided to sue him while he is around to collect the case advance of the P15,000 that you gave him. So,
where is the venue of the action?
A: The law says, generally where the plaintiff resides or where the defendant resides. The trouble is, the defendant has no
residence here because he is already residing abroad. But he is temporarily here in the Philippines.
You can sue him where he may be found. If he decides to stay in Cebu, that is where the proper venue rather his
permanent residence. So where he may be found is the alternative venue. The phrase “where he may be found” means
where he may be found here in the Philippines for a non-resident defendant but temporarily staying in the Philippines.
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Q: Suppose a defendant is a non-resident and he is not even here. Like for example, your neighbor borrowed money from you
and the nest thing you heard is that he left the country. He has already migrated to the states. Of course you know his addre ss
there. Can you sue him in the Philippine court, a defendant who is no loner residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the Philippines and is not found here in the first place?
A: There is no way for Philippine courts to acquire jurisdiction over his person. Otherwise, he will not be bound by the
decision.
But in our discussion on the element of jurisdiction: subject matter, person, res and issues, I told you that the res or the thing in
dispute is important because sometimes it takes the place of jurisdiction over the person of the defendant. So even if the
Philippine court cannot acquire jurisdiction over the person of the defendant but the subject of the controversy (res) is in
the Philippines, then the non-resident defendant can also be sued in the Philippines. The court can now acquire
jurisdiction over the res, subject and since the res is here, the judgment can be enforced. It is not a useless judgement
anymore.
EXAMPLE: He is there but he is the owner of a piece of land here. I want to file a case to recover ownership over the land here
in the Philippines, yaan!
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of the property in dispute is here and if he loses the case
the judgment can be enforced – transfer the property to you. So it is not a useless judgment. That is what Section 3 is all
about.
Sec. 3. Venue of actions against nonresidents. - If any of the defendants does not reside and is not
found in the Philippines, and the action affects the
1. personal status of the plaintiff, or

2. any property of said defendant located in the Philippines,
the action may be commenced and tried in the court of the place where the plaintiff resides, or
where the property or any portion thereof is situated or found, (2[c]a)
Q: What is the difference between the non-resident defendant in Section 2 and the non-resident defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the Philippines. But in Section 3, he does not reside and is not
found in the Philippines. So, physically, he is not around.
Q: What actions can be filed against a non-resident defendant who is not even found here in the Philippines?
A: There are two (2):
1.) The action that affects the personal status of the plaintiff; or
2.) The action affects the property or any portion thereof of said defendants is located here in the Philippines.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
EXAMPLE: A young child was abandoned by his illegitimate father. The illegitimate father left the Philippines for good. The son
wants to file a case against the father for compulsory recognition, at least to improve his status.
Q: Can the child file a case for compulsory acknowledgment here in the Philippines against the father for compulsory
acknowledgment?
A: YES because the action involves the person status of the plaintiff. The res is the status of the plaintiff who
happens to be in the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF OF SAID DEFENDANTS IS LOCATED HERE IN
THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of land located here in the Philippines and I want to recover the
ownership of the piece of land.
Q: What is the res?

A: The res is the land which is situated here in the Philippines. Therefore I can sue that defendant even if he is there
because the court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no longer residing here and is no longer found here, the action
must be:
1.) action in rem; or

2.) at least quasi-in rem, because if the action is for compulsory recognition, that is actually an action in rem. If the
suit in involves a property here in the Philippines, at least that is an action quasi-in rem.
But if the action is purely in personam, then there is no way by which you can sue him. Example is an action to collect
an unpaid loan.
Q: Where is now the proper venue of the action against the non-residents?
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A: The law says where the plaintiff resides – action which affects the personal status of defendants, where the property of the
defendant located here in the Philippines
Sec. 4. When rule not applicable. - this rule shall not apply -
a)In those cases where a specific rule or law provides otherwise; or
b)Where the parties have validly agreed in writing before the filing of the action on the exclusive
venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE;
So, when there is a special rule or law on venue which applies only to certain types of cases, then that rule will apply rather
than Rule 4.
Q: What cases which provides for venue of the action which may be different from what Rule 4 says?
A: The following:
1.) A civil action arising from LIBEL under Article 360 of the Revised Penal Code.
Libel could give rise to a civil action for damages. It is considered under the RPC as one of the independent civil
actions. The criminal action for libel shall be filed simultaneously or separately with the RTC of the:
a.) province or city where the libelous article is printed and first published; or
b.) where any of the offended parties actually resides at the time of the commission of the offense.
If one of the offended party is a public officer, whose office is in the City of Manila at the time of the commission of
the offense, the action shall be filed (a) in the RTC of Manila, or (b) in the RTC of the province where he held office at
the time of the commission of the offense.
2.) Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place of trial to avoid a
miscarriage of justice as what happened in the case of Mayor Sanchez.
So these are the examples on the special rules. Alright…
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE

THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE THEREOF.
So, it is possible that A and B will enter into contract providing for suits involving the violation of the contract, the
venue shall be in this particular place. Take note that the stipulation must be in writing and it is there even before the
filing of the action. Alright…
EXAMPLE: Contracts of banks and other financing companies. Sometimes it says there that in case of suits arising out of
these contract, the action shall be filed in the City of Makati or Manila which is neither the residence of the parties.
Q: Now, can we agree to file a case other that were the parties reside?
A: YES because the law says, we can agree on a place where the action will be filed provided it is in writing and it is
stipulated even before the filing of the action.
POLYTRADE CORP. vs. BLANCO

30 SCRA 187
FACTS: Charles and Joshua are both residing here in Davao City. Joshua borrowed money from Charles, and
Joshua executed a promissory note in favor of Charles which says, “I promise to pay Charles the sum of P200,000
one year from today. In case of a suit arising from this promissory note, the parties agree to sue and be sued in the
City of Manila.”
When the note matured, Joshua did not pay. Charles filed a case to collect the unpaid loan here in Davao City.
Charles challenged the venue. According to Charles, the venue is correct because both of us are residing here in
Davao City and under Rule 4, the venue is where I reside or you reside, at my option. Both of us are residing here so
I sued you here.
Defendant Joshua says, no since there is a stipulation we both agreed upon that in cases of litigation, the parties
agree to sue and be sued in the City of Manila. So Manila is the correct venue.
ISSUE: Who is correct in this case? A the plaintiff or B the defendant?
HELD: Plaintiff is correct notwithstanding the stipulation. Why? When the parties stipulated on the venue
of the civil action, other that those found in the Rule of Court, the stipulated venue is considered merely as
an ADDITIONAL venue in addition to where the parties reside. Unless the stipulation contains RESTRICTIVE
words which shows the intention of the parties to limit the place stipulated as the exclusive venue.
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In other words, the parties agree to sue and be sued in the City of Manila, even if so, the venue of the action is where the
plaintiff resides or where the defendant resides in accordance with Rule 4, and the third venue is according to the stipulation of the
parties. So, the case here has three (3) venues of action. Mamili ka sa tatlong venues because there is nothing in the agreement
that the parties intended that Manila is the only exclusive venue. There is no restrictive word.
I will change the PROBLEM: Suppose the stipulation contains this statement, “in case of suit arising out of this promissory note
or contract, the parties agree to sue and be sued exclusively in the City of Manila,” yaan! Or, “to sue and be sued in the City of
Manila only.” The addition of the words “exclusively” or “only” shows the intention of the parties to limit venue of the action only in
that place. Therefore you cannot apply Rule 4, Sections 1-3. So, in this case, Joshua can move to dismiss the case because the
venue is exclusive.
So in the second exception where there is an agreement in writing on the exclusive venue, the word exclusive is very
important as taken in the ruling in POLYTRADE vs. BLANCO. So if the venue is not exclusive, Rule 4 still applies and the
stipulated venue is just an additional one.
Of course, there are stipulations which you can see clearly the intention of the parties to limit the venue only in that place. But
sometimes, there are stipulations in which it is difficult to decipher the real intention of the parties whether exclusive or not.
Examples of clear stipulations which calls for the application of the POLYTRADE ruling: in the City of Manila only or the suit shall
be filed in the City of Manila and in no other place.
However, there are cases in which you cannot find the word exclusive or the word only, and yet the SC said it seems the
intention of the parties to limit the venue as exclusive as what happened in the 1994 case of
GESMUNDO vs. JRB REALTY CORP

234 SCRA 153
FACTS: This involves a lease contract which contain a stipulation on venue. Here is the language of the lease
contract: “venue for all suits, whether for breach hereof or damages or any cause between the LESSOR and the
LESSEE, and persons claiming under each, being the courts of appropriate jurisdiction in Pasay City…”
In other words, if there is a case, they agreed to file it in the court of Pasay City.
ISSUE: Is this intention of the parties to make Pasay City an exclusive venue?
HELD: Pasay City is the exclusive venue. “It is true that in Polytrade Corporation v. Blanco, a stipulation that
‘The parties agree to sue and be sued in the City of Manila’ was held to merely provide an additional forum in the
absence of any qualifying or restrictive words. But here, by laying in Pasay City the venue for all suits, the parties
made it plain that in no other place may they bring suit against each other for breach contract or damages or any
other cause between them and persons claiming under each of them.” In other words, the intention of the parties is to
make Pasay City the exclusive venue.
There are some cases in the SCRA where there is no restrictive word but the SC interpreted it as restrictive. So it is in conflict
with the POLYTRADE ruling because in POLYTRADE, the stipulated place must be exclusive. Among the cases which seems to
conflict with the ruling in POLYTRADE are the following:
BAUTISTA vs. DE BORJA (18 SCRA 476)

HOECHST vs. TORRES (83 SCRA 297)
This conflict was resolved in the case of PHIL. BANKING vs. TENSUAN (228 SCRA 385) where the SC ruled that the ruling in
BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been rendered obsolete by the POLYTRADE ruling and
subsequent cases reiterated it. So the ruling in POLYTRADE is the correct ruling. Forget what the SC said in the abovementioned
two cases.
SWEET LINES vs. TEVES

83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a shipping company with the head office in
Cebu. The respondent Teves is the former City Fiscal of Davao City, former Mayor and became judge of CFI of
Cagayan de Oro City.
There was a group of passenger who rode on the Sweet Lines bound for Cebu City. During the trip, they were
given a crude treatment by the officers of the vessel. When they came back in Cagayan de Oro City, they filed a suit
for damages against Sweet Lines. They file dht ecase in the former CFI, now RTC, of Cagayan de Oro City because
the plaintiffs are residents of Cagayan de Oro City.
Sweet Lines filed a motion to dismiss questioning the venue of the action because in the ticket issued by Sweet
Lines, it is stipulated that “…in case of a civil action arising from the contract of carriage, the venue of the action shall
be the City of Cebu ONLY and in no other place.” So there is a restrictive word. Obviously the lawyers of Sweet Lines
knew about Polytrade because they moved to dismiss the case citing this case.
Judge Teves denied the motion to dismiss the case despite the stipulation. According to him, it is unfair. If I will
dismiss the case based on this stipulation, the aggrieved parties will be discouraged in going to Cebu. It is very
expensive and they will be inconvenienced. But, if the case will go on in Cagayan de Oro, it will not inconvenienced
Sweet Lines because they have their branch office, their manage and their own lawyer.
ISSUE: Whether or not Cagayan de Oro is the proper venue.

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HELD: YES. Judge Teves was correct in not dismissing the case.
First of all, the stipulation is placed in the ticket. These people never even bothered to read this.
Nakalagay na iyan diyan eh. So either you take it or you leave it. Therefore, the passengers did not have a
hand in preparing that stipulation. So the contract is a contract of adhesion.
Second, again for the sake of equity, to be fair that these poor people will be compelled to go to Cebu to file a
case there. They will be discouraged. It is very expensive to go back and forth to Cebu. Whereas, Sweet Lines has
the resources, the means, the lawyers here in Cagayan to litigate. Therefore, it would be inequitable to compel them
or to apply the stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite the exclusive stipulation. The SC said that the refusal of
the court to apply it is correct. There is no grave abuse of discretion on the part of Judge Teves.
ARQUERO vs. FLOJO

168 SCRA 540
FACTS: Arquero here is lawyer and the municipal mayor of the municipality of Sta. Teresita, Cagayan Valley. He
sent a telegram through the RCPI branch in Cagayan addressed to Manila. Meron siyang pabor na hihingi-in sa
Congressman: I will go there to Manila, I will see you in your office on this particular date. So pinadala niya iyong
telegrama.
When he went to the office of the congressman after the few days, nagalit pa yung congressman sa kanya, “So
you are here to ask for a favor for your own. Ikaw na ang nangangailangan, pati telegrama ako pa ang pabayarin
mo?! Collect pa!” Arquero was stunned eh because he paid the telegram. How come naging collect? In effect, he was
embarrased.
Pagbalik niya sa Cagayan, f-in-ile-an niya ng damages ang RCPI. But in the RCPI telegraph form, there is a
stipulation that “venue of any action shall be the court of Quezon City alone and in no other courts.” So the venue is
restrictive. With that, Arquero filed an action for damages in the RTC of Aparri Cagayan and RCPI moved to dismiss
for improper venue, stipulation according to the POLYTRADE case eh.
The trial court moved to dismiss the case because of this restrictive stipulation. Arquero went to the SC citing the
case of SWEET LINES where despite the fact of a restrictive stipulation, SC refused to apply the POLYTRADE ruling.
HELD. The ruling in Sweet Lines vs. Teves does not apply. You are bound by the stipulation. Why? You are a
lawyer eh. Tarantado ka, bakit ka pumirma?! You are a lawyer. You know all these things. Why did you sign?
So nayari siya. That was taken against him ha! As a matter of fact, it is there you can read it. It is in the front,
pumirma ka pa sa ilalim. In the case of Teves, you cannot read it. Nasa likod, very small. In other words, you
agree to be bound. As a lawyer, you should know what you are signing.
Now, he last point to remember about venue is the difference between venue and jurisdiction. In criminal cases, there is no
distinction between jurisdiction and venue. The place of the filing of the case is where the crime is committed or where the essential
elements were committed. Therefore, when the cases is committed in Davao City, you cannot file a case in Cotabato City. Cotabato
has no territorial jurisdiction over the case.
But in civil cases, if you violate Rule 4, do not say that the court has no jurisdiction. You only say, venue was improperly laid.
Yaan! So, if I will file an ejectment case against you in Davao City before the MTC but I am ejecting you from your apartment in
Tagum, do not make the mistake. If I move to dismiss on the ground that the MTC has no jurisdiction, you are crazy. The MTC has
jurisdiction over all unlawful detainer cases. Ang walang jurisdiction is the RTC. The correct ground is: venue is improperly laid.
But if you file the unlawful detainer case in the RTC, you question the jurisdiction of the court, not the place.
So then, what is the main distinction?
Q: Distinguish JURISDICTION from VENUE.

1.) JURISDICTION refers to the authority the court to hear the case, whereas
VENUE refers only to the place where the action is brought or tried;
2.) JURISDICTION over the subject matter cannot he waived; whereas

VENUE is waivable and can be subject of agreement;
3.) JURISDICTION is governed by substantive law – Judiciary Law, BP 129; whereas

VENUE is governed by procedural law – Rule 4 of the Rules of Court;
4.) JURISDICTION refers to the relation of the parties to the court; whereas
VENUE refers to the relation between the parties; and
5.) JURISDICTION limits the court’s authority; whereas

VENUE limits plaintiff’s rights.
BAR QUESTION: State in what instance the jurisdiction and venue coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial jurisdiction. But in civil cases, jurisdiction and
venue are two different things. They do not coincide.
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Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure – The procedure in Municipal Trial Courts shall be the same as in the
Regional Trial Courts, except
(a) where a particular provision expressly or impliedly applies only to either of said courts, or
(b) in civil cases governed by the Rule on Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in Regional Trial Courts. However, by
express provisions in Section 1, the procedure in the Regional Trial Court and the procedure in the Municipal Trial Court is
the same.
The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except when a particular provision
expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to apply to RTC or MTC. A good example of this is paragraph (a)
is Rule 40 which governs appeals from MTC to RTC. It is only applicable to MTC. It does not apply to appeals from RTC to Court of
Appeals.
The second example would be in civil cases governed by Rules on Summary Procedure. That would be the last law that we
will take up. Rules on Summary Procedure applied only to MTC. They do not apply to RTC.
Sec. 2 Meaning of Terms. – The term “Municipal Trial Courts” as used in these Rules shall include
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Court, and Municipal Circuit
Trial Courts. (1a)
In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in Manila. Municipal Trial
Courts are in cities and municipalities. When the Rule says ‘Municipal Trial Court’, it already includes Metropolitan Trial Courts,
MTCC, MCTC. So that we will not be repetitious.
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PROCEDURE IN THE REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate judgment. (1a)
Actually, we already touched the word “PLEADING” before. In the Constitution when we were asking what is the basis of the
authority of the Supreme Court to enact the Rules of Court or Procedural Law. The Constitution says, the Supreme Court shall
have the authority to promulgate Rules on pleadings, practice and procedure. Then we discussed jurisdiction over the issues.
Jurisdiction over the issues is determined by the allegations in the pleadings.
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the parties submitted to the court for
appropriate judgment. (Section 1)
This is the document where a party will state his claim against the defendant; or where the defendant will state also his
defense. Pleadings merely tell a story. You tell your story there, the other party will tell his story.
And how do you assert your claim in court? Not by calling up a judge over the telephone or writing a letter to the judge, “Dear
judge….” but through the appropriate pleadings. How do they look like? The rules are laid down. It becomes clearer in the 3rd year
subject known as Legal Forms. In that subject you will study particular forms. They have patterns. In pleadings, you do it in legal
manner. You do not say, “Once upon a time…”
The counterpart of pleadings in criminal procedure is information, or the criminal complaint where a prosecutor will tell what
crime you are being accused – what you did, time, the victim, etc.
Sec. 2 – Pleadings allowed – The claims of a party are asserted in a complaint, counterclaim, cross-claim,
third (fourth, etc.) – party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against him.
An answer may be responded to by a reply. (n)
Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there are actually two (2) contending
parties: (1) the person suing or filing claim; and (2) the person being sued.
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Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint, etc.
These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that you are familiar with is the
complaint. As we go over the Rules, you will understand what do you mean by those pleadings.
On the other hand, if you are the party sued, you also have to file your pleading or your defense. It is known as the ANSWER.
The defenses of a party are alleged in the answer to the pleading asserting a claim against him. If I file a complaint against you, in
response, you will file an answer.
In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an answer invoking your defenses. If I
want to respond to your defenses, I will file a REPLY.
COMPLAINT ANSWER REPLY
That is the pattern.
Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) – Party Complaint;
7.) Complaint-in-Intervention.
Let us go over each one of them. How do they function?
A.) COMPLAINT
Sec. 3. Complaint – The complaint is the pleading alleging the plaintiff’s cause or causes of action. The
names and residences of the plaintiff and defendant must be stated in the complaint.
Q: Define complaint.
A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A complaint is also called the
INITIATORY PLEADING. Because it is actually the first pleading filed in court. It is the pleading that starts the ball rolling. It is the
pleading that initiates the civil action.
Of course, the names and residences of the defendants must be stated in the complaint. Do you know the pattern for a
complaint?
For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton borrowed money from Mr. Pito and
refused to pay. Normally, it starts with an introduction: “Plaintiff, through counsel, respectfully alleges that…” Then it is followed by
paragraphs which are numbered. For instance:
Illustration:
1.) Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City; whereas defendant Mr. Peloton also of
legal age, a resident of Bajada, Davao City;
2.) On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of P30,000.00 payable within one (1) year
form said date with legal interest;
3.) The account is already due. Despite repeated demands, defendant failed to and refused to pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be rendered against the defendant ordering
him to pay the loan of P30,000.00 and interest in favor of the plaintiff.
It is simple. The complaint is composed of 3 paragraphs only – humiram siya ng pera, ayaw magbayad. That’s all. That is the
pattern of a complaint. Your allegations must contain the four (4) elements of a Cause of Action – the Right, the Obligation, the
Delict or Wrong or Violation of Your Right, and the Damage. Hindi kailangang mahaba ang complaint.
It becomes clearer in the subject of Legal Forms. That is the last subject in the Bar Exam, Legal Ethics & Practical Exercises.
The examinee will be asked, for instance, to prepare a Contract of Mortgage, or prepare a Complaint for Unlawful Detainer. There
are hundreds of forms and you must be prepared to write down a sample.
B.) ANSWER
Sec. 4 – Answer – An answer is a pleading in which a defending party sets forth his defenses. (4a)
I am the plaintiff. I file the complaint. You received the complaint. You are now required to respond.
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Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your defenses. That is why an ANSWER is called a Responsive
Pleading.
Q: Why is it called “Responsive Pleading”?

A: Because it is the pleading which is filed in response to the complaint. It is where you respond to the cause of action. That is
where you state your defenses.
It is something which is not found in Criminal Procedure. A: NO, there is no such thing as Answer in Criminal Procedure.
Q: If you are charged with a crime, how do you answer?

A: By pleading guilty or not guilty. That is the answer. When you plead guilty, tapos na! If you say not guilty, trial will proceed.
No writing of defenses. No written answer in criminal cases. It (pleadings) only applies to civil cases where you allege your
defenses.
Q: What are the defenses under the Rules?

A: That is Section 5.
Sec. 5 – Defenses – Defenses may either be negative or affirmative.

A NEGATIVE DEFENSE – is the specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
An AFFIRMATIVE DEFENSE – is an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.
Defenses may either be negative or affirmative.
b.) Answer; NEGATIVE DEFENSES;
Q: Define an NEGATIVE defense.

A: Paragraph [a]: Briefly, it is a defense of specific denial where you deny the statement in the complaint and you state
the facts and the reason/s on which your denial is based. In a negative defense, the defendant specifically denies a
material fact or facts alleged in the pleading of the claimant essential to his cause of action.
EXAMPLE: The complaint says in paragraph 2, “On November 6, 1996, defendant secured a loan from plaintiff in the amount
of P30,000.00 payable one (1) year from November 6, 1996. The defendant will say in his answer:
“Defendant specifically denies the allegation in Paragraph 2 of the complaint. The truth of the matter being he
never secured any loan from plaintiff because he does not even know the plaintiff and he did not see his face before.”
That is a negative defense. You said I borrowed money from you. “No, I don’t even know you. I have not seen you before.” He
denies the existence of the loan. That is known as the negative defense. It is a denial of a material fact which constitutes the
plaintiff’s cause of action. That’s why it is briefly called a “Defense of Specific Denial”.
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.

A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while the defendant may admit
the material allegation in the complaint, however, he will plead a new matter which will prevent a recovery by the plaintiff. I
admit what you are saying in the complaint but still you are not entitled to recover from me.
EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed money from you – admitted!
The account is due – admitted! I have not paid you – admitted. “However, you cannot collect from me because the
account has already prescribed.” Meaning, I will admit what you are saying but just the same, I am not liable. Kaya nga, you
confess, eh. I confess to what you say but I still avoid liability.
Examples of affirmative defenses are:
1. 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.
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Suppose, you sue me for damages arising from breach of contract. I admit I entered into a contract but I have no obligation to
comply because the contract is null and void. Or, the contract is illegal. Or, the stipulation is contrary to public policy, therefore,
I am not bound. I admit what you say but I am not liable because of the illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract and I refused to comply. So, you file a case against me for
specific performance or for damages. Then I say: “It’s true that I entered into a contract with you. It’s true I did not comply. But
there is nothing you can do because the contract is oral and the contract is covered by the statute of frauds. In order to be
enforceable, we should have reduced it into writing. Since we never reduced it into writing, I am not bound to comply.”
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a defending party may have against an
opposing party. (6a)
EXAMPLE: You file a case against me for damages to your car. According to you in your complaint, while you were driving
your car along the highway carefully. I came along driving recklessly and bumped your car causing damages amounting to
P50,000.00 for repair. Your allegation is based on negligence on my part.
My answer is denial: “That is not true! I deny that! I was the one driving carefully and you were driving carelessly and
negligently. Therefore, if you are the proximate cause of the accident, I’m not liable for the damage of your car.” That’s my answer –
I’m not liable because you are negligent. Because you were the one negligent, my car was also damaged. I am not liable for the
damage on your car. As a matter of fact, you are the one that should be held liable to pay for the damage of my car. I am now
claiming for the damage of P50,000.00. That is called COUNTERCLAIM.
According to a lawyer who is fluent in Cebuano, he called it balos. He was explaining to his client that they have counterclaim.
That’s a legal term, eh.
Therefore, there is one civil case but there are two (2) causes involved – the main cause of action in the complaint and that in
the counterclaim. There are two (2) issues to be resolved by the court.
Q: If your complaint against me is to recover a sum of money, should my counterclaim also involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in nature. (De Borja vs. De Borja, 101 Phil. 911) It is
possible for you to file case for recovery of a piece of land and my counterclaim is recovery of damages arising from a vehicular
accident.
Q: Suppose your claim against me is One (1) Million, is it possible that my counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount you are claiming. A counterclaim need not
diminish or defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different I kind
from that sought by the opposing party. (De Borja vs. De Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My counterclaim is, rescission of partnership contract. Is the
counterclaim proper?
A: Yes although there is no connection between what you are asking and what my answer is. But what is important is
tayong dalawa ang naglalaban. If you will not allow me to file my counterclaim against you, that will be another case in
the future. Since nandito na rin tayo, so lahat ng ating reklamo, we might as well have to finish it. That is allowed.
Q: Why is it that law allows the defendant to counter sue by way of counterclaim the plaintiff?
A: The purpose there is apparently TO AVOID MULTIPLICITY OF SUITS. If you have a cause of action against me, I will sue
you, in the future it will also lead to another case where you will also sue me.
DEBORJA vs. DEBORJA

101 Phil 911
FACTS: A died, of course, what survives after that is the estate. X was appointed as administrator or legal
representative. W owes a sum of money to the estate of A and X filed a case against W to collect the unpaid loan. X
is called the REPRESENTATIVE PARTY under Rule 3, Section 3. W filed an answer and that W has a claim against
X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not suing in his own personal capacity. He is
acting as administrator of the estate of A. The real plaintiff is the estate of A. X is just the legal representative.
Therefore, you cannot file a counterclaim against X in the latter’s personal capacity when X is suing W in a
representative capacity.
The SC said that the plaintiff should be sued in a counterclaim in the SAME CAPACITY that he is suing the defendant.
That’s a principle to remember.
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PERMISSIVE & COMPULSORY COUNTERCLAIMS
Sec. 7 – Compulsory counterclaim – A compulsory counterclaim is one which, being cognizable by

the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting
the subject matter of the opposing party’s claim and does not require for its adjudication the presence of
third parties of who the court cannot acquire jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except that in the original action
before the Regional Trial Court, the counterclaim may be considered compulsory.
Under the Rules, there are two types of counterclaim. 1) COMPULSORY COUNTERCLAIM and, 2) PERMISSIVE
COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a counterclaim compulsory and when is it permissive?
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7. If we will outline Section 7, we will see that
a counterclaim is compulsory if the following requisites are present:
1.) It is cognizable by the regular courts of justice;

2.) It arises out of or it is connected with a transaction or occurrence constituting a subject matter of the opposing
party’s claim;
3.) It does not require for its adjudication the presence of third parties of who the court cannot acquire jurisdiction;
4.) It must be within the jurisdiction of the court, both as to the amount and the nature thereof, except that in an
original action before the RTC, the counterclaim may be considered compulsory regardless of the amount; and
5.) The defending party has a counterclaim at the time he files his answer.
The fifth requisite is not found in Section 7 but in Rule 11, Section 8:
Rule 11, Sec. 8. Existing counterclaim or cross-claim. - A compulsory counterclaim or a cross-claim

that a defending party has at the time he files his answer shall be contained therein. (8a, R6)
Another way of saying it is, the counterclaim has already matured at the time he files his answer. That is the fifth requisite.
Q: What happens if one of these requisites is missing?

A: If one of the five requisites is missing, the counterclaim is permissive in nature.
We will discuss the elements of a compulsory counterclaim one by one.
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE BY THE REGULAR COURTS.
In other words, if you file a complaint against me and I have a counterclaim against you in the Labor Code, then it
cannot be classified as a compulsory claim because how can I invoke against you a claim which is cognizable by the
NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A TRANSACTION OR

OCCURRENCE CONSTITUTING A SUBJECT MATTER OF THE OPPOSING PARTY’S CLAIM
The second requisite is the most important. A counterclaim, to be compulsory, must arise out of or connected with the
transaction or occurrence constituting a subject matter of the opposing party concerned. It must arise out of or is
connected with a transaction or occurrence constituting a subject matter of the opposing party’s claim. It must be
logically related to the subject matter of the main action.
So the rule is, if the counterclaim did not arise out of or is not connected with the transaction or occurrence constituting the
subject matter of the opposing party’s concern, the counterclaim must be permissive in nature.
PROBLEM: Emily filed a case against Regina for damages arising from a vehicle collision. According to Emily, the case of the
accident is the negligence of the defendant in driving her car. Her car bumped the car of Emily and was damaged. So, Emily is
holding Regina liable for the damage on her car. Regina denied that she was negligent. According to Regina, “No, I am not
negligent. As a matter of fact, you (Emily) were the one negligent, and because of that negligence, my car was also damaged. So
you should be the one to pay damages.” Parang ganyan ba.
Q: Is the counterclaim of Regina arising out of or is connected with the transaction or occurrence constituting the subject
matter of the opposing party?
A: YES because we are talking of the same bumping. You bumped my car, you say I bumped your car. So we are
talking of the same event or transaction.
PROBLEM: Thea G. (as in ‘Gamay’) files a case against me for recovery of a piece of land. According to her, she is the owner
of the land which I’m occupying. Now, I file my answer, and then I said, “Ms. Guadalope, I spent a lot of money for necessary
expenses to preserve the land. You are also liable to reimburse me for the necessary improvements expenses I introduced on the
land.” Under the law on Property, a defendant or possessor is entitled to reimbursement for necessary improvements and
expenses. So she is trying to recover the piece of land, I am now asking her to reimburse me for all necessary expenses that I
spent on the land.
Q: Is my counterclaim arising out of or connected with the subject matter of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the counterclaim is compulsory.
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PROBLEM: Thea G. files a case against me for recovery of a piece of land. My counterclaim against her is damages arising
from a vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your action?
A: NO. It is completely different. Thus, that is a permissive counterclaim.
So, those are the examples. That is why, the second requisite is the most important element – a counterclaim must arise out of
or is connected with the subject matter or a transaction or the event or the main action. By the way, the second element is
considered the most important element of compulsory counterclaim because according to the SC in the 1992 case of
MELITON vs. COURT OF APPEALS

216 SCRA 485
HELD: “It has been postulated that while a number of criteria have been advanced for the determination of
whether the counterclaim is compulsory or permissive, the one compelling test of compulsoriness is the logical
relationship between the claim alleged in the complaint and that in the counterclaim, that is, where conducting
separate trials of the respective claims of the parties would entail a substantial duplication of effort and time, as where
they involve many of the same factual and/or legal issues.”
Q: What is the importance of determining whether the claim is compulsory or permissive?

A: A compulsory counterclaim must be invoked in the same action. Iit cannot be the subject matter of a separate
action. Unlike in permissive where you have the choice of invoking it in the same case, or in a separate action,
compulsory counterclaim must be invoked in the same action otherwise it will be barred. That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. - A compulsory counter-
claim or a cross-claim, not set up shall be barred. (4a)
So if I do not file a counterclaim against you in the same action, under Rule 9, the counterclaim is barred forever. I cannot
claim it against you in any other case in the future. But if the counterclaim is permissive and I will not raise it as a counterclaim, it is
not barred. It can still be invoked in another case against you. It can be a subject matter of a separate action.
Let us try to apply that principle to the case cited.
PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her car is damaged, my car is
damaged. In my answer, I denied negligence but I did not claim from her the damage to my vehicle. After the trial, court found the
plaintiff at fault. So, the complaint of Vanessa was dismissed. So panalo ako. Balikan ko siya ngayon. This time I will file a case
against her to recover damages for the damage to my car since I was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a counterclaim. Compulsory yan eh. So
since you did not raise, is barred forever.
PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako. The court said that I should
return the land to her. So isinauli ko na. Ngayon, kailangan bayaran niya naman ako for the necessary expenses. So, I will file a
case against her. She moved to dismiss – barred, because I should have raised that as a counterclaim. I cannot file another case
involving that cause of action. That is the effect of failure to raise the compulsory counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for recovery of land. My cause of
action against her is damages arising against a vehicular collision. Obviously, the counterclaim is permissive.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: Pauline will file a case against me for damages arising from vehicular collision. My decision is not to file a counterclaim but
to file another case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is permissive. I am permitted
to raise it as a counterclaim but I am not obliged. I may decided to file another action against you. That is the importance
between a compulsory counterclaim and a permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM
THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an indispensable party who is, let’s say, abroad,
and therefore, the court cannot acquire jurisdiction over him, and since it involves an indispensable party, I will not raise
it as a counterclaim.
Q: Will it be barred?
A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The trouble is, he is not around.
Therefore, the counterclaim is not barred because the third element is missing.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE JURISDICTION OF THE COURT
BOTH AS TO THE AMOUNT AND NATURE THEREOF.
Q: I will file a case against you for forcible entry. I want to recover a piece of land. Where is the jurisdiction of that case?
A: MTC. Squatting. I will recover a land from a squatter.
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Review: In the Law on Property, even if you are a possessor in bad faith, he is entitled to reimbursement for necessary
expenses. The theory there is, even if he is a possessor in bad faith, the expenses redounded to the benefit of the land owner.
Anyway, you will spend them just the same as the land owner will have to spend for them. So it will not be fair if he is not
reimbursed. That’s our premise, noh?
PROBLEM: Now, the defendant would like to claim for reimbursement for the necessary expenses that he spent in my lot. The
case I filed against you is forcible entry in the MTC. Your necessary expenses amount to P300,000.
Q: Should you raise it as a compulsory counterclaim in the forcible entry case?
A: NO.
Q: Does it arise out of or connected with the transaction which is the subject matter of the main action? Why not compulsory?
A: Because the MTC has no jurisdiction over the P300,000 amount for the necessary expenses. This time, that is the
missing element.
Q: How will the defendant claim reimbursement?

A: He has to file with the RTC a case for reimbursement. He cannot use that as a counterclaim for the forcible entry
case because the MTC has no jurisdiction on a counterclaim where the amount is over P300,000.00.
I will reverse the problem:

PROBLEM: The plaintiff filed against the defendant an action for accion publiciana – recovery for a piece of land where the
value of the property is P1 million. So the case should be filed in the RTC. Now, the defendant is claiming for the reimbursement of
the improvements thereon (necessary expenses) amounting to P50,000.
Q: Should the defendant raise that as a counterclaim in the accion publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction of the MTC. This time, the amount for the counterclaim
is below the jurisdiction of the RTC. So the RTC can claim jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only P50,000?
A: It is in accordance with the exception under Section 7: “except that in an original action before the RTC, the
counterclaim may be considered compulsory regardless of the amount.” This means that the main action is accion
publiciana—RTC. The counterclaim is reimbursement for necessary expenses with arose out of the same land. Normally,
the RTC cannot try that but the answer to this question is YES.
The RTC can award a claim for damages even though the claim is below its jurisdiction. The principle is: Since the
counterclaim is compulsory, jurisdiction over the main action automatically carries with it jurisdiction over the
compulsory counterclaim. The compulsory counterclaim is merely incidental to the main action. Jurisdiction of the RTC
over the main action necessarily carries with it jurisdiction over the compulsory counterclaim which is merely ancillary.
But the first example is baliktad. If the main action is with the MTC, it cannot try the counterclaim with the RTC. It is
beyond its jurisdiction. It is not covered by the exception. But if it is the main action which is within the jurisdiction of the
RTC, it can try a counterclaim which is below its jurisdiction provided it arose out or is connected with the transaction.
That exception is not written in the prior rules but it is a recognized exception laid down by the SC which is now written down in
the law. In the case of
MACEDA vs. COURT OF APPEALS

176 SCRA 440
HELD: “The jurisdiction of the MTC in a civil action for sum of money is limited to a demand that does not exceed
P100,000 (now P300,000) exclusive of interest and costs. A counterclaim beyond its jurisdiction and limit may be
pleaded only by way of defense to weaken the plaintiff’s claim, but not to obtain affirmative relief.”
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE

TIME HE FILES HIS ANSWER.
How can I make a claim against you which is not yet existing? Even if all the other requisites are present, the counterclaim
would still not be compulsory because how can one invoke something now which he can acquire in the future?
So, those are the five essential elements. You remove one, the counterclaim becomes permissive.
Q: Again. What is the importance of distinguishing whether the counterclaim is compulsory or permissive?
A: If the counterclaim is compulsory, the defendant is obliged under the law to raise it as a counterclaim in the action
where he is being sued. If he fails to invoke it, it is barred forever (Rule 9 Section 2).
If the counterclaim is permissive, the defendant has a choice of raising it as a counterclaim in the case filed against
him or he may decide to file another action against the plaintiff, raising it as his cause of action. It is permitted but not
obliged.
COUNTERCLAIMS IN CRIMINAL CASES
JAVIER vs. IAC

77
171 SCRA 605
FACTS: The Javier spouses filed a criminal case against Leon Gutierrez Jr, under BP 22 or the Bouncing Check
Law, for issuing a bad check. The criminal case was filed before the RTC of Makati. The complainants did not reserve
the civil action. The implication is that the claim for civil liability is deemed instituted with the criminal case.
Gutierrez in turn filed a civil action for damages against the Javier spouses in the RTC of Catarman, Northern
Samar, where he accused spouses of having tricked him into signing the check. According to him, “because you
tricked me into signing the check for which you are suing me, I’m holding you liable for damages”.
What happened now is that he was being criminally sued in Makati but defending himself in Catarman, Northern
Samar. He is explaining in the Samar court what he should be doing in the Makati court.
HELD: The civil case in Samar should be dismissed. It must be in the Makati court that Gutierrez, as accused in
the criminal charge of violation of BP 22, should explain why he issued the bouncing check. He should explain that
story in Makati and not in Samar.
This should have been done in the form of a counterclaim for damages for the alleged deception by the Javier
spouses. In fact, the counterclaim was compulsory and should have been filed by Gutierrez upon the implied
institution of the civil action for damages in the criminal case.
What the SC is saying is, since the civil action for damages is impliedly instituted in the criminal case, and he wants to hold you
liable for filing this case, he should file a counterclaim against you in the criminal case. What is unique was that for the first time in
the Philippine Procedural Law, SC laid down the rule that there is such thing as a counterclaim in a criminal case, because,
normally, counterclaims are only recognized in civil cases. But since the civil action is deemed instituted in the criminal case, the
accused can file a counterclaim against the offended party in the criminal action.
The trouble in this ruling is that, it has been subjected to a lot of criticisms by academicians – professors of Remedial Law,
authors – they criticized the ruling. It provokes more problems than answers. A justice of the SC remarked, “I think we made a
mistake (privately ba) in the Javier ruling. Kaya it was never repeated.
The SC, in 1997, had another chance to comment on Javier in the case of—
CABAERO vs. CANTOS

271 SCRA 392, en banc
NOTE: Here, the Javier ruling was set aside.

HELD: “The logic and cogency of Javier notwithstanding, some reservations and concerns were voiced out by
members of the Court during the deliberations on the present case. These were engendered by the obvious lacuna in
the Rules of Court, which contains no express provision for the adjudication of a counterclaim in a civil action
impliedly instituted in a criminal case.”
“By the foregoing discussion, we do not imply any fault in Javier. The real problem lies in the absence of clear-cut
rules governing the prosecution of impliedly instituted civil actions and the necessary consequences and implications
thereof. For this reason, the counter-claim of the accused cannot be tried together with the criminal case
because, as already discussed, it will unnecessarily complicate and confuse the criminal proceedings. Thus,
the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising
out of the crime. The counter-claim (and cross-claim or third party complaint, if any) should be set aside or
refused cognizance without prejudice to their filing in separate proceedings at the proper time.”
“At balance, until there are definitive rules of procedure to govern the institution, prosecution and resolution of the civil
aspect and the consequences and implications thereof impliedly instituted in a criminal case, trial courts should limit
their jurisdiction to the civil liability of the accused arising from the criminal case.”
This means SC admitted that the Javier doctrine put more problems and confusions in the absence of specific rules. The
counterclaim should not be tried together in a criminal case. The trial court should confine itself in the criminal action and
that the counterclaim should be set aside without prejudice to its right in setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of Section 1, paragraph [a], Rule 111 of
the 2000 Revised Criminal Procedure:
“No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal
case, but any cause of action which could have been the subject thereof may be litigated in a separate
civil action.”
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.(7)
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A cross claim is a claim by one party against a co-party. It may be a claim by defendant against his co-defendant arising out
of the subject matter of the main action.
EXAMPLE: Jet and Pao are solidary debtors for the sum of P100,000. Jet and Pao signed a promissory note in favor of Dean
to collect the sum of P100,000. However, although Jet signed the promissory note, he did not get a single centavo. Everything went
to Pao. Both of them are now sued. According to Jet, “Actually there is a possibility that I will pay the P100,000 to Dean when
actually I did not even get a single centavo out of it. Everything went to Pao [bwiset!]!” Therefore, Jet will now file a case against
Pao where he will allege that if Jet will be held liable to Dean, Pao will reimburse him (Jet). So, Jet will also file a claim in the same
action against Pao.
Now, the claim filed by Jet against his co-defendant Pao is called a CROSS-CLAIM where Jet is called defendant in the case
filed by Dean and a cross-claimant against Pao. Pao is also the defendant in the case filed by Dean and a cross-defendant with
respect to the cross-claim filed by Jet. So that is another case which a defendant is filing against another defendant.
The law says that the “cross-claim arises out of the transaction or occurrence that is the subject matter of the original
action.” In other words, the cross-claimant will assert that the cross-defendant is liable to him for all or part of the claim
asserted in the main action against the cross-claimant.
Take note that the cross-claim of Jet against Pao is merely an off-short of the case filed by Dean against Jet and Pao.
Meaning, it arises out of the same transaction or occurrence that is the subject matter of the case filed by Dean against them.
PROBLEM: Suppose Dean files a case against Jet and Pao to collect a promissory note signed by Jet and Pao. Tapos, sinabi
ni Jet in his cross-claim, “Well, since we are already here, I also have a claim against Pao for damages arising from a vehicular
collision.”
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the complaint of Dean against Jet and Pao. A cross-
claim must always arise out of a transaction or occurrence that is the subject matter of the main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-CLAIM.

1.) A COUNTERCLAIM is a complaint by the defendant against the plaintiff, whereas,
A CROSS-CLAIM is a claim by a defendant against a co-defendant;
2.) The life of the CROSS-CLAIM depends on the life of the main action. A cross-claim is merely a consequence of the
case filed by the plaintiff against the defendants. No main action, no cross-claim (RUIZ, JR. vs. CA, infra).
Whereas,
In a COUNTERCLAIM, you can kill the main action, still the counterclaim survives.
3.) A COUNTERCLAIM may be asserted whether or not it arises out of the same transaction or occurrence that is the
subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same transaction or occurrence that is the subject matter of the action.
Example: Pao case filed against Jet to collect a loan. Jet files a COUNTERCLAIM against Pao to
recover a piece of land. That is allowed and that is a permissive counterclaim. But suppose Dean files a case
to collect a loan against Jet and Pao. Jet files a CROSS-CLAIM against Pao to recover a piece of land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the subject matter of the main action.
Take note that a cross-claim is any claim by one party against a co-party arising out of the transaction of occurrence that is the
subject matter of the original action or of a counterclaim therein. So, a cross-claim may arise our either of the original action or
counter-claim therein.
EXAMPLE: Jet and Pao file a case against Dean. Dean files his answer with a counterclaim against the plaintiffs Jet and Pao.
So Jet and Pao will now become defendants with respect to the counterclaim filed by Dean. So Jet now can file a cross-claim
against Pao arising out of the counterclaim. So this is an example of a plaintiff filing a cross-claim against his co-plaintiff because of
the counterclaim.
HYPOTHETICAL EXAMPLE:
1.) Mortz and Charles, plaintiffs, filed a case against Jet and Pao, defendants. There are two plaintiffs suing two different
defendants on a promissory note. Both Jet and Pao signed the promissory note in favor of Mortz and Charles:
COMPLAINT (Collection case – Main Action):

MORTZ and CHARLES [total: 785 lbs.], plaintiffs
-versus-
JET and PAO, defendants
2.) Now, according to Jet, every centavo of the loan went to Pao. So Jet files a cross-claim against Pao:
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET [feather weight], now cross-claimant
-versus-
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Defendant PAO [heavy weight], now cross-defendant
3.) Jet also says, “Actually may reklamo ako sa inyong dalawa (Mortz and Charles) because you entered my land and
gathered some of its product [mga patay gutom!!]”. Nag-file siya ng counterclaim against both Mortz and Charles. In the
counter-claim of Jet, ang defendants ay si Mortz and Charles for the accounting of the improvements on the land:
COUNTERCLAIM OF JET
Defendant JET, now plaintiff
-versus-
Plaintiffs MORTZ and CHARLES, now co-defendants
4.) Mortz now will answer the counterclaim of Jet, “Actually, the damages on land was not caused by me. Si Charles man ang
may kasalanan ba! Yun ang patay gutom!!” So Mortz files a cross-claim against co-plaintiff Charles arising out to the
counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET

Plaintiff MORTZ, now cross-claimant
-versus-
Plaintiff CHARLES, now cross-defendant
5.) Now, according to Pao, “Actually last month, a car owned by both of you (Mortz and Charles) bumped my car and that my
car was damaged.” So, nag-file naman si Pao ng counterclaim against Mortz and Charles for the damage of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versus-
Plaintiffs MORTZ and CHARLES, now defendants
6.) Sabi ni Charles, “I’m not the owner of the car. Si Mortz ang owner. Gago!” So cross-claim naman siya (Charles) kay Mortz:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO

Plaintiff CHARLES, now cross-claimant
-versus-
Plaintiff MORTZ, now cross-defendant
Ilan lahat ang kaso? There are six (6) cases which are to be decided in the same action. This rarely happens, but it is possible
under the rules. The obvious PURPOSE of these is to avoid multiplicity of suits and toward these ends. According to the SC, the
rules allow in a certain cases and even compel a petitioner to combine in one litigation these conflicting claims most partic ularly
when they arise out of the same transaction. The rule does not only allow a permissive counterclaim but the parties are even
compelled to raise them in a compulsory counter-claim.
RUIZ, JR. vs. COURT OF APPEALS

212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a cross-claim against Pao. After a while, the case
against Jet and Pao was dismissed.
ISSUE: What happens to the cross-claim of Jet against Pao?
HELD: When the main action was dismissed, the cross-action must also be dismissed. The life of a cross-
claim depends on the life of the main action. If the main action is dismissed, the cross-claim will have to be
automatically dismissed.
“A cross-claim could not be the subject of independent adjudication once it lost the nexus upon which its life
depended. The cross-claimants cannot claim more rights than the plaintiffs themselves, on whose cause of action the
cross-claim depended. The dismissal of the complaint divested the cross-claimants of whatever appealable interest
they might have had before and also made the cross-claim itself no longer viable”
Whereas, the counterclaim can exist alone without the complaint.
EXAMPLE: Pao filed a case against Jet for the recovery of a piece of land. Jet’s counterclaim is damages arising from a
vehicular accident. Na-dismiss ang kaso ni Pao – wala na yung recovery of a piece of land. The counterclaim of Jet can still remain
alive even if the main action is dead.
But in a cross-claim, once the main action is dead, the cross-claim is also automatically dead too. What is there to
reimburse when the complainant has been dismissed? Aber?!
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
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Sec. 9. Counter-counterclaims and counter-cross-claims. A counterclaim may be asserted against an
original counter-claimant.
A cross-claim may also be filed against an original cross-claimant.(n)
Section 9 is a new provision. There is such a thing as counter-counterclaim and counter-cross-claim. The concept of counter-
counter-claim is not new. As a matter of fact, that was asked in the bar years ago.
EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim against her to recover a piece of land.
Of course, she have to answer your counterclaim. But she will say, “Actually you have been molesting me with your claim when
actually you have no right over my land.” So, nag-file siya ng injunction to stop you from molesting her. In other words, based on
your counter-claim against her to recover my land, she will file a counterclaim to stop you from molesting her. In effect, there is
counter-claim to a counter-claim.
COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo.
E.) REPLY
Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such
new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed
controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be
set forth in an amended or supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D files his answer and raises a new
matter, affirmative defense. According to the defendant, the obligation is already paid. Plaintiff said that you have paid the other
loan. In other words, the plaintiff would like to deny or dispute the defendant’s affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?

A: Yes, that pleading is called a REPLY.
Q: How do you classify a reply?

A: It is a responsive pleading because it is the response of the plaintiff to the affirmative defense raised in the
defendant’s answer.
An answer is a response to the complaint and the reply is a response to the answer.
Q: Halimbawa, you would like to answer my reply, what pleading would you file?
A: None. That is the last pleading. Otherwise, walang katapusan and pleading natin. So, reply is considered as the
last pleading.
Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to reply. What is the effect if the plaintiff fails to
reply? Is he admitting the correctness of the defense?
A: No. The failure to file a reply has no effect. Section 10 says that if a party does file such reply, all the new matters
alleged in the answer are deemed controverted. Meaning, all the affirmative defenses raised in the answers are
automatically denied.
So, whether you file a reply or not, the defenses are deemed automatically disputed. The filing of a reply is OPTIONAL.
A reply should not be confused with the answer to a counterclaim which is also filed by the plaintiff.
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and REPLY.

A: The following:
1.) A REPLY is a response to the defenses interposed by the defendant in his answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a cause of action by the defendant against the plaintiff;
2.) The filing of a REPLY is generally optional, whereas

The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory under Rule 11 because if the plaintiff fails
to file an answer to the counterclaim, he will be declared in default on the counterclaim.
OUTLINE OF FLOW OF PLEADINGS
PLAINTIFF DEFENDANT
1. Complaint
2. a.) Answer
b.) Counterclaim
3. a.) Reply to answer
b.) Answer to counterclaim
4. Reply to answer to counterclaim
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F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT
Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth, etc.) party complaint is a claim that a
defending party may, with leave of court, file against a person not a party to the action, called the third
(fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim. (12a)
THIRD PARTY COMPLAINT is the procedure for bringing into a case a third person who is not a party to the case.
So, plaintiff files a case against the defendant. Defendant believes that a stranger or somebody else should be brought into the
case and therefore files a motion in court that he be allowed to file a third-party complaint against such person and therefore the
defendant is called third party plaintiff and that third person is a third-party defendant.
EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there are two debtors and one of them is
compelled to pay everything so the defendant will drag into the picture the co-debtor for contribution or indemnity. Well, you
already learned if there are two of them all he has to do is to file a cross-claim against his co-defendant. BUT since he is the only
one, the remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of right. THERE MUST BE LEAVE OF COURT. So unlike
counterclaim or cross-claim, you do not need any motion or leave of court. Just file your answer to the counterclaim of
cross-claim and that will do, but not a third-party complaint.
The purpose of third-party complaint is for contribution, indemnity, subrogation and other relief in respect of his opponent’s
claim.
That is why there is a close relationship between a cross-claim and a third-party complaint because a cross-claim
must also be arising out of the subject matter of the main action. A third-party complaint must be also related to the main
action. It cannot be a cause of action which has no relation to the main action.
EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both of them are defendants, and the surety
seeks reimbursement for whatever amount he may be compelled to pay the plaintiff. What kind of pleading would he file against his
co-defendant (the principal debtor)? CROSS-CLAIM.
BUT if the plaintiff file a case ONLY against the surety, because anyway the principal debtor is not an indispensable party and
the surety would like to seek reimbursement from the person who benefited from the loan, he cannot file a cross-claim against
anybody because he is the lone defendant. It is possible for him to just file an answer . If he loses and pays the plaintiff, then he will
file another case against the principal debtor for reimbursement.
But if he wants everything to be resolved in the same case, what kind pleading will he file? He must resort a THIRD-PARTY
COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party plaintiff to ask the third party defendant for: CISO
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponent’s claim.
CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared the money 50-50. When the debt fell due,
the creditor filed a case against one of them. So, one of them is being made to pay the P100,000. Not only his share but also his
co-solidary debtor. So if I am the one liable when actually my real liability is only 50,000. What will I do? I will file a third party
complaint against my co-debtor for contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party files an action for damages against Andrew
only, Andrew may file a third-party complaint against Carlo for contribution, their liability being solidary (Article 2194, New Civil
Code)
INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the creditor. But actually the entire amount went to you and
none for me. When the note fell due, I was the one sued. So I will file a third-party complaint against you for indemnity. You have
to return to me every centavo that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor may file a third-party complaint against the principal debtor for
indemnity. (Article 2047, New Civil Code)
SUBROGATION:
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Subrogation - You step into the shoes of someone else. Your obligation is transferred to me.
EXAMPLE: Where a contract is leased by a lessee and he subleased the property to a third person who is now occupying the
property. In effect, the sub-lessee stepped into the shoes of the original lessee. If the property is damaged and the lessor sues the
lessee for damages to his leased property, the lessee or sub-lessor can file a third-party complaint and have the sub-lessee for
subrogation because actually, you stepped into the shoes when you occupied the leased property. (Articles 1651 and 1654, New
Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM, very broad:
EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr. Dee filing a case against me to claim
ownership of the land. But I bought it from Mr. Cruz who warranted that he is the real owner. So I will now file third-party complaint
against Mr. Cruz to enforce his warranty – warranty against eviction. (Article 1548, New Civil Code)
Take note that there is always a connection between the main complaint and the third-party complaint because the
condition is “contribution, indemnification, subrogation and any other relief in respect to your opponents claim.” There is
always a relation between the third party-complaint and the main complaint against you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an unpaid load. Now the reason is that Carlo also owes Nudj.
Nudj says, “I cannot pay you because there is a person who has also utang to me. What I will pay you depends on his payment to
me.” File agad si Nudj ng third-party complaint against Carlo. Is the third-party complaint proper?
A: NO. There is no connection between the main action and the 3rd-party complaint – the loan of Nudj to Janis and
the loan of Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa utang ni Andrew kay Nudj? Not in respect to
his opponent’s claim.
BAR QUESTION: How do you determine whether a 3rd-party complaint is proper or improper? What are the tests to determine
its propriety?
A: Case of
CAPAYAS vs. COURT OF FIRST INSTANCE

77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of a third-party complaint. In order for it to be
allowed, it must pass one of them. That is the reason when you file it, you need the permission of the court to determine
whether it is proper or not and the original plaintiff may object to the propriety of the third-party complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of the same transaction on which plaintiff is based;
EXAMPLE: A creditor sued only one solidary debtor. So you can file a third-party complaint for contribution.
Anyway, there is only one loan and our liability arises out of the same promissory note
2. A third-party complaint is proper if the third-party’s complaint, although arising out of another transaction, is
connected with the plaintiff’s claim.
EXAMPLE: The car owner is sued for culpa aquiliana for damages arising from vehicular collision and he
files a third-party complaint against the insurance company for indemnity based on the contract of insurance. So
it is connected with plaintiff’s claim, and that is precisely the purpose of my insurance coverage.
3. Third party defendant would be liable to the original plaintiff's claim. Although the third party defendant's
liability arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased it to Rudolph. If Roy’s property is
damaged, Roy will sue Eric. But Eric will also sue Rudolph. The sub-lessor has the right to file a third-party
complaint against the sub-lessee for the damaged leased property which is now occupied by the sub-lessee. The
third-party defendant Rudolph would be liable to plaintiff’s (Roy’s) claim. Rudolph will be liable to Roy for Roy’s
claim against Eric although the liability of Rudolph arises out of another transaction (Sub-lease contract)
4. The third party defendant may assert any defense which the third party plaintiff has or may have against
plaintiff’s claim.
EXAMPLE: Tato is a registered owner of a car and then sold it to Philip. Philip is the actual owner.
However, Philip did not register the sale to the LTO. The registered owner is si Tato lang gihapon although he is
no longer the real owner. While Philip was driving that car it bumped the car of Lewee Tanduay. Lewee
researched the owner of the car at LTO and ang lumabas ay si Tato. So ang ginawa ni Lewee, ang kinasuhan
nya ay si Tato na walang malay...under the law, the registered owner is liable. Of course, when Tato got the
complaint, “Wala akong alam sa sinasabi nyo, that car is no longer mine. I sold that two years ago, I have no
idea what happened.”
So obviously, Tato arrived at the conclusion that si Philip and nakabangga. Tato filed a third-party complaint
against Philip because he is the real owner. When Philip got the third-party complaint, and because he knows
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the story, in fact he was the one driving, ang ginawa niya, nilabanan niya ng diretso si Lewee. Meaning, instead
of Tato fighting Lewee, Philip fought Lewee directly. Frontal na ba. Sabi ni Philip, “I was not at fault, you (Lewee)
are at fault.” So here is a situation where Lewee sues Tato, Tato sues Philip but Philip fights Lewee, as if he is
the real defendant, then the third party complaint must be proper. It must be related.
So those are the samples of third party complaint which are correct.
Take note that there is a close similarity between a third-party complaint and a cross-claim because as we have learned, a
cross-claim must also be related to the same action. So we will go to some interesting case on third-party complaint.
SAMALA vs. VICTOR

170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while riding on a passenger jeep owned by Tato, the jeep
was bumped by the truck of Lewee, injuring Philip. Philip filed a case for damages arising from breach of contract
against Tato. Tato filed a third-party complaint against Lewee. After trial, the court found that Tato has not at fault.
The fault is entirely against Lewee . So the action against Tato was dismissed, but the court held that Lewee be
directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato who is liable to Philip because Philip did not
sue me (Lewee), “Bakit ako ang ma-liable hindi naman ako ang dinemanda ni Philip? So procedurally, I am liable to
Tato, Tato is liable to Philip.”
ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally Lewee is liable to Tato. But Lewee can be made
liable to Philip, or Lewee can be made liable to both Philip and Tato because that is covered by the phrase “OR ANY
OTHER RELIEF” – so broad that it cover a direct liability of a third party defendant to the original plaintiff.
ISSUE #2: How can the court award damages to Philip based on the theory of culpa aquiliana when his
complaint is based on culpa contractual? Can Lewee be held liable for culpa-contractual?
HELD: YES. That is also possible because “the primary purpose of this rule is to avoid circuitry of action
and to dispose of in one litigation, the entire subject matter arising from a particular set of fact it is immaterial
that the third-party plaintiff asserts a cause of action against the third party defendant on a theory different
from that asserted by the plaintiff against the defendant. It has likewise been held that a defendant in a
contract action may join as third-party defendants those liable to him in tort for the plaintiff’s claim against
him or directly to the plaintiff.”
Another interesting case which is to be compared with the abovementioned case is the 1989 case of
SHAFER vs. JUDGE OF RTC OF OLONGAPO CITY

167 SCRA 386
NOTE: This case although it refers to third-party complaint is related to criminal procedure. This is similar to the
case of JAVIER where the issue is, is there such a thing as a counterclaim in a criminal case where the offended
party did not make a reservation. In SHAFER, is there such a thing as a third-party complaint in a criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped another car driven by T. T filed a criminal case
against S for physical injuries arising from reckless imprudence. T did not make any reservation to file a separate civil
action. So obviously, the claim for civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party complaint against the insurance company insofar
as the civil liability is concerned. The insurance company questioned the propriety of d third-party complaint in a
criminal case, because according to the insurance company, the third-party complaint is entirely different from the
criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a criminal case is procedurally correct.
HELD: Yes, it is proper. There could be a third party complaint in a criminal case because an offense causes two
classes of injuries – the SOCIAL and the PERSONAL injury. In this case, the civil aspect of the criminal case is
deemed impliedly instituted in the criminal case. Shafer may raise all defenses available to him in so far as the
criminal and civil aspects are concerned. Shafer’s claim of indemnity against the insurance company are also the
claim by the victim in the criminal claim. Therefore Shafer’s claim against the insurance company is related to the
criminal case. So similar to Javier that an accused may also file a compulsory counterclaim in a criminal case when
there is no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
The SHAFER ruling has to be set aside for the meantime because there is no such thing as third-party
complaint in criminal cases now. In other words, forget it in the meantime. Also, forget counterclaims in
criminal cases even if they arose out of the main action.
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This case refers to JAVIER on whether or not there is such a thing as a compulsory counterclaim in criminal
cases. SC said, “Huwag muna samok!” If we will allow it in criminal cases it will only complicate and confuse the
case. The attention might be divested to counterclaims or cross-claims or third-party complaints, etc.
HELD: “The trial court should confine itself to the criminal aspect and the possible civil liability of the accused
arising out of the crime. The counter-claim (and cross-claim or third party complaint, if any) should be set aside or
refused cognizance without prejudice to their filing in separate proceedings at the proper time.”
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO.

25 SCRA 641 [1968]
FACTS : Hannah filed a case against Rina for a liability amounting to P300,000. So it was filed in RTC. Rina filed
a third-party complaint against ConCon Insurance Company for indemnity insurance but the maximum insurance is
only P50,000. The insurance company moved to dismiss on the ground that the court has no jurisdiction because
third-party complaint is only for P50,000 which is supposed to be within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party complaint is only incidental. The third-party
complaint need not be within the jurisdiction of the RTC where the principal action is pending because the
third-party complaint is really a continuation and an ancillary to the principal action. If the court acquires
jurisdiction over the main action, automatically, it acquires jurisdiction over the third-party complain which is
mainly a continuation of the principal action.
Now, the same situation happened in another case. The case of
EASTER ASSURANCE vs. CUI

105 SCRA 642
FACTS : Carol is a resident of Davao City. Cathy is a resident of Cebu City. Carol filed a case before the RTC of
Davao City against Cathy. Cathy files a third-party complaint against Joy, a resident of Manila. Is the venue proper?
HELD: The venue is proper because the venue of the main action is proper. So automatically third-party
complaint is also proper. The third-party has to yield to the jurisdiction and venue of the main action.
Now of course, if there’s such a thing as 3rd party complaint, there is also a 4th, 5th, 6th or 7th complaint. That is possible but
everything is with respect to his opponent’s claim.
EXAMPLE:
A B C D E
A files a complaint B files a 3rd party C files a 4th party D files a 5th party
against B complaint against C complaint against D complaint against E
A’s car was bumped by B. But B contented that the reason that he bumped A’s car was because he was bumped by C and the
same goes to C, D, E. B then files a 3rd party complaint against C. C files a 4th party complaint against D. D files a 5th party
complaint against E. Meaning, pasahan, ba. They will throw the liability to the one who did it. That is a good hypothetical example
of how a fourth, fifth, sixth party complaint can come into play.
Sec. 12. Bringing new parties. - When the presence of parties other than those to the original action
is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the
court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.
The best example of Section 12 is the case of:
SAPUGAY vs. COURT OF APPEALS

183 SCRA 464
FACTS: Mobil Philippines filed a case against Sapugay, its gasoline dealer. Sapugay filed a answer and
interposed a counterclaim for damages against Mobil and included Cardenas (the manager of Mobil) who is not a
plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is proper where he is not a plaintiff in the
Mobil case.
HELD: The inclusion of Cardenas is proper. The general rule that the defendant cannot by a counterclaim
bring into the action any claim against persons other than the plaintiff, admits of an exception under this
provision (Section 12) – meaning, if it is necessary to include a 3rd person in a counterclaim or cross-claim,
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the court can order him to be brought in as defendants. In effect, the bringing of Cardenas in the case is
sanctioned by the Rules.
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN

198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general) represented the government for PCGG. The case
arose out of PCGG cases wherein Enrile was sued for accumulation of his ill-gotten wealth. Enrile filed an answer to
the complaint. Enrile contends that the case is harassment suit whose mastermind was the Solicitor General himself.
Enrile files a counterclaim against Chavez. (Enrile’s lawyer maybe well aware of the Sapugay case the one sued is
the lawyer.) Chavez questioned such counterclaim contending that he was not a plaintiff. Sandiganbayan denied such
contention.
HELD: The inclusion of plaintiff’s lawyer is improper.

“To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative
in court and not a plaintiff or complainant in the case would lead to mischievous consequences. A lawyer owes his
client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights and the exertion
of his utmost learning and ability. A lawyer cannot properly attend to his duties towards his client if, in the same case,
he is kept busy defending himself.”
Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away with it? Does that mean to say that the
lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits. However, when he acts in the
name of the client, he should not be sued in a counterclaim in the very same case where he has filed only as a counsel
and not as party. Only claims for alleged damages or other causes of action should be filed in a separate case. Thus, if
you feel that the lawyer is acting maliciously, you file a complaint but in a separate case. That’s why the case of Sapugay
should not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party complaint. - A third (fourth, etc.)-party defendant may allege in his
answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)-party
plaintiff may have against the original plaintiff in respect of the latter's claim against the third-party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
rd
B files a 3 party complaint against C
A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C will defend himself in the complaint of B.
That is supposed to be the pattern. Normally, C does not file a direct claim against A. But the law allows C in defending himself,
to answer the claim of A. The law allows him to file a direct counterclaim against A.
If C has the right to frontally meet the action filed by A – meaning, C will fight A directly – if C has the right to assert any
defense which B has against A and even for C to litigate against A, then it must be a proper third party complaint. That has
happened several times.
EXAMPLE: B owns a car which was already sold to C. The trouble is that B never registered the transaction. On the record, B
is still the registered owner. Then C, while driving the car, meets an accident and injures A. When A looked at the record, the owner
is B. So A files a case against B. So B will file a third party complaint against the real owner (C). Now, C can frontally meet the
complaint filed by A. That is the best example where you have the right against the original plaintiff or even assert a counterclaim
against him. As a matter of fact, that last test is now incorporated as a new provision (Section 13).
In the case of:
SINGAPORE AIRLINES vs. COURT OF APPEALS

243 SCRA 143 [1995]
FACTS: Aying filed a case against Bugoy. Bugoy filed a third party complaint against and Cyle who wants to
frontally meet the main complaint filed by Aying
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HELD: If that is your purpose, you have to file two (2) answers – you file an answer to the third party
complaint and you file a second answer to the main complaint filed by Aying.
“A third-party complaint involves an action separate and distinct from, although related to, the main
complaint. A third-party defendant who feels aggrieved by some allegations in the main complaint should,
aside from answering the third-party complaint, also answer the main complaint.”
Normally, Cyle answers the 3rd party complaint of Bugoy and does not answer to the complaint of Aying. But according to
SINGAPORE case, if Cyle feels aggrieved by the allegations of Aying, he should also answer the main complaint of Aying.
Practically, he shall answer the 3rd party complaint and the main complaint.
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Rule 7
PARTS OF A PLEADING
This is more on Legal Forms, a third year subject. That is a bar subject. That is the last subject given on the fourth Sunday.
The last subject in the bar is Legal Ethics and Practical Exercises where an examinee will be asked to prepare pleadings like
answer, complaint, information.
Sec. 1 – Caption. The caption sets forth the name of the court. The title of the action, and docket number if
assigned.
The title of the action indicates the names of the parties. They shall all be named in the original complaint or
petition; but in subsequent pleadings it shall be sufficient if the name of the first party on each side be started with
an appropriate indication when there are other parties.
Their respective participation in the case shall be indicated.
ILLUSTRATION:
Republic of the Philippines

CAPTION
11th Judicial Region
Regional Trial Court of Davao
Branch 12
Juan dela Cruz,
Civil Case #12345
TITLE For: Annulment of Contract
Plaintiff
-versus-
Osama bin Laden

BODY COMPLAINT
Defendant
Plaintiff, through counsel respectfully alleges that:

1. x x x x x x;
2. x x x x x x;
3. x x x x x x
So, there must be a caption, title. Take note, the title of the action indicates the names of the parties. They shall all be named
in the original complaint or petition; but in the subsequent pleadings, it shall be sufficient if the name of the first party of each side
be stated without the others. You only write the first name of plaintiff and defendant and followed by the word ‘ET AL”.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties. Now is it necessary that
they shall be named?
A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3 or more pages.
BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of everybody. What the law
requires is to write the name of the first plaintiff followed by the term ‘ET AL”. Example: Ms. Quitain, et al, plaintiffs vs.
Ms. Pastor, et al, defendants.
So the rule is, it is only in the complaint where the name of all the parties are required to be stated, but in subsequent
pleadings, no need. But there is an EXCEPTION to this rule. There are instances where the law does not require the name
of the parties to be stated even in the complaint.
Q: What are the instances where the law does not require the name of the parties to be stated even in the complaint?
A: These are the following: SCIEO
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule 3, Section 15);
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5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar vs. City Mayor of
Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Sec. 2. The body. - The body of the pleading sets forth its designation, the allegations of the party's
claims or defenses, the relief prayed for, and the date of the pleading. (n)
a) Paragraphs - the allegations in the body of a pleading shall be divided into paragraphs so
numbered as to be readily identified, each of which shall contain a statement of a single set of
circumstances so far as that can be done with convenience. A paragraph may be referred to by its
number in all succeeding pleadings. (3a)
(b) Headings - When two or more causes of action are joined, the statement of the first shall be
prefaced by the words "First cause of action", of the second by "second cause of action," and so on for
the others.
(c) Relief - The pleading shall specify the relief sought, but it may add a general prayer for such
further or other relief as may be deemed just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the end, you state the relief which we call PRAYER – what you
are asking the court: “Wherefore, it is respectfully prayed that judgment be rendered ordering defendant to pay plaintiff his loan of
P1 million with interest of 10% p.a. from this date until fully paid.” Then, you end up with the date of the pleading: “Davao City,
Philippines, December 10, 1997.”
A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a complaint starts: “Plaintiff, thru
counsel, respectfully alleges that x x x.” Then first paragraph, second paragraph and so on. The first paragraph is normally the
statement of the parties and their addresses which is required under Rule 6 where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro Bautista, is also of
legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff in the amount of so much payable on this date.
3. The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the subsequent pleadings. Pag-sagot ng Answer, he will
just refer to the #, “I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint embodying two or more causes of
action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes. So, there are three causes of
action. The lawyer of Angelo decided to file only one complaint collecting the three promissory notes. Now, how should he prepare
the complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so much and it is not paid until
now;
SECOND CAUSE OF ACTION: In 1995, there was a second loan…became payable and is not paid.
THIRD CAUSE OF ACTION: x x x x.
In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is how you prepare your complaint. On
the other hand, the defendant will answer:
ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you present your exhibits, you might get
confused because you combined all the three causes of action in one paragraph. But with this one, the presentation is
clearer, the outline is clearer and it is more scientifically arranged than joining them in one story.
Under paragraph [c], the pleading must state the relief sought. But it may add a general prayer for such further other relief as
may be just and equitable like yung mga pahabol na “Plaintiff prays for such further or other relief which the court may be deemed
just or equitable.” Meaning, aside from the relief sought, Kung meron ka pang gustong ibigay, okay lang. That is the general prayer.
Q: Is the prayer or relief part of the main action?

A: NO, it is part of the complaint or answer but it may indicate what is the nature of the cause of action. Cause of actions are
mere allegations. Prayer is not part of the action but it is important because it might enlighten us on the nature of the cause of
action. That is the purpose of relief or prayer.
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EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If you look at the caption, it is a personal action
which should be instituted in the place where the parties reside. But if you look at the prayer: “Wherefore, it is respectfully prayed
that after trial, the deed of sale shall be annulled on the ground of intimidation, and the ownership of the land sold to the defendant
in Digos be ordered returned.” Actually, you are trying to recover the ownership of the land. So in other words, it is not a personal
action but a real action.
Sec. 3. Signature and Address.- Every pleading must be designed by the party or counsel
representing him, stating in either case his address which should not be a post office box.
xxxxx
Signature and address – every pleading must be signed by the party or the counsel representing him. Take note of the
prohibition now: You must state your address which should not be a post office box because one difficulty is that the exact date
when you claim your mail cannot be determined if it is a P.O. box. But if it is served to his office, the exact date can easily be
determined.
Before, I met a situation where the lawyer filed a motion or a pleading stating only his telephone number. My golly! that is
worse! How will I send my reply? Through telephone also? (sa text kaya?)
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:
“The signature of counsel constitutes a certificate by him that he has read the pleading; that to the
best to his knowledge, information, and belief there is good ground to support it; and that it is not
interposed for delay.”
Q: When a lawyer signs a pleading, what is he certifying?

A: Second paragraph says, he is certifying that he has read the pleading, that to the best of his knowledge, information and
belief, there is a good ground to support it, and it is not interposed for delay. That is called as and IMPLIED CERTIFICATION
IN A PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already asked in the bar once.
BAR QUESTION: What is the meaning of the phrase “Implied Certification in a Pleading”?
A: “Implied Certification in a Pleading” means that when a lawyer signs a pleading he is certifying that he has read it, to the
best of his knowledge, information and belief there is a good ground to support it, and it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended
for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of his
Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change
of his address, shall be subject to appropriate disciplinary action. (5a)
So, when a pleading is not signed it produces no legal effect. It is as if no pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe because he was hurrying to file the pleading,
the lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel because the law says, “however, the court, may in its
discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for
delay.” Maybe, alright, you sign it now in order that it will produce a legal effect.
However, if the lawyer files a pleading which is UNSIGNED DELIBERATELY, sinadya, then, according to the rules, he shall be
subject to appropriate disciplinary action. That is practically unethical ‘no? Not only that, he is also subject to disciplinary action if he
signs a pleading in violation of this Rule or alleges scandalous or indecent matter therein, or fails to promptly report to the court a
change of his address. These are the grounds no.
Now, this ground – fails to promptly report to the court a change of his address has been inserted in 1997 Rules, this was not
found in the prior Rules. Siguro, the SC has discovered that this has been the cause of delay in litigation.
Q: What do you mean by this?

A: A lawyer will file a pleading in court, he will say this is his address, and then he moves his office without telling the court or
the opposing counsel of his new address. So, the court will be sending notices and orders to his old address and it is returned to
sender because the lawyer already moved to another place. So, it causes delay ba.
So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation to inform the court and even the
opposing counsel about his new address so that all court orders, decisions and all pleadings will be served on his
address. I think what prompted the SC to insert this is the fact that it has been the cause of delays in many cases.
VERIFICATION
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Sec. 4. Verification.- Except when otherwise specifically required by law or rule, pleadings need not be
under oath, verified or accompanied by affidavit. (5)
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct to the best of his knowledge and belief.
A pleading required to be verified which contains a verification based on "information and belief," or
upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned
pleading. (6a)
Q: What do you understand by verification in a pleading?

A: It means that there is an affidavit accompanying the pleading that the pleader will certify that he prepared the
pleading, that all allegations therein are true and correct. For example: In the pleading the plaintiff will say:
I, Juan de la Cruz of legal age, after being sworn in accordance with law, hereby say that:
I am the plaintiff in the above entitled case.

I caused the preparation of this complaint;
I read the allegations therein;
And they are true and correct of my own knowledge.
Signed
Affiant
Subscribed and sworn to before me on this 2nd day of October 2001, in the City of Davao, Philippines.
Panfilo Corpuz
Notary Public
That is what you call verification of a pleading. That the pleader, whether plaintiff or defendant, will attest that the allegations in
his complaint or in his answer are true and correct of his own knowledge. And then, he will sign it, and then below that, there will be
the so-called “JURAT” - Subscribed and sworn to before me on this ___ day of December 1997, in the City of Davao, Philippines.
Then, signed by the notary public. Meaning, statements, in the pleading are confirmed to be correct, under oath, by the defendant.
That is called, the verification of a pleading.
The purpose of verification is to insure good faith in the averments of a pleading. Although lack of verification in a
pleading is a formal defect, not jurisdictional defect, and can be cured by amendment. (Phil. Bank of Commerce vs.
Macadaeg, L-14174, Oct. 31, 1960)
Q: What do you think will happen if a pleading is verified by a party and it turns out that the allegations are false? And that he
deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for the prosecution for the crime of perjury, because that is a
false affidavit. But if the pleading is not verified, even if they are false, there is no perjury, because perjury requires a
sworn statement by the accused.
Q: How is a pleading verified?

A: The law says, a pleading is verified by affidavit, that the affiant has read the pleading and that the allegations
therein are, true and correct of his knowledge and belief.
Q: Suppose I will say, “the allegations there are true and correct based on my ‘information’ and ‘belief’.”
A: According to the paragraph 3, verification is not sufficient, because you can always claim na “Ganoon pala, hindi
pala totoo. Sorry ha? That is my information eh.” Meron kang lusot ba. So, you must say ‘they are true and correct based
on my own knowledge.’ ‘Information’ will not suffice.
Under the prior rule, a proper verification must be based on “knowledge” – the allegations therein are true and correct of my
own knowledge. Now, “knowledge and belief”, and yet the third paragraph says, “based on knowledge, information and belief” is
bawal. So, “knowledge, information and belief” is improper, but “knowledge and belief” only is proper. So tanggalin mo
lang yung ‘information’ to make it proper.
Q: What happens if a pleading is not verified when the law requires it to be verified? Is that a fatal defect?
A: The pleading is defective but it is only a formal defect. The court still has jurisdiction over the case. If the defect is
formal, it can be cured by amending the pleading and verifying. So, it is a defective pleading but the defect is formal, it is
not substantial or jurisdictional. Therefore, the case should not be dismissed. The pleading can be amended to include
verification.
Q: Does the law require every pleading to be verified?

A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise specifically required by
law or this rule. When the law or rules require a pleading to be verified, then it must be verified, otherwise it is formally
detective. If the law is silent, verification is not necessary and the pleading is filed properly.
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Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be verified, there are many. They are
scattered throughout the Rules and we will meet some in the course of going over the Rules. I think that question has already been
asked 3 times in the BAR. The last time was in 1995. Meaning, the examiner was asking for the exceptions. You cannot find one
rule or one section where you will get all the answers in that section because they are scattered, sabog eh. So, practically, it
requires the Bar candidate to have a grasp of the entire Rules so that he will be able to recall as many pleadings as there are,
which require. From time to time we will go on, we will meet them.
BAR QUESTION: Name as many pleadings as you can which must be verified.
A: The following: (taken from the 4th year Remedial Law transcription) DSS
1.) Rule 8 – when you deny the due execution of an actionable document;
2.) Summary Rules – all pleadings under summary rules should be verified;
3.) Special Civil Actions – petitions for certiorari, prohibition and mandamus.
I remember that years ago, there was a student who asked me this question:
Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer had it verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required to be verified. But I will verify it. Is there something
wrong with it? Technically, none. But if it is required to be verified and you omit the verification, it is formally defective.
So he said, “In other words Sir, it is better pala that you will verify every pleading para sigurado. No harm man kaya? At least,
even if there is a verification, when it is not required, no harm.” That’s true, no harm but if a lawyer does that, that only shows he
does not know the rules. He cannot identify which pleading requires to be verified because he will automatically verify everything.
And the second effect, if a pleading is not verified, and the statement is false, there is no perjury. Now I verify it, and it turns out
to be deliberately false, you are courting a criminal prosecution for your client for perjury. In other words, you create a crime of
perjury when actually there should be none in the first place. The policy may be playing it safe but it produces other effects.
Ignorance of the rules!
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the principal party shall certify under oath in
the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto
and simultaneously filed therewith:
a)that he has not theretofore commence any action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending
therein;
b)if there is such other pending action or claim, a complete statement of the status thereof; and
c)if he should thereafter learn that the same or similar action or claim has been filed or pending, he shall
report that fact within (5) days therefrom the court wherein his aforesaid complaint or initiatory pleading has been
filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-
compliance with any of the undertakings therein, shall constitute indirect contempt of court, without the
prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with
prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)
You know what is forum shopping? I think you have an idea about that, no? Forum Shopping is an unethical practice when a
lawyer or a party files identical cases in two or more tribunals hoping that if he may fail in one case, he will succeed in another
forum. Now, maybe this practice has become rampant before, not so much in Davao City but maybe in Metro Manila because most
of the abuses in the bar happen in Metro Manila not in the provinces.
Maybe because of these abuses, the SC has decided to put down this provision in order to assure good faith. So everytime
you file a complaint you must certify under oath that you have not filed any other case of this nature in any other court. More or
less, you will follow the language found in the first paragraph. And this requirement was originally found in a Circular 04-94 of the
SC. It is now incorporated in the new rules in Section 5.
Q: What is the effect if a complaint or a third-party complaint is filed in court without the certification on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the complaint.
Now take note that the certification of non-forum Shopping is not only required in the complaint but the law says:
“Complaint or other initiatory pleadings” such as counterclaims, cross-claims, third-party complaints. Therefore, all these
pleadings require certification against forum shopping.
Now let’s go to the second paragraph.
Again, what is the possibility if the complaint is filed without the certification against forum shopping? That is a ground by itself
for the dismissal of the complaint.
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Q: Now, suppose I will amend the complaint because at first there was no certification of non-forum shopping, therefore,
automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, “failure to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading, but shall be cause for the dismissal of the case without
prejudice.” Meaning, you can still re-file the case with the inclusion of the certification against forum shopping. Pwede
mong ulitin, you re-file the same complaint. That is the meaning of ‘without prejudice.’
“Unless otherwise provided, upon the motion after hearing” – meaning, it is now discretionary on the court to
determine whether to dismiss or not to dismiss. Of course, it is a ground for dismissal, but the court may say, “Okay, we
will just amend it. We will not dismiss.” But definitely, you cannot insist that because I already amended, everything is
cured. That is for the court to determine whether to dismiss or not to dismiss. So, mere amendment does not cure
automatically the missing certification.
I think this provision that mere amendment does not cure automatically the missing certification for non-forum shopping was
taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR.

249 SCRA 604
HELD: “The mere submission of a certification under Administrative Circular No. 04-94 after the filing of a motion
to dismiss on the ground of non-compliance thereof does not ipso facto operate as a substantial compliance;
otherwise the Circular would lose its value or efficacy.”
As a matter of fact, if the certification is deliberately false there are many other sanctions – contempt, possible administrative
actions against the lawyer or criminal case for perjury.
Now, in permissive counterclaims, there must be a certification of non-forum shopping, otherwise the case will be dismissed.
Some lawyers argue that the certification is not required in compulsory counterclaims. It is only required in permissive
counterclaims because in permissive counterclaims, the claimant has two choices: (1.) to file a counterclaim in the same case, or
(2.) to file a separate case. Another view is that, since Section 5 does not distinguish, we should not distinguish.
However, that issue is now resolved in the 1998 case of
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA

294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to permissive counterclaims because there
is no possibility of forum shopping in compulsory counterclaims.
“The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil Procedure, i.e., that
the violation of the anti-forum shopping rule ‘shall not be curable by mere amendment . . . but shall be cause
for the dismissal of the case without prejudice,’ being predicated on the applicability of the need for a
certification against forum shopping, obviously does not include a claim which cannot be independently set
up.”
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Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1 In general – Every pleading shall contain in a methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him
shall be clearly and concisely stated.
In so far as pleadings are concerned, it must only state the ultimate facts where you relied your defense or complaint. You
must omit the statement of mere evidentiary facts. The basic question here is, what do you mean by ultimate facts? What are
evidentiary facts? Distinguish ultimate facts from evidentiary facts.
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?

A: Ultimate facts are those which is are essential to one’s cause of action or defense.
Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the statement in the pleading
cannot be deleted. Because if you delete it, the statement of your cause of action or defense become incomplete, a certain
element of cause of action disappears then it must be a statement of ultimate fact. Pagtinanggal mo, wala ka ng cause of
action. But if you delete it and there is still a cause of action, then it is not an ultimate fact.
Q: What are the essential elements of a cause of action?

A: The following:
1.) Statement of the right;
2.) Statement of the obligation;
3.) Statement of the violation; and
4.) Statement of damage.
You analyze a complaint from the first to the last paragraph, you find out whether the four are present. Now, for example a
complaint has 20 paragraphs. Yan bang 20 paragraphs, importante ba lahat? We will shorten it by analyzing sentence by sentence.
I will remove paragraph #2. Are the elements of the cause of action still present out of the remaining paragraph? If the answer is
yes, then, paragraph #2 is not a statement of ultimate fact. We will remove paragraph #5, the story is still complete, there is still a
cause of action, then, the paragraph or the statement that you removed is not a statement of ultimate facts. Suppose I will remove
paragraph #7, kulang na man, the allegation of the violation of the right is no longer present, then, the paragraph #7 cannot be
deleted, otherwise, if you delete it the statement or the story or the cause of action disappear. Then, that is an ultimate fact.
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So if the statement can be deleted and the cause of action is still complete, then it is not a statement of ultimate fact.
It is only a statement of evidentiary fact.
Q: What are evidentiary facts?

A: Evidentiary facts are the facts which will prove the ultimate facts. They should not be stated in the pleading. They should
be brought out during the trial. They are proper during the trial but they have no place in your pleading.
In the law on Evidence, ultimate facts are called facturn probandum as distinguished from factum probans (evidentiary
facts).
EXAMPLE: In a land dispute, the question is: Who has been in possession of the land for a long time? I claim I’m the one.
So, I will say, “plaintiff has been in possession of this land continuously for the past 30 years.” That is a statement of ultimate
fact because that shows your right – your right over the property – that you cannot be driven out. Thirty years na gud iyan.
Suppose the lawyer wants to impress the court that the statement is true, the pleading describing continues possession for the
past 30 years from 1967 to 1997. And therefore, the lawyer will now prepare the complaint in this manner:
Plaintiff has been in possession of the said property continuously, openly for the past 30 years from 1967
to 1997 as may be born out by the following:
He entered the property in 1967. He cleared the property by cutting the grass. In 1968, he planted 20
coconut trees. In 1969, he planted 50 coconut trees. In 1970, he planted mango trees. In 1971, he planted
guava. He will recite everything from 1967 to 1997.
That will really prove that he have been there for the past 30 years because continuous eh, - every year you are reciting your
activities including the taxes that you paid, the receipt, “‘yan o, eto and resibo ko!” Now, if a lawyer will do that, his complaint will
reach 100 pages. Do you know why? Because he violated Section 1. He did not only state the ultimate facts but he also stated the
evidentiary facts. So, what should be the correct pattern? Complaint:
Plaintiff has been in continuous possession of the property for 30 years from 1967 up to the present.
That is the ultimate fact. You do not have to recite exactly what you did because that is what I intend to prove. Now, of cou rse,
during the trial, how can I convince the court that I have been in possession of the property for 30 years? Kailangan you have to
convince, di ba? Then, during the trial, you present the plaintiff and you ask the plaintiff: Mr. Plaintiff, when did you occupy the
property? – “1967” – When you first occupied the property, describe it. – “Ah, bagnot! I have to clean it. So I clean it in 1967.” – In
1968, were you still there? – “Oh yes!” – What did you do in 1968? – “I planted coconut trees.” – Did you pay taxes in 1968? –
“Yes!” – Where’s the receipt? – “Eto o!”
Yaan! From 1967, isa-isahin mo yan. Doon na tayo mag-istorya sa court. The evidentiary facts should be brought out in court
not in the pleadings, otherwise your pleading become kilometric. That is what is meant by the phrase that you only state the
ultimate facts omitting the statement of evidentiary facts.
Another Example:
Collection case. Sabihin mo: “The defendant borrowed money and then it fell due. I made demands for him to
pay, but despite repeated demands he refused to pay.”
Tama na iyon. You do not have to state in your complaint that “when the account fell due last November 5, I called him up by
telephone. He promised to pay in November 7 and called him again and he promised to pay tomorrow…” Hindi na kailangang
sabihin mo iyan! Those are evidentiary facts. But during the trial, you can narrate that I have been writing, “eto o, andami kong
sulat, I have been calling him by telephone but he kept on promising.” So, mag-istorya ka na ng detail sa husgado. Those are what
you call evidentiary facts. But in your complaint you do not have to recite all those.
Under Section 1, you state the ultimate facts on which you rely your claim or defense. How do you state the facts? Section 1
says that statement of ultimate facts must be stated in a methodical and logical form and you must use plain, concise and direct
statements or language. The simpler the language, the better. A pleading is not a vehicle for you to show your mastery of the
English language. The judge might throw away your complaint for not using simple language.
I was reading an article about the use of plain, concise and direct language. I remember- Do not use this word, rather use this
word. For example, do not use the word ‘conflagration,’ use ‘fire.’ The latter is simpler.
How do you present the facts? Methodical and logical form. It is a matter of writing style. Every person has his style of
writing. Corollary, every person expects you to write in a methodical or logical form. We have said earlier that a pleading actually
tells a story. Plaintiff tells the court his story. Defendant tells his story, too. How will the court understand your story? Your
presentation must be methodical and logical.
Writing style is a gift, no? Some people tell their story clearly, others don’t understand. Sasabihin mo, sabog ka mag-storya.
Ang labo mo! It is not methodical and logical. Courts expect lawyers to present case in a methodical and logical form.
What is the first test whether you style is methodical or logical? The best exercise is your own answer in examinations. In a
problem, you answer and you try to argue why. You try to present your answer in a clear manner. It must be methodical and
logical.
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In your examinations, you may wonder why you got a different score with your classmates where in fact the substance of your
answers is the same. Precisely because the presentation of the answer also matters. Siya 80, ikaw 75. Tingnan mo ang kanyang
presentation, mas maganda. To know the answer is not enough, you must know HOW to answer. Especially in the Bar exams
where the corrector is correcting more than 4,000 notebooks, your notebook must project itself as if your notebook is telling the
corrector: Read me! Read me!! That is the formula to pass law school and the Bar.
PRINCIPLE: Only ultimate facts should be alleged and not the evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that should not be stated in the pleading?
A: The following: PCJ
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading. When a fact is already presumed by law, there is no
need to make that allegation because your cause of action would still be complete.
Example:
Q: In a case of breach of contract against an operator of the common carrier. Do you think it is necessary for the plaintiff to
allege that the driver acted negligently? Is an allegation that the driver of the carrier acted with negligence required?
A: NOT required. There must be negligence, otherwise, there would be no cause of action. However there is no need to allege
it in the complaint because under the Civil Code, whenever there is a breach of contract of carriage, there is a presumption of
negligence on the part of carrier. It is not for the passenger to prove that the common carrier is negligent. It is for the common
carrier to prove that it is not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing contract between the parties, the liability of the
defendant hinges on negligence. There must be allegation of negligence. The defendant must be alleged to have acted negligently
to hold him liable. Otherwise, there is no cause of action. It becomes an ultimate fact which should be alleged in the pleading.
CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in the pleading. A statement of fact is different from a
conclusion of fact or law. For EXAMPLE, where plaintiff said that he is entitled to moral damages or attorney’s fees. That is not a
statement of fact but your conclusion.
Statement of fact is to cite the basis why you are entitled – you must state the reason why you are entitled. The statement of
the ultimate fact as distinguished from conclusion was the old case of
MATHAY vs. CONSOLIDATED BANK

58 SCRA 559
HELD: “A bare allegation that one is entitled to something is an allegation of a conclusion. Such allegation adds
nothing to the pleading, it being necessary to plead specifically the facts upon which such conclusion is founded.”
You must plead the facts upon which your conclusion is founded. To say that you are entitled to something is not actually a
statement of fact but merely a conclusion of the pleader. It adds nothing to the pleading.
For EXAMPLE: The complaint alleges that the defendants are holding the plaintiff’s property in Trust for the plaintiff. Trustee
ba – you are holding the properties in trust for me without any explanation of the facts from which the court could conclude whether
there is a trust or not. The SC in the case of MATHAY said that that statement is merely a conclusion of the plaintiff. You must
state the basis of your statement that they are holding your property in trust.
Frankly speaking, there are numerous complaints which are convincing but upon reading them thoroughly, you will realize that
majority of the statements are not statements of facts but conclusions of law. Tatanggalin yung conclusion. It is bad complaint
when you say that you are entitled to this without stating your basis.
So statement of law is not allowed although there is an exception under the second paragraph of Section 1 which
says that “if a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be
clearly and concisely stated.” At least now you can quote the law. Sometimes a defendant when he files his answer, his
answer is purely based on law. He must cite the legal provision in his answer and explain WHY is it applicable to him.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES
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Sec. 2. Alternative causes of action or defenses. - A party may set forth two or more statements
of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in
separate causes of action or defenses. When two or more statements are made in the alternative and one
of them if made independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. (2)
Q: May a plaintiff in his complaint state two or more claims alternatively or hypothetically?
A: Yes.
Q: What happens if one cause of action is insufficient? Will it cause the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated. The insufficiency of one will not
affect the entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about passenger who was about to board a bus. Of course when you are a passenger and you get
hurt, that is culpa contractual. If you are not a passenger and you get hurt due to the negligence of the driver, that is
culpa aquiliana. So it depends whether there is a contract of carriage or none.
In that case, the passenger was about to board a bus. As a matter of fact, the left foot had already stepped on the
bus. The bus suddenly sped up. He fell. He was not able to ride because umandar man bigla. He was injured. What
is the basis against the carrier? Is there a contract or none? There is! Nandoon na nga ang kaliwang paa, eh. Sabi ng
iba, wala pang contract. Well, may mga kaso talaga na malabo. You don’t really know whether your cause of action is
culpa contractual or culpa aquiliana. You want to claim damages but you are not sure whether your case is based on
culpa contractual or culpa aquiliana. It’s either one of the two. It sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may allege 2 possible alternative causes of
action. I will draft the complaint in such a way that I will show to the court that my cause of action is either culpa contractual or
culpa aquilana. I will make sure that both allegations are covered. You cannot be wrong because the law does not require you to
make a choice.
Q: You are the defendant. You are confronted with the same problem. There is a complaint against you and you have 3
possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively. Meaning, each is my defense or
not.
Suppose your defenses are inconsistent, takot ka. There is a lawyer I met na takot maging inconsistent. I told him to look at
Section 2, Rule 8 very well. The law allows defendant to plead his defenses hypothetically or alternatively. He asked, what if they
are inconsistent with each other? I said, you look at SC decisions. The SC said a party may plead 2 or more causes of action
or 2 or more defenses alternatively. They may be inconsistent with each other but what is important is each defense is
consistent in itself. Meaning, each defense, when taken alone, is a good defense. You look at them separately. Do not
compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan. The basic allegation is that the defendant
obtained a sum of money by way of loan and never paid it. Here is defendant’s answer:
a.) “That is not true. I never borrowed any money from the plaintiff.” That is a defense of denial.
b.) “Assuming that I received money from the plaintiff, that money was not a loan but plaintiff’s birthday gift to
me.” In other words, it was a donation.
c.) “Assuming that the money I received from the plaintiff was really a loan. However, such amount was
completely paid.” Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with each other but it should not be
taken against the defendant. What is important is that each defense is consistent in itself. Look at them separately. That is also
called a “SHOTGUN ANSWER”. Sabog ba! In all directions.
However, during that trial, you have to choose among them which you think is true based on evidence. The problem is that
you choose one but it turned out that a different defense would be correct. Hindi mo na magamit. There is a prejudice because
during the trial, I will choose among them with the evidence I have. Anyway, pleading man lang yon. I can abandon the others.
And that is even better because you might confuse the plaintiff of what really is your defense. Thus, a lawyer should not be afraid to
hypothetically or alternatively plead defenses which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader may show the best one rather than not stating
it in the pleading and during the trial you waive the best defense because according to the next rule, Rule 9, defenses or
objections not pleaded in the answer are deemed waived.
Take note that you have to correlate this topic on the related provisions we have already taken up: For EXAMPLE:
1.) Rule 2, Section 5 – where a party may, in one pleading state in the alternative or otherwise, as many causes of
action;
2.) Rule 3, Section 6 – on permissive joinder of parties. When may 2 persons or more be joined as plaintiffs or
defendants and how are they joined? They are joined jointly, severally, or alternatively; and
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3.) Rule 3, Section 13 – on alternative defendants. When you are uncertain who is the real defendant, you may join
them alternatively although the relief against one may be inconsistent with the other.
Remember this provisions because they are interrelated. Thus, when you study the Rules, don’t limit yourself to a particular
provision. Look for other related provisions so you may see the entire picture. That’s called co-relation – “You don’t only see the
tree but the entire forest.” This is very helpful in the bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can you do it in a general manner or do you need to be
specific? How do you allege your ultimate facts? Is it in particular or general terms?
A: It depends on what matters you are alleging in your complaint – whether is a condition precedent, capacity to sue or be
sued, fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment of the performance or occurrence
of all conditions precedent shall be sufficient. (3)
Sometimes in a pleading, you have to allege that the conditions precedent have already been complied with. Can you still
remember, one of the elements of a right of action is that before you can go to court, you must comply with all the conditions
precedent?
Q: When you allege compliance with the conditions precedent, is it necessary for you to be specific what are those conditions
precedent?
A: NO. Section 3 says that in every pleading, a general averment for the performance of all conditions precedent shall
be sufficient. A general allegation will suffice.
For EXAMPLE, in Administrative Law, you have the doctrine of exhaustion of administrative remedies. Where a law
provide for the exhaustion of administrative remedies, court should not entertain cases without complying said remedies first. If
the rule on exhaustion of administrative remedies is violated, do you think your case will prosper? NO, it will not.
Specific EXAMPLE: You started with a quarrel over a parcel of land where you applied for homestead. May kalaban ka.
Where will you file first? Bureau of Lands. You may then appeal to the Secretary of Agriculture. From the Secretary of
Agriculture, you may go to the Office of the Presidential who can reverse the decision of the secretary. Now, talo ka pa rin but
you believe there is a good ground to reverse the decisions in the executive department, you can now go to the court. That is
called the doctrine of judicial review of administrative decision. Yan!
Definitely, from the Bureau of Lands, you cannot directly go to the court because you have not yet complied with conditions
precedent before filing the case. And the condition precedent is that you must comply with the rule on exhaustion of administrative
remedies.
Q: Now, suppose I have already complied with all these remedies. I will then go to court. Definitely, I will allege that I have
already exhausted remedies in the executive level. Is that allegation sufficient? “I have already exhausted my remedies in the
administrative level.” Do I have to emphasize - “I started with the Bureau of Lands. From there, I went to Department of
Agriculture. From there, I went to the Office of the President”?
A: According to Section 3, a general averment will be sufficient. You need not specifically allege compliance of
conditions precedent. Therefore, an averment of the performance or occurrence of all conditions precedent may be made
generally and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to be sued or the authority of a
party to sue or to be sued in a representative capacity or the legal existence of an organized association
of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall
do so by specific denial, which shall include such supporting particulars as are peculiarly within the
pleader's knowledge. (4)
When you file a case against somebody you must have capacity to sue and defendant must have capacity to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has capacity to be sued?
A: YES because Section 4 says you must show capacity to sue and be sued. It means that capacity to sue and be sued
must be averred with particularity. A general statement of it is not sufficient. As a matter of fact, that is the first paragraph of
a complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a resident of Davao City…” There is no presumption of capacity or
incapacity to sue.
You may say, “I am suing as guardian of the plaintiff.” That is a representative party – to sue and be sued in a representative
capacity. Can you say, “I am suing as a guardian?” NO. Neither can you say, “I am appointed as the guardian.”
Q: How should it be done?

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A: “I am the court’s appointed guardian of the plaintiff minor having been afforded guardian by the court in this case based on
an order.” You have to emphasize that the court appointed you.
Section 4 says, “the legal existence of an organized association of persons that is made a party...” It means that the defendant
is a corporation existing by virtue of the Philippine Corporation Law. There is no presumption that you are corporation. That is the
reason why facts showing capacity to sue and be sued, etc. must be averred with particularity.
There’s a case which you will study in Corporation Law whether a foreign corporation can sue in Philippine court. Under the
law, it can sue provided it is licensed to do business in the Philippines. The SC emphasized that if a foreign corporation is suing
somebody in Philippine courts, the complaint must specifically allege that a foreign corporation is doing business in the Philippines
with a license to do. Otherwise, it cannot sue. Yaan!
“A party desiring to raise an issue as to the legal existence of any party or the capacity of any party
to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such
supporting particulars as are peculiarly within the pleader's knowledge…” (section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant. Suppose I will deny your capacity to
sue. I will deny that you are a corporation licensed to do business in the Philippines. Now, the law requires me to deny your legal
capacity and I must state the reason or basis of such denial – why you are not of legal age, why you are not a corporation.
This is so because the law says that when you deny or when you question the legal existence of a party or the
capacity of any party to sue and be sued, you shall do so by specific denial which shall include such supporting
particulars as are peculiarly within the defendant’s knowledge. You cannot plead a general statement that you deny.
Your denial must be particular. You must be more specific about what you are denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with particularity.
Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a)
EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent was secured through fraud and plaintiff files
a case that the defendant employed fraud in obtaining his consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake must be stated with particularity. The complaint
must state how the fraud was committed. It must be described in detail how the fraud took place.
Q: In the second sentence, why is it that malice, intent, etc. may be averred generally?
A: A general averment of malice or intent suffices because one cannot describe or particularize what is in the mind of
a party. I cannot describe in detail the malice or the knowledge in your mind. I can only say it in general terms.
Fraud, on the other hand, is employed openly, by overt acts. How you are deceived is not only in the mind. Those are
manifested by external acts. Therefore, one can describe how a fraud was committed by the other party.
Sec. 6. Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it. (6)
Sometimes a party invokes a judgment of a court or cite a previous case like res adjudicata to dismiss a case.
Q: Suppose you will ask the court to dismiss the case because there was already judgment rendered by the court years ago
and you simply says, “There was a previous judgment.” Is this sufficient?
A: YES because the law presumes that the judgment is valid. And the presumption is that the court had jurisdiction.
You do not have to say that the court had jurisdiction over the subject matter, issues, etc. when it tried the case years
ago. So, it can be averred generally.
Sec. 9. Official document or act. In pleading an official document or official act, it is sufficient to aver
that the document was issued or the act done in compliance with law. (9)
One can just plead the existence of a document made by the government. EXAMPLE: official letter of the President, or official
communication by a government agency. It is sufficient to aver that the document was issued or an act done.
SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?

A: The following: CMJO
1.) Rule 8, Section 3– Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind;
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act
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Q: What averments must be done with PARTICULARITY?
A: The following: CLF
1.) Rule 8, Section 4, first sentence – Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence – Legal existence of any party to sue or be sued;
3.) Rule 8, Section 5, first sentence – Fraud or mistake
ACTIONABLE DOCUMENTS
Sec. 7. Action or defense based on document. Whenever an action or defense is based upon a written
instrument or document,
1. the substance of such instrument or document shall be set forth in the pleading, and the original
or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a
part of the pleading, or
2. said copy may with like effect be set forth in the pleading. (7)
Not every document that is needed in trial is actionable document.
Q: What is an actionable document?

A: An ACTIONABLE DOCUMENT is one which is the basis or the foundation of the cause of action or defense and not merely
an evidence of the cause of action or defense. (Araneta, Inc. vs. Lyric Film Exchange, 58 Phil. 736) It is the very heart and soul of
your cause of action or defense, not merely an evidence thereof.
So a promissory note to collect an unpaid loan is not only an evidence of you cause of action but is it is the very
cause of action or foundation of your cause of action. On the other hand, when I have a receipt, the receipt is not only
evidence of your defense but is the very foundation of your defense. If I would like to sue you to annul a written contract,
the contract to be rescinded or annulled is the very cause of your action.
But in a collection case, if aside from promissory note I wrote you several letter of demand to pay. Such letter while
they are relevant to the collection case, that is not the foundation of your cause of action, although they are also
important.
Q: What is the purpose of the distinction between actionable and non-actionable document?
A: If the document is not actionable, there is no need to follow Section 7. If it is actionable, it must be pleaded in the manner
mentioned in Section 7. Also in Section 8, it is needed to contest the genuiness of the document.
Q: And how do you plead an actionable document under Section 7?

A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in the pleading and the original or a copy
thereof shall be attached as an exhibit.
2.) The copy of the document may with like effect quoted in the pleading in which case, there is no need to
attach the copy.
In the first one, there is no need to copy it. Just mention the substance or features of he promissory note. The entire document
must be quoted in the pleading.
EXAMPLE:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later than one year from date with 2 percent
per annum.
Signed: “A”
Q: Using the above promissory note, how should the pleading be worded?
A: Two ways of pleading of actionable document:
1.) The substance shall be set forth in the pleading and the original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed as part of the pleading. Party simply cites only important parts of
the document, then attached the document.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;

2. Sometime in December 31, 1997, defendant A secured a loan from plaintiff B for a sum of P1
million payable not later than December 31, 1998 with 2% interest per annum. Copy of said
Promissory Note hereto attached as EXHIBIT A;
3. The account is now overdue and despite demands of defendant A still failed to pay B xxx.
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So, the main features of the promissory note are recited in your pleading – the date when the loan was secured, the amount,
the interest, etc. But still you have to attach a copy of the promissory note, either xerox copy or the original.
2.) Said copy may with like effect be set forth in the pleading. Document is quoted verbatim.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;

2. On Dec. 31, 1997 def. A secured a loan from plaintiff B which is covered by a promissory note
worded as follows:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later than one year from
date with 2 percent per annum.
Signed: “A”
3. The account is now overdue and despite demands of defendant A still failed to pay B xxx.
So, you copy the entire promissory note verbatim. There is no need to attach a copy of the promissory note. That is the second
way.
Now, if the document is not classified as actionable, then there is no need to follow Section 7. Just imagine if you will apply
Section 7 to all documents in your possession. If you intend to present in evidence 50 documents and only one is actionable, ang
49 hindi, so you will have 49 annexes. So, ang pleading mo, kakapal. (parang mukha mo!)
Q: Suppose in the first way, the promissory note was not attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the complaint for violation of the
rules, if such document could not be secured.
If an actionable document is properly pleaded in your pleading in the manner mentioned in Section 7, the adverse party is now
obliged to follow Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be deemed admitted unless the adverse
party,
1. under oath,
2. specifically denies them, and
3. sets forth what he claims to be the facts;
but the requirement of an oath does not apply when the
1. adverse party does not appear to be a party to the instrument or

2. when compliance with an order for an inspection of the original instrument is refused. (8a)
Q: Does every pleading have to be under oath?

A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8.
EXAMPLE: If the plaintiff sues you based on a promissory note which is properly pleaded under Section 7 and you would like
to contest the genuineness and due execution of the note like when the figure was altered to P20,000 instead of P1,000 only, so
there is falsification, then you must deny the genuiness and due execution in your answer specifically and most importantly
your answer must VERIFIED AND UNDER OATH.
If the denial is not verified and under oath, the genuineness and due execution of the promissory note is deemed
admitted.
Q: When you say “you have admitted the genuiness and due execution of the document,” what are the specific facts that you
have deemed admitted?
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A: The answer is found in the landmark case of HIBBERD vs. RHODE (32 Phil. 476):
1.) The party whose signature it bears signed it;
2.) If signed by another, it was signed for him and with his authority;
Q: Pretty Maya told Papa Paul that her housemate Sexy Regina wanted to borrow money from him. Paul agreed.
Maya signed the promissory note: “Regina as principal, signed by Maya.” But actually, Regina never ordered Maya to use
her (Regina’s) name. When the note fell due without payment, Paul sued Regina. Regina denied agency but failed to
verify her answer. What is the effect?
A: Pretty Maya becomes agent of Sexy Regina. So, the defense of unauthorized signature is automatically
out.
3.) At the time it was signed, it was in words and figures exactly as set out in the pleading of the party relying upon
it;
Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of P50,000 on a promissory note. Mr. Tiamzon admitted liability but only to
the amount of P5,000. Mr. Tiamzon used falsification as a defense but his answer was not verified. What is the effect?
A: Mr. Tiamzon admits the genuiness of the promissory note – that it was really P50,000.
4.) The document was delivered; and
5.) The formal requisites of law, such as seal, acknowledgement (notarization) or revenue stamp which it lacks, are
waived by it.
So kung may konting diperensiya like there is notarial seal, no acknowledgment, no revenue stamp, all these defects are
deemed cured.
The SC said in HIBBERD that if you admit the genuineness and due execution of the actionable document, defenses
which are inconsistent with genuineness and due execution are deemed automatically waived. Meaning, any defense
which denies the genuineness or due execution of the document is deemed automatically waived.
Q: What are the defenses which are no longer allowed once you admit the genuineness and due execution of the actionable
document?
A: The following:
1.) The signature appearing in the document is a forgery;

2.) In case it was signed by an agent in behalf of the corporation or partnership, or a principal, the signature was
unauthorized;
3.) The corporation was not authorized under its charter to sign the instrument;
4.) The party charged signed it in some other capacity than that alleged in the pleading; and
5.) It was never delivered. (Hibberd vs. Rhode, supra)
Q: Does it mean to say that when you admit impliedly the genuineness and due execution of the actionable document, you
have no more defense?
A: NO. What are no longer available are defenses which are inconsistent with your own admission of the genuineness and due
execution of the actionable document like forgery, because you cannot admit that the document is genuine and at the same time
allege that it is forged. According to the SC in HIBBERD, you may still invoke defenses provided the defenses are NOT inconsistent
with your admission of the authenticity of the document.
Q: What defenses may be interposed notwithstanding admission of genuiness and due execution of an actionable document
as aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.) imbecility
Now, if you do not verify you denial, there is already an advantage in my favor. So you cannot anymore interpose the
defense of for example, forgery because that is inconsistent with your own admission of the genuineness and due
execution of the actionable document. But what if the you presented evidence to prove forgery? Can I waive the benefit of
implied admission?
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Q: May the benefit of the admission of genuineness and due execution of an actionable document? If so, in what instances?
A: YES. In the following cases, the implied admission is deemed waived:
1.) Where the pleader presented witnesses to prove genuiness and due execution and the adversary proved,
without objection, the contrary. (Yu Chuck vs. Kong Li Po, 46 Phil. 608);
2.) Where the pleader fails to object to evidence controverting the due execution. (Legarda Koh vs. Ongsiaco, 36
Phil. 185)
In other words, the lawyer of the defendant does not remember Section 8 and therefore the denial is improper. But the lawyer
of the plaintiff did not also remember Section 8 that when there was evidence of forgery, he failed to object. So, the incompetence
of the both lawyers cancel each other. That is what happens if the lawyer does not know. Bobo! Maayo pa ang bulalo, naay utok!
WHEN DENIAL NOT UNDER OATH STILL VALID
Q: When may a simple denial suffice? Meaning, what are the instances where the denial of the genuineness of the document,
which is not under oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:
1.) When the adverse party does not appear to be a party to the instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a contract entered by them. But before Ms.
Guadalope filed the case, Ms. Castillo died (simba ko!… tok-tok!). So Ms. Guadalope filed against the heirs. The heirs
realized that the signature of Ms. Castillo in contract as forged. Even if the answer of the heirs is not under oath,
they can still prove forgery because they are not party to the instrument.
2.) When compliance with an order for an inspection of the original instrument is refused;
3.) When the document to be denied is not classified as an actionable document but merely an evidentiary
matter. This is because when the document if not actionable, there is no need to follow Section 7.
REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an actionable document for his defense. He claims to have paid
the loan and have attached a copy of the RECEIPT to his answer. The plaintiff looks at the document and realizes that his
signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of the receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny under oath the genuiness and due execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply, the receipt is impliedly admitted to
be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is optional. How do we reconcile it with Section
8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former is a specific provision that
applies only to actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?

A: When the defendant anchors his defense on an actionable document and plaintiff will deny the genuineness and
due execution of such document.
SPECIFIC DENIAL
We will relate Section 10 with Section 5 of Rule 6:
Sec. 5. Defenses. - Defenses may either be negative or affirmative.

a. A negative defense is the specific denial of the material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of action.
xxx
In an answer, defenses may either be negative or affirmative.
Q: Define negative defense.

A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the statement in the complaint by stating
the facts and the reason/s on which his denial is based.
Q: How is a specific denial done?

A: Rule 8, Section 10:
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Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which
he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny only the remainder. Where a defendant is
without knowledge or information sufficient to form a belief as to the truth of a material averment made in
the complaint, he shall so state, and this shall have the effect of a denial. (10a)
Q: So what are the modes of specific denial?

A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material allegation of fact the truth of which he does
not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to
support his denial
Meaning, you deny the allegation in the complaint but you must state the basis of your denial – that, that is not true
because this is what is true. So you state your own side, your own version. The purpose there is to lay your cards on the table to
make it fair to the other side. Yaan!
Q: What happens if a denial violates this first mode? Meaning, the pleader did not set forth the substance of the matters relied
upon to support his denial.
A: That is know was GENERAL DENIAL and it will have the effect of automatically admitting the allegations in the
complaint.
Q: Suppose the pleader will say, “Defendant specifically denies the allegations in paragraph 2,4,7…” without any further
support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used the word ‘specific.’ (Cortes vs. Co Bun Kim, 90 Phil. 167)
What makes a denial specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only a part of an averment, he shall specify so
much of it as is true and material and shall deny only the remainder.
Sometimes an allegation may consist of 2 or more parts. Therefore the answer may admit part 1 but part 2 is denied. Or, the
substance of the allegation is actually admitted by the qualification there is denied.
EXAMPLE: Plaintiff alleges that the “Defendant is in possession of the property under litigation in bad faith.” Now, the
defendant may admit that the property is in his possession but he denies the qualification in bad faith – possession is not in bad
faith. Based on that, the defendant should say, “Defendant admits that portion of paragraph no. 2 that he is in possession of the
property in question; but denies that he is a possessor in bad faith” or something to that effect.
Therefore, when you say “I deny the entire paragraph” when actually you are not denying the entire paragraph but
only the qualification, that is called a NEGATIVE PREGNANT. Actually, in the legal point of view, what is only denied is the
qualification to the averment. The substance of the allegation is actually admitted.
THIRD MODE: Where a defendant is without knowledge or information sufficient to form a belief as to
the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of
a denial
Meaning, I am not in a position to admit or to deny because I have no knowledge. How can I admit or deny something which I
do not know?
EXAMPLE: Plaintiff claims for moral damages because Defendant destroyed his reputation. Defendant does not know that
Plaintiff had sleepless nights, wounded feelings, serious anxiety, etc. Here, Defendant cannot admit or deny those.
I have read pleadings where the pleader would say, “Defendant has no knowledge or information sufficient to form a belief as
to the truth of the allegation in paragraphs 6, 7, 8, 9… of the complaint and therefore he denies the same.” Actually, there is
something wrong there. How can you deny something that you have no knowledge of. Just state, “I have no knowledge.” Then
period! And is has the automatic effect of a denial.
However, the SC warned that he third mode of denial should be done in good faith. If the fact alleged is such that it is
within your knowledge, it is impossible that it is not within your knowledge, you cannot avail of the third mode of denial.
Otherwise, if you will avail of the third mode in bad faith, your denial will be treated as an admission. That is what happened
in CAPITOL MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you, “Defendant borrowed money from plaintiff in the sum of P10,000
payable one year from said date.” And then you say, “I have no knowledge or information…” There is something wrong there. What
you are trying to say there is “I do not know whether I borrowed money from you or not.”
How can that be? It is either you borrowed money or you did not! That is why the SC said in CAPITOL MOTORS, if you
borrowed money, you say so. And if you did not, deny it. And then I will allege there, “The defendant have made partial payme nts.”
Then you will say, “I have no knowledge.” My golly! You do not even know whether you paid me? In other words, talagang evasive
bah! You are trying to be clever and evasive. And if you do that, all your denials will be treated as admissions. That is the warning
in the third mode.
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Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the complaint, other
than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not
denied under oath. (1a, R9)
While the law says ‘material averment in the complaint,” this rule extends to counterclaims, cross-claims and third-party
complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a material averment in the complaint and was not specifically
denied, it is deemed admitted. However under Section 11, there are averments in the complaint which are not deemed admitted
even when not specifically denied.
GENERAL RULE: Material averment in a complaint shall be deemed admitted when not specifically denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted even when not specifically denied:
1.) Amount of unliquidated damages;

2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to aver ultimate facts; (Agaton vs. Perez, L-19548, Dec.
22, 1966)
4.) Conclusions of facts or law.
Let’s discuss the first exception – AMOUNT OF UNLIQUIDATED DAMAGES is not deemed admitted even if not
specifically denied. So if the damages are liquidated, they are deemed admitted. Examples of unliquidated damages are
moral and exemplary damages. Or expenses which I incurred in the hospital. Those are unliquidated damages. They are
always subject to evidence. You have to prove how much amount you are entitled to. That is why they are not deemed
admitted even if not specifically denied.
So if you are claiming P1 million damages for sleepless nights or besmirched reputation, and I did not specifically denied such
claim, it does not mean that you are automatically entitled to P1 million. Hindi yan puwede. You have to present evidence that you
are really entitled to P1 million. Yaan!
On the other hand, an example of liquidated damages is an obligation with a penal clause. For example in our contract, it is
stipulated that in case you cannot comply with your obligation, you will pay me P1 million. So if you failed to specifically deny it,
then you are deemed to have admitted that I am entitled to P1 million. There is no need for computation because the amount is
already in the contract beforehand. The contract itself would show how much I am entitled.
Section 11 also says, “Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under
oath.” Usury means you charge interest above the legal interest provided by the usury law. If you want to deny my charge of u sury,
your answer must be under oath. So, this is the second instance where a denial should be verified.
NOW, I wonder why this provision is here when as early as 1983 in the case of LIAM LAW vs. OLYMPIC SAW MILL (129
SCRA 439), that usury is no longer existing and the SC stated in that case that the provision of the Rules of Court in usury are
deemed erased or superseded. Obviously, the SC forgot what it said in the 1983. (Ulyanin!!)
Sec. 12. Striking out of pleading or matter contained therein. Upon motion made by a party before
responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by
a party within twenty (20) days after the service of the pleading upon him, or upon the court's own
initiative at any time, the court may order any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9)
Before answering, the defendant can file a motion to strike out a pleading or a portion of a pleading. Striking a pleading means
that the pleading will be deemed erased as if it was never filed. Or if a portion of the pleading be ordered stricken out or expunged
where a pleading or a portion thereof is sham or false, redundant, immaterial, impertinent, or a scandalous matter is inserted in the
pleading, is deemed erased. This is related to Rule 7, Section 3, third paragraph:
RULE 7, Sec. 3. Signature and address. x x x x

An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended
for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this
Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change
of his address, shall be subject to appropriate disciplinary action.
So, if your pleading contains scandalous or indecent matters, the lawyer who files it may be subjected to appropriate
disciplinary actions.
Q: What if it is the reply is the one which contains scandalous matter?

A: A motion to strike may still be filed by the defendant within 20 days after the reply.
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Rule 9
EFFECT OF FAILURE TO PLEAD
General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO DISMISS OR IN THE ANSWER
ARE DEEMED WAIVED
Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or
the evidence on record that the
EXC:
1. court has no jurisdiction over the subject matter,
2. that there is another action pending between the same parties for the same cause,
3. or that the action is barred by a prior judgment or
4. by statute of limitations, the court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer are deemed waived. If you do not
plead your defense, the same is deemed waived. The court has no jurisdiction over the issues.
EXAMPLE: In a collection case against you, you did not raise the defense of payment in your answer. But during the trial, you
attempted to prove that the loan has already been paid. Now, that cannot be done because the defense of payment is deemed
waived because you did not raise it in your answer. In other words, the court never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the defense must be pleaded. If you want to surprise the plaintiff
during the trial by not raising your defense in your answer, you will be the one who will be surprised because the court will not allow
you. When the parties go to court, the plaintiff already knows what are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court despite the fact that they are not raised in the motion
to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending with the same parties for the same cause (litis pendentia;
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).
Take note that the exceptions can be raised at any time during or after the trial, or even for the first time on appeal.
Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that, when there is a defect in the
jurisdiction of the court over the subject matter, the defect can be raised at any stage of the proceeding even for the first time on
appeal (Roxas vs. Raferty, 37 Phil. 957). This is because everything is null and void. Jurisdiction over the subject matter cannot be
conferred by agreement between the parties, by WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is pending between the same parties for the same cause.
That is actually splitting a cause of action because there is already an action and then you file another action. The action can be
dismissed on the ground that there is a pending action.
RES ADJUDICATA. There was already a prior final judgment then you file another case regarding the same issue. That is also
splitting a cause of action.
PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which are the cases of
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: “The rule on waiver of defenses by failure to plead in the answer or in a motion to dismiss does not apply
when the plaintiff’s own allegations in the complaint show clearly that the action has prescribed in such a case the
court may motu propio dismiss the case on the ground of prescription.”
Q: Can the court dismiss the action based on any of these grounds without the filing of a motion to dismiss?
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A: YES. It would seem so because the second sentence says, “When it appears from the pleadings or the evidence on
record … the court shall dismiss the claim.” (This is an important change)
Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding before judgment is failure to state
a cause of action, but it disappears under the new rules. Does it mean to say that you cannot raise it anymore? NO. It can still be
raised because it can be taken care of by another rule – Rule 33 on Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a

cross-claim, not set up shall be barred. (4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a,
R18)
xxxxxx
A defending party is declared in DEFAULT if he fails to answer the complaint within the time allowed therefor. The
rule on answer is found in Rule 11. And under Rule 11 as a rule, you have 15 days to file an answer counted from the time
you are furnished a copy of the complaint together with the summons
If the period to answer lapsed and there is no answer, the plaintiff will move to declare the defendant in default on the ground
of failure to file an answer to the complaint. So, the court will issue an order of default declaring you as a defaulted
defendant.
And from the time a party is declared in default, he loses his standing in court, although he is still entitled to notice of
subsequent proceedings. He cannot participate in the trial. He cannot object to plaintiff’s evidence. He cannot present his
own evidence. In effect, the case will be decided only on the basis of plaintiff’s side without anymore hearing the
defendant. And of course, the plaintiff will win. It is like a boxing bout ba where the rule is, isa lang ang mag-suntok. My golly!
How can you win in that situation? That is the effect of default.
Take note that the word ‘defending’ party applies not only to the original defendant but even to the cross-defendant or
defendant in a counterclaim.
Q: May a court declare a defendant in default without any motion?

A: NO, because the law says, “upon motion of the claiming party.”
Now, “with NOTICE to the defending party” is a new one. You must furnish a copy to the defending party of your
motion to order the defendant in default which abrogates previous rulings.
Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be declared in default?
A: NO, because the ground for default is failure to file an answer. The correct procedure is for the trial to proceed
without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call EX-PARTE reception of evidence.
Only one side will be heard.
BAR QUESTION: If the defendant is declared in default for failure to file an answer is deemed to have admitted the allegations
in the complaint to be true and correct?
A: YES, because the law NOW says, “the court shall proceed to render judgment granting such claimant such relief as
his pleading may warrant.” The reception of plaintiff’s evidence is already dispensed with. Wala ng reception of evidence.
That is the GENERAL RULE. That is the same as the summary rules and judgment on the pleadings and the court can
grant the relief without presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit evidence. EX-PARTE
RECEPTION of evidence is OPTIONAL for the court. And such reception of evidence may be delegated to the clerk of
court. This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the
case is pending shall personally receive the evidence to be adduced by the parties. However, in default
or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)
The reception of evidence maybe delegated to the clerk of court but the clerk of court must be a lawyer, that is the condition.
So if he is not a member of the bar, he is not authorize to conduct or hear an ex-parte reception of evidence.
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SUMMARY: Steps when the defendant fails to file an answer within the time allowed:
1.) Motion to declare defendant in default;

2.) Order of default;
3.) Judgment based on the complaint of the plaintiff UNLESS court requires the claimant to submit evidence (ex-
parte presentation of plaintiff’s evidence)
However, when should the court dispensed with the ex-parte presentation of evidence and when should it require the claimant
to submit evidence being discretionary? May ibang judges who likes kapoy na, judgment kaagad! May iba naman, reception muna
which will take time. In my personal view, cases which are simple, presentation of evidence ex-parte can be dispensed with like
collection cases ba. Walang laban ang defendant talaga.
But in controversial cases, like recovery of a piece of land – medyo mahirap yan. The judge will not automatically decide in
your favor simply because of failure to answer by the defendant. The judge may still want to hear plaintiff’s evidence. To my mind,
that should be the policy regarding this rule.
Q: If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can the plaintiff move to declare the
defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in accordance with the Rules of Court.
(Gonzales vs. Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a copy of the answer because in the case of
RAMIREZ vs. COURT OF APPEALS

187 SCRA 153
HELD: “The failure to furnish a copy of the answer to the adverse party in itself is sufficient or valid basis
for defendant’s default.”
Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion for bill of particulars (Rule 12)
remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of particulars interrupts the running of the
period to answer. It will run again from the moment he receives the order denying his motion to dismiss or for bill of
particulars. (Hernandez vs. Clapis, 87 Phil. 437)
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion to dismiss did not contain notice of
time and place of hearing and the motion was denied. Can he file an answer after filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless piece of paper with no legal effect.
“Any motion that does not comply with Rule 16 should not be accepted for filing and if filed, is not
entitled to judicial cognizance and does not affect any reglementary period. Not having complied with the
rules, the motion to dismiss filed by the defendant did not stay the running of the reglementary period to file
an answer.”
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP.

214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the defendant filed a motion to dismiss on the
8th day. It was denied. So there is still 7 days to file an answer. On the 15th day, instead of filing an answer, he filed a
motion for reconsideration and the such motion was denied. Then he filed an answer.
HELD: NO MORE. The filing of the motion to dismiss interrupted the period to file an answer. When you receive
an order, you still have the balance to file your answer. And you did not file an answer instead, you file a motion for
reconsideration. You took the risk. So defendant’s motion for reconsideration which merely reiterated his ground in
the motion to dismiss did not stay the running of the period to file an answer.
(a) Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings
but not to take part in the trial. (2a, R18)
So if you are declared in default, you cannot take part in the trial. You lose your standing, you cannot cross-examine the
witness of the plaintiff assuming there is a reception of evidence. You cannot object to his evidence. You cannot even present your
own evidence when you are in default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings which abrogates the old rule.
Under the old rules, you are not entitled to service of notice, orders, except substantially amended pleadings, supplemental
pleadings, final orders or judgments or when you file a motion to set aside an order of default.
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But NOW, wala na yan. You are now entitled to service of everything. You only lose you standing in court but for the purpose
of notice, you are entitled to service of every motion, every pleading, every order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may at any time after notice thereof and
before judgment file a motion under oath to set aside the order of default upon proper showing that his
failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default may be set aside on such terms and conditions as
the judge may impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in default?

A: One remedy under Section 3 paragraph [b] is that, provided there is still no default judgment, he can still file a
motion to set aside the order of default upon a proper showing that his failure to answer was due to F.A.M.E. (Fraud,
Accident, Mistake, or Excusable negligence) and that he has a meritorious defense. [The discussions on FAME is in Rule
37 – New Trial or Reconsideration]
Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will not lift the order of default. You
are wasting my time. Kahit na pagbigyan kita, talo ka pa rin. There is no chance for you to win anyway. But if you have a
meritorious defense, there is no guarantee that you will win but at least you have a fighting chance ba that your standing will be
restored.
Upon proof, the court will set aside or lift the order of default and will give the defendant an opportunity to answer, where he will
plead his supposed meritorious defenses. In effect, he regains his standing in court.
Q: When can the defendant avail of this remedy?

A: He may file a motion to set aside the order of default at any time after notice thereof and before judgment.
SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified and under oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a,
R18)
This presupposes that there are two or more defendants. Say, one or some of the defendants made an answer and the others
did not. So, one or some of the defendants were declared in default, the others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani was declared in default but there
can be no judgment against Bayani in the meantime because under paragraph [c], the case will go to trial based on the answer of
Bentong. The case will be tried against both Bentong and Bayani based on the answer of Bentong.
The principle here is that, the answer filed by the answering defendant will automatically benefit the non-answering
defendant. The defense of Bentong will also be Bayani’s defense. Anyway there is a common or identical cause of action. The
best example would be a promissory note signed by both Bentong and Bayani and they bound themselves solidarily. Both of them
were sued. Bentong answered while Bayani did not, hence he is in default. Can there be a default judgment against Bayani?
NO, there will still be a trial based on the answer of Bentong. In effect, Bentong will defend not only himself but also
Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has been extinguished, which is also applicable to Bayani, and
the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of his co-defendant Bentong. Hence,
there is still a possibility that a defaulted defendant can win based on our example.
On the other hand it is absurd if the answer of Bentong will not benefit the defaulting defendant. EXAMPLE: Gary filed a case
against Bentong and Bayani based on a promissory note on a loan secured by both, and Bayani defaulted. Bentong answered
alleging payment. Suppose, Bentong proved such defense, the effect is both Bentong and Bayani are absolved. If you say that
Bayani should lose because the answer of Bentong will not benefit Bayani, there will be two conflicting decisions: “Bayani is in
default and thus, should pay the loan; and there is no more loan as far as Bentong is concerned.” Do you mean a loan is paid and
at the same time unpaid? That’s absurd!
But take NOTE that to apply the principle, there must be a common cause of action. If there is no cause of action,
while there may be a trial, the answer of Bentong is only for him. After the trial, Bentong might be absolved from liability but the
defaulting defendant Bayani will be held liable because Bentong’s answer does not cover Bayani. That is when there is no common
cause of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])

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reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan evidenced by a promissory note.
Bentong filed an answer but Bayani defaulted. The case was tried based on Bentong’s answer. Gary move to drop
Bentong from the case but retained Bayani, the defaulted defendant so that Gary can secure an immediate
judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more defendants, if you drop the case against
one, you drop the case against all. Selection is not allowed. To drop Bentong means that the cause of action
against him is weak. Why should one drop somebody if a case against such person is meritorious? If such is the fact,
necessarily the cause of action against the other is also weak the fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]

239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino Truck causing injury to Imson and
totally wreaking his car. So he filed an action for damages against several defendants. He impleaded all of them – the
driver, the bus company owner and the insurance company. The insurance company filed an answer but the owner
and the driver did not. So both the owner and the driver were declared in default.
Subsequently, lmson and the insurance company entered into a compromise agreement wherein the latter paid
him P70,000 which was its total liability under the insurance contract. The claim was very big so the insurance
company offered to give the amount, “Bahala ka sa sobra.”
So when the case (between Imson and the insurance company) was eventually dismissed because of the
compromise agreement, the bus company owner also moved to dismiss the case against him and the driver, arguing
that since they are all indispensable parties under a common cause of action, the dismissal of the case against the
insurance company should likewise result to the dismissal of the case against them citing the case of ACOSTA and
RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause of action against the driver
is based on quasi-delict under Article 2178 of the Civil Code. The liability against the owner is also based on
quasi-delict but on another provision of the Civil Code – Article 2180 (the liability of the employer for the
delict or wrong of the employee) So, the liability of the owner and the driver is based on quasi -delict but
under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not based on quasi-delict but based on
contract because he seeks to recover liability from the insurance company based on the third-party liability
clause of the insurance contract with the company.
So, there no common cause of action among them. Yaaann!
ISSUE #2: Is the insurance company an indispensable party? Because if it is so and he is removed from the
case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
“It is true that all of Imson’s claims in civil case is premised on the wrong committed by defendant truck driver.
Concededly, the truck driver is an indispensable party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely necessary parties to the case. It is easy to see that if any of
them had been impleaded as defendant (meaning, the insurance company or the owner were impleaded), the case
would still proceed without prejudicing the party not impleaded.”
“Thus, if petitioner did not sue the insurance company, the omission would not cause the dismissal of the suit
against the other defendants. Even without the insurer, the trial court would not lose its competency to act completely
and validly on the damage suit. The insurer, clearly, is not an indispensable party.” It is a necessary party.
(d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not exceed the
amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18)
This is what we call LIMITATIONS on a default judgment:

1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the complaint;
3.) The default judgment should not award unliquidated damages.
Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff to present his evidence
and during the trial, the latter proved P500,000 total claim. Can the court award P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the complaint although it may be
less than it. Yaannn!
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FUNDAMENTAL REASON ON THE RULE ON DEFAULT
What is the reason behind this? You have to know the philosophy on default to understand the reason behind paragraph [d].
Default means the defendant failed to file an answer despite the fact that he was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.) Defendant deliberately did not answer because he believed that he had no good defense, and that the claim is fair.
And if he will make an answer, still he will not win and would just incur expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or another beyond his control, he failed to
file his answer.
Q: In the second possibility – the defendant had a defense and wanted to file an answer but failed to file an answer, what is the
remedy of such defendant?
A: It is paragraph [b] – file a motion to lift the order of default and state the reasons beyond one’s control – fraud,
mistake, accident, or excusable negligence (FAME) and that there is a meritorious defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then, the contingency is paragraph
[d] – rest assured that the judgment will not exceed the amount or be different in kind from that prayed for. At least, you will not be
surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I allowed myself to be
defaulted because anyway its only P200,000 because if I file my answer, the costs could increase. And then during the trial, you
proved that the damages were in fact P2 million. So, when I received the judgment it was already P2 million when the complaint
was only for P200,000. Now, if you knew that would be the case, then you would have fought it out. In other words, its unfair.
Hence, the reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence will be ordered.
MANGELIN vs. COURT OF APPEALS

215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of evidence by virtue of default judgment AND ex-
parte presentation of evidence by failure to appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d] applies – the judgment cannot
exceed the amount or be different in kind from that prayed for in the complaint.
BUT if there’s an ex-parte reception of evidence against a defendant who filed an answer but FAILED TO
APPEAR during the trial, the limitations in paragraph [d] does not apply. Therefore in this case, a greater
amount than that prayed for in the complaint, or a different nature of relief may be awarded so long as the
same are proved.
“It may be pointed out that there is a difference between a judgment against a defendant based on evidence
presented ex-parte pursuant to a default order and one based on evidence presented ex-parte and against a
defendant who had filed an answer but who failed to appear at the hearing. In the former, Section 3 [d] of Rule 9
provides that the judgment against the defendant should not exceed the amount or be different in kind from
that prayed for. In the latter, however, the award may exceed the amount or be different in kind from that
prayed for.”
This is because when there is an ex parte presentation of evidence due to failure to appear in trial, one’s standing in
court is not lost. HE can still present evidence later to refute the plaintiff’s evidence. He simply waived the rights attached
on particular hearing but not to all subsequent trials. In judgement by default, he actually loses his standing in court.
They added new (third) limitation – Unliquidated damages cannot be awarded in default judgment. Obviously liquidated ones
can be.
Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages?

A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly be awarded such as
the presentation of receipts in terms of actual damages, or taking of testimonies to determine mental anguish or
besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the same are not
required. An example is an obligation with a penal clause like an agreement to construct a house and upon failure to
finish the same within a stipulated period, the contractor is liable for P10,000 for every day of delay. The amount is already
fixed based on the contract price and the penalty provided and such other circumstances as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here. Something is wrong here. Last
September 1997 during the BAR exams, the secretary of the committee which drafted this, the former clerk of court of the SC,
Daniel Martinez asked for comments on the New (1997) Rules. I told him about the new Rules on Default, asking him who placed
the provision there. He said it was Justice Feria’s idea.
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J. Feria said, “Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated damages.” But I said that there is
something wrong here. For EXAMPLE: You filed a case against me na puro damages – compensatory , moral , etc. and I believe I
will lose the case if I go to trial. So, my strategy now would to have myself declared in default because anyway, those unliquidated
damages cannot be awarded by default.
In other words, they have placed the defaulted defendant in a better position when he will file an answer because if he files an
answer and goes to trial, he might lose. So, if he allows himself to be defaulted, the court can never award the damages. This is the
effect of the new limitation. That is why I’m against this change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court can never award those damages.
Because if I will answer, eh baka ma-award pa. In other words, I will win the case simply because there is no way for the court to
award the damages. And most damages are usually those unliquidated damages.
(e) Where no defaults allowed. - If the defending party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to
investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene
for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration of nullity of marriage; Legal
Separation. And the policy of the State is to preserve the marriage and not encourage break-ups.
Now, in the absence of this provision, husband and wife quarrels and then they decide to separate. Wife will file a case for
legal separation with the agreement that the husband will not answer. Being in default, there will be a judgement in default and in a
month’s time marriage will be severed for the meantime. The provision then prohibits default in marital relations cases to preserve
and uphold public policy.
Q: What if the party did not really file an answer?

A: The court is bound to find out whether there is a collusion between the parties – whether the act is deliberate without
agreement. We already know that there should be presentation of evidence. And the law requires the State to intervene. The fiscal
is responsible to see to it that the evidence is not fabricated, the same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to
prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.
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Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings may be amended by adding or striking out an allegation or
the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of the controversy may speedily
be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. (1)
What do you understand by amendment? The general meaning of amendment is change. Now can we amend pleadings,
change it? Yes.
Q: How do you amend a pleading?

A: Well, any type of change – you can add a word or a sentence or you strike out an allegation or you add or strike out a party;
you correct a mistake in the name of a party or inadequate allegation or description in any other respect. As a matter of fact, if you
correct only one letter, that is already an amendment.
So you can amend by removing something, adding something, or changing something by substituting another word. You can
amend by removing an entire paragraph, an entire sentence, a phrase, or a word. So that is what amendment is all about. As a
matter of fact, before reaching Rule 10, there are provisions where amendments have already been touched upon, one of which is
Rule 1, Section 5:
Sec. 5. Commencement of action.- A civil action is commenced by the filing of the original complaint in
court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to
him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if
necessary, is denied by the court.
So in other words, if I file a complaint against A, then later on I will include another defendant, the inclusion of an additional
defendant party is an amendment.
Q: Suppose I will file a case against Jacques today, January 9, then one month from today I will file another complaint to
include an additional defendant, Tikla. When is the case deemed commenced?
A: According to Rule 1, Section 5, as far as Jacques is concerned, the original defendant, the case against him is commenced
today. But as far as Tikla is concerned, the additional defendant, the case is commenced not upon the filing of the original
complaint, but on the date when he is included in the amended complaint. So, the amendment does not retroact to the date of the
filing of the original action.
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Q: What is the policy of the law on amendments? Should it be encouraged or discouraged? If a party wants to amend his
complaint or answer, should the court be liberal in allowing the amendment or should it restrict, as a general rule, and not allow the
amendment?
A: Section 1 says that the purpose of amendment is that the actual merits of the controversy may speedily be determined
without regard to technicalities, and in the most expeditious and inexpensive manner. According to the SC, amendments to
pleadings are favored and should be liberally allowed in order (a) to determine every case as far as possible on its actual
merits without regard to technicalities, (b) to speed up the trial of cases, and (c) to prevent unnecessary expenses.
(Verzosa vs. Verzosa, L-25603, Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)
EXAMPLE: The plaintiff files his complaint or the defendant files his answer and then later on he realizes that his cause of
action is wrong or that his defense is wrong. He would like to change his complaint or change his answer. All he has to do is
amend his complaint or answer. The court cannot stop him from changing his complaint or changing his answer because the
purpose of litigation is: the real nature of controversy will be litigated in court. You cannot normally stop the party from ventilating
his real cause of action or his real defense so that the rule is that amendments should be liberally allowed in the furtherance of
justice and that the real merits of the case will come out in court. That is what you have to remember about concept of
amendments and the policy of the rules on amendments.
TYPES OF AMENDMENTS:
The following are the important points to remember here:
FIRST, there are two types of amendment of pleadings under the rules:
1.) An amendment as a matter of right; or
2.) An amendment as a matter of judicial discretion
SECOND, an amendment could be

1.) a formal amendment; or
2.) a substantial amendment
These are the same classification under the Rules on Criminal Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and Amendment as a MATTER OF JUDICIAL DISCRETION
AMENDMENT AS A MATTER OF RIGHT simply means that the party has the unconditional action or right to amend his
pleading. The court has no right to prevent him from amending. The opposite party has no right to oppose the amendment.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means that the court may or may not allow the
amendment. So the other party has the right to oppose.
AMENDMENT AS A MATTER OF RIGHT
Q: When is amendment a matter of right?

A: Section 2:
Sec. 2. Amendments as a matter of right. - A party may amend his pleading once as a matter of right at
any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days
after it is served. (2a)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend my complaint. When is the amendment a matter of right?
A: At any time a responsive pleading is served to the complaint. Meaning, at any time before the defendant has filed
his answer, the plaintiff may change his complaint at any time. He may change it in any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change his answer, when is his right absolute or as a matter of
fact right?
A: At any time before a reply by the plaintiff is filed or before the expiration of the period to file a reply because a
reply may or may be not be filed.
Q: How about if you want to amend your reply? You cannot say before a responsive pleading is served because there is no
more responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any time within ten (10) days after it is served.
Q: Is there any other instance when amendment is a matter of right even if there is already an answer or even in the middle of
the trial the party can still change his pleading and it seems that the court should allow it?
A: Yes, there is a second instance, when the amendment is FORMAL IN NATURE as found in Section 4:
Sec. 4. Formal amendments. - A defect in the designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the court at any stage of the action, at its initiative
or on motion, provided no prejudice is caused thereby to the adverse party. (4a)
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When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be summarily corrected by the court at
any stage of the action, upon motion or even without motion, the court will order the amendment. Because anyway that is a
harmless correction.
NOTE: Change of amount of damages is only formal because there is no change in the cause of action.
SUMMARY: Amendment as a matter of right:

1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a reply expires (Answer);
3.) Any time within 10 days after it is served (Reply); and
4.) Formal amendment
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
So we will now go to substantial amendments which are a matter of judicial discretion, that is Section 3:
Sec. 3. Amendments by leave of court. - Except as provided in the next preceding section, substantial
amendments may be made only upon leave of court. But such leave may be refused if it appears to the
court that the motion was made with intent to delay. Orders of the court upon the matters provided in this
section shall be made upon motion filed in court, and after notice to the adverse party, and an
opportunity to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?

A: The amendment must be substantial and the adverse party has already filed and served a copy of his responsive
pleading.
PROBLEM: I will file my complaint against you and you will file your answer. After you have filed your answer, I want to amend
my complaint and my amendments is not merely formal but something substantial, like my cause of action will not be the same
anymore.
Q: Can it still be done?
A: YES, BUT this time it is a matter of judicial discretion. It must be with leave of court. So I will have to file a motion
in court to allow or admit the proposed amended complaint. I will furnish a copy of the motion to my opponent together
with a copy of the amended complaint and the other party has the right to oppose the amendment. So the court will hear
and decide whether to allow the amendment or not.
Q: Assuming that the amendment is a matter of judicial discretion, how should the court resolve it? Assuming that the
argument is 50-50 and the court is deliberating whether or not to allow the amendment.
A: Based on established jurisprudence, the court should always allow the amendment because of the liberal policy of the
rules. Amendments of pleadings should be liberally allowed in order that the real merits of the case can be ventilated in
court without regard to technicalities. So the court will always lean on allowing a pleading to be amended. That is the liberal
policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing amendments? Meaning, when can the court refuse to allow the
amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the complaint confer jurisdiction upon the court (Rosario
vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a premature or non-existing cause of action (Limpangco
vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
The second sentence of Section 3 says that such leave may be refused if it appears that the motion was made with intent to
delay. Meaning, the motion to amend is dilatory. Example: a case is filed against the defendant based on a cause of action then
trial…trial…then the case is already about to end. Then the plaintiff says he wants to amend his complaint and change his cause of
action. I don’t think the court will allow it. That’s too much.
Or, the defendant will say that he would like to change his defense. I don’t think the court will agree with that situation because
it appears that the motion to amend is already dilatory. Why did it take you one year to realize that your cause of action or your
defense is wrong? So that is a limitation where the court may refuse to apply the principles on liberality. The liberal policy
becomes weaker or is working against you the longer you delay your amendment because it might already be interpreted to be
dilatory.
Now if you will notice, there is another limitation found in the old rules that is gone here, and that is : That the amendment will
not be allowed if it will SUBSTANTIALLY alter the cause of action or defense (Torres vs. Tomacruz, 49 Phil. 913) The implication
here is that, since amendment is favored, even if you alter you cause of action or defense, you should not prevent the other party
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provided that it is not dilatory. And the definition of this limitation is a confirmation of what the SC said in some cases like the case
of
MARINI-GONZALES vs. LOOD
148 SCRA 452
HELD: “While the Rules of Court authorize the courts to disallow amendment of pleadings when it appears that
the same is made to delay an action or that the cause of action or defense is substantially altered thereby, the rule is
not absolute.” It is discretionary.
“Courts are not precluded from allowing amendments of pleadings even if the same will substantially change the
cause of action or defense provided that such amendments do not result in a substantial injury to the adverse party.
This is due to the permissive character of said rule [which provides: “may refuse”]. In fact, this Court has ruled that
amendments to pleadings are favored and should be liberally allowed in the furtherance of justice.”
That is why these are enough reason to delete that limitation. But if you are going to change your cause of action or defense
when the trial is almost over, hindi na puwede because that will be dilatory. But if you want to change it before the trial, that it still
allowed, even if it is substantial in nature. That’s why this limitation disappeared. But despite the fact that there is only one limitation
now left, it is conceded that there are still limitations not found in the law which have remained intact.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER JURISDICTION UPON THE
COURT
In other words, based on the original complaint the court has no jurisdiction over the subject matter. So I will amend the
complaint so that the court will have jurisdiction. Well, that will not be allowed. So, jurisdiction by the court cannot be
conferred by amendment when the original complaint shows that the court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000 only. Where should I file the
complaint? MTC. But by mistake I file it in the RTC and later I realized that the case should have been filed in the MTC because
the jurisdiction of the RTC should be above P200,000. So I will amend my complaint and change the complaint and say that my
claim is P100,001.00. The obvious purpose of the amendment is to make the case fall within the jurisdiction of the RTC. According
to the SC, it cannot be done.
The rule here is when in its face, the complaint shows that the court has no jurisdiction over the subject matter, the
court has no authority to act in the case. And if you move to amend it and ask the court to allow the amendment, you are
assuming that the court has the authority to act on the case. But the court can’t allow it because the court has no
authority to act. So the court even is not authorized to allow the amendment because it has no authority to act in the first
place. How can you allow something when you do not have the authority to act? My golly!
So according to the SC, when its on very face the complaint shows that the court has no jurisdiction, the court has
only one authority and its only authority is to dismiss the case. So with that an amendment cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NON-EXISTING CAUSE OF
ACTION
Meaning, on its very face, there is no cause of action, there is no case. There is no delict or there is no wrong. Now how can
you create a delict or wrong by amending your complaint? In effect, you are creating something out of nothing.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from IMPERFECT cause of action?
1.) In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by the defendant (Limpangco vs.
Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already been committed and alleged in the complaint, but
the cause of action is incomplete (Alto Surety vs. Aguilar, L-5625, March 16, 1945); and
2.) a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs. Mercado, 10 Phil. 508; Surigao Mine
vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar, L-5625, March 16, 1945; Ramos
vs. Gibbon, 67 Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file the complaint today so the running
of the period will be interrupted. Suppose I will amend my complaint next month, on February. Question: Is prescription properly
interrupted? When an original complaint is amended later, when is the prescriptive period for filing the action interrupted? Upon
the filing of the original complaint or upon the filing of the amended complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause of action, then the prescriptive period is deemed
interrupted upon the filing of the amended complaint; (Ruymann vs. Dir. of Lands, 34 Phil. 428)
b.) But where the amendment has not altered or changed the original cause of action, no different cause of
action is introduced in the amended complaint, then the interruption of the prescriptive period retroacts on
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the date of the filing of the original complaint. (Pangasinan Trans. CO. vs. Phil. Farming Co., 81 Phil. 273;
Maniago vs. Mallari, 52 O.G. 180, October 31, 1956)
EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two months from now I will amend my
complaint from damages arising from culpa aquiliana to damages arising from culpa contractual. Is that a different cause of action?
Yes, so the prescriptive period for culpa contractual is deemed filed next month, not this month, because that is a different cause of
action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one million. Next month I amend my
complaint for damages from one million pesos to two million pesos. Did I change my cause of action? No, it is still the same cause
of action—culpa aquiliana. Therefore, the prescriptive period is deemed interrupted as of the date of the filing of the original
complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal procedure are the same because there is such a thing as
amendments on the criminal complaints or informations as a matter of right on the part of the prosecution and amendments as a
matter of judicial discretion. And under the rules of criminal procedure, an amendment can either be formal or substantially
received. There is some difference in the rules.
How do you differentiate the amendment of a pleading, under the rules on civil procedure and the amendment of a criminal
complaint or information in criminal cases? Take note that there is no Answer in criminal cases. The accused is not obliged to file
answer but the counterpart of answer in criminal cases is the plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the arraignment or before he enters plea, the amendment of
information is a matter of right, either in form or in substance. EXAMPLE: The prosecution files an information against you for
homicide and then the prosecution wants to agree to murder. Can it be done? YES, for as long as the accused has not yet
entered his plea.
So it is almost the same as in civil cases. For as long as there is no responsive, pleading the amendment is a matter of right
whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already entered his plea to the original charged, is amendment still
allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment. Substantial amendment is 100% prohibited in criminal cases.
But in civil cases, puwede.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of evidence. - When issues not raised by the
pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion of any party at any time, even after judgment; but
failure to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial justice will be subserved thereby.
The court may grant a continuance to enable the amendment to be made. (5a)
Q: May issues not raised in the pleadings be tried in court during the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that is not raised in the
pleadings based on Rule 9, Section 1. The court has no jurisdiction over the issue. That’s why there is no such thing as
surprise defense because a defense that is not raised is deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be relaxed?

A: YES. Section 5 is a relaxation of the rule specifically the first sentence: “when issues not raised in the pleadings
are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised
in the pleadings.”
EXAMPLE: In a collection case, the defendant in his answer raised a defense that the money obtained from the defendants
was not a loan but a donation. During the trial, he attempted to prove that it was a loan but it was already fully paid. So he is now
proving the defense of payment. He is practically changing his defense. If you follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that the defendant will prove that the obligation is paid, then it can
be done because issues now raised in the pleadings are tried with the express consent of the parties. They shall be treated in all
respects as if they had been raised in the pleadings.
In the case of implied consent, the best example is when the defendant attempts to prove payment and the plaintiff
FAILED TO OBJECT. So there is now an implied consent by the parties. Therefore, the case can now be tried in the issue
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as if they had been raised in the pleadings. That is what we call the principle of estoppel. The parties are in estoppel
because they expressly or impliedly agreed to try an issue which is not raised in the pleadings. The court will now render judgment
and discuss the evidence and discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you read the complaint and the answer, there is no mention of
payment but in the decision resolved the case on that issue. The pleadings are not in harmony with the decision.
Q: So how will you harmonize the two – pleadings and the decision?
A: The remedy according to Section 5 is to amend the pleadings. We can amend the pleadings to make them
conform with the evidence. That is why the law says: “such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after
judgment.”
So even after the judgment, you can amend the pleading in order to harmonize with the evidence. Normally, the evidence
should conform to the pleading under Rule 9. In this case, baliktad! – it is the pleading which is being amended to conform to the
evidence. It is the exact opposite.
Normally that is for the benefit of the appellate court in case the decision will be the case will be appealed. The CA will read
the complaint and the answer, “wala mang payment dito!” But when you read the decision, the main issue was payment not found
in the complaint and the answer. So there might be confusion. So amendment is necessary at anytime, even after judgment.
Q: But suppose the parties never bothered to amend the pleadings, is there a valid judgment?
A: YES because the law says, “but failure to amend does not affect the result of the trial of these issues.” So, there is
a valid trial and the court acquires jurisdiction over the issues because of their implied or express consent. The best
example is FAILURE TO OBJECT.
“if the evidence is objected to at the trial on the ground that it was not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of
the merits of the action and the ends of substantial justice will be subserved thereby.”
EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid. The lawyer of the plaintiff is alert
and objected thereby, “You cannot prove that defense because you never raise a defense of payment in your answer.” Is the
objection correct? YES because of Rule 9, Section 1. The court affirmed the plaintiff that one cannot prove the defense of payment
because you never raised it in your answer. There is no express or implied consent.
Q: But the defendant said, “If that is so your honor, may we be allowed to amend our answer so that we will now raise the
defense of payment and prove it in court?” Can the court allow the defendant to amend his answer in the middle of the trial just to
prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial justice will be subserved thereby.
That is why you can say that the power of the court in enforcing the Rules of Court is very wide. For example, I am the judge
and the defendant never raised the issue of payment in his answer and he is now rising such defense. The plaintiff’s lawyer will
now object and alleged that he cannot prove such defense for he never raised it in his answer. The judge sustained the objection,
“You cannot prove a defense that is never raised in your answer.” Q: Is my ruling correct? A: YES because of Rule 9, Section 1 –
objections and defenses not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading so that I raised that defense. The plaintiff will object to the
amendment. The judge will ask the plaintiff, “is the obligation paid?” “NO. The defendant never paid it,” answered the plaintiff. So
if the defense is false, why are you afraid? Anyway, he cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already paid the obligation but that he never raised such matter in
his answer. The plaintiff now will be in bad faith. So I will allow the amendment.
So in other words, in any way my ruling is correct because I know how to apply the rule. So the court will allow the amendment
and shall do so with liberality… so LIBERALITY should be the rule on amendment. Section 5 is a rule more on equity. While, Rule
9, Section 1 is a rule of law. Section 5 is a relaxation of that law on technicality.
The last sentence, “the court may grant a continuance to enable the amendment to be made.” ‘Continuance’ means
postponement. It means, postponement of the case to allow the defendant to amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading. (6a)
The second part of Rule 10 is the supplemental pleading, for the first part is the amended pleadings.
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Q: How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the existence of ORIGINAL PLEADING. The following are the distinctions:
FIRST DISTINCTION: As to the allegations

An AMENDED pleading contains transactions, occurrences or events which already happened at the time the original
pleading was filed and could have been raised at the original pleading, but which the pleader failed to raise in the original
pleading because, oversight or inadvertence or inexcusable negligence. If he wants to raise it, he must amend the pleading.
Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or events which were not in existence at the time the
original pleading was filed but which only happened after the filing of the original pleading and therefore, could not have b een
raised in the original pleading.
That is the distinction emphasized in the New Rule – Rule 11, Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after answer. – A counterclaim or cross-claim
which either matured or was acquired by a party after serving his pleading may, with the permission
of the court, be presented as a counterclaim or cross-claim by supplemental pleading before
Judgment.
Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a pleader fails to set up a
counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice
requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before
judgment.
These provisions emphasize the difference between an amended pleading and a supplemental pleading – how do you raise a
counterclaim or cross-claim which was not raised earlier? Is it by amending the pleading or by filing d supplemental pleading ?
And that applies also to an answer where the defense or the transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect

In an AMENDED pleading, the amended pleading supersedes the original pleading. The original pleading is deemed
erased. The amended substitutes the original. So from the viewpoint of the law, the original pleading no longer exists.
Whereas,
When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading. In effect, there are now two (2)
pleadings which stand side by side in the case – the original and the supplemental pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly installments. Mortz failed to pay the first
installment. Nanding filed a case. While the case is pending, the other installment became due. Nanding will now file a
supplemental pleading and as a result, there will be two (2) complaints for P100,000 each.
Rule in EVIDENCE: In an amended pleading, all your admissions and evidence no longer exist because remember
under the rules on Evidence, any admission that you make in your pleading binds you under the doctrine of judicial
admission where the evidence need not be given - as if it is taken judicial notice of. The rule is, if a pleading is amended
and the amended pleading does not contain the admissions contained in the original pleading, the judicial admission is
now converted into an extra-judicial admission and therefore the court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an admission which is not found there (in the amended pleading), I
have to formally offer in evidence the original pleading. Normally, you do not offer in evidence a pleading because the
court takes judicial notice of everything stated in there. But if the original pleading is now superseded, the original must be
offered in evidence to prove an admission found in the original but not anymore in the amended one. That principle in now
found in Section 8:
Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein not incorporated in the amended pleading shall be
deemed waived.
That is related to the rule in evidence that what need not be proved: judicial notice, judicial admissions.
THIRD DISTINCTION: The filing of an AMENDED pleading could be a matter of right or of judicial discretion under
Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under Section 6. There is always leave
of court.
Now, let us cite cases which are relevant to our topic on supplemental pleadings.
LEOBRERA vs. COURT OF APPEALS

170 SCRA 711
119
FACTS: Karen went to the bank and obtained a loan – housing loan. A promissory note was issued payable next
year. After few months, Karen went back to the bank and secured a second loan – agricultural loan with another
promissory note.
When the first note became due, Karen failed to pay. So the bank sued Karen on the first promissory note. When
the case was still going on, the second loan became due. So the bank sought to file a supplemental complaint against
Karen to collect the second loan. The maturity of the second loan happened after the filing of the first pleading sought
to be supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the defendant are the same, there are two separate
loans independent of each other as a matter of fact the stipulations are not identical. It cannot be the subject
matter of a supplemental complaint. In this case, there are many types of loans secured in different terms and
conditions.
“A supplemental complaint must based on matters arising subsequent to the original complaint
RELATED to the claim presented therein and founded on the same cause of action.” It cannot be used to try
of another matter or a new cause of action.
A good EXAMPLE for a supplemental complaint is when I borrow money from you for P600,000 payable in three installments.
First installment is on February for P200,000; second installment is on April; and the last installment is on June for the last
P200,000. There is no acceleration clause. When the first installment fell due, I did not pay. So the plaintiff filed a case against
me to collect the first installment. In April, the case is still not yet decided. In fact the second installment again fell due. Plaintiff
moved to file for the supplemental pleading. While the two cases are still pending, the last installment fell due and again there is
failure to pay, so there is another supplemental complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and the installments are interrelated.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS

258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in janitorial services. A government corporation, the
Home Development and Mutual Fund (HDMF) sought a public bidding on who will be the company who shall provide
janitorial services to the offices of the HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was suppose to start providing the service for the year 1990.
However, the HDMF refused to honor the award. So, on November 8, 1989, Superclean filed in the RTC of Manila a
complaint for mandamus and certiorari against HDMF alleging that at public bidding for janitorial services for the year
1990, it won as the lowest bidder but HDMF refused without just cause, to award the contract to 'hem,
The problem was that 1990 already ended and the case was still on-going. So it was already rendered moot and
academic. What Superclean did was to file a supplemental complaint in 1991 alleging that because the contract of
service was the furnishing of janitorial services for the year 1990, the delay in the decision of the case has rendered
the case moot and academic without Superclean obtaining complete relief to redress the wrong committed against it
by HDMF which relied now consists of unrealized profits, exemplary damages and attorney’s fees.
So, money claim na lang dahil moot and academic na eh. Instead of pursuing its prayer for mandamus,
Superclean sought the payment of damages to it.
ISSUE: Is the filing of supplemental complaint proper in order to seek a different relief in view of developments
rendering the original complaint impossible of attainment?
HELD: “The transaction, occurrence or event happening since the filing of the pleading, which is sought
to be supplemented, must be pleaded in aid of a party's right of defense as the case may be. [That’s the
purpose of the supplemental pleading – in aid of the party’s cause of action or defense] But in the case at
bar, the supervening event is not invoked for that purpose but to justify the new relief sought.”
“To begin with, what was alleged as a supervening event causing damage to Superclean was the fact that
the year for which the contract should have been made had passed without the resolution of the case. The
supervening event was cited not to reinforce or aid the original demand, which was for the execution of a
contract in petitioner's favor, but to say that, precisely because of it, petitioner's demand could no longer be
enforced, thus justifying petitioner in changing the relief sought to one for recovery of damages. This being
the case, petitioner's remedy was not to supplement, but rather to amend its complaint.” You are actually
changing the relief so that the correct remedy is not a supplemental complaint but an amended complaint.
“Be that as it may, the so-called Supplemental Complaint filed by petitioner should simply be treated as
embodying amendments to the original complaint or petitioner may be required to file an amended complaint.” So,
meaning, you call it a supplemental complaint, the court will call it as an amended complaint or the other alternative,
require him to file an amended complaint.
Sec. 7. Filing of amended pleadings. - When any pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed.
(7a)
When a party files an amended pleading, the amendments should be indicated by appropriated marks, normally, the amended
portion is underlined.
120
EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be underlined. The purpose for such
marking is for the court and the opposing party to immediately see and detect the amendment. If no appropriated mark is provided
the court and the lawyer has to compare everything, paragraph by paragraph, sentence by sentence, line by line. Now, if there are
underlines, the court will just concentrate on the underlined portion. This is for convenience for the parties and the court.
Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may be received in evidence against the pleader;
and claims and defenses alleged therein not incorporated in the amended pleading shall be deemed
waived.
(Section 8: See discussion on Section 6 on distinctions between an amended and supplemental pleading; second distinction)
The first sentence is one of the distinctions between an amended pleading and a supplement pleading. From procedural
viewpoint, the original pleading is already non-existent. The court will no longer consider anything stated there.
EXAMPLE: You say something favorable to me. However, in his amended pleading, he removes such statement, so that the
court will not consider it anymore. Such statement is out of the picture. Now, if you want to bring to the attention of the court the
statement found in the original pleading, you must offer the original pleading in evidence to consider it all over again. This rule will
be considered in the study of EVIDENCE.
Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
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What are discussed in this rule are periods. The question when a defendant wants to file an answer is, “How many days does
he have?” There must be a deadline. Rule 11 applies to all persons – natural and juridical such as a corporation.
SECTION 1. Answer to the complaint. The defendant shall file his answer to the complaint within fifteen
(l5) days after service of summons, unless a different period is fixed by the court. (1a)
Section 1 is the GENERAL RULE – the defendant has a period of 15 days after service of summons within which to file his
answer. The procedure is when a plaintiff files a complaint in court, the court will issue summons (which is the counterpart of
warrant of arrest in criminal cases). The sheriff of the court will look for the defendant and serve him a copy of the complaint. From
that day on, the defendant has 15 days to file his answer.
The rules says, “unless a different period is fixed by the court.” That would be the EXCEPTION to the 15-day period to file
answer. Now, when are these instances when the court may fix a different period? They are those mentioned in Rule 14, Sections
14, 15, and 16 – yung tinatawag service of summons by publication.
Let’s give example to the general rule. EXAMPLE: If the defendant is served with a copy of the complaint and summons today
(January 13,1998), the last day to file an answer will be January 28, 1998. Just add 15 days to January 13.
In computing the a period, you follow the rule known as “exclude the first, include the last day rule” under Article 13 of the
New Civil Code. I think you know how to apply that. When you receive the complaint today or when you are summoned today,
you start counting the period tomorrow. Such rule is also found in Section 1 of Rule 22 on Computation of Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which
the designated period of time begins to run is to be excluded and the date of performance included. If the
last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day. (n)
(The following discussions on Rule 22 are taken from the Remedial Law Review Transcription [1997-1998]:)
So you see, ito (Section 1, Rule 22) yung the act itself from which the designated period of time where the case will run is to be
excluded. Meaning, when you receive the summons, you count one but today is excluded and of course the last day is included.
And if the last day is the next working day. A: It is done on the next business day. Here, there is an automatic extension.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the computation of the period. (n)
Alright, a good example of this is period to file an answer which is 15 days. And then you filed a motion to dismiss under Rule
16 somewhere in between. Now, what is the principle to be remembered here?
The filing of the motion to dismiss will now be interrupt the running of the 15-day period. And when your motion is denied, if
you receive the order of the denial now, you continue computing the balance within the remaining period to file your answer.
Now, some people can’t understand this second sentence – “The day of the act that caused the interruption shall be excluded
in the computation of the period.” Many are wondering kung ano ba ang ibig sabihin nito! The meaning of this is exemplified in the
case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:
We will assume that on November 30 (end of the month), you were served with summons by the court. So you have 15 days to
file your answer from November 30. Let us say, on December 10, you filed a motion to dismiss under Rule 16. So, the remaining of
the period to file an answer is interrupted. And let us say on December 15 or 5 days thereafter, your motion was denied, you
receive a copy of the order of denial.
My QUESTION is, how many days more do you have or left to file your answer? Five days?
How many days did you consume? From November 30 to December 10 = 10 days. Tapos, December 10 to December 15 =
not counted. And you still have 5 days, so December 20, di ba?
Now if you ask majority of lawyers here, they will give the same answer. BUT according to LABITAD, that computation is
wrong. You actually have six (6) days.
So your deadline to file you notice to appeal is December 21. Why? Akala ko ba the filing of the motion to dismiss
interrupts? Now, when did you file your motion? December 10. Therefore, December 10 is not counted because it is
already interrupted.
So actually, you did not consume 10 days but only 9 days. That is the explanation of the SC in the case of LABITAD – the day
you filed your motion to dismiss is already excluded. So you only count December 1 to 9. This is the illustration of the sentence
“the day the act which caused the interruption is excluded in the computation of t tie period.”
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ILLUSTRATION:
November 30 December 10 December 15 December 21

Defendant received Defendant filed a Motion Motion to Dismiss is Deadline to file the
Summons to Dismiss denied. Answer
Alright, let’s go back to Rule 11:
Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private
juridical entity and service of summons is made on the government official designated by law to receive
the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a)
The defendant here is a foreign private juridical entity. Meaning, a foreign corporation doing business in the Philippines. In the
first place, one cannot sue a foreign private corporation which is not doing business in the Philippines because there is no way that
the court can acquire jurisdiction over the person of such corporation. If the foreign private corporation is doing business in the
Philippines, then one can sue it here in the Philippines. EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay Pacific, etc.
Q: Now, what is the period to answer when the defendant is a foreign private corporation doing business in the Philippines?
A: It DEPENDS:
a.) When the foreign corporation has a designated resident agent, the summons shall be served to the resident
agent, and he has 15 days to answer, just like any defendants in Section 1.
b.) On the other hand, if the foreign corporation does not have any designated resident agent in the Philippines,
then under the Corporation Code, the summons shall be served to the government official designated by law
to receive the same, who is duty bound to transmit it to the head office of the corporation abroad. And the
corporation now has 30 days from receipt of summons to file its answer.
So it is either 15 or 30 days.
Q: Now, who is this proper government official designated by law to receive summons?
A: Generally, it is the Secretary of the Department of Trade and Industry. But for some types of business, the law may
designate any other official. Like the foreign corporation to be sued is a foreign insurance company (e.g. Sun Life of Canada ),
under Insurance Code, you serve it to the Insurance Commissioner. Or if it is a foreign bank which has branch here, you
serve the summons to the Superintendent of the Bangko Sentral ng Pilipinas.
Sec. 3. Answer to amended complaint.
Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the
same within fifteen (l5) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten
(10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to
the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended
third (fourth, etc.) party complaint, and amended complaint-in-intervention. (3a)
Now, what is the period to file an answer to an amended complaint? Under Section 3, there are two (2) periods – first
paragraph, 15 days; second paragraph, 10 days. Now what is the difference?
Suppose the complaint is amended as a matter of right because defendant has not yet filed an answer. Meaning, the complaint
is served on you and even before you answer it was amended and another complaint is served, then you have 15 days to file your
answer counted from the day of service of the amended complaint. So forget the original period and you have 15 days all over
again.
But suppose the defendant has already answered the original complaint and then the plaintiff decides to amend his complaint
which under the previous rule, is a matter of judicial discretion. Now, suppose the court issued an order admitting the amended
complaint and the defendant is furnished of the copy of the order admitting the amended complaint. Therefore, if he wants to
answer the amended complaint, he has 10 days to do it and not 15 days. The 10-day period will be counted from service of the
order admitting the amended complaint, not from the service of the amended complaint because the same may not be
admitted. You wait for the order of the court admitting the amended complaint.
So, there are two (2) periods to file an answer to an amended complaint.
Q: Suppose I will not file an answer to the amended complaint. I filed an answer to the original complaint but I did not file an
answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed may serve as an answer to the amended complaint if
no answer is filed. Like when the amendment is only formal, why will I answer? In other words, my defenses to the
original complaint is still applicable.
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So the principle is: if no answer is filed to the amended complaint, the answer to the original complaint automatically serve s as
the answer to the amended complaint and therefore the defendant cannot be declared in default.
Alright, the third paragraph of Section 3 is new. So, kasama na iyung amended counterclaims, amended cross-claims.
Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be answered within

ten (l0) days from service. (4)
Now, if you answer a counterclaim or cross-claim, you have Section 4. The period to file an answer to a counterclaim or cross-
claim is only ten (10) days from the time it is served.
Q: What happens if the plaintiff does not answer the counterclaim of the defendant?
A: He can be declared in default on the counterclaim. He has still standing to prove his cause of action in the main case but he
loses his standing to defend himself in the counterclaim.
Q: Are there instances where an answer to a counterclaim is optional? Meaning, the plaintiff does not answer and he cannot
be declared in default.
A: YES, that is when the counterclaim is so intertwined with the main action – they are so intertwined that if the
plaintiff would answer the counterclaim, it would only be a repetition of what he said in his complaint. In this case, even if
the plaintiff will not answer, he cannot be declared in default.
EXAMPLE: The plaintiff filed a case against the defendant for damages arising from a vehicular collision. According to the
plaintiff, because of the negligence of the defendant, the plaintiff’s vehicle was damaged amounting to that much. So the cause is
quasi-delict. Now in his answer, defendant says no and he denied the liability and he files a counterclaim saying, “As a matter of
fact, it is the plaintiff who is negligent. And since my vehicle was damaged, I am now claiming damages against him.”
So practically, the issue on negligence is being thrown back. Now, the plaintiff did not answered the counterclaim, can he be
declared in default? NO, because if you require the plaintiff to file an answer, what will he say? The same, “NO, you were the one at
fault!” So, uulitin na naman niya 'yung sinabi niya in his complaint. It is already repetitions. Yan, so that is one of the exceptions.
Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to answer a third (fourth, etc.)- party
complaint shall be governed by the same rule as the answer to the complaint. (5a)
Sec. 6. Reply. A reply may be filed within ten (l0) days from service of the pleading responded to. (6)
If you want to file a reply, you have ten (10) days to file. But as a general rule, the filing of a reply is optional.
Sec. 7. Answer to supplemental complaint. A supplemental complaint may be answered within ten (10)
days from notice of the order admitting the same, unless a different period is fixed by the court. The
answer to the complaint shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed. (n)
It follows the same rule as in Section 3, second paragraph. A supplemental complaint may be answered in ten (10) days.
The computation is again from notice of the order admitting the same.
Suppose I will not answer the supplemental complaint? The same principle – the answer to the original complaint
shall serve as the answer to the supplemental complaint. So it follows the same principle as the amended complaint in the
second paragraph of Section 3.
Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a

defending party has at the time he files his answer shall be contained therein. (8a, R6)
One of the requisites to make a counterclaim compulsory is that the defending party has the counterclaim at the time he files
his answer. This is related with Section 7, Rule 6.
Sec. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either
matured or was acquired by a party after serving his pleading may, with the permission of the court, be
presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9, R6)
Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-
claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave
of court, set up the counterclaim or cross-claim by amendment before judgment. (3a, R9)
Existing counterclaims or cross-claims, tapas na ito ano? We already discussed this before. As a matter of fact, Sections 9 and
10 illustrates the distinction between an amended pleading to a supplemental pleading.
If the counterclaim or cross-claim was acquired by a party after serving his pleading, he may raised it by way of supplemental
pleading. But if a pleader fails to set up a counterclaim or a cross-claim which is already matured when he filed his pleading due to
inadvertence or excusable neglect, then he way raise it by way of amended pleading.
Sec. 11. Extension of time to plead. Upon motion and on such terms as may be just, the court may
extend the time to plead provided in these Rules.
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The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed
by these Rules. (7)
The period to file is 15 or 10 days, but the general rule is 15 days.
Q: Now, is the 15-day period extendible?

A: YES, upon motion and on such terms as may be just, the court may extend the time to plead.
Normally, the lawyer will file a motion for extension of time to answer on the 15th, the 14th, or the 13th day. That’s very
common. The common reason of the lawyers for the extension is pressure of work – maraming trabaho ba. Others are because of
the traditional mañana habit. We usually act during the deadline.
Take note that when you file your motion for extension, do it within the original 15-day period. Do not file your motion
on the 16th day because there is nothing to extend. So the extension is usually filed within the 15-day period.
Q: Now what happens if the lawyer fails to file such a motion? So naglampas na yung 15 days. And then on the 18th, he will
now file an answer. Practically out of time na yan because the 15-day period already expired and he did not ask any motion for
extension. Now what should the lawyer do?
A: The lawyer can use the second paragraph, “The court may also, upon like terms, allow an answer or other pleading
to be filed after the time fixed by these Rules.” The correct motion is “MOTION TO ADMIT LATE ANSWER.”
EXAMPLE: The deadline is 3 days ago. I failed to file my answer but now it is ready. So, “motion to admit belated answer.”
Normally, the courts here are liberal in allowing extensions. The general rule is that the court frowns on default. As such as
possible both sides must be heard. So in the spirit of liberality, courts are usually liberal in allowing these extensions in time to file
answers. I still have to see a judge na i-deny yan. Standard na yan, eh.
SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS
PLEADING PERIOD
1.) Answer 15 days
2.) Answer of a private foreign corporation

a.) with designated Philippine representative 15 days
b.) no designated Philippine representative 30 days
3.) Answer to an amended complaint

a.) if as a matter of right 15 days
b.) if as a matter of judicial discretion 10 days
4.) Answer to counterclaim or cross-claim 10 days

5.) Answer to third (fourth, etc.) party complaint 15 days
6.) Reply 10 days
7.) Answer to supplemental complaint 10 days
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Rule 12
BILL OF PARTICULARS
Section 1. When applied for; purpose. Before responding to a pleading, a party may move for a definite
statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or
particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the
motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are contained, and the details desired. (1a)
Q: Define Bill of Particulars.

A: A bill of particulars is a more definite statement of any matter which is not averred with sufficient definiteness or
particularity in a pleading so as to enable the opposing party to prepare his responsive pleading. (Section 1)
Alright. So, let’s go to the application of this remedy.
EXAMPLE: The plaintiff filed a complaint against you and you are now furnished with a copy by the lawyer of the plaintiff. So,
you have to file your answer. You have to understand what the cause of action is all about. So you read the complaint – you notice
that the allegations are vague, ambiguous, and uncertain. So, you cannot understand the allegations. So, you have a hard time
preparing your answer. Now, you do not want to answer something that you cannot understand.
Q: So what is your remedy?
A: The remedy is, instead of answering, you file a motion for a bill of particulars and according to Section 1, your
motion will point out the defects complained of, the paragraphs where they are contained and the details desired.
Because according to you, the allegations are not averred with sufficient definiteness or particularity to enable you
properly to prepare your responsive pleading that is what it is all about.
So the defendant resorts to the Bill of Particulars if the allegations of ultimate facts in the complaint are vague and ambiguous
that the defendant will have difficulty in preparing his answer. So, he can not understand and will ask for more details to clear the
ambiguities. He will file a motion for Bill of Particulars, citing the detects and ask for the details, because how can he prepare an
answer if he does not understand the complaint? Aber?
BAR QUESTION: Suppose a complaint is ambiguous, uncertain, indefinite or vague, can the defendant file a motion to
dismiss?
A: NO! A complaint cannot be dismissed simply because it is vague, ambiguous. (Pañgan vs. Evening News, L-13308,
Oct. 29, 1960) The correct remedy is for the defendant to file a motion for bill of particulars, which will ask for more
details on these vague portions of the complaint. (Amoro vs. Sumaguit, L-14986, July 31, 1962)
According to the SC in the case of
TAN vs. SANDIGANBAYAN

180 SCRA 34 [1989]
HELD: “The proper office of a bill of particulars is to inform the opposite party and the court of the precise nature
and character of the cause of action the pleader has attempted to set forth, and thereby to guide his adversary in his
preparations for trial and reasonably protect him against surprise at the trial. It complements the rule on pleadings in
general, that is, that the complaint should consist of a concise statement of the ultimate facts.”
“Its primary objective is to apprise the adverse party of what the plaintiff wants — to preclude the latter from
springing a surprise attack later.”
According to the SC, the primary purpose of the bill of particulars is to apprise the adverse party of what a plaintiff wants. To
preclude the latter from springing a surprise attack later. Why? Because the plaintiff may deliberately make his allegations vague.
Sinadya ba niya? To confuse you – to mislead you – because you might adopt a different interpretation. If the interpretation turns
out to be different, your defenses might be wrong. So, he deliberately make his complaint ambiguous. Now, the other party should
thwart that by asking for a bill of particulars to compel the plaintiff to make the allegations of his cause of action clearer. So, that is
what the bill of particulars is all about.
Now, we will do to a specific situation and let’s find out whether the defendant could file for a bill of particulars.
PROBLEM: Now, suppose the pleader says in his complaint that he has been in the possession of the litigated property
continuously for forty (40) years. The defendant flied a motion for a bill of particulars, “The allegations is very broad, very general,
very vague. Please tell by way of particulars what are the improvements you introduced for the past 40 years. I would like to ask for
these details to clarify your allegations that you have been in continuous possession of the land for 40 years.”
Q: Is that a proper motion for a Bill of Particulars?
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A: NO, because it is asking for evidentiary matters. In the first place, the plaintiff has no obligation to state the
evidentiary matters in his complaint. It should only state ultimate facts. So, it is not allowed in the pleading. You cannot
ask for that by way of particulars.
So, what is sought to be remedied are vague and ambiguous statements of ultimate facts. But you cannot used it to
fish for evidentiary matters. Evidentiary facts cannot be the subject of a motion for a bill of particulars.
Q: But is it not fair that before trial I should know your evidentiary matters?
A: I believe it is fair for the defendant to compel the plaintiff to reveal the details of his ultimate facts but not under
Rule 12. You better avail of the modes of discovery under Rule 23, depositions, request for admission, etc. But you cannot
convert Rule 12 into a modes of discovery. Each rule has its own functions.
So, let’s give a good example of an instance, where the defendant can rightfully ask for more specifics or particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of contract on the ground that the defendant employed FRAUD in
getting the consent of the plaintiff. The plaintiff said, “He got my consent to the contract by fraud.” The defendant filed a motion for a
bill of particulars: “That the defendant employed fraud in getting plaintiff’s consent is vague, So, I’m asking the plaintiff should give
more specifics. How did I fool you? In what way did I employ fraud? In what way was the fraud exercised?”
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with particularity. So, you go back in Rule 8, Section 5:
Rule 8, Sec. 5 Fraud, mistake, condition of the mind.—In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must be state with particularity. x x x
We already studied that provision. Therefore, if the allegation of the plaintiff is simply that the defendant employed fraud, that
allegation is not sufficient because under Rule 8, it must be stated with particularity. Therefore, if it is not stated with particularity,
the remedy of the defendant is to file a motion for a bill of particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang answer malabo. It is the other way around. It is the defendant’s
answer which is vague or uncertain. Can the plaintiff file a motion for bill of particulars to compel he defendant to clarify or to
particularize his vague answer?
A: YES, because the plaintiff can say, “I cannot file my reply. I mean, I want to file a reply but I can’t file a reply unles s I
understand what is your defense.” So it works both ways.
Q: Suppose, it is the reply of the plaintiff to the answer which is vague or ambiguous. Can the defendant file a motion for bill of
particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within 10 days. So even if the reply is vague, it can still be the
subject of the bill of particulars within 10 days because there is no more responsive pleadings there.
So, every pleading which is vague the other party can always compel you to make it clearer.
Q: Is this remedy available in criminal cases?

A: YES. If it is the information which is vague, you cannot understand the allegations in the information, you cannot plead,
“Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko maintindihan eh” the accused can file a motion for bill of particulars
to require the prosecution to clarify vague portions of a complaint or information.
There is an identical provision in Rule 116, Section 9 of the Rules on Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. – The accused may, before arraignment, move for a bill of particulars
to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the
complaint or information and the details desired. (10a)
The concept is the same. If the allegations in the information are also vague and ambiguous, “I cannot understand it, so I
cannot intelligently enter my plea.” The accused, before arraignment, can move for a bill of particulars to enable him to prepare
properly for the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case)
202 SCRA 726 [1991]
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscal’s office when the
case was under preliminary investigation. (In preliminary investigation, you are given the affidavit of the complainant
and his witnesses. And then you are given 10 days to submit your counter-affidavits.) Here, the affidavit is vague
according to the accused, so he is filing a bill of particulars. He wanted to compel the complainant to make his
affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot understand what the complainant is saying in his
affidavit?” The SC said, that is simple! If you cannot understand what the complainant is saying in his affidavit,
chances are, the fiscal also will not understand it. And consequently, he will dismiss the case. Eh di mas maganda!
Wag ka na lang mag-reklamo! [tanga!]
127
Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it
to the attention of the court which may either deny or grant it outright, or allow the parties the
opportunity to be heard. (n)
So pag-file mo ng motion for bill of particulars, the clerk has the obligation to bring it immediately to the attention of the court
and the court can deny or grant the motion immediately. But of course, it is up to the court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do you think is this provision here, which is not found in the old
rules?
A: Many lawyers have abused Rule 12. In what way? A complaint is filed. The allegations are clear. Pero sadyain niya – he will
file a motion for bill of particulars that he cannot understand. Then, pag file niya ng motion, he will set the motion for hearing 2
weeks from now. Then the motion is denied because it has no merit, then, file ka ng answer. In other words, the period to file for an
answer has been denied because it has no merit. Then, file ka ng answer. The period to file for an answer has been delayed. The
defendant has succeeded in delaying the period for filing an answer by pretending that he cannot understand pero actually klaro
man ba.
So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to immediately act on the
motion without delaying the filing of the answer. That is the reason why this provision was inserted because the filing of the motion
for bill of particulars can cause delay.
Sec. 3. Compliance with order. If the motion is granted, either in whole or in part, the compliance
therewith must be effected within ten (l0) days from notice of the order, unless a different period is fixed
by the court. The bill of particulars or a more definite statement ordered by the court may be filed either
in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the bill of particulars. How
will you comply with the order to file a bill of particulars?
A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole complaint and clarify the vague paragraphs
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of the pleading or the portions thereof to which the order
was directed or make such other order as it deems just. (1[c]a)
Q: Alright, suppose the motion is granted, the court ordered the plaintiff to submit a bill of particulars. The plaintiff refused to
comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions thereof which is the object of the bill of particulars. Like for
example: Ayaw mong i-clarify ang complaint mo, ayaw mo. Alright, I will now issue an order to strike out the entire complaint. It is
as if the complaint was never filed. Practically, your complaint was dismissed. In effect your complaint was dismissed because if the
complaint was ordered stricken out, then it is equivalent to dismissal of the case itself.
Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion, the moving party may file his responsive
pleading within the period to which he was entitled at the time of filing his motion, which shall not be less
than five (5) days in any event. (1[b]a)
Q: What is the effect for a motion for a bill of particulars when you file a motion? What is the effect on that on the 15-day period
to file the answer?
A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for bill of particulars. The
period continues to run from the date that you received the bill of particulars, if your motion is granted, or from the receipt
of the order denying your motion if it was denied. From there, the period to answer will run again so you have to file your
answer within the balance of the remaining period.
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I filed a motion for a bill of particulars. Pag-file mo on the
8th day , the running of the period automatically stops and then after several days, you receive the order. For example, denying
your motion, you still have 8 days to go because the period during which your motion was pending will not be counted. Na- interrupt
ang takbo ng 15 days.
Q: Suppose, you file your motion for a bill of particulars on the 14th day and your motion is denied. You received the order
today. How many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days. Kahit one day to go na lang, balik ka naman sa 5. At least
minimum. So, it is 5 days or more but never be less than 5 days.
Therefore, if a defendant filed the motion for bill of particulars within 15 days, he cannot be declared in default. The plai ntiff
cannot declare the defendant in default for failure to file an answer because 15 days had already lapse. Pag file ng motion, itigil mo
muna ang takbo ng araw. It will be interrupted by the filing of the motion and the period commences to run again from the time he
received the bill of particulars or the order denying his motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of particulars becomes part of the pleading for which it is intended.
(1[a]a)
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Ah, yes. It is very clear ‘no? When you file a bill of particulars clarifying the paragraphs in the complaint which are vague, the
bill of particulars becomes part of the complaint with its supplements.
Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all pleadings and other papers, as well as the
service thereof, except those for which a different mode of service is prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings “except those for which a
different mode of service is prescribed.” An example of the exception is the service of complaint which is governed by Rule 14. So
Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined.
Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned. If any party
has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless
service upon the party himself is ordered by the court. Where one counsel appears for several parties, he
shall only be entitled to one copy of any paper served upon him by the opposite side. (2a)
When you say FILING, you present the pleading in the office of the clerk of court. When you say SERVICE, you furnish
a copy of the pleading to the party concerned, or if he is represented by a lawyer, you must furnish a copy of the pleading
to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to the lawyer and not to the
party. Service to a party is not valid. What is valid is service to the counsel. Service to the lawyer binds the party. But
service to the party does not bind the lawyer, unless the court orders direct service to the party.
Q: What is the reason for requiring service upon the lawyer if the party is so represented?
A: The reason for the rule is to do away with the subsequent objection which the party served may raise to the effect that he
knows nothing about court procedure and also to maintain a uniform procedure calculated to place in competent hands the orderly
prosecution of a party’s case. (Hernandez vs. Clapis, 87 Phil. 437; Javier Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
So, the purpose there is to avoid any complaint later that the party did not know what to do. Since the lawyer is presumed to
know the rules, at least it is on competent hands. But if you got to the party himself, the problem is he might start complaining later,
“My golly, kaya nga ako kumuha ng abogado kasi hindi ako marunong.”
There was a even a case when the client volunteered to get the copy of the decision. But he party failed to give it to
his lawyer. Is the lawyer bound, or is the party also bound? NO, because the rule is service to lawyer binds the client and
not the other way around.
So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF
IS ORDERED BY THE COURT. Example is in the case of
RETONI, JR. vs. COURT OF APPEALS

218 SCRA 468 [1993]
HELD: “Usually, service is ordered upon the party himself, instead of upon his attorney, [1] when it is
doubtful who the attorney for such party is, or [2] when he cannot be located or [3] when the party is directed
to do something personally, as when he is ordered to show cause.”
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There are rare circumstances however where service to the lawyer does not bind the client. These are cases of
negligence; where the lawyer is in bad faith for gross negligence; where he deliberately prejudiced his client. So it is
unfair that the party may be bound by the service to the lawyer because of those circumstances. One such instance
happened in the case of
BAYOG vs. NATINO

258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as
notice to his client. The application to the given case of the doctrine that notice to counsel is notice to parties should
be looked into and adopted, according to the surrounding circumstances; otherwise, in the court’s desire to make a
short cut of the proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It
would then be easy for one lawyer to sell one’s rights down the river, by just alleging that he just forgot every process
of the court affecting his clients, because he was so busy.”
So, sasabihin lang niya, “Sorry ha, nakalimutan ko,” and then you are bound – Masyadong masakit naman iyan.
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the lawyer entitled to 5 copies
also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, “Where one counsel appears for several
parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.” But if the 5 defendants
are represented by different lawyers, that is another story. Every lawyer has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat abogado ba may kopya?
A: NO, service on one is sufficient. Section 2 says, “…service shall be made upon his counsel or one of them…”
Service to one is service to all. You can do it if you want to but service on one will suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and
all other papers shall be made by presenting the original copies thereof, plainly indicated as such,
personally to the clerk of court or by sending them by registered mail.
In the first case, the clerk of court shall endorse on the pleading the date and hour of filing.
In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or
deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered
as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of
the case. (1a)
Under Section 3, there are two (2) modes of filing – either

1.) Personally; or
2.) by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You go to the court and the court will mark it RECEIVED on January
15, 1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.
Section 3 says, “…by presenting the original copies thereof, plainly indicated as such personally to the clerk of court…” There
was a lawyer before who referred to me. He said he filed a complaint. There are many copies of it. The court will usually receive 2
or 3 copies – 1 for itself, 1 for the defendant to be sued in summons, then any balance, ibalik sa iyo. Sabi niya, ayaw daw tanggapin
kasi wala raw nakalagay na “ORIGINAL.” Sabi ng lawyer, lahat naman ito original, kasi naka-computer. So, everything is original.
Sabi na clerk of court, “Eh di, dapat sulatan mo ng ‘original’!” Where did the clerk of court got that rule? Maski klaro na, sulatan pa
rin ng original? Sabi ng clerk of court, “Nasa 1997 Rules and requirement na iyan.”
So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of court, “The filing of pleadings… shall
be made by presenting the original copy thereor plainly indicated as such.” Meaning, “original,” “duplicate,” “original,” “duplicate.” To
my mind, huwagn amang masyadong istrikto. Nasubrahan ng basa ba! When you read too much, you become very technical. Why
refuse to accept? Simply because walang word na ‘original’? Eh, di ikaw ang maglagay! So the clerk of court, with that phrase
“plainly indicated as such,” becomes too strict.
Second Mode of Filing: FILING BY REGISTERED MAIL
The other mode is by registered mail. It is not ordinary mail. It is registered mail.
Q: What is the importance of registered mail on filing of pleadings and motions in court?
A: The importance is the rule that in registered mails, the date of filing is the date of mailing. If you send the pleading
through the Post Office by registered mail, the date of filing is not the date on which the letter reached the court but on the day that
you mailed it. So the date on the envelope is officially the date of filing.
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Q: Now, suppose I will file my pleading not by registered mail but throught messengerial service like LBC or JRS Express
delivery, or by ordinary mail? What is the rule if instead of the registered service of the Post Office, you availed the private
messengerial service or by ordinary mail?
A: The mailing in such cases is considered as personal filing and the pleading is not deemed filed until it is received
by the court itself.
When it is by registered mail, the date of mailing as shown by the Post Office stamp is considered as the date of
filing. The envelope is attached. The post office is automatically a representative of the court for the purpose of filing. In
other words, the law treats the messengerial company only as your process helper. That is why in the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC

233 SCRA 597 [1994]
HELD: “Where a pleading is filed by ordinary mail or by private messengerial service, it is deemed filed on the
day it is actually received by the court, not on the day it was mailed or delivered to the messengerial service.”
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.

April 18, 1997
HELD: “Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of Court. A facsimile
is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without
the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and
was originally signed by the party and his counsel. It may, in fact, be a sham pleading.”
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is filed –
Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record
of the case.
If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the
written or stamped acknowledgment of its filing by the clerk of court on a copy of the same;
if filed by registered mail, by the registry receipt and by the affidavit of the person who did the
mailing, containing a full statement of the date and place of depositing the mail in the post office in a
sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if not delivered. (n)
Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I filed it in court personally.
So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is not yours but with the clerk of
court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the post office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, containing a full statement of the date and place of
depositing the mail in the post office in a sealed envelope addressed to the court. It must be stressed that the affidavit is very
important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent
to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall
be filed with the court, and served upon the parties affected. (2a)
Let us now go to service. Under the law, before you file, there must be service to the opposing party’s counsel. And all
documents, as a rule, shall be filed to the court and served to the parties affected. Or, all pleadings SUBSEQUENT to the
complaint…. bakit ba ‘subsequent’? Meaning, answer, counterclaim, cross-claim.
Q: Do you mean to tell me the complaint does not have to be served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does not really have to go to the
defendant to serve the complaint. The complaint is brought to the court because the summons will be issued.
But if you are the defendant’s lawyer, you go directly to the plaintiff’s lawyer to serve the answer because an answer is a
pleading ‘subsequent’ to the complaint. Moreover, the manner of serving complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people do not understand this – “Every judgment, resolution,
order… shall be filed with the court and served to the parties...” Well of course, iyang mga pleadings, motions, etc., you file and
serve because there must be proof of service to the adverse party.
Now, judgments. It must be filed. Why will the court files its own judgment before itself? Actually, the judge has to file hi s
decision before the court. Read Rule 36, Section 1:
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Rule 36, Section 1. Rendition of judgments and final orders. A judgment or final order determining the
merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.
(1a)
So, the judge has to file his own decision to make it official.
Sec. 5. Modes of service. Service of pleadings, motions, notices, orders, judgments and other papers
shall be made either personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party?

A: Either:
1.) personally or
2.) by mail; or
3.) Substituted service under Section 8 in case of failure of the personal service or by registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers may be made by delivering personally a copy to the
party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If
no person is found in his office, or his office is not known, or he has no office, then by leaving the copy,
between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if
known, with a person of sufficient age and discretion then residing therein. (4a)
How are pleadings served personally? You deliver it personally to the party if he is not represented by a counsel. And if he is
represented, then to his counsel. You don’t have to look for his lawyer – you way leave it to his office with the clerk or any person
charged thereof and that is already personal service. Most lawyers have a receiving clerk authorized to receive pleadings.
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC

128 SCRA 402 [1984]
FACTS: The office of the lawyer is on the 9th floor of a building in Makati. So, siguro, sira iyong elevator, gikapoy
iyong process server, what he did was, he left the copy of the judgment to the receiving station at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So, you serve it on the 9th floor and not at the ground
floor with somebody who is not even connected with the law office.
“Notices to counsel should properly be sent to the address of record in the absence of due notice to the
court of change of address. The service of decision at the ground floor of a party’s building and not at the
address of record of the party’s counsel on record at the 9th floor of the building cannot be considered a
valid service.”
“Service upon a lawyer must be effected at the exact given address of the lawyer and not in the vicinity
or at a general receiving section for an entire multi-storied building with many offices.”
But the case of PLDT should not be confused with what happened in the case of
PCI BANK vs. ORTIZ

150 SCRA 680 [1987]
FACTS: This time, the office of the lawyer is located on the 5th floor. And again, the habit of the process
server is that instead of going to the 5th floor, he would just approach the receiving station on the ground floor. Now,
of course the receiving clerk, everytime the lawyer passes by, gave it to the lawyer. And the lawyer here did not
question the practice.
Now, when a decision against PCI Bank was served, the lawyer claimed they are not bound because there was
no proper service.
ISSUE: Was there proper service?
HELD: While is true that the service was improper, but the trouble is, it was going on for some time and you are
not complaining. So, the ground floor becomes your adopted address. Naloko na!
“They cannot now disown this adopted address [iyung ground floor] to relieve them from the effects of their
negligence, complacency or inattention. Service, therefore, of the notice of judgment at the ground floor of the
building, should be deemed as effective service.”
So, the judgment became final. There was no appeal. Those are examples of personal service.
Q: So, when is personal service complete?

A: It is completed upon actual delivery. Section 10:
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Sec. 10. Completeness of service.
1. Personal service is complete upon actual delivery.

2. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless
the court otherwise provides.
3. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the postmaster, whichever date is earlier. (8a)
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office,
in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his
residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the
mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of
either the sender or the addressee, service may be done by ordinary mail. (5a; as amended by En Banc
Resolution, Feb. 17, 1998)
Now, SERVICE BY MAIL. You can also serve your pleadings by mail. You will notice this time although the law prefers service
by registered mail, however, the last sentence of Section 7 says, “If no registry service is available in the locality of either the
sender or the addressee, service may be done by ordinary mail.”
Take note, comparing Section 7 with Section 3, service by ordinary mail may be allowed for purposes of service
(Section 7), but for purposes of filing (Section 3), wala! For purposes of filing, the law does not recognize the ordinary
mail. If you do it, it will be treated as personal filing. In registered mail, the date of receipt is considered the date of filing
not the date of mailing. Service by ordinary mail is allowed but filing by ordinary mail is not allowed
Q: Now, when is service by mail deemed complete?

A: Section 10:
Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5)
days from the date he received the first notice of the postmaster, whichever date is earlier. (8a)
So that is for the people who refuse to claim their mail even if they are already notified. He knows it is an order he expects to
be adverse so he will try to defeat the service by not claiming it. NO, you are at a disadvantage because after the expiration of so
many days, service is deemed completed. That is what you call CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot
defeat the process of the law by simply not claiming his mail. You can be bound by a decision which you never read. That
is constructive service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other
papers cannot be made under the two preceding sections, the office and place of residence of the party
or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with
proof of failure of both personal service and service by mail. The service is complete at the time of such
delivery. (6a)
Kung somehow there was an attempt of personal service or registered service at walang nangyari, you can resort to by serving
a copy to the clerk of court with proof of failure of personal and mailing service. And by fiction of law, the adverse party has already
been served.
SERVICE OF DECISIONS, ORDERS, ETC.
Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be
served either personally or by registered mail. When a party summoned by publication has failed to
appear in the action, judgments, final orders or resolutions against him shall be served upon him also by
publication at the expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication
So court orders or judgments orders have to be served also, either personally or by registered mail. That’s why if you go to the
court, there are employees there who are called process servers. Everyday, they go around from law office to law office to serve
court orders, notices and judgments. And that is personal service. But if the lawyer is a Manila lawyer, or is out of town, chances
are the clerk of court will apply registered mail.
Under Section 9, there is a third mode of service of court orders and judgments and that is service by publication. That is if the
parties were summoned by publication under Rule 14 and they did not appear. The judgment is also served to them by publication
at the expense of the prevailing party.
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Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from the
court, a resort to other modes must be accompanied by a written explanation why the service or filing
was not done personally. A violation of this Rule may be cause to consider the paper as not filed. (n)
That is a radical provision. In other words, there are two (2) ways of service: personal or by mail. And the law says, personal
service is preferred to mail. Meaning, personal service is prioritized.
Q: Suppose you served the opposing counsel by mail.

A: The law requires that you must give an explanation why you resorted to mail and not to personal service.
Q: Suppose I will file it without any explanation.

A: The law says, “A violation of this rule may be cause to consider the paper as not filed.” And that is a very radical rule..
For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail to you the pleading or motion and
then, nakalagay doon sa pleading : “Explanation: I have to resort to registered mail because it is expensive for me to resort to
personal service. It is expensive if I will send my messenger to Davao just to serve whereas if I send by registered mail, it will only
cost me P5.00.” They have to state that. Takot sila eh because without it, the pleading is not considered as filed. Of course this rule
should be interpreted based on common sense.
To my mind, the rule should be construed reasonably. If I am the judge, even if there is no explanation, I will allow it. Common
sense eh! Alangan papuntahin pa dito ang messenger at pa-eroplanuhin mo pa!
Now, I think the purpose of this new provision has been provoked by some malpractices of the lawyers. There were some
instances before which have been confirmed especially in Metro Manila. The opposing counsel is just across the street ang opisina.
He will send a motion to be received today. Instead of serving you, he will mail it. Mas malayo pa ang Post Office para hindi mo
matangap. They will deliberately do it because it could not reach you on time. I think if you do that, I will not consider your motion.
Or, kunwari may motion ka. You will send me a copy by mail and you are along C.M. Recto St. Bakit ka nag-mail eh mas malayo pa
ang Post Office kaysa office ko? Unless you explain, I will deny your motion.
Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero para maniguro, you explaint na lang:
“Explanation: Because of time constraint and distance, I had to resort to registered mail.” That is now the standard explanation
which appears in many pleadings or motions. It is a radical provision.
Take note that courts are not covered by Section 11. It only applies to lawyers and parties. The court does not have to
explain why it resorted to registered mail because Section 11 says, “Whenever practicable, the service and filing of
pleadings and other papers shall be done personally EXCEPT WITH RESPECT TO PAPERS E EMANATING FROM THE
COURT.”
So the court is not obliged to give any explanation, only the parties and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORTE

293 SCRA 661 [August 5, 1998] J. Davide
FACTS: Solar Team filed before the RTC a complaint against Felix Co. Summons and copies of the complaint
were forthwith served on Co. Co then filed his answer. A copy thereof was furnished counsel for Solar Team by
registered mail; however, the pleading did not contain any written explanation as to why service was not made
personally upon Solar Team, as required by Section 11 of Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co in default, alleging therein that Co did not
observe the mandate of Section 11. RTC issued an order stating that under Section 11 of Rule 13, it is within the
discretion of the RTC whether to consider the pleading as filed or not, and denying, for lack of merit, Solar Team’s
motion to expunge.
HELD: “Pursuant to Section 11 of Rule 13, service and filing of pleadings and other papers MUST, whenever
practicable, be done personally; and if made through other modes, the party concerned must provide a written
explanation as to why the service or filing was not done personally. Note that Section 11 refers to BOTH service of
pleadings and other papers on the adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the filing
of pleadings and other papers in court.”
“Personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the
following less than ethical practices: serving or filing pleadings by mail to catch opposing counsel off-guard, thus
leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or, upon
receiving notice from the post office that the registered parcel containing the pleading of or other paper from the
adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all,
thereby causing undue delay in the disposition of such pleading or other papers.”
“If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 then gives the court the discretion to consider a pleading
or paper as not filed if the other modes of service or filing were resorted to and no written explanation was
made as to why personal service was not done in the first place. The exercise of discretion must, necessarily,
consider the practicability of personal service, for Section 11 itself begins with the clause ‘whenever
practicable.’”
“We thus take this opportunity to clarify that under Section 11: Personal service and filing is the
GENERAL RULE, and resort to other modes of service and filing, the EXCEPTION. Henceforth, whenever
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personal service or filing is practicable, in light of the circumstances of time, place and person, personal
service or filing is mandatory. Only when personal service or filing is not practicable may resort to other
modes be had, which must then be accompanied by a written explanation as to why personal service or filing
was not practicable to begin with.”
“Of course, proximity would seem to make personal service most practicable, but exceptions may nonetheless
apply such as when: the adverse party or opposing counsel to be served with a pleading seldom reports to office and
no employee is regularly present to receive pleadings, or service is done on the last day of the reglementary period
and the office of the adverse party or opposing counsel to be served is closed, for whatever reason.”
“However in view of the proximity between the offices of opposing counsel and the absence of any attendant
explanation as to why personal service of the answer was not effected, indubitably, Co’s counsel violated Section 11
and the motion to expunge was prima facie meritorious. However, the grant or denial of said motion nevertheless
remained within the sound exercise of the RTC's discretion.”
“To Our mind, if motions to expunge or strike out pleadings for violation of Section 11 were to be indiscriminately
resolved under Section 6 of Rule 1, then Section 11 would become meaningless and its sound purpose negated.
Nevertheless, We sustain the challenged ruling of the RTC, but for reasons other than those provided for in the
challenged order.”
“The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the answer was filed only on 8 Aug
1997, or on the 39th day following the effectivity of the 1997 Rules. Hence, Co’s counsel may not have been fully
aware of the requirements and ramifications of Section 11. It has been several months since the 1997 Rules of Civil
Procedure took effect. In the interim, this Court has generally accommodated parties and counsel who failed to
comply with the requirement of a written explanation whenever personal service or filing was not practicable, guided,
in the exercise of our discretion, by the primary objective of Section 11, the importance of the subject matter of the
case, the issues involved and the prima facie merit of the challenged pleading.”
“However, as we have in the past, for the guidance of the Bench and Bar, strictest compliance with Section 11 of
Rule 13 is mandated one month from promulgation of this Decision.”
“WHEREFORE, the instant petition is DISMISSED considering that while the justification for the denial of the
motion to expunge the answer (with counterclaims) may not necessarily be correct, yet, for the reasons above stated,
the violation of Section 11 of Rule 13 may be condoned.”
Sec. 13. Proof of service. Proof of personal service shall consist of a written admission of the party
served, or the official return of the server, or the affidavit of the party serving, containing a full statement
of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of
an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is
made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu
thereof the unclaimed letter together with the certified or sworn copy of the notice given by the
postmaster to the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL SERVICE?
A: It is through the written admission of the party served as admitted that he had been furnished with a copy. The other
alternative is that you file the affidavit of your employee, or messenger, that he served the copy in the office of so and so.
(containing full statement of facts). Or, the official return of the server.
The procedure is that there is a pleading and in the last portion there is that part which states:
Copy received : January 16, 1998
By : (Signed) Atty. X
Counsel of Plaintiff
Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance
with Section 7.
Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?
A: If service is made by registered mail, proof shall consist of the affidavit of the mailer and the registry receipt issued
by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender. Or, in lieu thereof,
of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster – that is a
constructive service ‘no?
Now in practice among lawyers when we serve by registered mail, we only attach the original in the registry receipt and there is
a quotation there in the original pleading, “Copy sent by registered mail, this 17th day of January, 1998 to Atty. Juan dela Cruz,
counsel for the plaintiff per registry receipt no. 123 hereto attached,” and nobody complains.
But in reality, the law does not allow that. There must be an affidavit of the person who mailed it. The surrender of a registry
receipt alone is not sufficient because if you send the registry receipt, it is not reflected to whom that letter is addressed so how will
the court know that the registry receipt really corresponded to the pleading that you mailed? It might be another letter like a love
letter for your girlfriend or a letter to your creditor. The registry receipt will not indicate kung ano ang na-mailed to his address. But
we just allow it because it is too tedious – everytime you file, affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may nakalagay na “Copy sent by
registered mail” without the affidavit, outright dismissal yan for lack of proof of service. The SC and the CA are very strict
about this requirement.
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Let’s go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not received and therefore you want to
avail of the rules on constructive service – it is deemed served upon the expiration of so many days. What you will file in
court is the unclaimed letter together with a certified or sworn copy of the notice given by the postmaster to the
addressee.
Let us see what happened in the case of
JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS

201 SCRA 768 [1991]
FACTS: The CA Johnson and Johnson Philippines a decision in an envelope by registered mail. After a
while, the same envelope was returned to the CA. On the face of the envelope, it as written, “Return to Sender,
Unclaimed.” On the back of the envelope, there is an annotation “Return to CA”.
With that, the CA applied the rule on constructive service – considered the decision as already served. Johnson
and Johnson Philippines questioned it. It never received any notice from the post office. But according to the CA, it is
very obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive service?
HELD: There is NO constructive service because there is no certification by the postmaster that is
claimed. This is what the law requires not just a one sentence statement. One cannot even ascertain who
wrote the statement. Certification should include the details of delivery and not just state that notice was
issued.
“A certification from the postmaster would be the best evidence to prove that the notice has been validly
sent. The mailman may also testify that the notice was actually delivered. The postmaster should certify not
only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was
made.”
“There is nothing in the records of the present case showing how, when and to whom the delivery of the registry
notices of the subject registered mail of petitioner was made and whether said notices were received by the petitioner.
The envelope containing the unclaimed mail merely bore the notation “RETURN TO SENDER: UNCLAIMED” on the
face thereof and “Return to: Court of Appeals” at the back. The respondent court should not have relied on these
notations to support the presumption of constructive service.”
The case of JOHNSON was reiterated in

293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar Yapchiongco before the CFI. CFI dismissed the
complaint for lack of merit. CA reversed and declared Santos liable for damages.
On 15 June 1995, the decision of the CA was sent by registered mail to Santos’ counsel, Atty. Magno. On the
same day, the corresponding notice of registered mail was sent to him. The mail remained unclaimed and
consequently returned to the sender. After 3 notices, the decision was returned to the sender for the same reason.
On 27 September 1995, a notice of change of name and address of law firm was sent by Atty. Magno to CA. On
28 March 1996, the same decision of CA was sent anew by registered mail to Atty. Magno at his present address
which he finally received on 3 April 1996. On 17 April 1996, Magno withdrew his appearance as counsel for Santos.
On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos, entered his appearance and moved for
reconsideration of CA's decision of 6 June 1995. Yapchiongco opposed the motion on the ground that the period for
its filing had already expired.
HELD: “The rule on service by registered mail contemplates 2 situations: (1.) Actual service - the
completeness of which is determined upon receipt by the addressee of the registered mail; (2.) Constructive
service - the completeness of which is determined upon the expiration of 5 days from the date of first notice
of the postmaster without the addressee having claimed the registered mail.”
“For completeness of constructive service, there must be conclusive proof that Santos’s former counsel
or somebody acting on his behalf was duly notified or had actually received the notice, referring to the
postmaster's certification to that effect.”
“Here, Santos failed to present such proof before CA but only did so in the present proceedings. Clearly then,
proof should always be available to the post office not only of whether or not the notices of registered mail have been
reported delivered by the letter carrier but also of how or to whom and when such delivery has been made.”
“Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery
of registered mail, such certification should include the data not only as to whether or not the corresponding notices
were issued or sent but also as to how, when and to whom the delivery thereof was made. Accordingly, the
certification in the case at bar that the first and second notices addressed to Atty. Magno had been "issued" can
hardly suffice the requirements of equity and justice. It was incumbent upon the post office to further certify that
said notices were reportedly received.”
This last section, Section 14, has something to do with real actions, land titles – notice of lis pendens.
Sec. 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property,
the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office
of the registry of deeds of the province in which the property is situated a notice of the pendency of the
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action. Said notice shall contain the names of the parties and the object of the action or defense, and a
description of the property in that province affected thereby. Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action, and only of its pendency against the parties
designated by their real names
The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court,
after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not
necessary to protect the rights of the party who caused it to be recorded. (24a, R14)
This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do riot know why notice of lis pendens which
refers to lands, titles and deeds appears under the rules on Summons. It was misplaced so they place it under Rule 13 which is
also misplaced.
NOTICE OF LIS PENDENS – notice of pending action or litigation.
This is part of the Property Registration Law. The essence of notice of lis pendens is a notice against the whole world against
sale or mortgage of the property under litigation. And whoever deals with it is accepting the risk. Anybody who buys it is gambling
an the outcome of the case. He cannot claim he is the mortgagee or buyer in good faith because there is a notice.
I will file a case for recovery of a piece of land and the title is in your name. There is a danger that you will sell the la nd to
others who know nothing about the case. So if I win the case and try to recover it to the buyer, the buyer will say he bought the land
in good faith, “I did not know that there is a pending action concerning this land.” And under the law, he is protected because he is a
buyer in good faith and for value. This is if there is no notice of lis pendens. The other risk is that the owner of the land will
mortgage his property.
A person buying a property with a notice of lis pendens is buying it subject to the outcome of the case. So you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff. Exception:
Q: Under Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that “The plaintiff and the defendant may register when affirmative relief is claimed in this
answer.” In such case, a defendant may register and normally it is done when there is a counterclaim. The defendant is
also interposing a defense with the same property.
Take note that the action in this case affects the right of possession over real property.
Q: How is a notice of lis pendens cancelled?

A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed without the order from the court
and generally the court cannot issue the order until the case is finished or until the final issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the notice of lis pendens even when the
case is not yet terminated. One of which is contemplated under Section 14: “After proper showing that the notice is: [a] For the
purpose of molesting the adverse party; or [b] It is not necessary to protect the rights of the party who caused it to be
recorded.” In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a piece of land registered in the name and
possessed by the defendant. The case has been going on for more than 1 year, the plaintiff has been presenting
evidence he plaintiff has not yet shown that he has right over the land.
HELD: So there is no more basis of notice of lis pendens because your purpose is to harass the defendant for
over a year litigation without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is pending and unresolved,
the proper court has the authority to determine whether to cancel it under peculiar circumstances, e.g., where the
evidence so far presented by the plaintiff does not bear out the main allegations in the complaint.”
more in detail when we reach Rule 16 on Motion to Dismiss.
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Rule 14
SUMMONS
Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite
legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a)
Ano ang plural ng “summons”? Meron bang plural yan? “Summonses”? I think it is still “summons,” whether singular or plural.
The verb is, of course, to summon – tawagin mo. Summons is a noun, a legal term. But actually, there is a similarity in
meaning because you are being called to answer in a case.
Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on Criminal Procedure, when an
information is filed in court, the judge will issue a warrant of arrest. In civil cases, when a complaint is filed in court, the court will
issue what is known as a summons under Section 1.
Section 2 states the contents of a summons:

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Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under
seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that
the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so
answers, plaintiff will take judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to
the original and each copy of the summons. (3a)
Q: Define Summons.
A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the purpose of securing his
appearance therein. (Ballentine’s Law Dict., 2nd Ed., p. 1250)
Q: What is the purpose of summons?
A: The service of summons enables the court to acquire jurisdiction over the person of the defendant. (Echevarria vs. Parsons
Hardware, 51 Phil. 980)
Q: How does the court acquire jurisdiction over the person of the plaintiff?
A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing his complaint in
court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523)
Q: What is the effect if a defendant is not served with summons?
A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Bal-latan, 13 Phil. 135; De
Castro vs. Cebu Portland Cement Co., 71 Phil. 479)
Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing new summons on the
additional defendant?
A: YES. When an additional defendant is included in the action, summons must be served upon him for the purpose
of enabling the court to acquire jurisdiction over his person. The case is commenced against the additional defendant
upon the amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party (under Rule 3), his
legal representative was substituted in his place, is there a necessity of issuing new summons on the substituted defendant?
A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is only a continuation
of the personality of the original defendant. Just serve the copy of the order, where he is ordered to be substituted.
(Fetalino vs. Sanz, 44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by the plaintiff, is there a
necessity that another summons be issued and served based on the amended complaint? Or is the summons of the original
complaint sufficient?
ANS: It depends on whether the amendment was made before or after defendant’s appearance in the action:
Q: What do you mean by the phrase “appearance in the action”?
A: The best example is, whether the defendant files an answer to the complaint. Appearance in civil cases
does not mean that you are there and show your face to the judge. That is not the meaning of the word
“appearance”. Appearance means filing something in court which would show that the court has jurisdiction over
your person, like the filing of an answer. When the defendant filed an answer through his lawyer, there is now
appearance of the defendant.
a.) If the defendant has not filed answer to the original complaint there must be another summons issued on the
amended complaint. A new summons must be served all over again based on the amended complaint. (Atkins,
Kroll & Co. vs. Domingo, 44 Phil. 680)
b.) If the defendant has already filed an answer to the original complaint or he has already appeared in the action,
and after that the complaint is amended, there is no need of issuing new summons on the amended complaint.
(Ibid; Ong Peng vs. Custodio, L-14911, March 1961)
Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was served with summons on
the original complaint and before he could answer, there is now an amended complaint, so there will be new summons on the
amended complaint, what is the period to file an answer?
A: The period to file an answer is 15 days all over again. there will be another period of 15 days to file an answer to the
amended complaint upon receipt of the amended complaint and the summons.
Q: Suppose the defendant has already filed an answer to the original complaint and after that there is an amended complaint,
what must the plaintiff do?
A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a copy of the amended
complaint together with the motion to admit it. Just serve the defendant a copy of the amended complaint with a copy of the order
admitting the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the amended complaint, what is the period for the defendant to file an
answer to the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the amended complaint, but from
receipt of the order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an answer by the defendant. However, according to the SC
in the case of:
PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS

164 SCRA 623
HELD: Appearance in the action is not only limited to the filing of an answer. When defendant files a
motion for extension of time to file his answer, that is already an appearance in the action. If a defendant
files a motion for Bill Of Particulars under Rule 12, that is already considered as an appearance in the action.
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SEC. 3 By whom served – the summons may be served by the sheriff, his deputy, or other proper
court officers, or for justifiable reasons by any suitable person authorized by the court issuing the
summons (5a)
Q: Who can serve summons? Who are authorized by law to serve summons?
A: Under Section 3, the following:
1.) Sheriff;
2.) Deputy sheriff;
3.) Other proper court officer (court employees);
4.) For justifiable reasons, by any suitable person authorized by the court
NOTE: Policemen cannot validly serve summons unless authorized by court. (Sequito vs. Letrondo, L-11580, July 20, 1959)
EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I don’t think the sheriff would like to go there. But there are
people who go there, like the natives. So Barangay Captain Acelar will be asked to be deputized by the court to serve and he will
be taught how to do it. So, he will become a sort of special court officer for that purpose. But there must be a court order.
Before, there was a complaint which had to be served in Brgy. Tapak, Paquibato. Have you heard of that place? It is still part
of Davao City but I don’t think you have been there. To go there you have to pass to Panabo first. You have to get out of Davao
City and then re-enter Davao City and then up to certain point land, maglakad na ng isang araw before you can reach that place.
Mag-horse back ka. Makita mo doon mga natives. I don’t think a sheriff would bother to go there. Baka mawala pa siya. He has
not even heard of the place. So, he can recommend a barangay captain or a policeman. These are allowed during abnormal
situations.
SEQUITO vs. LETRONDO

L-11580, July 20, 1959
FACTS: The summons was served by a policeman in a remote area and the question that was asked is whether
he is authorized.
HELD: NO, he is not authorized. The policeman is not a sheriff, he is not a deputy sheriff, and he is not a
proper court officer. He belongs to the PNP. And PNP is under the executive branch and not a part of the
judiciary.
However, there is no problem if he is the only one in that area whom we can depend on. All you have to do is get a court
order deputizing the police officer. So he will fall under no. 3. But without such court order, he is not among those
mentioned in Section 3.
Q: When summons is served, lets say, by the sheriff, must it be on a weekday and not on Saturday, Sunday, or holiday, and
must be within office hours? Can you challenge the validity of the service of summons on the ground that it was not effected on a
working day or during office hours?
A: In the case of
LAUS vs. COURT OF APPEALS
214 SCRA 688
HELD: The service of summon is valid because the service of summons is MINISTERIAL. Service of
summons may be made at night as well as during the day, or even on a Sunday or holiday because of its
ministerial character.
SEC. 4 Return – When the service has been completed, the server shall, within five (5) days
therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel and shall
return the summons to the clerk who issued it, accompanied by proof of service (6a)
The person who served the summons is the sheriff or his deputy. After that, it is the duty of the sheriff to inform the court what
has happened – was he able to serve the copy of the complaint, together with the summons to the defendant? If so, on what day?
The duty of the sheriff after service of summons is that he should make a report to the court as to what happened. That is what is
called a sheriff's return. EXAMPLE: “Respectfully returned to the court with the information that defendant was personally served
with summons on this date and on this time as shown by his signature on the face of this original copy.” Or, “Respectfully returned
to the court with the information that defendant cannot be served with summons because the defendant had already moved from
the address indicated in the complaint and therefore he cannot be located.”
There must be a report because that will determine when the period to file an answer will start to run. Or, if he failed to serve it
for one reason or another, like for example, the defendant is no longer residing in that place and you cannot find him, at least you
must also return the summons to the court and make a report that you cannot serve the summon. That is what you call the
Sheriff’s Return under Section 4, Rule 14.
He must also furnish a copy of his report to the plaintiff’s lawyer so that the plaintiff’s lawyer can determine what is the deadline
for the defendant to file his answer.
SEC. 5 Issuance of Alias Summons – if a summons is returned without being served on any or all of
the defendants, the server shall also serve a copy of the return on the plaintiff’s counsel, stating the
reasons for the failure of service, within five (5) days therefrom, in such case, or if the summons has
been lost, the clerk, on demand of the plaintiff, may issue an alias summons (4a)
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Now Section 5 contains this new requirement that the serving officer shall also serve a copy of the return on the plaintiff's
counsel stating the reasons for the failure of service within 5 days therefrom. Because most sheriff, they did not tell the lawyer what
happened eh! They should tell the lawyer what happened so that if the summons was not served, the lawyer can file a motion fo r
issuance of an alias summons, like he cannot serve the summons because the defendant is not already in the address given,
lumipat na. That becomes the problem of the plaintiff and his lawyer. So that is now the requirement.
Q: What happens if the summons is returned unserved on any or all of the defendants?
A: The server shall serve also a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service
Q: For what purpose?

A: So that the plaintiff’s lawyer will have to look now for the defendant and once he finds the correct address, he has
to inform the court of the new address so that a new summons can be issued on the new address. The second summons
is what lawyers call an ALIAS SUMMONS – if the first summons was lost, upon being informed, the clerk of court will
issue another summons known as an ALIAS SUMMONS.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL DEFENDANTS:
Now let’s go to the general modes on service of summons. This is a very important portion of Rule 14.
Q: How is summons served?

A: There are three (3) modes of service of summons (on individual defendant):
1.) Section 6 – Service in person on defendant;

2.) Section 7 – Substituted service (Section 7); and
3.) Sections 14, 15, 16 – Service by publication;
First Mode: SERVICE IN PERSON (Section 6)
SEC. 6. Service in person on defendant – Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by tendering
it to him (7a)
Q: How is service in person done?

A: It is effected by (a) handing a copy thereof to the defendant in person, or (b) if he refuses to receive and sign for it, by
tendering it to him. The summons must be served in person. This is literal, ha? No substitute – to the defendant mismo. Hindi
puwedeng ibigay sa asawa, sa anak or sa kasambahay.
Q: Do you have to serve it to the defendant in his office or in his house?

A: NO. You can serve it wherever he may be found. And the law does not care where to do it.
EXAMPLE: I am the sheriff. I’m looking for you to serve summons in a case and while walking along New York Street, I saw
you inside a restaurant. I entered the restaurant and served the summons there. Then you say, “Not here. Give it to me at h ome”.
Under the law, service is in person. There is no need for me to go to your house. I can serve the summons wherever I find you.
Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but he refuses, what will I do?
A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under the law, you are served. The
court has already acquired jurisdiction over your person.
The common impression kasi of laymen na pag hindi tanggapin, walang sabit. No, that is of course false. You cannot defeat a
court process by refusing to accept it. May mga sheriff pa nga na bastos: “Dili ka magtanggap? Basta ilagay ko ito sa tabi mo, i-
report ko sa court na binigyan kita, ayaw mong tanggapin, ayaw mong mag-pirma.” And under the law, from that moment, you are
bound. So, matakot man yang defendant ba. Kunin niya yun tapos mag-consult siya ng lawyer. Then his lawyer will tell him na he
is bound despite his refusal to accept it.
Now, under the 1964 rules, this mode of service of summons was called PERSONAL SERVICE. Under the 1997 Rules, the
’personal service’ was changed to ‘SERVICE IN PERSON’. They just changed the words so that it cannot be confused with Rule
13 because in Rule 13, there is also personal service. But that is not service of summons but service of pleadings, motions, etc.
Para huwag magkagulo, the personal service was changed to service in person. Because service under Rule 13 is also personal
service to the secretary but here in Rule 14, it is literal. That is to avoid confusion. Dapat pinalitan din iyong Section 7 –substituted
service – because in Rule 13, there is also substituted service. Why did they not change to avoid confusion? Maybe they
overlooked it.
Second Mode: SUBSTITUTED SERVICE (Section 7)

What is substituted service?
SEC. 7 Substituted Service – If, for justifiable causes, the defendant cannot be served within
reasonable time as provided in the preceding section, service may be effected
(a) by leaving copies of the summons at the defendant’s residence with some person of suitable age
and discretion then residing therein, or
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(b) by leaving the copies at defendant’s office or regular place of business with some competent
person in charge thereof (8a)
If the defendant cannot be served personally or in person under Section 6, the sheriff may resort to what is known as
SUBSTITUTED SERVICE OF SUMMONS under Section 7. This time, you can course it to somebody else. The place is important
and the person to whom you will serve it.
On service in person under Section 6, it is immaterial where you find the defendant. Basta ang importante, kung saan mo siya
nahuli. For example, you want to catch him on a Sunday because he is in the cockpit, eh di i-serve sa cockpit. Basta importante, in
person! Hindi ibig sabihin pupunta ka sa bahay lang. No, dahil mahirap mahuli minsan eh.
But if you want resort to substituted service under Section 7), you better have to do it:
1.) at the defendant’s residence with some person of suitable age and discretion there residing therein. This
time, the place is important; or
2.) in his office or regular place of business with some competent person in charge thereof, like the manager or
the foreman.
So, if I cannot serve you the summons personally, I cannot find you, balik-balik ako hindi kita maabutan. Palagi kang wala sa
bahay niyo. But everytime I go there, your wife or husband is around, I can leave the summons with your wife or husband, or the
housemaid or houseboy, provided they are of suitable age and discretion. Puwede sa anak? Yes, again basta of suitable age and
discretion. Ang sheriff kailangang tantiyahin din niya. Ito bang anak may buot na ni or wala pa?
SEQUIOTO vs. LETRONDO

L-11580, July 20, 1959
FACTS: Summons was served by the sheriff on the defendant’s daughter, a 12-year old and a grade four pupil.
The child threw the summons away. The father did not receive the summons, and he was declared in default.
HELD: The service of summons is void because defendant’s daughter, under the circumstances, is not a person
of suitable discretion.
Q: Suppose, the sheriff goes to the defendant’s house and says, “Is this the residence of Mr. Juan dela Cruz?” “Yes.” “Is he
around?” “No, he left for work, but he will be back 5 hours from now.” The sheriff left the summons to the wife, sufficient of age and
discretion. In other words, the sheriff resorted to substituted service of summons under Section 7. Is there a valid substituted
service of summons? Can a sheriff resort to Section 7 (substituted service) immediately?
A: NO. Section 7 cannot be applied unless you attempt Section 6 (Service in person). The sheriff has to try several
times to reach the defendant in person. Sheriff is not allowed to resort to substituted service without attempting service in
person several times.
The law is very clear – “if for the justifiable causes, the defendant cannot be served within a reasonable time…” So, that is the
condition.
Q: So what is the condition?

A: Substituted service of summons can only be applied by the sheriff if there is failure of personal service within
reasonable time for justifiable causes [under Rule 14, Section 7]. So is the wife says, “come back tomorrow,” so you have
to come back tomorrow and you cannot yet serve substituted service of summons.
Q: But suppose, the sheriff has gone to your house 5 times, everytime he goes there you are not around, is substituted service
of summons allowed?
A: YES. I will now serve it on you (through your wife) and that is valid. The law prefers service in person than substituted.
Substituted service according to SC, should only be resorted to if there is failure of personal service within reasonable time for
justifiable causes. (Mapa vs. CA, 214 SCRA 417)
MAPA vs. COURT OF APPEALS

214 SCRA 417
HELD: If a sheriff resorts to substituted service under Section 7 and when he makes his return, his return must
specify that “I have tried many times to resort to personal service, but he cannot do it”. He must outline his efforts to
apply Section 6, otherwise the return is defective.
“Impossibility of prompt service should be shown by stating the efforts failed. This statement should be made in
the proof of service. This is necessary because substituted service is in derogation of the usual method of service.”
Now, of course, if I tried several times to serve you personally but I failed, and then I make a return but I did not explain, there
is still a valid service but you must explain in court. There is a presumption that you did not exert efforts. To make it a complete
return, you must outline several attempts to make personal service.
[Substituted service of summons may still be considered as VALID even if the sheriff failed to state in his return of the
facts of the impossibility of prompt service if the server subsequently explains in court, by giving testimony, the facts why
he resorted to a substituted service. The plaintiff should not be made to suffer for the lapses committed by an officer of
the court]
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TOYOTA CUBAO INC. vs. COURT OF APPEALS
October 23, 1997
HELD: “A law prescribing the manner in which the service of summons should be effected is jurisdictional in
character and its proper observance is what dictates the court’s ability to take cognizance of the litigation before it.
Compliance therewith must appear affirmatively in the return. It must so be as substitute service is a mode that
departs or deviates from the standard rule. Substitute service must be used only in the way prescribed, and under
circumstances authorized by law.”
DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]

AND SERVICE OF SUMMONS [RULE 14]
Now, do not confuse substituted service of summons under Rule 14 with substituted service of pleadings, orders and other
papers under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service of the papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having
charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by
leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a)
FIRST DISTINCTION: In Rule 13, that is known as personal service. In Rule 14, that is known as substituted service. Service
of summons is governed by a different rule (Rule 14) from service of pleadings, judgments and other papers (Rule 13).
Now, what is substituted service in Rule 13? Let us go back to Section 8, Rule 13.
Rule 13, SEC. 8. Substituted service. - If service of pleadings, motions, notices, resolutions, orders and
other papers cannot be made under the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by delivering the copy to the clerk of court,
with proof of failure of both personal service and service by mail. The service is complete at the time of
such delivery. (6a)
SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in person, then you serve
the summons at the residence of the defendant with some person of suitable age and discretion residing therein or by leaving
copies at the defendant’s office or regular place of business with some competent person in charge thereof. That is substituted
service of summons under Rule 14.
But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or service by registered mail
have failed, then serve it on the clerk of court. And that is known as substituted service.
In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons be served to a
defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who will serve the summons to the defendant
in Manila.
So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because of the similarity of terms.
Substituted service of summons in Rule 14 is different from substituted service of pleadings, judgments and other papers in Rule
13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16)
SERVICE BY PUBLICATION UNDER SECTION 14

(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final orders or resolutions. - Judgments, final orders or
resolutions shall be served either personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final orders or resolutions against him shall be
served upon him also by publication at the expense of the prevailing party. (7a)
Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning the defendant failed to file
an answer, the decision can also be served upon him by publication.
Q: What are the instances where a defendant may be served with summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or whereabouts are unknown. That is what you call suing
an unknown defendant. Or, the defendant is known pero hindi na makita. He may be in Davao, Cebu or in Manila. Bali-
balita lang. But definitely, he is in the Philippines. That is the important condition. So, let us read Section 14:
Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the
defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by
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publication in a newspaper of general circulation and in such places and for such time as the court may
order. (16a)
Under this provision, service of summons is allowed:
1.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 – when you file a case
against an unknown defendant is allowed. But of course, he is unknown, you have no idea where he is staying; and
2.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by diligent inquiry.
EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not know where he moved.
Maybe you have been receiving reports that he is in Manila or Cebu but the exact address is unknown and you want to sue him.
Q: In the above case, is the plaintiff authorized to have the summons effected by publication?
A: Take note that to avail of summons by publication, there must be leave of court. You must file a motion, under
Rule 14, for permission to have defendant summoned by publication and the court will issue an order allowing the
defendant be served with summons by publication where the complaint and the summons be ordered published. The
service may be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the
court may order.
“Of general circulation and in such places and for such time as the court may order.” Hindi naman kailangan sa Daily Inquirer.
Puwede man sa local paper, ba. For example, sabihin mo: “We learned that he is in Cebu pero saan sa Cebu, we do not know.”
The court may order the publication to be published in a local newspaper of general circulation in Cebu. Of course, kasama diyan
ang complaint. How many times? Bahala na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the
presumption is mabasa yan ng defendant or at least somebody who must have read it will inform the defendant. So, the law
requires that you must file a motion and ask the court to allow service of summons by publication.
Now, one thing that you have to remember is, the whereabouts of the defendant is unknown, but he is in the
Philippines. That is the condition. If he is in the United States, this will not apply. What is contemplated by Section 14 is
that the address of the defendant is unknown but it is positive that he is in the Philippines.
ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just disappeared and the last time you
heard, he is residing somewhere in General Santos City. So you wanted to sue by having the summons under Section 14 because
his exact whereabouts is unknown. So you file a motion for leave to serve summons by publication under this rule. The question is,
should the court allow it? Of course the tendency is to say “yes” because his whereabouts is unknown and cannot be ascertained
by diligent inquiry.
Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be located anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in personam, can the plaintiff resort
to service summons by publication?
A: In the cases of
FONTANILLA vs. DOMINGUEZ
73 Phil. 579
HELD: In this case, SC said service of summons is possible even if the action is in personam because service by
publication when the whereabouts of the defendant is unknown is allowed whether the case is in personam or in rem.
It is proper in all actions without distinction provided, the defendant is residing in the Philippines but his identity is
unknown or his address cannot be ascertained.
So if we will follow this case what will be our answer? YES, because it is allowed in any action without distinction.
PANTALEON vs. ASUNCION

105 Phil 755
HELD: NO, because service of summons by publication under this section is allowed only where the
action is in rem or quasi in rem, not in personam. In order to bind the defendant there must be service of
summons on him. Personal, he must know. But in actions in rem quasi in rem, pwede.
“It is a well settled rule in constitutional law that an action in personam, personal service of summons within the
Philippines (forum) is essential in the acquisition of jurisdiction over the person of the defendant who does not
voluntarily submit himself to the authority of the court.”
In other words, summons by publication is not consistent with the due process clause of the bill of rights because it
confers court jurisdiction over said defendant who is not in the Philippines. So service of summons by publication of the
defendant who cannot be found in the Philippines will be violative of the due process clause that he must be informed
personally. He must be given a chance under due process – to be deprived of his property with due process of law. So if we will
follow the ruling in this case, the answer would be NO because the action is in personam (collection case). So nag-conflict na.
CITIZEN’S INSURANCE SURETY vs. MELENCIO-HERRERA

38 SCRA 369
ISSUE: What is the remedy if you are a creditor and you want to sue your debtor and serve summons by
publication but you cannot do it because your case is in personam?
HELD: (Reiterates Pantaleon vs. Asuncion) You convert your case from in personam to in rem or quasi in rem.
How? If you cannot find the defendant but he has properties left, you can have that properties attached under Rule
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57, Section 1 so that you can acquire a lien over said properties. Now that it is attached, civil action is converted from
in personam to quasi in rem because you already acquire a lien over the property so it is quasi in rem. You can now
ask the court to effect summons by publication..
“The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or
personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule
57, Sec. l(f), in which case, the enactment converts the action into a proceeding in rem or quasi in rem and
the summons by publication may then accordingly be deemed valid and effective.” So kahit isang bisekleta
para lang ma-convert ang action.
MAGDALENA ESTATE INC. vs. NIETO

125 SCRA 758
SC traced the history of this question…we reiterate CITIZEN and PANTALEON, the action must be in rem or
quasi in rem. [That is why just read this case because it is a complete summary of what the SC said earlier. And of
course after it, from time to time, this issue re-surfaces.]
CONSOLIDATED PLYWOOD vs. BREVA

166 SCRA 589 (Davao case)
HELD: Judge Breva fell into the error of allowing service of summons by publication by allowing it in an ordinary
collection case. SC said you cannot do that, the action must be in rem or quasi in rem. Therefore the default
judgment was rendered null and void because of lack of proper service of summons to the defendant.
Q: What is the important doctrine based from the foregoing cases?

A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem. If the action is in
personam, like of collection of a sum of money, service of summons by publication to the defendant is improper. The
action should be action in rem or quasi in rem.
Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find the defendant and you
want to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any property of the said
defendant and have it attached under Rule 57 [i], the last ground for attachment. Now, your action is converted to quasi in rem. You
can now file a motion for service of summons by publication. (Pantaleon vs. Asuncion, 105 Phil. 765; Citizen’s Surety & Insurance
Co., vs. Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166
SCRA 589)
In all these cases, the SC ruled that to validly serve summons by publication on a defendant who is in the Philippines
but whose name is not known or whereabouts is not known, the action must be in rem or quasi in rem.
But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine. Why? You read the opening
of Section 14: “In any action…” you notice, “in any action where the defendant is designated as an unknown… ” You look at the old
rules. Can you find the phrase “in any action”? You look and compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 “Whenever the defendant is designated as an unknown owner, or the
like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court be effected upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order.”
In other words, there is a case and the defendant is unknown, but what kind of cases? It is not stated there (Section 16, old
rules). Kaya nga, it was clarified in the cases of MAGDALENA ESTATE, PANTALEON, etc. that the action must be in rem or quasi
in rem.
But look at the new rule on Section 14 – “in any action.” What does that mean – na puwede na ang action in personam? Is the
intention of this clause to abrogate the previous ruling in PANTALEON, MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If
that is the intention, we are going back to the original ruling laid down in the earlier case of FONTANILLA vs. DOMINGUEZ which
preceded all the other cases.
In the FONTANILLA case, the SC said that service of summons by publication is proper in all actions without distinctions
provided the defendant is residing in the Philippines but he is unknown or his address cannot be ascertained. But the FONTANILLA
ruling was abrogated by PANTALEON vs. ASUNCION, CITIZEN’S SURETY, MAGDALENA ESTATE cases. That is why to me, this
is a very controversial issue whether Section 14 of Rule 14 applies only to cases in rem or quasi in rem in these decisions or it is
now obsolete, or it is now applicable whether in personam or in rem or quasi in rem.
Actually, I asked that question in remedial law review. I don’t care how they answered it. I just want to find out if they can detect
the amendment ba. Pagsabi nila it is only applicable in rem, OK, tama ka. Pagsinabi nila “in any action,” OK, tama ka rin. Some
even said, based on decided cases but there is an amendment in the law, in other words nakita niya. But 70% did not say the
issue. Kung ano-anu ang sinagot! 30% saw the point. Some answered based on MAGDALENA, some on FONTANILLA by saying
with the amendment, the ruling in MAGDALENA is wala na yan. To my mind, either way, I will take it as a completely correct
answer because it is not pointed out what is the really correct answer.
So I was wondering what is the meaning of this – “in any action” – whether there is an intent to return to the old rule and cancel
the rulings in MAGDALENA. To me, this is a question mark. Even Justice Jose Feria, in his note, cannot answer it. Sabi niya, “in
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any action but there is a case, decided in MAGDALENA...” He is the author, one of the authors, but he cannot explain the intention.
Sabi niya: “the SC earlier ruled…” I asked, “but why did you insert that?” Kaya to my mind, it is still a question mark. Maybe it is just
an inadvertent amendment without any intention to abrogate the ruling in MAGDALENA, PANTALEON, etc. But maybe that is the
intention.
So, let us wait for the proper case at the right time to find what is the intention of the phrase “in any action.”
BALTAZAR vs. COURT OF APPEALS

December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation was sued. Sheriff went to the address of the corporation
but the corporation was no longer there. It moved to another place. Subsequently, the sheriff returned the summons
to the court. Plaintiff Baltazar filed a motion for leave to serve the summons and a copy of the complaint upon
defendant Good Earth by publication
ISSUE: Can there be a proper service by publication in this case?
HELD: NO. Service by Publication (Section 14) will not apply because there was no diligent inquiry made
by the sheriff.
“Under Section 14, therefore, petitioner must show that the address of Good Earth was ‘unknown’ and that such
address could not be ascertained by diligent inquiry. More importantly, We do not believe that the acts of the sheriff
satisfied the standard of ‘diligent inquiry’ established by Section 14 of Rule 14. The sheriff should have known what
every law school student knows, that Good Earth being a domestic corporation must have been registered with the
Securities and Exchange Commission and that the SEC records would, therefore, reveal not just the correct address
of the corporate headquarters of Good Earth but also the addresses of its directors and other officers.”
SERVICE BY PUBLICATION UNDER SECTION 15

(Extraterritorial Service)
When the defendant is not residing in the Philippines and he is not physically around he must be served with summons even if
he is abroad and that is what is called extraterritorial service. We go back to the basic question:
Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not around physically?
A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person EXCEPT when action
is in rem or quasi in rem, like when the action is the personal status of the plaintiff who is in the Philippines or the
properties of the defendant are in the Philippines. And the venue is where the plaintiff resides or where the property is
situated. That is found in Section 3, Rule 4:
Rule 4, SEC. 3. Venue of actions against nonresidents – If any of the defendants do not reside and is not
found in the Philippines, and the action affects the personal status of the plaintiff or any property of said
defendant located in the Philippines, the action may be commenced and tried in the court of the place where
the plaintiff resides, or where the property or any portion thereof is situated or found.
Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule 4, how will you serve
summons?
A: This is answered by Section 15:
Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which
is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by
publication in a newspaper of general circulation in such places and for such time as the court may
order, in which case a copy of the summons and order of the court shall be sent by registered mail to the
last known address of the defendant, or in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer. (17a)
Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not found in the Philippines?
The other way of asking is, when may a defendant be sued and served with summons by extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and is not found in the
Philippines may be sued and summons served by extraterritorial service, provided the case is in rem or quasi in rem:
1.) the action affects the personal status of the plaintiff;
EXAMPLE: A child left behind files a case against his father for compulsory recognition or acknowledgement at least
to improve his status because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which is, property within the Philippines, in which the defendant has
or claims a lien or interest, actual or contingent;
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3.) when the action relates to or the subject of which is, property within the Philippines in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest therein; or
4.) When the property of the defendant has been attached within the Philippines – that is the MAGDALENA case.
NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be filed against a non-
resident defendant. That is the similarity between Section 14 and 15 on the assumption of the ruling in the MAGDALENA is still
intact. Even if the defendant is not in the Philippines, the action must be in rem or quasi in rem. That is their similarity – the action
must be classified as in rem or quasi in rem. That is if we follow the MAGDALENA ESTATE ruling.
Q: What is the difference between Section 14 and Section 15?

A: The difference between Section 14 and 15 is that in Section 14, the defendant is in the country but his exact
whereabouts is unknown, whereas in Section 15, he is really out of the country and is no longer residing here.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect. 15?

A: Service may, with leave of court, be effected in the Philippines:
a.) By personal service under Section 6;

b.) by publication in a newspaper of general circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court shall be sent by registered mail to the last
known address of the defendant; or
c.) In any other manner the court may deem sufficient. (Carriaga vs. Malaya, 143 SCRA 441)
a.) modes of extraterritorial service; PERSONAL SERVICE
c.f. Section 6 Rule 14 – Sheriff, deputy sheriff, officer of the court, other persons authorized by court with valid order. The court
will order that he will be served with summons just like in Section 6. Paano? We will ask the court to allow summons to be served
outside the Philippines by personal service by sending the sheriff to America. Bigyan siya ng visa, round trip ticket with pocket
money. That is personal service. But that is very expensive. That could be done pero impractical.
Or, I would like to sue a defendant who is there. I have a friend who is a balikbayan and he knows where that defendant is
residing. So I will ask the court that the defendant who is residing in California be served with summons personally through this
person. As if he is deputized or he can send the summons to the Philippine embassy with a request for an employee of the
embassy to serve the summons personally.
b.) modes of extraterritorial service; BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN SUCH

PLACES AND FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A COPY OF THE SUMMONS AND ORDER
OF THE COURT SHALL BE SENT BY REGISTERED MAIL TO THE LAST KNOWN ADDRESS OF THE DEFENDANT
The second manner is by publication which is similar to Section 14. The court will order the summons and complaint to be
published in a newspaper of general circulation in such places and for such time as the court may order. In which case a copy of
the summons and order of the court shall be sent by registered mail to the last known address of the defendant.
So, aside from publication, another copy will be sent by registered mail to his last known address. So, meron ng publication,
meron pang registered mailing of copy of the summons.
SAHAGUN vs. COURT OF APPEALS

198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an action in rem. By leave of court, summons was
served through publication by ordering to be published for 3 weeks in the Philippine Daily Inquirer. Another copy will
be sent to his last address. Here defendant questioned the publication. According to him, publication should be in a
newspaper in LA, not the Philippines. How can I be expected to read it when it is published in the Philippines, nobody
will bring it to my attention. But if it is published here, the probability that I read it is stronger or my neighbor will bring
it to my attention.
ISSUE #1: Is the contention of the defendant correct?

HELD: NO, he is wrong because nothing in the law requires the publication to be in a foreign newspaper. What
is says is a newspaper of general circulation in such places and for such time as the court may order. Well, if the
court will order that it should be published in a newspaper in LA, puwede rin. If it orders that it should be in a local
newspaper, puwede rin because the law does not say ‘only such places’.
ISSUE #2: What would happen if we will follow the argument of the defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we will require courts to order the publication in a foreign
newspaper, then we will require the court to have a list of all the newspaper in LA and our courts will be required to
know the rules and rates of publication in LA and suppose the same thing happens to a defendant in San Francisco,
the courts are required to have a list, rules and rates of publication in said place. And you can imagine if we have to
do that in every city in every country in the world. Naloko na. Imagine the trouble? It is requiring the court too much.
“In fine, while there is no prohibition against availing of a foreign newspaper in extraterritorial service of
summons, neither should such publication in a local newspaper of general circulation be altogether interdicted since,
after all, the rule specifically authorizes the same to be made in such places and for such time as the court concerned
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may order. If the trial court should be required to resort to publication in a foreign newspaper it must have at hand not
only the name and availability of such newspaper or periodical. we can very well anticipate the plethora of problems
that would arise if the same question on nonresident defendants is replicated in the other countries of the world.”
ISSUE #3: Is extraterritorial service of summons under Section 15 a mode of acquiring jurisdiction over the
person of the defendant?
HELD: NO, even if you will publish the summons a hundred times in a newspaper, still the Philippine
court will not acquire jurisdiction over the person of the defendant because it is simply out of the country.
Even if he is served with summons, our processes have no effect outside Philippine territory.
Actually, there is no need to acquire jurisdiction over the person of the defendant. What is important is
that res is in the country so we can enforce the judgment so that ownership may be transferred to plaintiff.
So, hindi kailangan ang jurisdiction over his person.
ISSUE #4: What is then the purpose of the requirement of publication? Why will I be required to publish but just
the same the court will not acquire jurisdiction over his person?
HELD: The purpose of publication is to comply with the requirement of due process. He should be
informed before he loses his property. Remember that he has properties in the Philippines which you can want to take
away form him. Remember the principle that if there is no way for the court to acquire jurisdiction over the person of
the defendant, the substitute is jurisdiction over the res, and the res is property here. So, the judgment will not be
useless and it can be enforced. But at least, the owner who is abroad should be informed about it.
“Service of summons on a nonresident defendant who is not found in the country is required, not for purposes of
physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he
may be informed of the pendency of the action against him and the possibility that property in the Philippines
belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may
thereby be accorded an opportunity to defend in the action, if he be so minded. The only relief that may be granted in
such an action against such a nonresident defendant, who does not choose to submit himself to the jurisdiction of the
Philippine court, is limited to the res.”
That is why also in the case of SAHAGUN, the SC emphasized that if the summons is served by publication, any judgment that
the court can render is only good for the res. But if he submits now to the jurisdiction of the court by filing an answer or by hiring a
lawyer in the country, the court can now render also a judgment in personam against him. But if he will not submit, ok lang because
anyway, the res is here. [bahala siya… kung san siya masaya, ti suportahan ta!]
EXAMPLE: I will file a case against a non-resident defendant for recovery of a piece of land and damages. Well, the
claim for recovery of land is in rem. The claim for damages is in personam. He is summoned by publication and based on
the SAHAGUN ruling, the court can only render judgment insofar as the land is concerned. It cannot render judgment on
the damages because that is in personam. But if he files an answer, he is now submitting his person to the jurisdiction of
the court. There could now be a valid judgment not only on the res but also on the damages. That was the explanation in
the case of SAHAGUN.
The relief is limited to the res so there could be no relief for damages unless he voluntarily submits himself to the jurisdiction of
the court.
c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY DEEM SUFFICIENT
That is a very general term. A good example of that was what happened in the case of
CARRIAGA, JR. vs. MALAYA

143 SCRA 441
FACTS: Plaintiff files a case against his father in the US who has no intention of coming back in the Philippines,
for compulsory acknowledgement or recognition as an illegitimate child. And he is suing as an indigent litigant. My
golly! How can you ask him to resort to publication? He cannot even pay the filing fee!
Suppose the court will say, “Do you know the address of your father in the U.S.?” Plaintiff, “Yes, and I even know
the zip code.” Judge, “If we will mail the complaint and the summons by registered mail in the post office, that will cost
you P15 to P30. Kaya mo ba?” Plaintiff, “Siguro. I will raise that amount.”
That is what happened in the case of MALAYA. They mailed the summons abroad and the defendant received it.
The defendant questioned.
ISSUE: Is there a valid service of summons under Section 15 through registered mail?
HELD: YES. It would fall under “In any other manner the court may deem sufficient.” And that is what exactly
happened in this case at bar where the court allowed the service of summons abroad by a registered mail. Of course,
the defendant received the letter but still challenged the jurisdiction of the court, the manner of service of summons on
the ground that it is not by personal service or publication but by registered mail.
And since the defendant has received the summons, due process has been served and the case can now
proceed.
So in other words, it is very queer. The SC said extraterritorial service of summons by registered mail may fall under the
third mode of service under Section 17 (now, Section 15) “In any other manner the court may deem sufficient.” There is no
denial of due process to be informed because you were informed so you cannot resort to technicality.
Q: Is there such a thing as service of summons by registered mail under Rule 14?
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A: NONE. Only personal service or by publication. Unlike in Rule 13, when you serve and file a pleading there is such
a thing as service by registered mail.
Q: But how come in MALAYA case it is allowed?

A: Because it was considered as falling under the general phrase, “In any other manner the court may deem sufficient” not
because it is allowed but the court considered it as deemed covered under the phrase.
Q: If the court allows service of summons abroad, then what is the period to file an answer?
A: The non-resident is given not less than 60 days to file an answer. It is given a longer period in order to give him more
time. This is related with Section 1 rule 11: “The defendant shall file his answer to the complaint within 15 days after service of
summons, UNLESS a different period is fixed by the court.”
And take note that under Section 17, there must be a motion to effect service of summons by publication.
Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any
manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit
of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19)
He must file a motion under Section 17 to effect service of summons by publication. The court will then issue an order.
Now in 1996, there was a case decided by the SC on the extraterritorial service of summons. The case of
VALMONTE vs. COURT OF APPEALS

252 SCRA 92 [1996] J. Mendoza
FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is residing abroad. Her
husband, Alfredo Valmonte, who is also her attorney, has a law office in the Philippines. He is Atty. Valmonte – yung
mga Valmonte sa checkpoint cases in Constitutional law. He is an activist-lawyer. So, his wife is residing abroad but
he is here, because he is practicing in the Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for partition of real property. You know that you have to
implead all the co-owners. The summons intended for Lourdes was served on her husband in the latter’s law office
because anyway, the husband is here.
ISSUE : Was there a valid service of summons on Lourdes Valmonte?
HELD: There is NONE. There was no valid service of summons.
REASON #1: First of all, the case at bar is an action for partition and accounting under Rule 69. So, it is an action
quasi in rem. Since this is an action quasi in rem and Lourdes Valmonte is a non-resident who is not found in the
Philippines, summons on her must be in accordance with Rule 14, Section 15. So you must follow the modes of
service under Section 15 because the action is quasi in rem.
In this case, the service of summons was not effected personally because it was served on the husband. There
was also no publication. The only possibility is the third one, “in any other manner the court may deem sufficient.”
But the third mode applies only when you are serving the summons abroad. You cannot apply this when you are
serving the summons in the Philippines. So it does not also fall under the third mode. This mode of service, like the
first two, must be made outside of the Philippines such as through the Philippine Embassy in the foreign country
where the defendant resides.
REASON #2: Under Section 17, leave of court is required when serving summons by publication. There must be
a motion where the court will direct that the summons be served in that manner.
In this case, was there any motion filed here? Wala man ba. Was there any order of the court authorizing it?
Wala rin. So it does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when the defendant is a non-resident and being served
abroad under Section 15, the law guarantees a minimum of sixty (60) days to answer the complaint pursuant to
Section 15.
And here, she was only given fifteen (15) days to file the answer. Therefore, there was an erroneous computation
of the period to answer.
“Finally, and most importantly, because there was no order granting such leave, Lourdes Valmonte was not
given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. It
must be noted that the period to file an Answer in an action against a resident defendant differs from the period given
in an action filed against a nonresident defendant who is not found in the Philippines. In the former, the period is
fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.”
So those are the three main reasons cited by the SC on why there was improper service of summons on Lourdes Valmonte
under the rules.
SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a
defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by
leave of court, be also effected out of the Philippines, as under the preceding section. (18a)
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Q: What is the main difference between defendant in Section 15 and in Section 16?
A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section 16 defendant is residing
in the Philippines but temporarily out of the Philippines.
EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily out of the Philippines. I
can sue her but it will take months before she come back. The problem is, your action will already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in Section 15 – through personal service, by publication,
and in any other manner the court may deem sufficient. So one option is to wait for him to come back and then serve the
summons personally.
One of the leading case on this type of defendant was in the old case of:
MONTALBAN vs. MAXIMO

22 SCRA 1070
FACTS: In this case, the defendant is residing in the Philippines but on a world tour and he will be out for so
many months. Naga-tour ba! It was at that time when the summons was served in his residence. Well of course, he is
not there. But there was somebody left in the house. So, the sheriff said, “Who are you?” And the person said that he
is the one in charge here. “When is your boss coming back?” Mga four or five months pa.
So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to substituted service
under Section 7. And there was a default judgment. Pagbalik ng tao, defaulted na siya, meron ng execution. So he
questioned the service of summons because under Section 16, in relation to Section 15, summons must be served
with leave of court by personal, publication or in any other manner.
ISSUE #1: Can substituted service of summons be applied to a defendant who is residing in the Philippines but
temporarily out?
HELD: YES. Substituted service is also applicable. Unlike Section 15 where the defendant has no
residence here, you have a residence man. The sheriff resorted to substituted service by leaving it to the
person in charge, a person of sufficient age and discretion because for justifiable reasons, substituted
service is also applicable even if the defendant is outside of the Philippines.
It is true that personal service of summons is preferred. But if the personal service cannot be effected
within a reasonable time, the sheriff can resort to substituted service. And in your case, the sheriff cannot
serve personally because you will be out of the country for the next four or five months. So the sheriff has to
resort to substituted service.
ISSUE #2: Second, sabi niya, “Equity na lang. That is unfair, eh, because I really had no knowledge about the
case. I failed to answer because you see, during the five months when I was abroad, I never had the opportunity to
call up the one I left behind. So there was no opportunity for me to ask him what has been happening there. He has
also no opportunity to tell me about what happened because he does not know where I was. So I only learned about it
after five months. So in the name of equity please set aside the judgment.”
HELD: In the name of equity, we will not set aside the judgment. You did not even bother to call and tell the
person left where you were. When you called up perhaps the person left could notify you about the summons. You
are very irresponsible! What kind of a person are you? You will leave for abroad and you will not even bother to call
up to find out what is going on. So, wala!
So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant doesn’t prevent the
application of Section 7 in addition to Section 15. Summons can be served abroad just like in Section 15 but it does not mean to
say that you cannot apply Section 7 because anyway it does not say MUST, it uses MAY.
And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely an action for damages.
So in Section 16, when residents are temporarily outside of the Philippines, there could be also substituted service of
summons in addition to Section 15 and the action could be in personam as distinguished from Sections 14 and 15 where
the action must be in rem or quasi in rem.
So the action in Section 16 need not be an action in rem or quasi in rem because he is actually residing in the Philippines and
only temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL PERSONALITY
Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without
juridical personality are sued under the name by which they are generally or commonly known, service
may be effected upon all the defendants by serving upon any one of them, or upon the person in charge
of the office or place of business maintained in such name. But such service shall not bind individually
any person whose connection with the entity has, upon due notice, been severed before the action was
brought. (9a)
Section 8 is related to Rule 3, Section 15:
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Rule 3, Sec. 15. Entity without juridical personality as defendant. When two or more persons not
organized as an entity with juridical personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity
must all be revealed. (15a)
Q: Since you can sue someone without juridical personality, how do serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any of those defendants is
service for the entire entity already. You may also serve summons upon the person in charge of the office of the place of bus iness.
He may not necessarily be the owner but in-charge of the office, he can be served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER
Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution,
service shall be effected upon him by the officer having the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose. (12a)
Q: How do you serve summons to somebody who is a prisoner?

A: Under Section 9, summons shall be served through the person in-charge of the jail like the jail warden. The jail warden
is automatically considered as deputized to serve it to the prisoner. It is not necessary for the court officer to go into the jail and
look for the prisoner.
3.) SERVICE OF SUMMONS UPON MINORS AND INCOMPETENTS
Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an
incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if
none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff.
In the case of a minor, service may also be made on his father or mother. (10a, 11a)
Relate this to Rule 3, Section 3 on Representatives as Parties – trustee of a trust, guardian, administrator, etc.
Q: When you sue a minor or an insane, how is summons served?

A: You serve the summons to the father or mother in the case of minor. For a legal guardian, in the case of
incompetent people or to the minor himself.
Q: The law says that “service shall be made upon him (the minor) personally” when he may not understand what it is all
about? Baka itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE JURIDICAL ENTITY.
Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership
or association organized under the laws of the Philippines with a juridical personality, service may be
made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house
counsel. (13a) PMGCTI
What do you mean by domestic? A corporation or association organized under Philippine laws.
Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like banks – BPI, Security Bank
- they can be sued because they are persons in the eyes of the law.
Now, how do you serve summons to a corporation? Actually, they have no physical existence, they only exist by legal friction.
Ordinarily summons must be served to a human being, to somebody who is supposed to be the representatives. Therefore,
common sense will tell that in case of a corporation, you have to serve the summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?

A: In the case of a corporation, summons is served upon its officers.
Q: Who are these officers?

A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply “manager.” Now they added the word “general.” But
even in the old law, the word “manager” is interpreted as general manager. In a corporation, there are so many managers like
branch managers. General manager is the over-all manager of the corporation throughout the Philippines. He is usually based in
the head office.
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CORPORATE SECRETARY. The prior law only used the word “secretary” but it has been interpreted as corporate secretary,
not the typist secretary. The corporate secretary is the custodian of the records of the corporation. He is also a stockholder,
because you cannot be a corporate secretary unless you are a stockholder. The new law has already emphasized ‘corporate
secretary.’ Before illiterate sheriffs used to serve summons on secretary-typist.
TREASURER. The prior law says “cashier” now they have changed the word to ‘treasurer.’ It is because treasurer is actually
an officer also. He is just like a budget secretary of the government. Cashiers are ordinary employees which is more on clerical
works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the corporation. He takes care of the
legal problems. In Manila, for instance, most of the corporations there have in-house counsels. Not so much here in Davao. Like
Ayala Corporation in Manila, they have internal legal counsel more or less 10 while Bank of Philippine Island has around 15. But
these corporations hire lawyers from the outside when it comes to sensitive cases. They are referred as external legal counsel.
The rule that summons may be served on internal legal counsel, although appearing for the first time in the 1997 rules, is
actually an old rule. It has been ruled already in some cases that service of summons upon an in-house counsel of a corporation is
valid. It binds the corporation under the ruling in the case of PHILIPPINE OIL MKTG. CORP. vs. MARINE DEV’T CORP. (117
SCRA 879) and FAR CORPORATION vs. FRANCISCO(145 SCRA 197) that the in-house counsel if served with summons, there
is a valid service, because anyway, if you serve it to the general manager or the President, chances are it will also be referred to
him kay siya man ang abogado. So the in-house counsel is new and it confirms what the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the summons on any of the directors of the corporation –
MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the Board here is the Corporate Secretary. So,
the directors, hindi na puwede.
But here is the most radical change. The word ‘AGENT,’ nawala na! Did you notice under the old law, there is agent. The word
agent was so broad and so general that the SC has actually included there so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons was served to the
Operations Manager of the corporation and the SC said the service was valid because he is considered as an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant General Manager of
the corporation and the SC said that the service was valid because he is an agent.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on the Chief of Finance and
Administrative Section of the corporation and the SC said that he will fall under the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs. BUENCAMINO (124 SCRA 434)
the service of summon an employee employed in a corporation does not bind the corporation because an ordinary employee who is
not an officer is not considered as agent.
However, there are cases were the service of summons to an ordinary employee who is not an officer was valid. Among which
are:
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served on the confidential
secretary of the President and the SC said the service is valid. She is qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of GOLDEN FARMS vs. SUN
BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was served on a mere clerk of the corporation. So, he is
not even an officer. But the clerk gave it to the President. The SC said that the defect is cured. The clerk could be considered as an
agent. The need for speedy justice must prevail over technicality. So, the word ‘agent’ has become very broad and it practically
covers all corporate officers who are presumed to be responsible.
Now, in the 1997 rules, the word ‘agent’ disappeared. And the law is very clear: President, managing partner, general
manager, corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there is no valid service of
summons. OK, it is void. But look at the case of GESULGON, etc. But that is under the 1964 rules when you are deemed to be an
agent. But now, it is very specific. The intention of the new rules is to limit the service to anyone of these. That is why they removed
the word ‘agent.’
And if that interpretation prevails that the intention of the rules is to limit to these people, it is now very difficult to sue a
corporation based in Makati if you are here in Davao because your summons has to be coursed through them. And these people
are not here! The President is not here; The General Manager, etc. They are all based in the head office. Corporate Secretary,
treasure, in-house counsel – Doon man ang opisina nila ba. The ones based here are branch managers and they are now
disqualified. If that is the intention of the law, my golly! That is another headache!
It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should not give way.
Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano pa ngayon ang reklano
ninyo? Anyway you already acquired it, you learned about it. Can you insist that the court has no jurisdiction when actually you are
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well aware already of the suit? You can say, let us go to reality. But it can also be argued under the old law. Precisely, if the
intention is to make everybody a responsible officer, then the word ‘agent’ should have been retained. The intention of the law is to
limit only to these people. So, both sides can be defended.
Section 11 thus becomes another controversial provision. Whether this change has abrogated GESULGON, FAR EAST
CORP., SUMMIT TRADING na pwede. All those doctrines have now been rendered obsolete because of this change. All those
cases were decided based on the word ‘agent’ – are they agents? At least there is basis, eh. Now, the word ‘agent’ is no longer
there. That is why this is a controversial provision.
E.B. VILLAROSA LTD vs. BENITO

312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at 102 Juan Luna St.,
Davao City and with branch offices at Parañaque and Cagayan de Oro City (CDO). Villarosa and Imperial
Development (ID) executed an Agreement wherein Villarosa agreed to develop certain parcels of land in CDO
belonging to ID into a housing subdivision. ID, filed a Complaint for Breach of Contract and Damages against
Villarosa before the RTC allegedly for failure of the latter to comply with its contractual obligation.
Summons, together with the complaint, were served upon Villarosa, through its Branch Manager Wendell
Sabulbero at the address at CDO but the Sheriff’s Return of Service stated that the summons was duly served "E.B.
Villarosa & Partner thru its Branch Manager at their new office Villa Gonzalo, CDO, and evidenced by the signature
on the face of the original copy of the summons."
Villarosa prayed for the dismissal of the complaint on the ground of improper service of summons and for lack of
jurisdiction over the person of the defendant. Villarosa contends that the RTC did not acquire jurisdiction over its
person since the summons was improperly served upon its employee in its branch office at CDO who is not one of
those persons named in Sec. 11, Rule 14 upon whom service of summons may be made. ID filed a Motion to Declare
Villarosa in Default alleging that Villarosa has failed to file an Answer despite its receipt allegedly on May 5, 1998 of
the summons and the complaint, as shown in the Sheriff's Return.
HELD: “We agree with Villarosa. Earlier cases have uphold service of summons upon a construction project
manager; a corporation's assistant manager; ordinary clerk of a corporation; private secretary of corporate executives;
retained counsel; officials who had charge or control of the operations of the corporation, like the assistant general
manager; or the corporation's Chief Finance and Administrative Office. In these cases, these persons were
considered as "agent" within the contemplation of the old rule.”
“Notably, under the new Rules, service of summons upon an AGENT of the corporation is NO LONGER
authorized.”
“The designation of persons or officers who are authorized to accept summons for a domestic corporation or
partnership is now limited and more clearly specified in Section 11, Rule 14. The rule now states "general manager"
instead of only "manager"; "corporate secretary" instead of "secretary"; and "treasurer" instead of "cashier." The
phrase "agent, or any of its directors" is conspicuously deleted in the new rule.”
“A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation.
The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient.
. . The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the
manner in which summons should be served on a domestic corporation. .”
“Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held
as improper. Accordingly, we rule that the service of summons upon the branch manager of Villarosa at its branch
office at CDO, instead of upon the GM at its principal office at Davao City is improper. Consequently, the RTC did not
acquire jurisdiction over the person of Villarosa. The fact that Villarosa filed a belated motion to dismiss did not
operate to confer jurisdiction upon its person. There is no question that the Villarosa’s voluntary appearance in the
action is equivalent to service of summons.”
“Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special
appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked
affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug
Corporation vs. CA which became the basis of the adoption of a new provision in Section 20 of Rule 14.”
“Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly
underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to
dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the
jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction
of the court.”
“There being no proper service of summons, the trial court cannot take cognizance of a case for lack of
jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null
and void.”
“WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court are
ANNULLED and SET ASIDE.”
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY
Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical
entity which has transacted business in the Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or, if there be no such agent, on the government
official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a)
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Q: What is the difference between corporation or entity in Section 11 and Section 12?
A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a foreign corporation but
doing business in the Philippines because the law says, when the defendant is a foreign private juridical entity which transacted
business in the Philippines…”
When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-resident defendant. The
best example of a foreign corporation doing business in the Philippines are air line companies, foreign banks.
Q: To whom do you serve summons in this case?

A: Well, that is already touched in Rule 11, Section 2. If it has a designated resident agent, you must serve it to him. If it has
none, then to the appropriate Philippine government officer who will transmit it to the head office.
Q: What is the period to file answer?

A: Under Rule 11, Section 2, the period to file an answer is longer if summons is served on a government official
designated by law for that purpose, the period is 30 days. But if the foreign corporation has a designated resident agent in
the Philippines and summons is served on him, the period to answer is only 15 days just like any other defendant.
NORTHWEST ORIENT AIRLINES vs. COURT OF APPEALS

241 SCRA 192 [1995]
HELD: When there is a designated resident agent to receive summons, service of summons to that
person is exclusive. He is the only one to be served with summons in behalf of the corporation sued. So, if
there is a designated agent, siya lang. He is the only person authorized to receive the summons.
“If a foreign corporation has designated an agent to receive summons the designation is exclusive. Service of
summons is without force and gives to a court no jurisdiction unless made upon him.”
BALTAZAR vs. COURT OF APPEALS

168 SCRA 354 [1988]
FACTS: The summons was to be served on the corporation at an address. But when the sheriff went to that
address, he was told by the security guard that the corporation was no longer holding office there. Lumipat na sa
ibang lugar. Therefore, we do not know already.
So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff filed a motion in court to be allowed to serve
summons by publication under Section 14 when the whereabouts of the defendant is unknown. So there was service
of summons by publication.
ISSUE: Was there a valid service of summons by publication?
HELD: There was NONE. The deputy sheriff should have known what every law school student knows! – that
defendant, being a domestic corporation must have been registered with the SEC and that the SEC records would
therefore reveal, not just the correct address of the corporate headquarters of the defendant, but also the address of
its officers.
A litigant or process server who has not gone through the records of the SEC cannot claim to have carried out
the ‘diligent inquiry’ required under the law for valid service of summons by publication upon a domestic corporation.”
So there was no diligent inquiry. You should have gone to the SEC and look at the records kung saan lumipat. Also with the
address of the officers like the President, you can go to his place and serve the summons to him. So there was improper service of
summons by publication. Another case was
REBULIDO vs. COURT OF APPEALS

170 SCRA 800
FACTS: A corporation committed a wrong and then pagdemanda, dissolved na. When the action was filed, the
corporation was already dissolved – wala ng juridical personality.
ISSUE #1: Can you still sue a dissolved corporation?

HELD: YES. Otherwise, if we will say that a corporation which is already dissolved can no longer be sued,
it is very easy for a corporation to avoid liability by simply dissolving itself after it commits a wrong.
And secondly, under the Corporation Law, even if you are already dissolved, there is still a period for winding up
where you can collect. So, it is still functioning. And to say that it is already dissolved or that it is no longer functioning
is not also true.
ISSUE #2: If that is so, to whom will you now serve the summons?
HELD: You serve it on the last set of officers. The same people mentioned – there must be a last
President or a last Corporate Secretary, etc. They are the people who whom summons should be served.
When a corporation was placed under a Voting Trust Agreement (VTA), the summons should be served
on the trustee. The President has no more personality – that is an exception to Section 11. So, when a
corporation is placed under VTA, the summons should be served on the person in whose favor the VTA was
executed because the officers of the corporation have no more personality to manage the affairs of the
corporation.
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FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES
Finally, going back to foreign private juridical entity, take note that under the law, the foreign private juridical entity is one doing
business in the Philippines. So, if a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-
resident defendant because the court can never acquire jurisdiction over that person or foreign corporation. We know that ‘no?
And the perennial debate is, when is a foreign private corporation doing or not doing any business in the Philippines? I think the
Corporation Law has so many cases along that line.
EXAMPLE: A Filipino businessman wanted to buy machines where there is only one manufacturer and supplier which is a
corporation in Europe. This corporation has no office in the Philippines. The Filipino businessman contracted with the foreign
corporation. He ordered machineries. The foreign corporation sent its people to deliver the machineries. They stayed in the
Philippines gor a while to check the machines and to teach the Filipinos how to run it.
Q: Now, can that corporation be used in the Philippine courts?

A: NO, because that foreign corporation is not doing business in the Philippines. Section 12 does not refer to a
foreign corporation with a single isolated, casual transaction. In the cases of
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO

G.R. No. L-7154. October 23, 1954
HELD: “‘Doing business’ is construed to mean such continuity of conduct and intention to establish a
continuous business. An isolated transaction, or transactions which are occasional, incidental or casual and
which do not evince intent to conduct continuous business do not constitute ‘doing business in the
Philippines.’”
“In order that a foreign corporation may be regarded as doing business in the Philippines, there must be
continuity of conduct and intention to establish a continuous business, such as the appointment of a local agent, and
not one of a temporary character.”
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.

November 30, 1962
HELD: “Where a single act or transaction of a foreign corporation is not merely incidental or casual, but is of such
character as distinctly to indicate a purpose on the part of the corporation to do other business in the Philippines, and
to make the Philippines a base of operations for the conduct of a part of the corporation’s ordinary business, the
corporation may be said to be ‘doing business in the Philippines.’”
So, under the rules, a foreign corporation not doing business in the Philippines cannot be sued. If it enters into a contract with a
Filipino business man, it is not actually doing business. Isa lang eh! So, technically, that foreign corporation cannot be sued in the
Philippines. Your remedy is to go to Europe and sue that corporation there. In the case of
LINGER AND FISCHER vs. IAC

125 SCRA 522
FACTS: A Philippine corporation entered into a contract with a foreign corporation and then their agreement says
the foreign corporation agrees to be sued in the Philippines. So practically, puwede. And the problem now is, to whom
will you serve the summons?
When a foreign corporation not doing business in he Philippines agrees to be sued in the Philippines, how do you
serve summons? Is Section 12 applicable?
HELD: NO, Section 12 is not applicable because in Section 12, the premise is, the foreign private corporation is
doing business in the Philippines. So Section 12 does not apply. So, how shall we serve the summons?
In the first place, the foreign corporation, which cannot be sued, agrees to be sued. Their agreement is
similar to venue where we can agree on the venue of the case. Now, since it is not doing business, it is more
accurate to apply the rules on Section 15 on extraterritorial service of summons on a non-resident defendant
who is not physically here.
So, summons should be served not in accordance with Section 12 but in accordance with Section 15 on extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in case of a province, city or municipality, or like public
corporations, service may be effected on its executive head, or on such other officer or officers as the
law or the court may direct. (10a)
An example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued. But in cases where it can
be sued, summons may be effected on the Solicitor General being the representative of the Republic.
Kung provinces, cities or municipalities, like the City of Davao, service may be effected on the executive heads such as the
provincial governor, municipal or city mayor.
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Summons may also be effected on “such other officer or officers as the law or the court may direct.” So the court may order
that the summons be served on the city legal officer. Here, there is still a valid service of summons.
Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server
and shall set forth the manner, place, and date of service; shall specify any papers which have been
served with the process and the name of the person who received the same; and shall be sworn to when
made by a person other than a sheriff or his deputy. (20)
This is called a SHERIFF’S RETURN where the sheriff will state the manner (personal or substituted, publication); place and
date; to whom served. Then you specify that you serve also the complaint. Name of person who received the same.
Q: Must the return be sworn to?

A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that summons can be
served by other person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the service has been made by publication, service may be
proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit
showing the deposit of a copy of the summons and order for publication in the post office, postage
prepaid, directed to the defendant by registered mail to his last known address. (21)
Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent
to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)
The first mode of acquiring jurisdiction over the person of the defendant is service of summons. However, even when there is
no service of summons, or if there is improper service of summons, if the defendant files an answer, then in effect, he is submitting
himself to the jurisdiction of the court and the court acquires jurisdiction over his person by voluntary appearance.
Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file an answer, or a
motion for bill of particulars – that is indicative of his submission to the jurisdiction of the court.
That is why we said, lack of jurisdiction over the person of the defendant because of absence of service of summons or
improper service of summons, can be waived by voluntary appearance. That is the second mode.
Now, of course, when a defendant files a motion to dismiss on the ground that the court has not acquired any
jurisdiction over his person, that is not a voluntary appearance. That is a SPECIAL APPEARANCE precisely to question
the jurisdiction of the court over his person.
A special appearance is not indicative of the intention to submit to the jurisdiction of the court. Otherwise, it becomes absurd if I
will file a motion to dismiss questioning the jurisdiction of the court over my person and then the court will say, “Well, by filing the
motion to dismiss, you are also voluntarily submitting to the jurisdiction of the court.” Definitely, that is not the appearance
contemplated by Section 20.
Now, the second sentence, “The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary appearance.” What is the meaning of that? Well, that principle is taken
from the ruling of the SC in the leading case of LADAVAL DRUG CORPORATION vs. CA, 236 SCRA 28, which we will discuss
more in detail when we reach Rule 16 on Motion to Dismiss.
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Rule 15
MOTIONS
What is a motion? Define a motion.
SECTION 1. Motion defined. A motion is an application for relief other than by a pleading. (1a)
In a motion, the party is asking the court for a favor other than what is contained in the pleading. Usually, the main relief is
prayed for in the pleading, like “Judgment be rendered in favor of the plaintiff,” or, “Judgment be dismissed.” That is what you pray
in your complaint or in your answer.
A pleading however is directly related to the cause of action or the defense. But a motion prays for something else. In a motion,
you are asking for another relief other than the main cause of action or the main defense. Example is a motion to postpone trial or a
motion for extension of time to file answer. You do not do that by a complaint but by way of a motion because you are praying for a
relief other than by a pleading.
Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim, counterclaim, etc. But if you look
at a motion, it looks like a pleading. In form, it looks exactly like a pleading but under the law, it is not a pleading.
However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of a motion, for a relief which
normally should be prayed for in a pleading such as a motion is praying for a judgment already. The exceptions are:
1.) Motion for Judgment to the Demurrer to Evidence (Rule 33);

2.) Motion for Judgment on the Pleadings (Rule 34); and
3.) Motion for Summary Judgment (Rule 35).
Those are the 3 exceptions to Section 1.
Q: What are the requisites of a valid motion.

A: They are found from Section 2 to Section 6:
Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in
the course of a hearing or trial. (2a)
As a rule, all motions must be in writing, “except those made in open court or in the course of a hearing or trial” because for
example, during the trial, pagtingin mo sa relo, quarter to twelve na. So you can move orally for continuance. And the judge will not
require you to have that typed pa. There is no more time to do that. Anyway, it is officially recorded.
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Sec. 3. Contents. A motion shall state the relief sought to be obtained and the grounds upon which it
is based, and if required by these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers. (3a)
So a motion shall state the relief sought to be obtained and the grounds upon which it is based. For example, you move to
postpone the trial next week because you client is still abroad. So you cite the ground/s upon which it is based.
Q: Is it necessary that a motion be accompanied supporting affidavits and other papers?

A: No, unless required by the Rules or necessary to prove facts alleged therein.
Q: Give an example of a motion where supporting affidavits are required by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under Rule 37, Section 2, in order
for a motion for new trial on that ground to be valid, there must Be Affidavit Of Merits. If there is no affidavit of merits, the motion will
be denied.
And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit and other supporting
papers. Example is when you are moving for the postponement of the trial because your client is sick, the best supporting paper
would be a medical certificate for that matter.
However, if it is not required by the Rules, or the facts are already stated on record, there is no need of supporting affidavits or
documents. Example is when you move to declare the adverse party in default. There is no need to support your motion with
affidavits because anyway the court can look at the records, particularly the sheriff’s return, to check when was the defendant was
served with summons.
Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice. (4a)
Now, under Section 4, it says there that you must furnish the adverse party a copy of your motion at least three (3) days before
date of hearing. So, you do not furnish him one day before the date of the hearing. The reason there is to prevent surprise upon the
adverse party and to enable the latter to study the motion and file his opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So
a motion cannot be filed ex-parte. Meaning, without notice of hearing and without furnishing a copy to the opponent.
However, a motion need not be set for hearing if it is not a controversial motion. Meaning, these are motions “which the
court may act upon without prejudicing the rights of the adverse party” such as a motion for extension of time to file answer. So with
this kind of motion, the court can immediately grant your motion.
And the law says, you serve the motion in such a manner as to ensure its receipt by the other party at least three (3) days
before the date of hearing. In other words, you have to calculate that he will receive it at least 3 days.
One good example of this requirement is one which is mentioned in Rule 13, Section 11, that personal service is preferred to
service by registered mail because if it is personal service, it is assured that the adverse party received the motion 3 days before.
But if it is service by mail, we do not know eh, unless you mail it very much earlier because let us say, hearing on the motion will be
on Friday, and then you will mail the motion on Monday, or 5 days before, it is possible that the motion will reach the opponent on
Sunday or two days later.
That is the reason why personal service is preferred because if there is no explanation why you resorted to by mail rather than
personal service, the motion is deemed not filed.
Q: What is the effect if a party files a motion serving upon the adverse party the motion in less than three days?
A: The court may refuse to take action on a motion which does not comply with the rule requiring a three-day notice to the
adverse party, “unless the court for good cause sets the hearing on shorter notice.” Usually these are urgent motions such as
moving for postponement because your witness got sick one day or hours before the trial.
Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall
specify the time and date of the hearing which must not be later than ten (10) days after the filing of the
motion. (5a)
Q: Now, what happens if a motion does not contain a notice of hearing?

A: A motion that does not contain a notice of hearing is but a mere scrap of paper; it presents no question which merits the
attention and consideration of the Court. It is not even a motion for it does not comply with the rules. A motion without notice of
hearing is nothing but a piece of paper filed in court, which should be disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA
651 [1991])
Q: To whom should the notice of hearing be addressed?

A: It is addressed to all parties concerned. So, normally ganito iyan:
Atty. Johnny Bravo

Counsel for plaintiff
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Greetings! Please take notice that the undersigned is submitting the foregoing motion for
the reconsideration of the Honorable Court on Friday, November 28, 1997 at 8:30 in the morning.
(Signed) Atty. Hong Hunks
Counsel for the defendant
Now, some lawyers, when they prepare a notice of hearing will state: “TO THE CLERK OF COURT, Please set the
foregoing for the consideration of the court…” Now, the law says, the notice of hearing should be addressed to the parties and
not to the clerk of court. So, the common practice of addressing the notice of hearing to the clerk of court is technically wrong.
The SC has already commented on that several times. One of them was the case of
PRADO vs. VERIDIANO II

204 SCRA 654 [1991]
HELD: “Sections 5, Rule 15 of the Rules of Court which explicitly provide that the notice shall be served by the
applicant to all parties concerned and shall state the time and place for the hearing of the motion. A notice of hearing
addressed to the Clerk of Court and not to the parties is no notice at all.” So it is very technical.
Sometimes, lawyers just ignore that. What is important is I know when you are going to set it. But some lawyers are very
technical. He will look for loopholes in the motion on the ground that you did not address the notice of hearing to him but to the clerk
of court. Is he correct? Tama man iyan ba! Even the SC said that do not address it to the clerk of court. You address it to the party.
The law is very clear.
Now, take note that the new rule added the phrase that you “must specify the time and the date of the hearing which must not
be later than ten (10) days after the filing of the motion.” That is not found in the prior rule.
Before, some lawyers are mischievous. When they received the complaint, instead of filing an answer, they will file a motion to
dismiss just to delay. And the motion to dismiss is denied. But at least the period to answer is stretch. And too make it worse, they
will file it in November and they will set it for hearing in December. One month from now.
Now, you cannot do that. Pag-file mo ng motion, maximum ten (10) days only. You cannot say, “I will set if for hearing 2
months from now.” It is now very clear that it must not be later than 10 days after the filing of the motion. And see to it that the party
receives it 3 days before the hearing because of Section 4. The minimum is 3 days. So that is a new requirement found in 1997
Rules.
Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court
without proof of service thereof. (6a)
Proof of service of the motion is required – “No written motion et for hearing shall be acted upon by the court without proof of
service hereof.” This is related to Rule 13. As a general rule, you cannot file anything in court without furnishing a copy to your
opponent. A motion cannot be filed ex-parte.
The only exception here are motions which can be filed ex-parte because they are not controversial. Normally, there
are motions which can be filed without proof of service, which generally the court will grant anyway. Another example is Rule 23,
Section 21 on indigent or pauper litigants – a party may be authorized to litigate his action, claim or defense as a indigent upon ex-
party motion together with the complaint and a hearing. Therefore, there is no need to furnish copy of the motion to the other party.
But those are the only exceptions. So, as a rule, every motion must be served to the opposite party.
So, we will outline Sections 2 to 6
Q: What are the requisites of a valid motion?

A: The REQUISITES OF A VALID MOTION are the following: WRSNP
1.) It must be in writing except those made in open court or in the course of hearing or trial;
2.) It shall state the relief sought to be obtained and the ground upon which it is based;
3.) It must be accompanied by supporting affidavits and other papers, if required by these Rules or necessary to
prove facts alleged therein. However, if the facts are already stated on record, the court can check the
records;
4.) There must be a notice of the hearing attached to the motion and the adverse party must receive the motion
at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on
shorter notice;
5.) There must be notice of hearing addressed to all parties concerned, and shall specify the time and date of
the hearing which must not be later than ten (10) days after the filing of the motion; and
6.) There must be proof of service of the motion on the adverse party.
Sec. 7. Motion day. Except for motions requiring immediate action, all motions shall be scheduled for
hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day.
(7a)
Motion hearings are scheduled on Friday afternoons except those motion which require urgent action. So if today is Friday and
it’s a holiday, sa Monday pa ang hearing. But again, some judges do not follow this. Ang iba pa nga, everyday eh.
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OMNIBUS MOTION RULE
Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall include all objections then available, and all objections
not so included shall be deemed waived. (8a)
The word “omnibus” means “all embracing or all encompassing.”
Q: Define omnibus motion.

A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall include all objections then
available and objections not so included shall not deemed waived. (Section 8; Ins. Co. of North America vs. Delgado Brokerage, L-
22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to file a motion to based on
one ground, if denied, second motion to dismiss based on the second ground, denied, third motion to dismiss. Meaning,
ini-installment mo. That is not allowed. If you have two or more grounds, you file only one motion to dismiss invoking those grounds
because the rule is, any ground not so invoked is deemed waived.
EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37 prohibits the filing of a second
motion for new trial based on grounds available to the movant when he filed his first motion. Well, if the grounds came later, that is
different.
So, the principle there is, if you have two or more grounds you should only file one motion where you invoke all your grounds.
Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the provision of Section 1 of
Rule 9.”
Rule 9, Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or
the evidence on record that the court has no jurisdiction over the subject matter, that there is another
action pending between the same parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall dismiss the claim. (2a)
Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not raise them in a motion to
dismiss, which can be even motu propio proceeded by the court.
Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer. (Exceptions to the omnibus
motion rule)?
A: The following:
1.) Lack of jurisdiction over the subject matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.
Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the
pleading or motion sought to be admitted. (n)
EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2) Options under the old rules. The
first option is to file a motion for leave to file amended complaint. And when it is granted, that is the time for to you file your
amended complaint. The second option is you file your amended complaint together with the motion to admitted it.
The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to intervene. Granted, I will file my
pleading in intervention.” The same thing for certain types of motion like motion for leave to file third-party complaint: “Motion for
leave. Granted, I will file my third-party complaint.” That is under the previous rule.
NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be admitted must already be
included in your motion. Pag-file mo nng motion, kasama na iyong pleading. The pleading sought to be amended must already be
included in the motion. One-time filing ba!!
Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so far as concerns
caption, designation, signature, and other matters of form. (9a)
The rule on pleadings also applies to written motion as far as caption, designation, signature and other matters of court. So in
appearance there is difference between the appearance of a pleading and the appearance of a motion. But definitely, a motion is
not a pleading although it looks like a pleading.
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Rule 16
MOTION TO DISMISS
Motion to dismiss is the counterpart of motion to quash (Rule 117) in criminal procedure. In criminal procedure, before the
arraignment or before entering a plea the accused may instead file what is known as motion to quash. The proceedings are
quashed on the ground that: (1) the court has no jurisdiction over the subject matter of quashed on the ground that: (1) the court
has no jurisdiction over the subject matter of the case or over the person of the accused; (2) the person who field it has no authority
to do so; (3) the complaint or information charges more than one offense; (4) because of double jeopardy; or (5) the criminal liability
has already been extinguished.
Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made on any of the following grounds:
xxxxx
Q: When do you file a motion to dismiss?

A: Within the time for but before filing the answer. So, within 15 days instead of filing an answer the law allows the defendant
to file instead a motion to dismiss. The principle is within 15 days from receipt of the summons and the complaint, the defendant
should file an answer or in lieu of an answer he may instead file a motion to dismiss based on the grounds enumerated in section 1.
Now, a motion to dismiss is available not only for the purpose of dismissing the complaint but also for dismissing a
counterclaim, a cross-claim, a third party complaint because the laws says “before filing the answer to the complaint or pleading
asserting a claim.” A claim can be ascertained not only in a compliant but also in other pleading such as counterclaims, etc.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY
Q: When will that happen?

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A: When there is absence of summons or improper service of summons.
Now based on decided cases, it would seem that this is one of the weakest grounds for a motion to dismiss – “the court has
not acquired jurisdiction over the person” – for there are many exceptions. There are many waivers. Because of the rule of waiver
the court many acquire jurisdiction over your person in some other capacity.
EXAMPLE: You are improperly served with summons but you file a motion for bill of particulars or you file a motion
for extension of time to file for an answer and then after that you file a motion to dismiss. Wala na iyon. The principle is
that the moment you file a motion for bill of particulars or you file a motion for extension of time, in effect you have
already submitted to the jurisdiction of the court. If there was any defect in the service of summons, it was already cured.
Waived na ‘yon. Wala na ‘yong ground mo. That’s why there are so many question here.
EXAMPLE: Now, suppose the summon was served on a nine-year old boy who is presumed to be responsible. When his
father arrived, the boy told his father that somebody came in and left this. So in other words the father actually got the summons.
Now, suppose the father will file a motion to dismiss on the ground that the court never acquired jurisdiction over the person
because the summons was improperly serve. Do you think it will prosper?
There are cases in the SC which says even if the summons was not properly served, if actually it came to the attention of the
defendant, the defect is cured. Because if you say I will not answer for the summons is improper that is more of a technicality. You
are being technical. Actually natanggap mo naman kahit na magreklamo ka pa. In other words, there are cases along that line. That
is why this ground may no longer be available to you because of those instances.
Kaya nga I still have my doubt on the corporations ba – that you must serve the complaint to the following people only. So, if
you will serve it to the branch manager, who is not among those mentioned now in the law, because the word ‘agent’ disappears,
but the branch manager transmit it to the president, can the corporation ignore the complaint by the summons by relying on the
technicality that it was served on the wrong person? To my mind, that is still a question mark. That is relying too much on
technicality. What is important is you were properly served.
LINGER AND FISHER vs. IAC

125 SCRA 522
FACTS: The sheriff served the summons improperly on the defendant. And the defendant filed a motion to
dismiss on the ground that the court has no jurisdiction over his person.
HELD: Defendant assumed that the sheriff made a mistake. Why should we dismiss the complaint? It is not the
fault of the plaintiff. If the sheriff does not know how to do it, the fault lies on the sheriff and the sheriff is an employee
of the court, not an agent of the plaintiff. Why should the court blame the plaintiff? If that is what happens we will not
dismiss the case. We will instead issue an alias summons and direct the sheriff to solve it properly.
With all this decided cases, it would seem that he objection of no jurisdiction over the person of the defending party is getting
weaker and weaker because of so many exceptions such as: (1) waiver; (2) voluntary appearance; (3) improper service but the
defendant came to know about it so you cannot rely on the technicality and (4) then you have the case of Linger.
FAR CORPORATION vs. FRANCISCO

146 SCRA 197
HELD: This case reiterated the ruling in LINGER where the SC said again, if the sheriff did not know how to
serve the summons, why should the plaintiff’s complaint be dismissed when it is not his fault. The correct procedure is
for the court to issue another summons and direct that the sheriff should serve it properly.
On the other hand, there was a conflict before in jurisprudence on this question:
Q: Suppose I will file a motion to dismiss. Assuming that there is a ground of lack of jurisdiction over my person and venue is
improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible?
There are some cases where the SC said no more. When you file a motion to dismiss questioning the jurisdiction of the court
over your person and at the same time you are citing other grounds, then you are already waiving the defect of lack of jurisdiction.
Why? When you cite other grounds like prescription, you are now submitting to the jurisdiction of the court. In effect you have
waived the ground of lack of jurisdiction.
But there are also other cases where the same issue came up and the question is: Can a defendant file a motion to dismiss
based on the lack of jurisdiction over the person together with other grounds? Are you deemed to have waived the issue of lack of
jurisdiction? NO, you can not file a motion to dismiss because of the omnibus motion rule. When you file a motion to dismiss, you
have to invoke all the grounds. So, you are not waiving that ground.
So there was confusion. What is really the correct rule? Because there are decided cases on both sides. NOW, the
controversy has been settled starting with the ruling of the SC in the 1994 case of:
LA NAVAL DRUG CORPORATION vs. COURT OF APPEALS

236 SCRA 78 [en banc]
HELD: When you file a motion to dismiss citing lack of Jurisdiction over your person together with other
grounds, there is no waiver on the defect of lack of jurisdiction. So, you can file a motion to dismiss on that
ground together with other grounds. There is no more waiver in effect that is the recent decision. The
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inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.
Obviously the ruling in NAVAL is incorporated in the Rules of Court. Let’s go back to Rule 14 Section 20:
Sec. 20. Voluntary appearance. - The defendant's voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)
Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM.
That is one of the most important grounds for a motion to dismiss.
EXAMPLE: An action for unlawful detainer is field in the RTC and your ground is, the court has no jurisdiction over the subject
matter. Or, an action for annulment of marriage is filed in the MTC. Now, I will file a motion to dismiss because the court has no
jurisdiction over the subject matter.
So, we are familiar already with this. Now, let’ go to important principles on this ground.
FIRST PRINCIPLE: Jurisdiction over the subject matter is determined by the allegation in the compliant .
Q: How do we determine whether a court has a jurisdiction or not over a particular case?
A: By reading the compliant, we will know whether the subject matter is within the jurisdiction of the court or not. So the
principle to remember is, jurisdiction over the subject matter of the case is determined by the allegations in the complaint. They are
determined in the allegations of the complaint itself, not by the allegation of the defendant in his motion to dismiss.
EXAMPLE: A filed a complaint against B before the RTC of Davao City to recover an unpaid loan of P250,000. By going over
the complaint, does the RTC have jurisdiction? YES ( P250,000). Now, here comes the defendant filing a motion to dismiss under
Rule 16 alleging that “it is not P250,000 but only P50,000. Therefore, the court has no jurisdiction over the subject matter.” So the
court is confronted with this situation.
Q: What will the court do? Should the court deny the motion to dismiss?
A: YES because jurisdiction over the subject matter is determined by the allegations in the complaint. They are not determined
by the allegations of the defendant in his motion to dismiss.
SECOND PRINCIPLE: When a defendant files a motion to dismiss on the ground that the court has no jurisdiction
over the subject matter, the defendant hypothetically admits all the allegations in the complaint to be true. The defendant in
the meantime, is not allowed to present evidence that the court has no jurisdiction. Everything must be decided on the face of the
complaint only.
So, this is the corollary principle – when a defendant files a motion to dismiss on this ground, he hypothetically admits all the
allegations in the complaint. Hypothetical ba! – Assuming, for the sake of argument, that everything in your complaint is true, does
the court have the jurisdiction?
EXAMPLE: Vannie Kolotski will file a case against you for P300,000 in the RTC on the ground that you owe her P300,000. But
the defendant will file a motion to dismiss, “The RTC has no jurisdiction because the loan is not P300,000 but only P50,000. The
defendant will present evidence that it is not P300,000 but P150,000. Can you do that? NO, you cannot do that because you have
to hypothetically admit eh! If you will file a motion to dismiss on that ground, it will be denied.
But suppose it is really P50,000 only and in the course of the trial, even plaintiff’s own evidence shows that the loan is only
P50,000. If that is so, if that becomes apparent in the middle of the trial, Vannie Kolotski will now move to dismiss on the ground
that the lack of jurisdiction has now become apparent. Anyway, you have not waived that defect. You can raise that anytime. But at
the start of the case, whatever the complaint says, that is assumed to be true for the moment, if the ground is lack of jurisdiction.
So, what is the principle there? Jurisdiction over the subject matter is determined purely by the allegations in the complaint.
THIRD PRINCIPLE: Jurisdiction over the subject matter, once acquired by the court upon the filing of the complaint,
the court retains the jurisdiction over that case until that case is terminated. Any subsequent development or any
subsequent amendment of the law will no longer deprive the court of its jurisdiction.
A perfect EXAMPLE is what happened with the effectivity of the law expanding the jurisdiction of the MTC under RA 7691. The
jurisdiction of the MTC under the old law is P20,000 lang eh. So, if your claim is above P20,000, RTC na. And there were several
cases pending in court already being tried – P 30,000, P 40,000 in the RTC. Then in April 1994, the jurisdiction of the MTC was
increased to P100,000. What happens now to all those cases which were only P21,000 or P20,000? Shall the RTC dismiss all of
them or the RTC will finish it? Jurisdiction over the subject matter once acquired continues until the case is finished or terminated.
That is the principle to remember.
The ONLY POSSIBLE EXCEPTION there is what the Supreme Court says, if the new statute is intended to be curative
in character – to cure the defect under the old law – then the rule on adherence of jurisdiction does not apply.
That was best exemplified by a situation years ago when there was a controversy as to whether a claim for moral and
exemplary damages filed by an employee against the employer for oppressive act of terminating him can be granted by the Labor
Arbiter.
Definitely, reinstatement and backwages can be granted by the Labor Arbiter. The jurisprudence at that time when it was still
unsettled was, the claim for moral should be settled in the RTC, not by the Labor Arbiter. However, where these cases were still
pending in the RTC, mga damages, in the meantime the law naman was changed. The Labor Arbiter now was given jurisdiction to
award damages.
So. what happen to the cases for damages now pending in the RTC? Should they be transferred to the Labor Arbiter? It we
follow the rule that jurisdiction once acquired continuous, the answer is, the RTC should continue trying the case for damages and
the Labor Arbiter continue to try the backwages and reinstatement. But that is practically splitting the case into two parts.
So obviously, the intention of the law granting the Labor Arbiter the jurisdiction is to cure the error. So, what happened? All
those cases filed in the RTC were ordered transferred to the Labor Arbiter as an exception to the rule on adherence to jurisdiction.
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FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter may be raised: 1) In the answer; 2) In the course of
the trial; 3) After the trial; 4) After the judgment; or even 5) For the first time on appeal.
All right, let’s go to the basics:

Q: Can the issue of lack of jurisdiction over the subject matter be raised in the middle of the trial?
A: YES, there is no waiver.
Q: Suppose there is already a decision by the trial court, can you still raise the issue of lack of jurisdiction? Why?
A: YES. The decision is deemed void because the court pala all along have no authority to try. So the trial is void. The
judgment is void. As a matter of fact it can be raised at any stage of the proceeding even for the first time on appeal. Tha t is the
rule.
Now, that rule has somehow weakened or diluted by the ruling in
TIJAM vs. SIBONGHANOY

23 SCRA 29 [1968]
FACTS: The case of TIJAM was something really cohere and unique. From the start, the City Court of Cebu has
no jurisdiction. The defendant never filed a motion to dismiss. And what is so surprising is that the court never noticed
it.. So the parties will go on trial. After trial, the court rendered judgment in favor of the plaintiff. The defendant was
not satisfied. He appealed to the former CFI (now RTC) and on appeal that issue on lack of jurisdiction was never
raised. Talo na naman iyong defendant.
So all this process took about 10 years. Talo. So much water has already passed under the bridge. Nagpalit ng
abogado iyong defendant and he traced the proceeding. Actually all along, the inferior court has no jurisdiction and
everything is void from the very beginning. But take note, it took the defendant through his lawyer 10 years or more to
raise the issue. Now, of course, if we will follow the rule, it can be raised at any stage at any time even for the first
time on appeal on this ground that everything is void.
HELD: NO, you cannot raise it anymore. Under the equitable doctrine of estoppel by laches, you are already
under estoppel to raise that ground because the if you will follow the general rule and we will declare null and void
everything from the City Court to the CA, everything – a judicial work which lasted for 10 years – will all be thrown in
the waste basket. That is practically compelling the plaintiff to undergo a second calvary. Ulit na naman siya just to
prove his case.
But the ruling in SIBONGHANOY is not intended to be the rule. It is not intended to overrule the rule that lack of jurisdiction
over the subject matter can be raised at any stage of the proceeding. The ruling in the SIBONGHANOY is only to be applied in
exceptional situations
Even the SC noted that courts were applying the SIBONGHANOY ruling indiscriminately that it will take you one or two months
to raise lack of jurisdiction – wala pa nag-unpisa ang trial then one or two months after the case was filed, ah estoppel na!
Practically, that is saying that lack of jurisdiction cannot be raised anymore. But the SC said NO, that is wrong. In the case of
SEAFDEC – AGRICULTURE DEPARTMENT vs. NRLC

206 SCRA 283 [1992]
HELD: “A rule, that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite is
that the jurisdiction of a court over the subject matter of the action is a matter of law and may not be conferred by
consent or agreement of the parties. The lack of jurisdiction of a court may be raised at any stage of the proceedings,
even on appeal.”
“This doctrine has been qualified by recent pronouncements which stemmed principally from the ruling in the
cited case of SIBONGHANOY. It is to be regretted, however, that the holding in said case had been applied to
situations which were obviously not contemplated therein. The exceptional circumstances involved in
SIBONGHANOY which justified the departure from the accepted concept of non-waivability of objection to jurisdiction
has been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed ruling in
SIBONGHANOY not as the exception, but rather the general rule, virtually overthrowing altogether the time-honored
principle that the issue of jurisdiction is not lost by waiver or by estoppel.” (Calimlim vs. Ramirez, G.R. No. L-34362,
118 SCRA 399 [1982]).
So, this has already been clarified. The latest case was the 1995 case of
DE LEON vs. COURT OF APPEALS

245 SCRA 166
HELD: “In the past, the principle of estoppel has been used by the courts to avoid a clear case of injustice. Its use
as a defense to a jurisdictional error is more of an exception rather than the rule. The circumstances outlining
estoppel must be unequivocal and intentional, for it is an exception to standard legal norms and is generally applied
only in highly exceptional and justifiable cases.”
In other words, do not abuse the SIBONGHANOY ruling. That is very exceptional case.
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID
Here, there is no compliance with Rule 4 – the action is filed in the place other than the proper venue under Rule 4.
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Q: Suppose you file a motion to dismiss on the ground of improper venue, but your motion to dismiss is denied. What is your
remedy?
A: Your remedy is to resort to the special civil action of prohibition under Rule 65. And you should resort to it immediately
because if you will file your answer and go to trial, in effect, you will be waiving the objection. The objection must be pursued
diligently. That was the pronouncement in the case of Pangasinan Transportation Co. v. Yatco (21 SCRA 658).
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE;
Q: Give an example when the plaintiff has no legal capacity to sue.

A: A minor will file a case without being assisted by his parents or guardian. Or, a person will file a case in behalf of a minor
claiming that he is a guardian when in fact he is not. He is not the parent of the child. He is not also appointed by the court.
According to the SC, when you say that the plaintiff lacks legal capacity to sue, there are two (2) possible meanings. It
means any of the following:
1.) when the plaintiff does not possess the necessary qualifications to appear at the trial such as when the plaintiff is
not in the full exercise of his civil right like when he is a minor, or insane; and
2.) when the plaintiff does not have the character or representation which he claims like he claims to be a guardian
when in reality he is not. (Lunsod vs. Ortega, 46 Phil. 664)
EXAMPLE: I will sue you as the guardian of a minor – guardian ad litem. But actually, you will challenge my being a
guardian. There is no court order according to you. So, I might be of age but I have no legal capacity to sue because I do
not have the representation which I claim I have.
Q: (Bar question) Distinguish lack of legal capacity to sue from lack of legal personality to sue.
A: The former refers to disability of the plaintiff while the latter to the fact that the plaintiff is not a real party in
interest, in which case, the ground for dismissal would be that the complaint states no cause of action (Gonzales vs.
Alegarbes, 99 Phil 213; Casimiro vs. Roque, 98 Phil. 880)
ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a disability of the plaintiff, like he is a minor; or he is insane or
incapacitated.
In lack of legal personality to sue – going back to Rule 3, when you are appointed as agent or attorney-in-fact of
somebody to manage his property an to file suit in his behalf – while you have the authority to file cases, it does not
mean to say that you should sue in you own name because the real party in interest is the principal, not the agent.
So if the agent files an action in his own name, rather than that of the principal, what you are going to say is, you are not the
real party in interest. You are not challenging his age or disability but you are challenging his being placed as plaintiff when actually
he is only the attorney-in-fact or agent. In effect, when you raise this ground, actually that would fall more under paragraph [g] – that
the pleading asserting the claim states no cause of action because there is no cause of action in favor of the agent. The cause of
action is in the principal.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE SAME
CAUSE;
Now, this is one of the most important grounds for a motion to dismiss. This is popularly known as the ground of lis pendens.
Now, do not confuse this with the notice of lis pendens that we discussed in Rule 13. That is the notice that you annotate on the title
of the property when you are filing a case for its recovery. Although the meaning is the same because lis pendens is Latin for
pending litigation.
So the essence is that there is a case filed against you and then while it is pending, another case is filed against you based on
the same cause of action. So what will you do? I have to move to dismiss one case. I will allege that there is already another action
pending between the same parties for the same cause. So in effect, what you are saying is the plaintiff is guilty of splitting his
cause of action and this ground has also been mentioned in Rule 2, Section 4:
Rule 2, Sec. 4. Splitting a single cause of action; effect of. - If two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available
as a ground for the dismissal of the others. (4a)
So the filing of one case is available as a ground for the dismissal of the other. Now, such ground is stated under Rule 16 –
that there is another action pending between the same parties for the same cause. The other legal term for it aside from the ground
of lis pendens is the ground of litis pendencia. Pareho din iyan. It means the same thing. That’s why when you read some SC
cases, the SC cites either one of the two terms. There is another foreign term although it is less used, the ground of action
pendant.
LITIS PENDENTIA viz a viz FORUM-SHOPPING

(taken from the 4th year Remedial Law Review transcription, 1997-98)
Now, you come analyze that when the other party files two cases against you, sabay-sabay – what is the correct ground for
dismissal? Litis pendentia or forum-shopping? Is there a relationship between forum-shopping and litis pendentia? When I file two
identical cases in two courts, am I not also forum-shopping?
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Yaan! Iyan ang magandang tanong! Iyan ang malalalim na tanong sa procedure.
One of the most intelligent discussion on this topic was the case of FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252
SCRA 259), January 24, 1996, penned for the Third Division by Justice Artemio Panganiban.
Do you know what he said? Itong forum-shopping, how it started? Actually, it is a concept in Private International Law where
you shop for a forum – where you look for a country where you will file a case and then the court of that country will now reject it on
the ground for forus non convenlens. That is where it originates eh. You are shopping for a forum.
FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS

252 SCRA 259, January 24, 1996
Third Division, J. Artemio Panganiban.
HELD: “Forum-shopping originated as a concept in private international law, where non-resident litigants are
given the option to choose the forum or place wherein to bring their suit for various reasons or excuses, including to
secure procedural advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or to select a more
friendly venue. To combat these less than honorable excuses, the principle of forum non conveniens was developed
whereby a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most
‘convenient’ or available forum and the parties are not precluded from seeking remedies elsewhere.”
“In the Philippines, forum shopping has acquired a connotation encompassing not only a choice of venues, as it
was originally understood in conflicts of laws, but also to a choice of remedies.”
“As to the first (CHOICE OF VENUES), the Rules of Court, for example, allow a plaintiff to commence personal
actions "where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the
plaintiffs resides, at the election of the plaintiff" (Rule 4, Sec. 2 [b]).”
That is forum-shopping. lba ang rule ng venue. Where will you file personal action? – where the plaintiff or any of the principal
plaintiff resides, or, where the defendant or any of the defendants resides. So, mamili ka! If I am the lawyer kung saan pabor, doon
ako mag-file, and that is forum-shopping. But that is legitimate forum-shopping because that is allowed by law.
“As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities independently of
the criminal, arising from the same set of facts. A passenger of a public utility vehicle involved in a vehicular accident
may sue on culpa contractual, culpa aquiliana or culpa criminal — each remedy being available independently of the
others — although he cannot recover more than once.” (First Philippine International Bank vs. CA, supra.)
That is in effect forum-shopping. If I am the offended party, shall I prosecute the civil aspect in the criminal action or shall I file
an independent civil action or reserve the right? Nasa iyo man iyan ba! In effect, you shop for a forum. That is also
forum-shopping. But that is legitimate forum-shopping.
“In either of these situations (choice of venue or choice of remedy), the litigant actually shops for a forum of his
action. This was the original concept of the term forum shopping” which is perfectly a valid act.
“Eventually, however, instead of actually making a choice of the forum of their actions, litigants, through the
encouragement of their lawyers, file their actions in all available courts, or invoke all relevant remedies
simultaneously. This practice had not only resulted in conflicting, adjudications among different courts and
consequent confusion inimical to an orderly administration of justice. It had created extreme inconvenience to some of
the parties to the action.”
“Thus, ‘forum shopping’ had acquired a different concept – which is unethical professional legal practice. And this
necessitated or had given rise to the formulation of rules and canons discouraging or altogether prohibiting the
practice.”
“What therefore originally started both in conflicts of laws and in our domestic law as a legitimate device for
solving problems has been abused and mis-used to assure scheming litigants of dubious reliefs.”
“Consequently, where a litigant or one representing the same interest or person sues the same party against
whom another action or actions for the alleged violation of the same right and the enforcement of the same relief
is/are still pending, the defense of litis pendencia in one case is a bar to the others; and, a final judgment in one would
constitute res judicata and thus would cause the dismissal of the rest. In either case, forum shopping could be cited
by the other party as a ground to ask for summary dismissal of the two or more complaints or petitions, and for the
imposition of the other sanctions, which are direct contempt of court, criminal prosecution, and disciplinary action
against the erring lawyer.” (First Philippine International Bank vs. CA, supra.)
So, what is the difference between forum shopping and litis pendentia? Actually, there is no difference. Mas maganda pa nga
i-dalawa mo – litis pendentia and forum shopping. Ano ang effect? Sabihin mo, litis pendentia – one will be dismissed, the
other will remain alive. In forum shopping naman, parehong patay iyan. The court will dismiss both. I-disciplinary action
pa ang abogado. There is no contempt of court in litis pendentia.
That is now the relationship of forum shopping and litis pendentia.
Another case, also penned by Justice Panganiban in the same year, 1996, where he also made a statement that forum
shopping and litis pendentia are almost identical is the case of
EMPLOYEES COMPENSATION COMMISSION vs. COURT OF APPEALS

257 SCRA 717, June 28, 1996.
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HELD: Forum-shopping exists where the elements of litis pendencia. The test therefore in determining
the presence of forum-shopping is whether in the two (or more case) pending, there is identity of (a) parties,
(b) rights or causes of action and (c) reliefs sought. Forum-shopping does not require a literal identity of
parties. It is sufficient that there is identity of interests represented.
When there is already adjudication on the merits in one case to be more accurate, RES ADJUDICATA should be alleged, and
not forum shopping as a defense because the decision in the previous case had already become final and executory. So, when
there is already a judgment in the previous case to be exact that should be res judicata. But when there is no decision yet, that is
litis pendentia and forum shopping.
ELEMENTS OF LITIS PENDENTIA
Now, this is one of the grounds of a motion to dismiss which is the subject matter already of so many cases and so many
questions in the bar. One of the fundamental questions which is asked here is: What are the requisites for litis pendencia as a
ground for a motion to dismiss. Actually, there is no wrong if will file as many cases as I want against you provided the causes of
action are different. Sometimes, it is difficult to determine where there is litis pendencia or none. It is possible for 2 cases to arise
between the same parties or the 2 cases are interrelated. But actually they arose from different causes of action. So you will get
confused.
Sometimes when you read cases decided by the SC on litis pendencia, you will have a hard time determining whether the 2
cases are only related or they are really identical. IIf they are only related, there is no basis for dismissal.
Q: What are the requisites of litis pendentia as a ground for a motion to dismiss?
A: There are four (4) requisites:
1.) Identity of parties between the two actions, or at least such as represent the same interest;
In the 2 actions, the parties are the same – the same plaintiff, same defendant. Literally, they may not be the
same but the persons who are filing the second persons are actually doing it on you behalf. So they also
represent the same interest.
2.) Identity of rights asserted and relief prayed for;

The rights asserted are the same. The relief prayed for in both actions are the same.
3.) The relief must be founded on the same facts;

So same basis; same evidence.
4.) The identity in these particulars should be such that any judgment which may be rendered on the other
action will, regardless of which parity is successful, amount to res adjudicata in the action under
consideration. (Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva, 57 O.G. 1040, Feb. 6, 1961; Pampanga Bus Co. vs.
Ocefemia, L-21793, Oct. 20, 1966) In other words, the principle of res adjudicata will apply.
CASE: The husband filed an action for legal separation on the ground of adultery of his wife. In the same action, the wife
demanded, in a counterclaim, maintenance and support for her and here children. Subsequently, the wife filed an independent
action for support against her husband. Will the second action prosper?
A: NO, the issue of support having been raised in the first action as a counterclaim, it cannot be made an issue in a
subsequent independent action. Hence, the independent action for support should be dismissed on the ground of lis pendens, all
the other requisites being present. (Olayvar vs. Olayvar, supra) Klaro iyan. Nag-counterclaim ka ng support dito (first action). File
ka na naman ng action for support. So, there are now 2 actions for support. Di pwede yan.
Litis Pendentia; Fourth Element: THE IDENTITY IN THESE PARTICULARS SHOULD BE SUCH THAT ANY
JUDGMENT WHICH MAY BE RENDERED ON THE OTHER ACTION WILL, REGARDLESS OF WHICH PARITY IS
SUCCESSFUL, AMOUNT TO RES ADJUDICATA IN THE ACTION UNDER CONSIDERATION.
Now, out of these requisites the last one is the most important – the identity of parties, rights, relief and facts should be such
that any judgment which the court will render in the other action will automatically be res adjudicata in the present action. Any
judgment which the court will render in the first case regardless of who wins will amount to res adjudicata in the second action. That
is a very important requisite. Let us see how that was applied by the SC.
TAMBUNTING vs. ONG

L-2284, August 11, 1950
FACTS: It involves a case between a mortgagor and a mortgagee. Mortgagor filed a case against the
mortgagee. The nature of the action is annulment of mortgage contract – annulment of real estate mortgage. While
their action was pending, the mortgagee filed another action against the mortgagor and the action is foreclosure of the
same mortgage. So dalawa na.
Now, the mortgagor, the plaintiff in the first case filed a motion to dismiss the second case on the ground of litis
pendentia on his argument that suppose I win in this case of annulment of mortgage and the mortgage contract is
annulled, what are you foreclosing? There is nothing to foreclose. So the second action for foreclosure will have as
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basis if the mortgage contract is annulled in the first case. So there being litis pendencia, the second case should be
dismissed.
HELD: It is true that the second case will have no more leg to stand on if the mortgagor will win the first
case, that is if you win. Eh paano kung talo ka? Suppose the first case of annulment of mortgage contract is
dismissed? So the mortgage contract is valid, with more reason the mortgagee has the right to foreclose.
Therefore, the fourth requisite is missing because the fourth requisite is regardless of who wins in the
first case, it will bar the second case. But here, the second case would be barred if the mortgagor wins but if
the mortgagee wins, the second case will not be barred. So the fourth element is not present. There is no litis
pendencia in this case.
FRANCISCO vs. VDA. DE BLAS

93 Phil. 1
FACTS: Jayhan filed a case against Jessa for recovery of a piece of land – accion publiciana. According to
Jayhan, she is the owner of the land occupied by Jessa, so Jessa should surrender the land to him. Of course, Jessa
will deny that.
While the action was pending, Jessa naman filed another case against Jayhan for quieting of title (that your title
be in effect confirmed as valid so that you will not be molested anymore by the plaintiff). So in effect, Jessa is asking
the court to declare him as the real owner and is therefore entitled to possess the property.
ISSUE: Is there litis pendencia? Can both cases prosper?
HELD: Alright, let’s analyze. Suppose Jayhan wins the case for recovery, the court in effect is saying that Jayhan
is the real owner, that practically render moot and academic because practically if Jayhan wins the first case, the
action of Jessa for quieting of title will fail because the owner pala is Jayhan. In other words, if Jayhan wins the first
case, it will bar the second.
Now, suppose Jessa will in the first case, the court in effect is saying that Jayhan is not entitled to possess, she is
not the owner, Jessa is the owner. In effect, the title of Jessa is automatically granted, rendering unnecessary the
second case. So, that is a perfect example of litis pendentia – “whoever wins in the first case will bar the second. This
is an illustration of the fourth requisite.”
So in this case, there is litis pendentia.
TEODORO vs. MIRASOL

99 Phil. 150
FACTS: There was a lease contract between the lessor and the lessee and they were already quarreling.
According to the lessor, “Mr. Lessee, I would like to remind you that our contract is only good up to April. So 3 months
from now, expired na. you better look for a place to transfer because I’m not going to renew the lease contract.”
Sabi ng lessee, “No, no, no. That contract will be valid until next year pa!” The lessor asserted tha the contract is
only good up to April. Nag-aaway na talaga sila. They already have a quarrel as to whether that contract is only good
up to April or until next year.
Now, what happens, inunahan ni lessee ang lessor. He filed immediately an action for declaratory relief under
Rule 63 on the issue on whether the contract will expire by April or next year pa. The case dragged on and dumating
na ang April and of course the contention of the lessor is that the contract has expired. So file na si lessor ng unlawful
detainer on the ground that the lease contract has expired.
So dalawa na ang kaso. May litis pendencia na. One of them must be dismissed. The lessor filed a motion to
dismiss on the ground of litis pendencia. The lessee complained, “Why will you dismiss my case eh mas nauna ako
sa yo?! If there is an action which should be dismissed, it must be yours. Nauna akong nag-file. Dapat sa iyo ang i-
dismiss, last ka man nag-file.”
ISSUE: When there is litis pendentia, which action should be dismissed?
HELD: The dismissal of the first action would be proper. Why? What is the ground for dismissal? – that there is
another action pending between the same parties for the same cause. The law does not say that there is another prior
action pending. Wala mang word na “prior” ba, basta “another action.” So, in litis pendencia, either one can be
dismissed. It does not necessarily follow that the first one will be dismissed or the second one. Either one
will be dismissed.
Now, the most exhaustive discussion on this issue on which case should be dismissed when there is litis pendentia was the
1993 case of:
VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF MAKATI

217 SCRA 517
HELD: As a general rule, it should be the second case that should be dismissed by applying the principle
of priority in time and the Latin maxim of qui prior estempore ochor estiore (he who is before in time is the better
law). Priority in time gives preference in law. And that is common sense. Just like in Labor Law – last in, first out –
kung huli kang dumating, you are the last to be employed. Kung termination, unahin ka rin, last ka eh. So that’s the
general rule.
But the general rule is not true all the time just like what happened in the case of TEODORO VS. MIRASOL where the first
case was ordered dismissed. Also in the case of RAMOS VS. PERALTA (98 Phil)
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Q: What was the principle used in the case of TEODORO and RAMOS in sustaining the dismissal of the first case instead of
the second?
A: The criterion which was applied by the SC was: What is the more appropriate action to remain. So hind iyung nauna
but that which is more appropriate. In the case of TEODORO, since we are talking about ejectment here, the unlawful
detainer case is the more appropriate action to remain rather than the first (declaratory relief). So it is not a question of
sino ang nauna but which action should stay for the good of the parties. The same thing happened in the case of
ROA MAGSAYSAY vs. MAGSAYSAY
98 SCRA 592
HELD: In this case there was also a conflict on which case should be dismissed and which case should remain.
The trial court ordered the dismissal of the first case by applying another criterion – the criterion of interest
of justice. In applying this standard, the court should ask which case is in a better position to serve the interest of
justice or which case should remain to serve the interest of justice taking into account the nature of the controversy,
the comparative accessibility of the court to the parties and other similar factors.
So, the general rule is: dismiss the second case, let the first case remain based on the rule on priority in time. But sometimes,
sabi ng SC, it is better that the first case is dismissed by using the standard of (1) more appropriate action or (2) interest of
justice.
And the SC said, it will boil down to this – was the first action filed in good faith or bad faith? Now, sabi ng SC in the case of
TEODORO, it was obvious that the first action was filed by the lessee in bad faith because the lessee knows that by April, pa-file-an
na siya ng kaso ng lessor to eject. Of course, meron man siyang depensa. His defense will be the contract will expire next year pa
but siguro he believes in the principle of priority in time, the best defense is an offense. So, inunahan ko siya. So, may defense in
the unlawful detainer case was converted into a cause of action. Instead of using his argument as a defense in his answer to the
unlawful detainer, he converted it into a cause of action. So, We will dismiss you. That was what happened in TEODORO. So, more
or less, that is the explanation given by the SC in VICTRONICS case.
Now, in a case the SC again touched on this criteria about litis pendentia. Practically, it is a reiteration of VICTRONICS
COMPUTERS case. I am referring to the case of
ALLIED BANKING CORP. vs. CA

259 SCRA 371, July 26, 1996
HELD: Justice Mendoza summarized the principle in this manner: Given, therefore, the pendency of two actions,
the following are the relevant considerations in determining which action should be dismissed:
(1) the date of filing, with preference generally given to the first action filed to be retained – that is the
priority in time rule;
(2) whether the action sought to be dismissed was filed merely to preempt the later action or to
anticipate its filing and lay the basis for its dismissal – iyan ang tinatawag na the best defense is
offense – that is the TEODORO vs. MIRASOL case – the action is filed merely as an anticipating
action; and
(3) whether the action is the appropriate vehicle for litigating the issues between the parties.
So that is practically again the summary of VICTRONICS COMPUTERS case.

PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA
18 SCRA 407
NOTE: This problem was already asked in the Bar.

FACTS: Cholo is a resident of Manila; Lew is a resident of Davao. There was contract between them. Cholo filed
a case against Lew on lets say, January 5 in Manila where he resides, based on that contract. The venue is proper
because the plaintiff is a resident of Manila.
Now, let’s say on January 10, Lew not knowing about the Manila case filed an identical action against Cholo in
Davao City. So hindi alam ni Lew na mayroon na palang kaso. So dalawa na. And then on January 15, Lew received
summons in Manila case. By January 20, Cholo filed a motion to dismiss the Davao case on the ground of litis
pendentia.
According to Lew, there is no litis pendentia because when I filed may case against Cholo, there is no pending
action to talk about because hindi ko alam. I received the summons very much later.
ISSUE: Was there litis pendentia? Is Lew correct?
HELD: There was litis pendentia. Lew is wrong. Why? When does an action, become pending? An actions
becomes pending upon the filing of a case in court and the payment of docket fee. The actions does not
become pending only from the time you receive the summons. It is pending form the moment it was filed.
Therefore when it was filed on January 5, t is already pending although you did not know about it. That is the
reasoning in this case.
ANDRESONS GROUP vs. COURT OF APPEALS

G.R. No. 114928; January 21, 1997
FACTS: Willy Denate entered into an agency agreement with AG as its commission agent for the sale of wines
and liquors in Davao City, Davao provinces and North Cotabato. On November 18, 1991, Denate filed a civil action for
collection of sum of money against AG before the RTC Davao.
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Denate alleged that he was entitled to the amount of P882,107.95, representing commissions from AG but that
AG had maliciously failed and refused to pay the same. On December 19, 1991, AG likewise filed a complaint for
collection of sum of money with damages against Denate with the RTC Kalookan City. AG alleged that Denate still
owed it the sum of P1,618,467.98 after deducting commissions and remittances. Denate filed a Motion to dismiss the
case with the Kalookan RTC on the ground that there was another action pending between the same parties for the
same cause of action, citing the case earlier filed with the RTC of Davao City.
AG filed its opposition to the Motion to Dismiss on the ground that the RTC of Davao had not acquired jurisdiction
over it.
RTC of Kalookan City ruled that: “the Davao case involves the same parties, and involves substantial identity in
the case of action and reliefs sought, as in the instant case however, jurisdiction over the parties has already been
acquired by the RTC Kaloocan, as Denate received the summons as early as Jan 8, 1992, and AG. On the other
hand, the summons in the Davao case has not yet been served as of Apr 21, 1992, the date of the hearing of the
instant motion, so much so that the said Davao Court has not yet acquired jurisdiction over the parties.” The CA
reversed.
ISSUE: Should the action in the Kalookan RTC be dismissed on the ground of lis pendens?
HELD: YES. “Lis pendens as a ground for the dismissal of a civil action refers to that situation wherein another
action is pending between the same parties for the same cause of action. To constitute the defense of lis pendens, it
must appear that not only are the parties in the two actions the same but there is substantial identity in the cause of
action and relief sought.”
“Further, it is required that the identity be such that any judgment which may be rendered in the other would,
regardless of which party is successful, amount to res judicata on the case on hand. All these requisites are present in
the instant case: 1.)The parties in the Davao and Caloocan cases are the same; 2.) They are suing each other for
sums of money which arose from their contract of agency; 3.) The relief prayed for is based on the same facts and
there is identity of rights asserted; 4.) Any judgment rendered in one case would amount to res judicata in the other.”
“In conceptualizing lis pendens, we have said that like res judicata as a doctrine, litis pendentia is a sanction of
public policy against multiplicity of suits. The principle upon which a plea of another action pending is sustained is that
the latter action is deemed unnecessary and vexatious.”
“AG asserts that the Davao Court had not yet acquired jurisdiction over the parties as the summons had not been
served as of April 21, 1992 and it claims that pendency of a case, as contemplated by the law on lis pendens,
presupposes a valid service of summons.”
“This argument is untenable. A civil action is commenced by filing a complaint with the court. The phraseology
adopted in the Rules of Court merely states that another action pending between the same parties for the same cause
is a ground for motion to dismiss. As worded, the rule does not contemplate that there be a prior pending action,
since it is enough that there is a pending action. Neither is it required that the party be served with summons before lis
pendens should apply. The rule of lis pendens refers to another action. An action starts only upon the filing of a
complaint in court.”
“It must be emphasized that the rule on litis pendentia does not require that the later case should yield to the
earlier. The criterion used in determining which case should be abated is which is the more appropriate action or
which court would be in a better position to serve the interests of justice. Applying these criteria, and considering that
both cases involve a sum of money collected in and around Davao, the Davao Court would be in a better position to
hear and try the case, as the witnesses and evidence would be coming from said area.”
“WHEREFORE, the decision of the CA is hereby AFFIRMED.”
Sixth Ground: [f] THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT OR BY THE STATUTE OF
LIMITATIONS;
Actually there are two grounds here:

1.) Barred by prior judgment (RES ADJUDICATA) and
2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also related to splitting of cause of action. The only difference
is: there is already a judgment in the first action which has become final and executory. That is why, you have to go back to Rule 2,
Section 4 – what is the effect of splitting a cause of action? The pendency of one case or judgment in one case is a ground f or the
dismissal of the other.
So, if there is a case on appeal, the proper ground for dismissal would be litis pendentia rather than res adjudicata
because the case is still pending before the CA – the judgment is not yet final.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of time.
The grounds on motion to dismiss are waivable based on Rule 9, Section 1 – defenses and objections not pleaded whether in
a motion to dismiss or in the answer are deemed waived. HOWEVER when it appears from the pleadings or the evidence on
record:
1.) that the court has no jurisdiction over the subject matter (Rule 16, Section 1 [b]);
2.) that there is another action pending between the same parties for the same cause (Rule 16, Section 1 [e]); or
3.) that the action is barred by a prior judgment (Rule 16, Section 1 [f]); or
4.) that the action is barred statute of limitations (Rule 16, Section 1 [f]),
the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM

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STATES NO CAUSE OF ACTION;
That is also an important one – the pleading asserting the claim does not state a cause of action. In most cases, it is the
defendant who files a motion to dismiss citing this ground.
Remember that under Rule 2, Section 1, every civil action must be based on a cause of action. Therefore, the four (4)
elements of cause of action must be alleged. If one element is missing, there is no cause of action and it is now a ground for
dismissal. So, that is a condition. Kung walang cause of action, patay!
I think the language of the previous rule is: The complaint states no cause of action. That is the ‘64 Rules. Ito namang 1997
Rules: The pleading asserting the claim states no cause of action. This is broader because the pleading which does not state a
cause of action could be a complaint, counter-claim, cross-clam or third-party complaint. So, it is broader.
Q: How will you know that the pleading (e.g. complaint) states or does not state a cause of action?
A: The principle to remember is: Whether the pleading states a cause of action or not is determined only by allegations in the
pleading. The rule is similar to on the ground of lack of jurisdiction under paragraph [b].
The defendant is not allowed to say that the plaintiff has no cause of action because what he is saying in his
complaint is not true and this is what is true. No, that will not lie. You have to hypothetically admit again.
What is the rule? When a defendant files a motion to dismiss under this ground, he hypothetically admits the truth of
all the allegation raised in the complaint. And he is posing this question: “Assuming for the sake of argument that
everything contained in your complaint or pleading is really correct, are you entitled to the relief prayed for?”
If the answer is YES, then it states a cause of action. If the answer is NO, even if lahat niyan eh totoo, you still can’t win, then
there is something wrong in the complaint. It still states no cause of action. Therefore, when the defendant disputes the truth of the
allegations of the complaint, the correct move is to file an answer and not a motion to dismiss. He cannot dispute the allegation in
the pleading because he hypothetically admits them.
That is why the SC said in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA

180 SCRA 576 [1989]
HELD: The lack of cause of action is not a ground for the dismissal of an action under Rule 16. The
ground is the failure of the complaint to state a cause of action which is obviously not the same as the
plaintiff not having a cause of action. The lack of cause of action becomes evident during the course of the
trial but whether the complaint states a cause of action is only limited to what the complaint says.
So, my complaint may state a cause of action when in reality it does not. At that moment, you cannot dismiss it.
Now, of course the rule that a defendant who files a motion to dismiss hypothetically admits all the allegations in the complaint,
as explained by the SC, refer only to material allegations of ultimate facts. If those are evidentiary facts or conclusions of fact or
law, they are not admitted, for in the first place, they have no place in the pleading.
Di ba? You are not supposed to allege conclusion there or arguments. So these are not admitted even if I filed a motion
because what are admitted are those material allegation of the ultimate facts. That is the ruling in the 1990 case of
RAVA DEV'T CORP. vs. COURT OF APPEALS

211 SCRA 144 [1992]
HELD: “The hypothetical admission is however limited to the relevant and material facts well pleaded in
the complaint and inferences fairly deductible therefrom. The admission does not extend to conclusions or
interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice.”
Meaning, you allege there something which is 100% false and the court knows it, but you filed a motion to dismiss, are you
deemed to hypothetically admit something which everybody knows is false? NO. When you file a motion to dismiss, you are
deemed to admit everything there is true except matters which are 100% false and which the court itself knows to be false, or the
conclusions of the pleader because in the first place, conclusions have no place in the pleading.
ROSITA TAN vs. COURT OF APPEALS

295 SCRA 247 [Sept. 9, 1998]
FACTS: The controversy centers on 2 parcels of land, Manila previously owned by one Alejandro Tan Keh and
which were then covered by TCT 35656.Fernando Tan Kiat claimed that he bought the land from Tan Keh in 1954,
but was unable to effect immediate transfer of title in his favor in view of his foreign nationality at the time of the sale.
Nonetheless, as an assurance in good faith of the sales agreement, Tan Keh turned over to Kiat the owner's duplicate
copy of TCT 35656 and, in addition, executed a lease contract in favor of Kiat for 40 years.
However, in 1958, Tan Keh sold the subject properties to Remigio Tan, his brother and father of Rosita Tan, with
the understanding that the land are to be held in trust by Remigio for the benefit of Kiat and that Remigio would
execute the proper documents of transfer in favor of Kiat should Kiat at anytime demand recovery of land.
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TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was issued in the name of Remigio. Another
contract of lease was executed by Tan Keh and Remigio in favor of Kiat to further safeguard Kiat's interest on the
land, but Kiat never paid any rental and no demand whatsoever for the payment thereof had been made on him.
Remigio was killed in 1968. At his wake, Rosita was reminded of Kiat's ownership of the land and she promised
to transfer the land to Kiat who by then had already acquired Filipino citizenship by naturalization.
Rosita, however, never made good their promise to convey the land despite repeated demands by Kiat. In fact,
Rosita had the land fraudulently transferred to her name under TCT 117898. Thus, the filing of the complaint for
recovery of property.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint, claiming that: the complaint stated no cause of
action; the cause of action has long prescribed; the cause of action has long been barred by a prior judgment; and,
the claim has been waived, abandoned and/or extinguished by laches and estoppel.
The RTC issued an order dismissing Kiat's complaint, acceding to all the grounds set forth by Rosita in her
motion to dismiss. CA set aside the dismissal and ordered the remand of the case for further proceedings.
HELD: There is merit in the petition. “There being no trust, express or implied, established in favor of Kiat, the
only transaction that can be gleaned from the allegations in the complaint is a double sale, the controlling provision for
which is Art. 1544 of the Civil Code. Kiat alleged that he bought the subject properties from Tan Keh in 1954 but
nonetheless failed to present any document evidencing the same, while Remigio, as the other buyer, had in his name
TCT 53284 duly registered on Oct 13, 1958.”
“Remigio, beyond doubt, was the buyer entitled to the subject properties since the prevailing rule is that in the
double sale of real property, the buyer who is in possession of a Torrens title and had the deed of sale registered
must prevail. Rosita is in possession of TCT 117898 which evidences her ownership of land. Kiat relies simply on the
allegation that he is entitled to the properties by virtue of a sale between him and Tan Keh who is now dead.
Obviously, Kiat will rely on parol evidence which, under the circumstances obtaining, cannot be allowed without
violating the "Dead Man's Statute" found in Sec. 23, Rule 130. Clearly then, from a reading of the complaint itself, the
complaint indeed does not spell out any cause of action.”
“We also agree with Rosita's submission that Kiat's cause of action has prescribed. TCT 53284 in the name of
Remigio was registered on Oct 13, 1958, while TCT 117898 in the name of Rosita, was issued on Apr 21, 1975. Kiat
filed his complaint on Oct 18, 1993. CA held that the 10-year prescriptive period for the reconveyance of property
based on an implied trust cannot apply in this case since Kiat was in actual possession of the subject properties.”
“However, Kiat's occupation of the land was never in the concept of an owner since he was a mere lessee who is
estopped from denying the title of Remigio as owner-lessor. It thus becomes evident that the filing of Kiat's complaint
in 1993 — 35 years after TCT 53284 in the name of Remigio was registered and 18 years after the issuance of TCT
117898 in the name of Rosita — was way beyond the 10-year time limit within which reconveyance of property based
on an implied trust should be instituted. Kiat's cause of action, assuming that it exists, has clearly prescribed.”
“Finally, Kiat is guilty of laches. Kiat's possession of the land cannot be made the basis to deflect the effects of
laches because he is a mere lessee who, to repeat, cannot assert any adverse claim of ownership over the subject
properties against the lessor-owner. What ought to be in focus is that, Kiat was not able to effect the transfer of title
over the subject properties in his favor upon his purchase thereof from Tan Keh in 1954 because he was still a
foreigner at that time. But Kiat later on claimed that he was already a Filipino national when he reminded Rosita of his
ownership of the subject properties during Remigio s wake sometime in 1968.”
“It may be reasonably deduced from these allegations that Kiat acquired Filipino citizenship by naturalization,
thus entitling him to own properties in the 1960's, more or less. His mistake, if it is one, is that he tarried for 30 years
before formally laying claim to the subject properties before the court. Considerable delay in asserting one's right
before a court of justice is strongly persuasive of the lack of merit of his claim, since it is human nature for a person to
enforce his right when the same is threatened or invaded. Thus, Kiat is estopped by laches from questioning the
ownership of the land.”
“WHEREFORE, the assailed decision of CA is SET ASIDE, and a new one is rendered DISMISSING Fernando
Tan Kiat's complaint.”
Q: Now, is there an exception to the rule that when the court determines whether there is a cause of action or not, the court
cannot look at the evidence – all must be based on the complaint and there should be no appreciation of any evidence?
A: Based on the EXCEPTION in the case of
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK

157 SCRA 100 [1987]
FACTS: The plaintiff filed a complaint against defendant with a prayer for a preliminary injunction. So, it is not
only a complaint but plaintiff applied for a provisional remedy. And under the law in provisional remedy, that must be
heard immediately because that is urgent, eh! And in a preliminary injunction, there must be a hearing because pre-
liminary injunction cannot be granted ex parte.
So even before the answer could be filed, nagkaroon na ng hearing and the plaintiff already presented evidence
on his cause of action during the hearing for the issuance of the writ of preliminary injunction. Then after the hearing,
here comes now the defendant moving to dismiss the entire case because there is no cause of action based on the
evidence you presented.
Plaintiff: No, the cause of action is determined only based on the allegations in the complaint and you do not look
at the evidence.
HELD: That is the general rule. If nag-present ka na ng ebidensiya in the preliminary injunction, the court
can now determine whether there is a cause of action also based on the evidence. So that is the exception
because there has been a reception of evidence ahead of a motion to dismiss.
“It is true that the determination of the sufficiency of a cause of action must be limited to the facts alleged
in the Complaint and no other should be considered. However, where a hearing was held and documentary
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evidence was presented, not on the Motion to Dismiss but on the question of granting or denying an
application for a Writ of Preliminary Injunction, a motion to dismiss for insufficiency of cause of action will be
granted if documentary evidence admitted by stipulation disclosing facts sufficient to defeat the claim which
authorizes the court to go beyond disclosure in the complaint.”
So that would be the exception: where evidence has already been presented in the main cause of action because of
the application for preliminary injunction.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S PLEADING HAS BEEN PAID,
WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing obligation are Payment, Performance, Condonation,
Compensation, Remission, etc. So if I have already paid a sum of money and you are filing a case to collect such amount, I can file
a motion to dismiss on the ground that the claim or demand set forth in the complaint has already been paid or otherwise
extinguished.
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS
UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF FRAUDS
Statute of Frauds are contracts under Article 1403 of the Civil Code which are unenforceable if not made in writing. However
there is still a valid contract, only they are unenforceable because they were not reduced into writing.
EXAMPLES of Statute of Frauds under Article 1403:
1.) a contract that by its terms is not to be performed within one year from the making of such contract;
2.) a special promise to answer for the debt, default, or miscarriage of another;
3.) an agreement made in consideration of marriage, other than a mutual promise to marry;
4.) an agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos…;
5.) an agreement for the leasing for a longer period than one year, or for the sale of real property or an interest
therein;
6.) a representation as to the credit of a third person.
Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR FILING THE CLAIM
HAS NOT BEEN COMPLIED WITH.
Meaning, the law requires something to be done before going to court and if you file the case in court immediately without
complying with that condition precedent, then the defendant can move for dismissal of the complaint.
EXAMPLES:
1.) Failure to exhaust administrative remedies;

2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle or compromise the suit at the barangay level before
raising the action in court. If nothing will happen then proceed the case to court.
3.) Article 151 of the Family Code contemplates suit between family members.
It must be alleged in the complaint that earnest efforts towards a compromise is made between: husband and wife,
parents and children, ascendants and descendants, brothers and sisters, whether full or half blood. So you are not allowed to
file a case directly between family members in order to preserve the family as a basic social institution being the foundation of
the nation.
So it should appear form a verified complaint or petition that earnest efforts toward a compromise have been made, but
the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.
Q: What about a suit to a nephew?

A: Article 151 will not apply. One can file directly to the court because even though he is your relative he is not a member of
your family.
Q: How about a suit against a brother and a stranger?

A: There is no need for the requirement of earnest efforts. It is a mixed case, there is already a stranger included. Pag-
nahaluan na, Article 151 will not apply anymore.
Now, under the last sentence of Article 151, “This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.” This refer to Article 2035 of the New Civil Code:
Art. 2035. No compromise upon the following questions shall be valid:
1. The civil status of persons;

2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
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5. The jurisdiction of courts;
6. Future legitime.
So hindi nyo pwedeng pag-usapan na lang ang mga bagay na iyan. If a person claiming to be the son of your father and you
wish to avoid delay, you will seek to compromise, this cannot be done. As well as saying you are single even if you are married in
order to facilitate things, this cannot be done.
Under the 1964 Rules, this last ground (non-compliance with a condition precedent requirement) is not found therein. However,
there is a ground that is no longer found in the present Rules of Court, that the suit between members of the family and that no
earnest efforts towards a compromise has been made, this was stated as the last ground. It does not mean, however, that it can
no longer be applied. This has been incorporated under paragraph [j] of the new rules. It is already a broader ground.
Sec. 2. Hearing of motion. At the hearing of the motion, the parties shall submit their arguments on the
questions of law and their evidence on the questions of fact involved except those not available at that
time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of
the evidence of the party presenting the same. (n)
During the hearing of a motion to dismiss, the movant is allowed to present evidence to prove his claim. Like for example: the
venue is not properly laid or the action is already extinguished by payment or the action is already barred by a prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the defendant is allowed to present evidence to prove the
ground for his dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter (paragraph [b]); or
2.) The pleading asserting the claim states no cause of action (paragraph [g])
When these are the grounds invoked, the defendant is not allowed to present evidence because you are hypothetically
admitting all the allegations in the complaint as true and correct. You are not allowed to dispute or deny those allegations. It shall
be based purely on the allegations of the complaint so you are not allowed to prove that those allegations are not true.
And should the case go to trial, the evidence presented shall automatically form part of the evidence of the party presenting the
same. There is no need to present those evidence again during the trial because the evidence during the hearing is automatic ally
part of the evidence during the trial. This is similar to the rule on Bail in Criminal Procedure.
Sec. 3. Resolution of motion. After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is
not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)
Q: How will the court rule on the motion to dismiss?

A: The following:
1.) The court will dismiss the action. (motion is granted);
2.) The court will deny the motion (proceed to trial); or
3.) The court will order the amendment of the pleading
When the court orders the amendment of the pleading, in effect the motion to dismiss is also denied. So, the rule is when the
ground for the dismissal can be cured by amending the complaint, do not dismiss but require the party to amend the complaint.
That is a polite way of denying your motion to dismiss.
Like for example, the cause of action is imperfectly stated, kulang ng allegation ba. So the plaintiff would say: “Your Honor, we
will add one sentence para makumpleto.” Sabi ng judge: “No! no! no! We will dismiss.” No, the judge cannot do that. Curable yon
eh! And amendment of the pleading is favored.
Q: Suppose the plaintiff filed a complaint and the defendant files a motion to dismiss, can the plaintiff still amend his complaint?
Otherwise stated, can the plaintiff still amend his complaint when there is already a motion to dismiss?
A: Ah YES! Because it is the right of the plaintiff to amend his complaint before a responsive pleading is served upon
him. And a motion to dismiss is not a responsive pleading. It is not even a pleading (Guirao vs. Ver, April 29, 1966) The
responsive pleading to the complaint is the Answer.
Q: Now, suppose there is already an order of dismissal in which the court has already ordered the dismissal of the case,
because it does not state the cause of action of the complaint. Plaintiff: “Alright! Motion to amend the complaint to state the cause
of action and set aside the order of dismissal.” Can that still be done at that stage where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become final and executory because the rule is absolute: for as
long as there is still no responsive pleading, the right of the plaintiff to amend his complaint is a matter of right.
The second paragraph of the section “The court shall not defer the resolution…” is an amendment of the previous rule. Under
the previous rule, the court had four options: 1) grant the motion; 2) deny; 3)order amendment; and 4) defer the resolution for the
reason that the ground relied upon is not indubitable. What does it mean?
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‘Indubitable’ means without a doubt, thus the ground was not without a doubt, it is doubtful, it is not indubitable. EXAMPLE:
Defendant filed a motion to dismiss the case and the court analyzed the ground. After analyzing, the court is not sure. The ground
seems to be valid but the court also doubts. Parang 50-50 ba.
Now the previous rule allows the court not to act—it will not act, it will not deny. The court will just postpone the resolution of
the motion to dismiss, until the trial, because the ground is doubtful. In the course of the trial, the court may realize whether the
ground is correct or not. When the ground becomes clearer, the court may say, “All right, I will grant the motion”. That was allowed
under the previous rule.
NOW, that is not allowed anymore. The court really has to act on the motion: either grant it, deny it, or order the
amendment.
Even under the previous rule, there were already instances where the SC said that the courts should not postpone the
resolution, especially when the ground of dismissal is lack of jurisdiction over the subject matter, or that the complaint states no
cause of action. Why? The court only has to read the complaint and there is no need of presentation of evidence to rule on the
motion. There were decided cases along that line, and obviously that reasoning predominated the committee.
The last paragraph is self-explanatory, whether the Court denies or grants the Motion, it must support its Order.
Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer within the balance of
the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less
than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is
ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from
service of the amended pleading, unless the court provides a longer period. (4a)
Q: Suppose defendant files a motion to dismiss and the court granted the motion. The case is dismissed. What happens to
the case?
A: No more case. The defendant has no more problem because the case has been ordered dismissed.
Q: Suppose the court denies the motion to dismiss?

A: Defendant is now obliged to file his answer. Under Rule 11, he has 15 days to file his answer.
Q: But instead of filing his answer, he files a motion to dismiss. Like for example, after consuming 8 days, he files a motion to
dismiss, the running of the period stops. After a while, he receives an order denying his motion. How many more days does he
have?
A: Seven (7) days only. He must file his answer within the remaining balance of the period.
This is a radical departure from the previous Rule. Under the 1964 Rules, when you file a motion to dismiss on the eight day,
and the motion is denied, you have 15 days all over again to file an answer. NOW, no more – you only have the remaining balance
of the 15-day period.
Q: Now, suppose you file your motion to dismiss on the 13th day, so, two days to go. If your motion is denied, do you only have
two days to file your Answer?
A: NO. You are entitled to not less than five (5) days. This is identical with Rule 12, Section 5 on Bills of Particular:
Rule 12, Sec. 5. Stay of period to file responsive pleading. - After service of the bill of particulars or of a
more definite pleading, or after notice of denial of his motion, the moving party may file his responsive
pleading with the period to which he was entitled at the time of filing his motion, which shall not be less
than five (5) days in any event. (1[b]a)
Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based
on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)
Normally, when the motion to dismiss is granted, it does not prevent the plaintiff from re-filing the case. Like for example, the
case is dismissed for lack of jurisdiction over the subject matter. I can re-file that in the proper court. Or, suppose the case is
dismissed for improper venue, so I will file it in the proper venue.
But there is a new provision, that is, if the ground for a motion to dismiss are the following you cannot re-file it anymore. That
is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata, statute of limitations, prescription of the claim or statute of
frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh kasi res judicata na, tapos magpa-file ka na naman ng
panibago? Hindi na puwede yan. Or, it is already dismissed because the obligation has already been paid, then you will file? That
cannot be done anymore. So, in other words, it is res judicata already. So to summarize:
GENERAL RULE: A case that has been dismissed can be re-filed.

EXCEPTIONS: When the case was dismissed on the following grounds:
1.) That the cause of action is barred by a prior judgment or by the statute of limitations;
2.) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise
extinguished; or
3.) That the claim on which the action is founded is unenforceable under the provisions of the Statute of Frauds.
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Q: For example, the court says: “Your action is barred by res judicata.” But actually, the court is wrong, what is your
REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not to re-file the case because that would already be res
adjudicata. That is common sense.
Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss
had been filed. (5a)
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer. (n)
Q: For example, I’m a defendant, I receive a complaint and I believe I have a ground for a Motion to Dismiss under Section 1
from [a] to [j]. I will not file a motion to dismiss, instead, I will file an answer, is that allowed?
A: Yes, because it is OPTIONAL for a defendant to file a motion to dismiss. And I can file my answer and a grounds for
dismissal can be raised as an affirmative defense.
So the grounds for a motion to dismiss are convertible. Instead of filing a motion to dismiss, I will allege the grounds as
affirmative defenses, like—no cause of action, litis pendentia, res adjudicata, payment, statute of frauds, prescription…
Now, if you will file an answer raising the ground for a motion to dismiss as an affirmative defense, then you are prolonging the
agony because if the court has no jurisdiction, or there is improper venue or whatever it is, if you file a motion to dismiss in the first
place and you are sustained, then tapos na sana! Bakit patagaling mo pa by filing an answer eh pwede naman pala i-raise yung
mga yun in a motion to dismiss? Because of this, trial will proceed. And after the plaintiff has rested the case, that is the only time
you will prove your defense. So, why do you prolong the agony?
Under Section 6, after filing of such answer, the defendant can ask for a preliminary hearing on his affirmative defenses as if a
motion to dismiss has been filed. Meaning, this should be heard ahead. And if the court grants the preliminary hearing, you c an
move your affirmative defenses ahead and if you correct, the court will dismiss the case. So, it has the same effect as if you file a
motion to dismiss. That is why a preliminary hearing may be had as a motion to dismiss.
Now, you ask me why should the defendant do this? Di, mabuti pa na mag-file na lang siya ng motion to dismiss – doon din
pala and babaksakan eh. Why file an answer and then preliminary hearing? Because this is a matter of strategy on trial technique.
If I will file a motion to dismiss which is not a responsive pleading, the plaintiff may amend the complaint, and I cannot
prevent him from amending because the amendment is still a matter of right at that moment.
So if I will file an answer instead, sabihin ng plaintiff, “Tama no? Ok, I will amend the complaint.” Defendant: “No! No! No! No!
Hindi na puwede because may responsive pleading na! Amendment is not anymore a matter of right.” That would be the purpose of
the defendant in not filing a motion to dismiss.
That follows the general principle in trial technique. Do not expose your adversary’s mistake when he is in a position to correct
them. When the point is reached when he cannot anymore correct the error, then, dyan mo na ilabas. Huwag kang magmadali,
maghintay ka. That is the advice in trial technique.
The second paragraph of Section 6 is new:
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer. (n)
Q: Suppose I will file an answer with affirmative defenses and with a counterclaim. If the court dismisses the complaint, what
happens to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in a separate action; or
2.) The defendant can dismiss the complaint but the counterclaim remains alive.
In the OLD RULES, when the main case is dismissed, the counterclaim is automatically dismissed, lalo na ‘yong compulsory.
If the defendant moved to dismiss the case, in effect he was also moving to dismiss his counterclaim. That is what the SC said in
the case of
INT’L CONTAINER TERMINAL SERVICES vs. COURT OF APPEALS

214 SCRA 456 [OBSOLETE!]
HELD: “A compulsory counterclaim is so intertwined with the complaint that it would not remain pending for
independent adjudication by the court after the dismissal of the complaint which had provoked the counterclaim in the
first place. As a consequence, the dismissal of the complaint operated also to dismiss the counterclaim questioning
the complaint. When defendant moved to dismiss the main action, he also moved, in effect, for the dismissal of the
counterclaim.”
That is the prior rule. That ruling is already OBSOLETE because of this new paragraph, “The dismissal of the complaint under
this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.”
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NOW, you can move to dismiss the complaint. Ang counterclaim mo buhay pa rin. And you can continue to insist that on a trial.
Rule 17
DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon
such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated
in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon
the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or
including the same claim. (1a)
Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he dismiss his own complaint?
A: YES. And it is a matter of right.
Q: How?
A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for Summary Judgment.
Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the right to dismiss his own complaint by simply
sending the court what is known as a notice of dismissal.
This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as there is no answer yet.
Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the dismissal. The reason is
that, the withdrawal is not automatic. Withdrawal does not take effect until confirmed by the court. This is keeping with the
respect due to the court.
Under the rules on civil procedure, there are two types of dismissal:
1. Dismissal with prejudice – the case can no longer be re-filed;
2. Dismissal without prejudice –the case can be re-filed.
Q: Is the dismissal under Section 1 with or without prejudice?

A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed.
EXCEPTIONS:
1.) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his own complaint with
prejudice; OR
2.) When a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed
in a competent court an action based on or including the same claim.. This is the TWO-DISMISSAL RULE.
ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaños and I did not pay him. So he filed a case against
me to collect the unpaid loan. Upon receipt of the summons, I approach Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo,
babayaran kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. I-dismiss mo na lang iyan, babayaran kita next
month, wala lang akong kuwarta ngayon. I will refund you for the filing fee”. Ngayon, payag siya. He will send a notice to the court
dismissing his complaint. The case is dismissed, without prejudice.
After one month, I did not pay again. So nagalit si Mr. Castaños, he re-filed the same complaint, pangalawa na. I now receive
another summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh, sabi mo, after one month magbabayad ka.” “Wala lang
akong kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next month, bayad na talaga
ako. Isauli ko ang ginasta mo sa filing fee.” Tapos, naatik na naman siya. So he files a notice of dismissal again, doble. The same
case was dismissed twice. He availed of the dismissal in Section 1 twice.
After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same case for the third time. I
receive the summons. You know what I will do? I will file a motion to dismiss the case because the second dismissal is
automatically with prejudice.
This is known as the 2-dismissal rule. You cannot file it for the third time.
Briefly, the two-dismissal rule simply means that when the same complaint had twice been dismissed by the plaintiff under
Section 1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice. Yaann!
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Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and had it dismissed under Section
1. And then after having dismissed, you changed again your mind and you want to re-file the action. Now, How do you re-file it the
action? Do you file another complaint again?
A: That was answered in the case of
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO

234 SCRA 455 [1994]
HELD: It DEPENDS on whether the order of dismissal has already become final.
a.) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask the court to
set aside the order of dismissal and re-vive the case because the order of dismissal have not yet become
final.
b.) However, if the order of the court dismissing the complaint based on your own notice has become
final after 15 days, then the only way you can revive it is to file an entirely new action.
Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint
shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms
and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the
service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a
separate action unless within fifteen (15) days from notice of the motion he manifests his preference to
have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised
without the approval of the court. (2a)
Q: If the defendant has already filed an answer or a motion for summary judgment, may the complaint still be dismissed by the
plaintiff?
A: YES, but it is already upon the approval of the court and upon such terms and conditions as the court deems proper.
Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of right because the defendant has already filed an
answer or a motion for summary judgment.
Q: Suppose I file a case against you and you file an answer with counterclaim, and I filed a notice dismissing my own
complaint. Can it be done? What happens to the counterclaim?
A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the counterclaim. So a compulsory
counterclaim remains despite the dismissal of the complaint. The dismissal shall be limited to the complaint.
Of course, generally, if we follow the language of the law, when you dismiss the complaint, the counterclaim is also
dismissed unless within 15 days, the defendant manifest his preference to have his counterclaim resolve in the same
action.
GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed.
EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the radical change. The
cases that we cited before are now bahaw.
Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he re-file the case?
A: The rule is the same as Section 1 – the dismissal of the complaint under Section 2 shall be without prejudice unless
otherwise specified in the order of dismissal. So, the dismissal under Sections 1 and 2 is generally without prejudice.
The last sentence, “A class suit shall not be dismissed or compromised without the approval of the court.” When you
file a class suit, you are not only fighting for yourself – you are fighting for the others. So, you cannot just withdraw it on your own
or else, you will cause prejudice to everybody. So, in order to prevent the person who filed it from prejudicing the right of the
members of the class suit, it cannot be dismissed or compromised without the approval of the court.
Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may
be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the
right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal
shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)
Q: What are the grounds for the dismissal of the case under Section 3?
A: The following are the grounds for the dismissal of a case under Section 3:
1.) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint;
2.) The plaintiff fails to prosecute his action for an unreasonable length of time;
3.) The plaintiff fails to comply with the Rules of Court or any order of the court for no justifiable reason or
cause.
First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF HIS EVIDENCE-IN-CHIEF
ON THE COMPLAINT
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Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action.
So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint, the case can be
dismissed. This has been taken from the ruling of the SC in the case of:
JALOVER vs. YTORIAGA

80 SCRA 100 [1977]
FACTS: Plaintiff appeared during the trial and presented his evidence and then he rested. And then during the
hearing of the presentation of the defendant’s evidence, plaintiff failed to appear. And since he failed to appear during
trial, the court dismissed the case.
HELD: The dismissal is WRONG. Why dismiss the case when he has already presented his evidence? It is
tantamount to deciding the case against the plaintiff without considering the evidence that he has presented. What is
the remedy then?
What the court should do is to proceed with the presentation of the defendant’s evidence without the plaintiff. Do
not dismiss the case the plaintiff has already presented his evidence.
That is why the language in the old rule is ‘failure to prosecute’ or another term is ‘non-suited’. But the rules of court now wants
to avoid the word ‘non-suited’ because it carries a different meaning.
If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived a little bit late, or he
failed to appear because he failed to receive the notice setting it, that is different because the law says, “for no justifiable
cause.” If I am late but a few minutes only, that is not a good basis to dismiss the case forever. There is no intentional
failure not to appear. In which case, if there is an order of dismissal, it should be set aside because the condition is “for
no justifiable cause.”
If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that the trial shall proceed ex-
parte. But definitely, the defendant cannot be declared in default because he already filed an answer.
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION

FOR UNREASONABLE LENGTH OF TIME.
EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he postpones. The next hearing,
he postpones again. That’s one interpretation.
Another interpretation of “failure to prosecute” the complaint is filed, answer if filed, the case has not been set for
pre-trial, the plaintiff did not take the initiative to have the case set for pre-trial. For more than one year, the case has not
been set for pre-trial and the plaintiff is not moving. Ikaw ang plaintiff, ikaw ang kumilos!
Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking the plaintiff for the correct
address of the defendant. And for more than one year, the plaintiff cannot supply the court of the correct address of the defendant.
The judge cannot have the case docketed in court forever.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR

ANY ORDER OF THE COURT.
EXAMPLE: The court says, “Plaintiff, you are hereby directed to amend the complaint.” Plaintiff refuse to amend. The court will
dismiss the case.
Remember that case I cited where the complaint was filed in the name of for example, “PANINGKAMOT STORE vs. SO and
SO.” The SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not a person. It is only the name of the business
establishment. Only natural person or juridical persons may be subject of the suit.
Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the owner of the store. So the
court directs the plaintiff to amend. Ayaw mo i-amend ha? This time i-dismiss ko for failure to comply with the court’s order.
Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum shopping.
Now, Section 3 says, “…may be dismissed upon motion of the defendant or upon the court’s own motion (motu
propio).”
Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant?
A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the grounds for dismissal
are waivable. If the defendant fails to move for dismissal, he is waiving the defect.
Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?).
A: The following
1. Section 3, Rule 17 (Plaintiff’s fault);
2. When on its face, the complaint shows that the court has no jurisdiction over the subject matter;
3. When there is litis pendentia; or res adjudicata; or when the action has prescribed;
4. Under the Summary Rules, the court is empowered to dismiss immediately without any motion.
179
Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice to the right of the
defendant to prosecute his counterclaim in the same or separate action. Again, the dismissal of the main action or compliant
does not mean the dismissal of the counterclaim. This is the same with Section 2.
Q: If the complaint is dismissed under Section 3, can it still be re-filed?

A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning, res adjudicata applies,
as if the case has already been decided. Therefore the elements of res adjudicata should also be present. The dismissal is
with prejudice unless otherwise declared by the court.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice.
EXCEPTION: Unless the court provides otherwise.
EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to dismiss under Section 3. The
court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice. (General Rule)
Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without prejudice.” Can the case be
re-filed? YES. (Exception)
On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when we say res adjudicata, it
had to be correlated with the elements of res adjudicata in Rule 39) is the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned
because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After a while
the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent. So, following
Section 3, the dismissal is with prejudice.
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the compliant.
Defendant moved to dismiss because when the first complaint was dismissed and the order of dismissal was silent
then the dismissal has the effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under Rule
39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the case
both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he
was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata.
Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of the case, and the
parties in the previous case in order that the dismissal be with prejudice.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. The provisions of this Rule shall
apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal
by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a
motion for summary judgment is served or, if there is none, before the introduction of evidence at the
trial or hearing. (4a)
It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint – at any time before an answer
is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may dismiss his claim under Section 1, Rule 17.
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Rule 18
PRE-TRIAL
Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note that no case can reach
the trial stage without undergoing Pre-Trial after the issues have been joined.
Section 1. When conducted. After the last pleading has been served and filed, it shall be the duty of
the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)
In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound to move ex parte that the
case be set for pre-trial. No civil action can reach the trial stage without passing the pre-trial period.
Pre-trial in criminal cases is only optional—the accused and his lawyer have to agree. In civil cases, the pre-trial is
MANDATORY – no case can reach the trial stage without undergoing Pre-Trial. And it is the duty of the plaintiff and not of
the clerk of court to move to set the pre-trial. A motion for pre-trial can be filed ex parte, an exception to the rule that no
motion can be filed ex parte.
Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute
resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action. (1a, R20)
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(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE MODES OF
DISPUTE RESOLUTION
Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you get something from me
and I get something from you. Then we will submit out agreement to the court. In an amicable settlement, walang panalo and wala
ring talo. So everybody goes home happy.
There was an article where it says that one of the best gauge of a good lawyer is not that he has many cases, but that he
knows how to settle a case because he saves his client from a lot of trouble. While a bad lawyer is one whose cases always end
up in trial – he has many cases and he does not have the time anymore to study each cases. So, he ends up inefficient.
As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents of the United State, gave
an advice to lawyers: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how
the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior
opportunity of being a good man there will still be business enough.” Meaning, if you are a lawyer, you have a strong influence to
convince your client to settle the problem with his opponent. You do not have to worry about losing fees for there are still cases to
come. Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and effort.
“…of a submission to alternative modes of dispute resolution.” – how to dispose of the case without passing to court, ba. This
is similar to voluntary arbitration in the Labor Code – mas mabilis!. Kung sa court yan, matatagalan pa yan. Example is a
controversy in the construction industry. Pagawa ka ng building. You quarrel with your contractor whether the building is properly
constructed or not. That kind of dispute has to pass through arbitration like contractors. They will be the one to judge because they
are experts in construction. So it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag na alternative modes of
dispute resolution.
Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pre-trial was a failure? NO, go
to [b] to [i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or lessened/reduced to the most important and relevant ones.
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS;
Take note that there is already a complaint and answer and yet during the pre-trial, the parties can still amend their complaint
or answer. That means that amendments of pleadings are favored even at this stage. Amendment is necessary which is favored
by the liberality principle, to adjudicate the case upon proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC

21 SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a necessity for amending
the complaint. It was amended. Is there a need for a new pre-trial for the amended complaint?
ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does not mean the
need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the parties agree to conduct another
pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there is no need of proving them in court because we already
agreed. Such will hasten the trial because matters validly agreed upon can be dispensed with (e.g., size of the land, improvements
thereon, stipulations, due execution of documents, etc.)
Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate facts under the threat of
dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO.
160 SCRA 333
HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on the facts and issues that
may possibly crop up in a particular case, upon pain of dismissal of such case. The process of securing admissions
whether of facts or evidence is essentially voluntary, since stipulations of facts, like contracts, bind the parties thereto
who are not allowed to controvert statements made therein.
(e) THE LIMITATION OF THE NUMBER OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask, “Mr. Plaintiff, how many witnesses will you present?” The
plaintiff will say that he will present one hundred witnesses. So the court will start asking, “Why so many? Will it be possible to limit
the number of witnesses from 100 to 15 or 10? Anyway, what one witness will say will just be the same as what the other witness
will say.”
That is allowed and that is part of the pre-trial because it will be shortened if the number of witnesses will be reduced in
number.
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(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER;
This refer to Rule 32 the title of which is “Trial by Commissioners.” A commissioner is a person who may be appointed by a
judge to assist the court in determining certain issues.
EXAMPLE: Two people dealing with each other ended up suing each other because according to plaintiff, “You secured these
amounts from me and ito lang ang binayad mo. So, may utang ka pa.” But defendant said, “No, no, no! Based on my record,
overpaid pa ako.” That can happen where there has be confusion already on the invoices and receipts. Now, if we will try this case
in court it will take time because you have to present to the judge every receipt, every invoice. And these invoices may number by
hundreds. And what is worse is that the judge is not an accountant so he will have a hard time reconciling these receipts and
invoices.
Suppose the judge will say, “Alright, since this is a matter of accounting, I will appoint a CPA to assist me. You can choose
whoever this accountant or he may be appointed by this court. Then you go to him and present all your documents. And then he
will now analyze and then submit to me his findings. Based on his findings we will find out whether the defendant still owes the
plaintiff or there is no more utang.”
That is what you call, reference of issues to a commissioner. That will shorten the proceedings because if the judge will go
over the documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, “Your fence has already encroached on
my property.” Defendant answers, “No, no, no. This is the boundary.” So bakbakan na naman kayo. The court will ask,” Is it true
you encroached on his property?” How will the court know that? I think that is very technical. It is a geodetic engineer surveyor to
resolve the issue. He will plot the measurement and then he will submit a sketch. Then we will find out if there is an encroachment
or not.
As far as the judge is concerned, he does not know anything about description of the land, he is not a surveyor, not a geodetic
engineer. So it will be faster if a geodetic engineer surveyor will be appointed. What do you call this surveyor? He is a
commissioner.
(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT, OR OF

DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE FOUND TO EXIST;
Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment?
A: That was already mentioned under Rule 17, Section 1. But we will not take them up because they will be taken up when we
reach Rule 34 and 35. Judgment on the pleadings or summary judgment are remedies or procedure devised under the Rules of
court for the speedy determination of a civil case. It is one way of speedily terminating a civil case. Once it is rendered, tapos na
ang kaso.
The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary judgment if there is a ground. In
the same manner, the court may order the dismissal of the action should a valid ground therefor be found to exist because it is
possible that based on the complaint, there is no ground to dismiss but in the course of pre-trial, the plaintiff may admit something
which turns out to be a ground for dismissal.
EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago and did not pay. But during the
pre-trial, defendant said, “Actually, judge, hindi man yan three years ago. That was thirty years ago!” Plaintiff answered, “Actually,
judge, totoo yan.” So judge said, “My golly, the action has prescribed so I will order the dismissal.” These things can come out in
the pre-trial.
(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS;
This means that the case will be suspended, nothing will happen in the meantime. Hindi naman dismissed. The case will just
be held in abeyance.
EXAMPLE: Suppose the parties will say, “Judge, so far we cannot settle. But maybe if you will give us one or two months we
will be able to come up with a solution. We will meet once every three days para mag-istorya.” I think that is a good ground. In
other words, pwede pa silang mag-areglo, o sige! Because the law encourages amicable settlement.
Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are talking about now? What are
the possible grounds for suspending the proceedings in a civil case?
A: Rule 20, Section 8 on suspension of actions.
Sec. 8. Suspension of actions. - The suspension of actions shall be governed by the provisions of the
Civil Code. (n)
Actually, Section 8 points to Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by one or both parties; or
2. If it appears that one of the parties, before the commencement of the action or proceeding,
offered to discuss a possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action or proceeding and similar matters shall
be governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules
of court shall likewise provide for the appointment and duties of amicable compounders.
183
So a civil action may be suspended if at any time one of the parties offered to discuss a possible compromise because the
policy of the law is to have civil cases settled between the parties amicably. Let the parties talk among themselves to come up with
the possibility of amicable settlement even if one of the parties refuse to accept such an offer.
(i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION.
That is very broad – any other matter which will hasten the case. Anything under the sun can fall under this.
PURPOSE OF A PRE-TRIAL
A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case immediately because of amicable
settlement. If the parties can settle, then there is no need to proceed to trial. But if for valid or serious reason they cannot settle,
because the court can only encourage and not force a settlement, then they shall proceed with the pre-trial to find out if we can
have the case tried speedily and decided immediately by talking about other things like amending the pleadings, stipulation of facts,
admission of documents to avoid unnecessary proofs, limitation in the number of witnesses. So if we cannot settle, we can talk of
other things to speedily terminate the case. Instead of trying the case for two years, we can probably finish in six months.
DEVELOPMENT BANK vs. COURT OF APPEALS

169 SCRA 409
NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is actually the bible on pre-trial.
And this is what exactly Justice Narvasa said:
HELD: “Everyone knows that a pre-trial in civil actions is mandatory, and has been so since January 1, 1964
(effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of things is not fully appreciated, and
it receives but perfunctory treatment in many courts [Meaning, it is only complied with for the sake of compliance.]
Some courts consider it a mere technicality, serving no useful purpose save perhaps, occasionally to furnish ground
for non-suiting the plaintiff, or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial
device is not thus put to full use. Hence it has failed in the main to accomplish the chief objective for it: the
simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great pity, because the
objective is attainable, and with not much difficulty, if the device were more intelligently and extensively handled.”
The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of Rule 18.
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on the party who has
no counsel. The counsel served with such notice is charged with the duty of notifying the party
represented by him. (n)
This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to comply with due process.
Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case be set for trial and you will be given a notice of
pre-trial from the clerk of court. The notice of pre-trial shall be served on counsel or on the party who has no counsel.
Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party – dalawang notice – notice
to the lawyer is not notice to the party, as an exception to the Rule 13. But NOW, to simplify the job of the court processor, the rule
is, notice to the counsel is now notice to the party.
ARCILLA vs. ARCILLA

138 SCRA 560
FACTS: There was a pre-trial conference on July 29, where all the parties are notified through their lawyers
pursuant to Section 3. They appeared but somehow the pre-trial was terminated on July 29. The court decided to
reset the pre-trial on Oct. 2. The parties agreed. Normally, the procedure is, when that happens, there will be
another written notice. There should be another written notice sent to the lawyers and parties.
In this case, no such written notice was issued. On Oct. 2, the defendant did not appear. With that, he was
declared to have lost his rights to present his side. He was considered in default. He questioned the order on the
ground that he did not receive any notice on the Oct. 2 pre-trial conference. Therefore, all subsequent proceedings,
including the judgment rendered against the defendant were void. Is he correct?
HELD: “At first blush, petitioner’s aforesaid contention appears very tenable, for indeed it is settled that a
declaration of default, in the absence of a notice of pre-trial constitutes denial of due process. But a deeper
examination of the pleadings and the record of the case would show that petitioner was present during the pre trial
conference on July 29, 1975 when the lower court re-set the pre-trial to October 2, 1975. On the said date, however,
although notified, both petitioner and his counsel did not appear, hence, the declaration of default.”
So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY earlier, he failed to appear
that is why he was penalized under Section 5. When the court reset the pre-trial, he agreed. He already knew. Notification need
not be too technical. Despite the lack of a written notice, the defendant was penalized in the ARCILLA case.
Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-
trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement,
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to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts
and of documents. (n)
There must be notice of pre-trial which will be issued after you comply with Section 1. Then there will be a schedule. The
notice will be served upon the counsel or upon a party, assuming that he is not represented by a lawyer. The counsel served with
such notice is charged with the duty of notifying the party represented by him.
And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial. Meaning, the lawyer
alone who is there will not suffice. Kailangan dalawa kayo.
Q: Suppose the lawyer will say, “Well, your honor, I am here. Anyway, appearance by counsel is appearance by party.”
Puwede ba yan?
A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his counsel because the purpose
of a pre-trial is to consider the possibility of an amicable settlement.
Q: Can the lawyer enter into an amicable settlement with the adverse party?
A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter of bargaining.
EXAMPLE: Defendant says, “Yung interest na na-due, hatiin na lang natin. You condone half of it, and bayaran ko is fifty
percent na lang. And give me 24 months to pay.” The lawyer says okay. Then pag sabi mo sa client, baka magalit yon, he might
fire you! Pera gud niya yon. That is why the parties and their should both be present. And that is also the reason why a notice of
pre-trial should be given to the party.
Section 3 says “a counsel served with such notice is charged with the duty of notifying the party represented by him.” That is
new provision. The OLD LAW is, based on decided cases, aside from notice to the lawyer, there must be another notice to the
party. So if you notify the lawyer but you did not send a separate notice to the party and therefore the party did not appear, you
cannot take it against him. Under Rule 13, notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is the old
jurisprudence – OBSOLETE!
But the PRESENT RULE is: Notice to lawyer is notice to party.
Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in his behalf duly authorized
in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, etc.
EXAMPLE: You tell your client, “We will have a pre-trial next week and your presence is necessary.” Client: “But I am leaving
for America tomorrow. I cannot be there.” Lawyer: “Is there anybody whom you can authorize, take your place?” Client: “Yes, my
brother or my manager.” Lawyer: “Okay, you write a written authority that you are authorizing your brother to appear in your behalf
with full power to settle.” Yan and tinatawag na “Power of Attorney.” Intiendes?
Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who is given the Power of
Attorney authorizing him to enter into an amicable settlement. Walang Problema yan. Otherwise, you will see in the next section
what is the effect if you fail to appear in a pre-trial –automatic, talo ka sa kaso.
Q: Suppose one of the parties in the case is a CORPORATION. A corporation cannot appear because it has no physical
existence. Who is authorized to appear in a pre-trial in order to enter into an amicable settlement? Are the managers or vice-
president, authorized to appear in a pre-trial in behalf of the bank which is a party to the case?
A: NO! Even the president or the chairman of the board has no power.
Q: Who can bind a Corporation?

A: Only the Board of Directors has the authority to bind a corporation.
Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao, am I saying that everytime
there is a pre-trial all the members of the Board will fly to Davao to attend the pre-trial and pass a resolution inside the courtroom?
A: No. The Board can pass a resolution naming the person who will represent the corporation. So, the manager for
example, can appear in the pre-trial provided he is authorized through a board resolution.
Again, the RULE is: Both the lawyer and the party should appear in the pre-trial because the first purpose of pre-trial is the
possibility of an amicable settlement and the lawyer alone has no authority to enter into an amicable settlement.
Non-appearance may be EXCUSED only if:
1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA)
2. For a valid cause – example, if you are sick.
Q: If it is a corporation, what is that authority?

A: It is a board resolution because only the board of directors has the authority to bind the corporation.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so required pursuant to the
next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice,
unless otherwise ordered by the court.
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A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis thereof. (2a, R20)
Q: What happens if it is the plaintiff who failed to appear in the pre-trial?

If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the dismissal is with prejudice.
Pag dismiss, that is the end of the case. It has the same effect as Rule 17, Section 3: Failure to appear during the trial for the
presentation of his evidence-in-chief. So, if the plaintiff fails to appear during the trial when it is his turn to present his evidence,
under Rule 17, his case shall be dismissed and generally the dismissal is with prejudice, an adjudication upon the merits. (Res
Adjudicata applies).
The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for dismissal of the action.
Q: Is there any difference between non-suited and dismissal of action?

A: There is suppose to be a difference based on the case of
BA FINANCE CORP. vs. COURT OF APPEALS

224 SCRA 163 [OBSOLETE!]
HELD: When the defendant moves to dismiss the case, then you are also killing your counterclaim. If you are, the
defendant you should not move for the dismissal. You only move to declare the as non-suited because when the
plaintiff is non-suited, he is bared from proving his cause of action but the case is not dismissed. Since the case is not
dismissed, it is like the plaintiff who is in default.
Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still alive. So, the ruling in BA
FINANCE CORP. is now OBSOLETE.
Q: What happens if it is the plaintiff who failed to appear in the pre-trial?

A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the plaintiff to present his
evidence ex-parte and the court to render judgment on the basis thereof.
You will notice that if it is the defendant who failed to appear under the old law, he will be considered as in default. NOW, the
word ‘default’ is avoided – “it shall be a cause to allow the plaintiff to present his evidence ex parte and the court to render judgment
on the basis thereof.” That is the same effect as the old rule.
Q: Why is the new rules avoiding the word ‘default’?

A: Because, strictly you cannot really have the defendant declared in default when he has filed an answer. Kaya nga the Rules
of Court was very clear in the ‘64 Rules by saying “considered as in default” to distinguish it . But the confusion is still there eh. In
other words, to avoid confusion, the plaintiff will be allowed to present evidence ex parte. Para na ring ‘in default’ without using the
word ‘default.’
Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party. So parang in default ang
defendant. Now, what is the REMEDY of the defendant? Because if you look at Rule 9 on default, the proper motion for the
defendant in default is to file a motion to lift the order of default on the ground of F.A.M.E. and that he has a meritorious defense. Is
that also the remendy for the defendant who failed to appear in the pre-trial?
A: NO, that is the case of
JUNGCO vs. COURT OF APPEALS

179 SCRA 213 [1989]
HELD: Under Rule 9 on default, if you are declared in default, you only file a motion to lift the order of
default and you have to allege that you have a meritorious defense. But in Rule 18, when you file a motion, it
is a simply a motion for reconsideration where you will state the reason why you failed to appear and ask
that the order be reconsidered and that the judgment be set aside.
Under Rule 18, there is no use to say that you have a meritorious because you have already filed an
answer. The defense is already there. Unlike in defaulted defendant, the court has no idea what is your
answer kaya nga you must convince the court that you have a meritorious defense.
So a simple MOTION FOR RECONSIDERATION is sufficient.
Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for reconsideration. The court
reconsidered and recalled the plaintiff’s ex-party presentation of evidence. Do we they have to go back to pre-trial.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)
EXCEPTION: YOUNG vs. CA, 204 SCRA 584
General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS

169 SCRA 409 [1989]
HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the plaintiff continue
and just let the defendant cross-examine the plaintiff’s witnesses. As a general rule a second pre-trial cannot
be granted, the remedy instead is to go to trial.
Exception: YOUNG vs. COURT OF APPEALS

204 SCRA 584 [1991]
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HELD: “The pre-trial stage is completed after a party had been ordered non-suited and the complaint is
dismissed or after the court allows the plaintiff to present his evidence ex-party. The order lifting it does not revert
the action to its pre-trial stage, or authorize, much less, a second pre-trial UNLESS the parties themselves
had voluntarily agreed that the case be set anew for pre-trial. Neither the Rules nor the doctrine bars the parties
from agreeing, after such lifting, to hold a pre-trial and to effectively accomplish its objectives.”
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse party, in such
manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their
respective pre-trial briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery
procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)
This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is not new because this was
a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The submission of pre-trial briefs by lawyers has
been required by that Circular. This circular is now incorporated.
Take note that at least three(3) days before the date of pre-trial the parties’ lawyers should file pre-trial briefs to be
furnished with each other. In that brief, you summarize everything covered by your pleadings. It contains cause of action,
defenses, etc. The court, instead of reading the pleadings and answer, only the document where you condensed everything will be
read. It contains: Cause of action; defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the
documents or exhibits you would like the present; or who are the witnesses and what are they going to testify, etc. That’s a
summary of everything that is going to happen from the beginning of the trial up to the end.
Q: What happens if a party fails to file a pre-trial brief?

A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect as failure to appear a the pre-trial
conference.” So, if it is the PLAINTIFF who failed to file a pre-trial brief, his complaint may be ordered dismissed. If it is
the DEFENDANT who failed to file a pre-trial brief, that would be a cause for the court to allow the plaintiff to present his
evidence ex-parte.
Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be penalized by the court with a
dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to prove his cause of action
(Rule 17, Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be allowed to present his
evidence ex parte and judgment be rendered based purely on such evidence?
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference,
the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions
made by the parties as to any of the matters considered. Should the action proceed to trial, the order
shall explicitly define and limit the issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20)
A pre-trial conference although it is less formal than a trial, that’s why in most cases, pre-trial is not done in open court but
inside the chamber of the judge where the atmosphere is more relaxed because you are going to talk about settlement, eh.
However, do not believe that that is just a decoration. That is an official proceeding. Everything there is recorded. According to
section 7, after a pre-trial conference is terminated, the court will issue what is known as pre-trial order. That is now expressly
required by the rules.
A pre-trial order should state or should summarize everything what was taken up in a pre-trial conference, the issues
to be resolved, the facts to be admitted, etc. what is important there is the third sentence: “Should the action proceed to
trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the
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subsequent course of the action, unless modified before trial to prevent manifest injustice.” It may be an ordinary
sentence but the effect of that is terrible.
Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can determine the issues
based on the admissions and denials in the answer. For instance, there are five issues, they are to be stated in a pre-trial brief.
During the pre-trial conference, the court may reject other issues which are not important with the agreement of the parties. Thus,
there may be only one real issue like whether or not the loan has been paid. The court may then issue a pre-trial order containing
such issue. The defendant may have also several defenses in his answer. After the pre-trial order is issued, such order should be
followed. Forget the complaint and the answer.
In effect, the complaint and the answer has already been superseded by the pre-trial order. This section in effect says
that the pre-trial order supersedes the pleadings.
That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the importance of a pre-
trial. The Court noted that if there is a pre-trial order because the judge followed Rule 18 religiously, during the trial the judge will
not have a hard time in determining what is the issue to be resolved. And babasahin lang niya ay ang pre-trial order. Everything is
to be based there. Without the pre-trial order, you will still have to look at the pleadings of both parties. The pre-trial order is a very
important piece of document.
There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the plaintiff is claiming damag es
from the defendant. His allegations naturally would point out that all fault and negligence is caused by the defendant. As usual,
when the defendant files his answer, he is denying that. As a matter of fact, he will claim that the one negligent is the plaintiff.
Chances are, since his vehicle was also damaged, the defendant will file a counterclaim. So, pasahan yan!
What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The plaintiff’s lawyer asked the
defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable for actual damages on defendant’s counterclaim? (2.) Is the
plaintiff liable to the defendant on his counterclaim for exemplary damages? (3.) Is plaintiff liable to the defendant on his
counterclaim for attorney’s fees and expenses for the litigation?”
So, those were the issues. The plaintiff’s lawyer, siguro hindi nakikinig ba. Judge asked, “O, do you agree panyeros?” Yes,
Okay. When the pre-trial order was issued, those issues were contained. Where’s the defendant’s liability to the plaintiff? Wala na!
The issue is whether or not the plaintiff is liable to the defendant. During the trial, the plaintiff presented his evidence to prove the
defendant’s liability. The defendant’s lawyer objected on the ground that there was no issue contained in the order on the liability of
the defendant. The only issue is whether plaintiff is liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang pre-trial
order is not important.
(Dean did not know how the case ended, but commented: “The plaintiff asked for the amendment of the pre-trial order because
this is a manifest injustice. Plaintiff is the one suing and how he is to be held liable. Now, if I were the judge, I will really modify
because it’s unfair no! You are the one suing and now you end up as a defendant. But I will stress to the plaintiff na huwag kang
tatanga-tanga sa pre-trial! [gago!])
Now, an example of the last sentence of Section 7 – “UNLESS modified before trial to prevent manifest injustice – is the
case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does not recite the issue, it can still be proven.
Under Section 5 of Rule 10, even if an issue was not raised I n a pre-trial order and no one objected to the issue raised, it can be
tried and later the pre-trial order can be amended to conform with issue/s raised.
KATARUNGANG PAMBARANGAY
For now, we will leave the rules on civil procedure. We will go to another law which is also connected with the study on civil
procedure. This is the Barangay Conciliation Law. It is appropriate to discuss what the law is all about because under Rule 18 on
pre-trial, you will notice it has emphasized that the primary purpose of a pre-trial is the possibility of amicable settlement. That is
usually encouraged. No case may reach the trial stage without passing through the Pre-trial Rule. We have to exhaust all avenues
and settlement.
There is a law known as the BARANGAY CONCILIATION LAW which mandate that before an action can be filed by an
individual complainant against another individual defendant, both of them are residing in the same city or municipality,
there should be a prior attempt to conciliate in the barangay level – under the rules, the barangay of the defendant. And if
the action if filed without observing that procedure, the action is dismissible.
Suppose a case will be filed in court, according to the SC, the plaintiff must allege in a complaint that before filing the case he
exerted or complied with the Baranagay Law. It is a condition precedent. Normally, after you exhaust in the barangay level but is
not successful, the Barangay Chairman will issue a certification t file an action. That should be stated in the complaint.
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY (126 SCRA 217), the failure of a complaint to allege
compliance with the requirement of the barangay law is fatal. He must make an allegation that before filing his complaint, he
complied with the barangay law. Otherwise, his complaint will be ordered dismissed.
If the action is filed without observing that procedure, the action is dismissible. But as clarified by the SC in many cases,
among them are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA 289) the defect is NOT JURISDICTIONAL.
You do not say the court has no jurisdiction.
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The ground for dismissal is more on PREMATURITY OF THE ACTION. You can cite the new ground now as “the condition
precedent required by law has not been observed.” Actually, it will also affect the cause of action- Based on decided cases,
there must be an allegation in the complaint that before filing a case, there has been an attempt to undergo a conciliation in the
barangay level.
Now, this law used to be the Katarungang Pambarangay Law, PD 1508. However, it was superseded on January 1, 1992 by
RA 7160, otherwise known as the Local Government Code Of 1991 (LGC). The Barangay Conciliation requirement is now
embodied in RA 7160. The barangay requirement is found in Sections 399-422 and also Section 515. It is around 25 sections of the
law.
To help you, the SC in 1993 issued Administrative Circular No. 14-93 where the SC tried to condense the important
requirements of the law – who are covered and who are not. It is addressed to all RTC and MTC judges. Subject: Guidelines on
the Katarungang Pambarangay conciliation Procedure to prevent circumvention on the Revised Katarungang Pambarangay Law.
We will summarize the law and discuss some important features. Under the law, you cannot file a case against somebody
without attempting to settle matters before the barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION LAW:
The law applies only when you are suing somebody who resides in the same city or municipality where you reside.
Or in the event of different municipalities, they are adjacent. So when two towns are near each other, you are suing
somebody there, the law will apply. Generally, when you (from Davao City) sue somebody from General Santos City, the law is
inapplicable because it is a different city.
The law will not apply if one of the parties in the dispute is a juridical person – i.e. corporation. It only applies to suits
between natural persons.
Under the law, it is where the barangay where the barangay where the defendant resides. Unless, the dispute arose in a
workplace or in school, the venue is the barangay where the workplace or the school is located.
Q: If I’m from Sasa and you are from Toril, but we are residing in the same city, which barangay is the proper venue?
A: Under the law, it is the barangay where the defendant resides, unless the dispute arose in a workplace
or in school.
If the dispute refers to REAL property, it is where the property is situated. If the dispute refers to Real Property (e.g.
land), and I’m from Matina, and you are from Sasa, but the case involves a land in Toril, then the correct venue is the place
where the land is situated – i.e. the barangay in Toril.
When you say, both the parties reside in the same city or municipality, what do you mean by RESIDENCE? The same
interpretation as laid down by the SC in
GARCES vs. COURT OF APPEALS

162 SCRA 504
FACTS: Garces lives in Cavite but works in Malate. He rented an apartment in Malate and stays there on
weekends.
HELD: For purposes of the Barangay Law, Garces is a resident of Malate. The word ‘RESIDES’ refers to actual
or physical residence, not domicile.
In the case of
BEJER vs. COURT OF APPEALS
169 SCRA 566
FACTS: Andre lives in Laguna but has a house in Manila where his children live.
ISSUE: Is Andre a residence of Manila?
HELD: NO, because Andre is not a registered in the barangay as a voter. Physical presence alone is not
sufficient. So, the SC added another qualification, that residence is determined by membership in the
barangay. Therefore, even if you are in that area but you are not a member of the barangay, you are not a resident
thereof.
This is because “the primary purpose of the law is to provide the conciliation mechanism, as an alternative to
litigations in dispute settlement, to member of the corresponding barangays who are actually residing therein.
Residence alone, without membership, in said barangays would not be an accurate and reliable criterion,
considering that such residence may be actual but be merely temporary, transient or categorized into other
permutations as in the case of a house guest or a sojourner on a visit of a day or two.”
“On the other hand, mere membership in a barangay, without actual residence therein, should not suffice
since absentee membership would not subserve the avowed purpose of the law for lack of the common bond
and sense of belonging generally fostered in members of an identified aggroupment.”
Q: Suppose the defendant will not show up everytime he is called.

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A: That is now a ground for the barangay captain to issue a certificate to file an action. The defendant cannot
complain later that there is non-compliance of the barangay law. The defendant cannot use his own default to profit it. That
was the ruling in SAN MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA 704).
Take note that the barangay cannot decide. It can only convince the party to settle. A barangay court has no power to
make decisions. But if you agree to something and in case you failed to comply with your agreement, that can be
enforced by the barangay. But actually, the decision came from you, and not from the barangay court.
There other interesting cases under the Barangay Law. In the 1989 case of
RAMOS vs . COURT OF APPEALS

174 SCRA 690
FACTS: This case originate in barangay Lanang, Davao City. The parties failed to agree before the barangay
captain. He tried to convince them to settle, but they refused to settle. With that, the barangay captain issued a
certificate to file an action. So the case was filed in the RTC. The defendant questioned the procedure.
HELD: The procedure wrong. The case cannot be filed. Under the Barangay Law which is now incorporated in
410-d of the Local Government Code, the correct procedure for this is, if the barangay captain cannot effect
settlement, he should throw the case to the Pangkat, the Lupon. If the barangay captain cannot settle, the next step is
the Lupong Tagapamayapa. So, you cannot immediately issue a certification to file action
BUT the ruling if RAMOS seems to have been CHANGED already in the light of the new Local Government Code. In the 1995
case of
DIU vs. COURT OF APPEALS

251 SCRA 472 [1995]
FACTS: What happened here is exactly similar to what happened to the case of RAMOS. When the barangay
captain could not effect a settlement, he issued certificate to file action. That was questioned. It was not referred to
the Lupon. Therefore, it was premature, citing Section 410-d of the LGC.
HELD: The SC cited a new section in the LGC which is Section 412 which seems to give the barangay
captain the authority to issue a certificate without necessarily referring anymore to the Lupon.
“While no pangkat was constituted, it is not denied that the parties met at the office of the barangay chairman for
possible settlement. The efforts of the barangay chairman, however, proved futile as no agreement was reached.
Although no pangkat was formed, we believe that there was substantial compliance with the law. It is noteworthy that
under Section 412 of the Local Government Code, the confrontation before the lupon chairman OR the pangkat is
sufficient compliance with the pre-condition for filing the case in court.”
“This is true notwithstanding the mandate of Section 410(b) of the same law that the barangay chairman shall
constitute a pangkat if he fails in his mediation efforts. Section 410(b) should be construed together with Section 412.
On this score, it is significant that the barangay chairman or punong barangay is himself the chairman of the lupon
under the Local Government Code.”
Anyway, if be look to the pangkat under the LGC, the chairman of the lupon is also the barangay captain. So, either one or the
other will do. So, the case of DIU has effectively set aside the ruling in RAMOS.
CANDIDO vs. MACAPAGAL

221 SCRA 328 [1993]
FACTS: Here, plaintiff Eltor files a case against defendants Jenny, Gemma, and Jayce. Eltor and Jenny reside in
Davao City. So they (Eltor and Jenny) are covered by the law. But Gemma and Jayce reside in General City. So there
is no problem with Gemma and Jayce because there is no need to effect conciliation. But how about Jenny? Should
the case be dismissed against Jenny if there was no prior barangay conciliation between Jenny and Eltor?
HELD: NO. The fact that Eltor and Jenny reside in the same municipality does not justify compulsory
conciliation WHERE the other defendants reside in different municipalities or cities.
So, it would seem na pag nahuluan na ng iba, you are not also covered anymore. That seems to be the implication.
That seems to jive with another ruling of the SC on the issue of “members of the same family” because under the law, if
the plaintiff and defendant are members of the same family, they cannot also file a case against each other without
conciliation. But if there is a stranger included, the requirement will not apply.
July 15, 1993

ADMINISTRATIVE CIRCULAR NO. 14-93
Subject : Guidelines on the Katarungang Pambarangay conciliation procedure to prevent

circumvention of the Revised Katarungang Pambarangay Law (Sections 399-422,
chapter VII, Title I, Book III, R.A. 7160, otherwise known as the Local Government Code
of 1991).
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To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts
The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local
Government Code of 1991, effective on January 1, 1992, and which repealed P.D. 1508, introduced
substantial changes not only in the authority granted to the Lupon Tagapamayapa but also in the
procedure to be observed in the settlement of disputes within the authority of the Lupon. cd i
In order that the laudable purpose of the law may not subverted and its effectiveness undermined by
indiscriminate, improper and/or premature issuance of certifications to file actions in court by the Lupon
or Pangkat Secretaries, attested by the Lupon/Pangkat Chairmen, respectively, the following guidelines
are hereby issued for the information of trial court judges in cases brought before them coming from the
Barangays:
I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang
Pambarangay Law (formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter VII, Title I,
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government Code of
1991), and prior recourse thereto is a pre-condition before filing a complaint in court or any
government offices, EXCEPT in the following disputes:
1. Where one party is the government, or any subdivision or instrumentality thereof;

2. Where one party is a public officer or employee, and the dispute relates to the performance
of his official functions;
3. Where the dispute involves real properties located in different cities and municipalities,
unless the parties thereto agree to submit their difference to amicable settlement by an
appropriate Lupon;
4. Any complaint by or against corporations, partnerships or juridical entities, since only
individuals shall be parties to Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
NOTE: Only natural persons can undergo barangay conciliation.
5. Disputes involving parties who actually reside in barangays of different cities or

municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one
(1) year or a fine over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being committed
or further continued, specifically the following:
NOTE: “Urgently.” A good example in civil action is where the action is coupled with a provisional
remedy such as preliminary injunction, attachment, replevin or support. Or, actions which may be barred
by the statute of limitations.
a.) Criminal cases where accused is under police custody or detention (See Sec. 412
(b)(1), Revised Katarungang Pambarangay Law);
b.) Petitions for habeas corpus by a person illegally deprived of his rightful custody
over another or a person illegally deprived of his liberty or one acting in his behalf;
c.) Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the pendency of the
action; and
d.) Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46
& 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations (Montoya vs.
Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems
to certain offices of the Department of Labor and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation there is in
the Department of Labor.
12. Actions to annul judgment upon a compromise, which may be filed directly in court (See
Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as implemented
by the Katarungang Pambarangay Rules and Regulations promulgated by the Secretary of Justice, the
certification for filing a complaint in court or any government office shall be issued by Barangay
authorities only upon compliance with the following requirements: aisa dc
1.) Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong Barangay),
certifying that a confrontation of the parties has taken place and that a conciliation or
191
settlement has been reached, but the same has been subsequently repudiated (Sec. 412,
Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay
Rules);
2.) Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying that:
a. a confrontation of the parties took place but no conciliation/settlement has been

reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat through no fault of the
complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules).
3.) Issued by the Punong Barangay, as requested by the proper party on the ground of failure
of settlement where the dispute involves members of the same indigenous cultural
community, which shall be settled in accordance with the customs and traditions of that
particular cultural community, or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there has been no settlement as certified
by the datu or tribal leader or elder to the Punong Barangay of the place of settlement
(Secs. 1, 4, & 5, Rule IX, Katarungang Pambarangay Rules); and
4.) If mediation or conciliation efforts before the Punong Barangay proved unsuccessful, there
having been no agreement to arbitrate (Sec. 410 [b], Revised Rule Katarungang
Pambarangay Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the
respondent fails to appear at the mediation proceeding before the Punong Barangay (3rd
par. Sec. 8, a, Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall not
cause the issuance of this stage of a certification to file action, because it is now
mandatory for him to constitute the Pangkat before whom mediation, conciliation, or
arbitration proceedings shall be held.
III. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial Court,
Metropolitan Trial Court or Municipal Trial Court shall be carefully read and scrutinized to determine if
there has been compliance with prior Barangay conciliation procedure under the Revised Katarungang
Pambarangay Law and its Implementing Rules and Regulations, as a pre-condition to judicial action,
particularly whether the certification to file action attached to the records of the case comply with the
requirements hereinabove enumerated in par. II;
IV. A case filed in court without compliance with prior Barangay conciliation which is a pre-
condition for formal adjudication (Sec. 412[a] of the Revised Katarungang Pambarangay Law)
1.) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of the court but for
failure to state a cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs.
CA, 151 SCRA 289), or
2.) the court may suspend proceedings upon petition of any party under Sec. 1, Rule 21 of the
Rules of Court; and refer the case motu propio to the appropriate Barangay authority, applying
by analogy Sec. 408[g], 2nd par., of the Revised Katarungang Pambarangay Law which reads
as follows:
"The Court in which non-criminal cases not falling within the authority of the Lupon
under this Code are filed may at any time before trial, motu proprio refer the case to the
Lupon concerned for amicable settlement.
Strict observance of these guidelines is enjoined. This Administrative Circular shall be effective
immediately.
Manila, Philippines. July 15, 1993.
(Sgd.) ANDRES R. NARVASA

Chief Justice
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Rule 19
INTERVENTION
This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of particulars. And Intervention has
been moved to Rule 19. What happened to the original Rule 19? The original Rule 19 on Judgment on the Pleadings was moved
closer to Summary Judgment, to Rule 34.
Q: Define intervention.
A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the case, is permitted by the
court to make himself a party to the case. (33 C.J.S. 447)
EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Rayda signed a promissory note in favor of Leo.
Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself?
A: Rucel should file a CROSS-CLAIM against her co-party Rayda.
Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself?
A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda.
Q: What if Rucel does not file a third party complaint against Rayda? What can Rayda do to be able to join
the case?
A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should come from her.
So an intervention is related to a third-party complaint. It is a process by which a stranger or a third party is included in a case,
but with the difference that in a third-party complaint, it is the party who brought you in. While in intervention, the initiative comes
from the third person and he is known as the intervenor. And the process of entering is called intervention. And take note that a
person cannot simply intervene for the sake of intervening. There must be a legal ground for intervention which can be found in
Section 1:
Section 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so situated as to be adversely affected
by a distribution or other disposition of property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
whether or not the intervenor's rights may be fully protected in a separate proceeding. (2[a], [b]a, R12)
Q: What are the grounds for intervention?

A: The following are the GROUNDS for intervention:
1.) The intervenor has a legal interest on the matter under litigation;
2.) The intervenor has a legal interest in the success of either of the parties;
3.) The intervenor has a legal interest against both; or
4.) The Intervenor is so situated as to be adversely affected by a distribution or other disposition of property in
the custody of the court or of an officer thereof.
First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE MATTER UNDER LITIGATION;
EXAMPLE #1: Tarzan died survived by his children. Chita is appointed as administrator of his estate. Chita filed a case to
recover a piece of land which he believes belongs to the deceased. The children would like to intervene.
Q: Do children have the legal personality or the right to intervene involving the estate of Tarzan?
A: YES, because they have a legal interest in the matter in litigation. If the case will succeed they will be richer. The property
will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396)
EXAMPLE #2: Suppose Victor filed a case against Ping to recover a piece of land. Victor’s children (Mary, Rose and Ador)
would like to intervene contending that when their father (Victor) would die in the future, their inheritance is affected.
Q: Can the children of Victor intervene?
A: NO. They cannot intervene the legal interest they are claiming is contingent, expectant – there is no assurance that your
father will die ahead of you. The interest referred to by the law is an interest that is direct immediate, actual existing interest
as distinguished from expectant, inchoate or contingent interest. (Garcia vs. David, 67 Phil. 279)
How do you distinguish the second example from the first case? In the first case, the father is dead and you inherit the
property. Technically, the property belongs to you. So the right of the heirs over the property litigated by the administrator is not
expectant or inchoate.
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Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE SUCCESS
OF EITHER OF THE PARTIES;
So you are interested in the plaintiff winning or the defendant winning.
EXAMPLE : In an action filed by the creditor against the surety only to recover the debt of the principal debtor without
impleading the principal debtor. The principal debtor may intervene if he would like to join forces with the surety.
Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH PARTIES;
I am not interested in the victory of either the plaintiff or the defendant. I am interested with my victory against both. So it
becomes a three-cornered fight.
EXAMPLE: Steven Spielberg filed a case against Ridley Scott who has the right to possess the property and then here I come
– I will intervene. I am the one, not both of you, who has the right over the property. Wala kayong lahat!!! Mga ungas!! So bakbakan
na iyon. I have a better right against both of you.
Fourth Ground: THE INTERVENOR IS SO SITUATED AS TO BE ADVERSELY AFFECTED BY A DISTRIBUTION OR

OTHER DISPOSITION OF PROPERTY IN THE CUSTODY OF THE COURT OR OF AN OFFICER THEREOF.
EXAMPLE: Sonny secures a writ of preliminary attachment against Gemma but the property attached preliminarily happens to
be my property. So I can move to intervene because I am adversely affected by the distribution.
Can you not file a third-party claim if your property is wrongfully attached? YES you can, but that is not the only remedy. The
law allows the third person to file an intervention in the main action.
INTERVENTION, NOT A RIGHT
Q: Is the intervention a right or a privilege?

A: NO. It is discretionary. A motion for intervention must be filed by the intervenor. And under Section 1, the court may or may
not grant the motion - the court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties and whether or not, the intervenor’s rights maybe fully protected in a separate proceeding.
For example, the case between the original parties is about to end, the trial of the case is about to end and at that point, you
will have to intervene. If you intervene, we will start all over again. So, it will be dilatory. But even if you will not be allowed to
intervene, the court may say that you can file your case in the future. You can file a separate action later against the parties.
BAR QUESTION: Now, there are some instances by way of exception when intervention maybe a matter of right. What are
these exceptions?
A: The following:
1.) When the intervenor turns out to be an indispensable party; and
2.) Class suit (Section 12, Rule 3)
Rule 3, Sec. 12. Class suit. - When the subject matter of the controversy is one of common or general
interest to many persons so numerous that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene
to protect his individual interest. (12a)
Did you notice that last sentence? “Any party in interest shall have the right to intervene.” So, in other words, in a class suit and
you are already included, law says, you have the right to intervene in so far as your individual interest is concerned. So, that would
be another instance where intervention seems to be a matter of right rather than a matter of discretion.
WHEN AND HOW TO FILE
Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties.
Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaint-in-intervention if he asserts a

claim against either or all of the original parties, or an answer-in-intervention if he unites with the
defending party in resisting a claim against the latter. (2[c]a, R12)
Q: When do you move to intervene?

A: Under Section 2, at any time before rendition of judgment by the trial court. So, you cannot intervene when there is alre ady
a decision. Tapos na ang kaso. The trial is already terminated. So the earlier, the better.
194
And when you file a motion to intervene, the pleading-in-intervention that you want to file should already be included. Now,
under the old procedure, first, you file a motion to intervene. After filing your motion and your motion is granted, then you file your
pleading in intervention. So, motion first before pleading. That was the old rule.
NOW, sabay na. The copy of the pleading and intervention shall be attached to the motion and served on the original parties.
That is also in consonance with Rule 15 Section 9 on motions in general.
Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted. (n)
So, in other words, when you file a motion for leave, the pleading must already be included in your motion. An example is a
motion to intervene where it must already be accompanied by the pleading-in-intervention.
Now, what are these PLEADINGS-IN-INTERVENTION? It’s there in Section 3. It’s either a complaint-in-intervention or an
answer-in-intervention. So it DEPENDS:
If you are joining forces with the plaintiff, or you are asserting a claim against both, then you file a COMPLAINT-IN-
INTERVENTION. If you are uniting with the defendant to resist the plaintiff, you file an ANSWER-IN-INTERVENTION.
So, these are among the pleadings recognized by the rules. Let’s try to go back to the basic. What are the types of pleadings
allowed by the rules of court? Rule 6, Section 2:
Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-
claim, third (fourth, etc.) party complaint, or complaint-in-intervention.
xxxxx
Did you notice that “complaint-in-intervention”? So, we are wondering, ano ba itong complaint-in-intervention? Actually, that is
the pleading referred to now in Rule 19.
Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in -intervention shall be filed
within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by
the court. (2[d]a, R12)
In other words, just like any other complaint, it should be answered within 15 days. A complaint-in-intervention must be
answered within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. So you
have 15 days.
Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to answer?

A: Let us go back to Rule 11, Section 3:
Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within fifteen (l5) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten
(10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to
the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended
third (fourth, etc.) party complaint, and amended complaint-in-intervention. (3a)
Q: What is the period to answer an amended complaint-in-intervention?

A: It is either 10 or 15 days just like answering an ordinary amended complaint.
DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION
There is a case between Pches and John. Tommy intervened while the case is going on. Suppose the case was dismissed
either by the court or the plaintiff withdrew it. Can the intervention proceed independently? Can it proceed when there is no more
main action? In the case of
BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS

227 SCRA 161 [1993]
HELD: An intervention is merely collateral or accessory or ancillary to the principal action and not an independent
proceeding. It is an interlocutory proceeding dependent on or subsidiary to the case between the original parties.
Where the main action ceases to exist, there is no pending proceeding wherein the intervention maybe based. If the
main action dies, the intervention dies also.
BUT there is another answer given by the SC in the case of:
METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC OF MANILA
189 SCRA 820 [1990]
HELD: When the intervention is granted and the main action is withdrawn or dismissed, it would be unfair to
dismiss the intervention. So the intervention proceeds notwithstanding the withdrawal of the main action.
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“The simple fact that the trial court properly dismissed plaintiffs action does not require dismissal of the action of
the intervenor. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The
right cannot be defeated by dismissal of the suit by the plaintiff. Where a complaint in intervention was filed before
plaintiff’s action had been expressly dismissed, the intervenor’s complaint was not subject to dismissal on the ground
that no action was pending.”
So iba na naman ang sinabi. Even if the main action is dismissed, the intervenor can still claim the benefit of the intervention.
So how do you reconcile these conflicting decisions now? Well, I think it DEPENDS on the ground for intervention. To illustrate:
EXAMPLE #1: The creditor files a case against the surety. The debtor intervened. So, he is joining the surety. Then creditor
withdrew the complaint. What will happen to the intervention? The intervention cannot go on because the intervention is actually to
assist the surety. So, if the complaint against the surety is dismissed, wala ng utang. There is no more basis to assist the surety.
(BIG COUNTRY ruling)
EXAMPLE #2: But suppose Pches filed a case against John claiming that she has a superior right to posses a piece of land.
And then Tommy will intervene also claiming that he has the superior right to possess. So the three of them will fight. And then
later, Pches will withdraw the case. What will happen to Tommy’s intervention? The dismissal of the main action does not mean
that Tommy cannot prove his right against John. The intervention should continue. Bahala ka kung nag-withdraw ka, basta ako I
will continue. I will claim that the land is mine. (METROBANK ruling)
Iyaaaan! It depends on what kind of intervention you are talking about.
Now, there an instance when intervention may be confused with another procedure under Rule 3, Section 19 on Transfer of
Interest. For example: When a property under litigation is sold and there is a notice of lis pendens, the person who buys is called
the TRANSFEREE PENDENTE LITE. In the case of
SANTIAGO LAND CORP. vs. COURT OF APPEALS

January 28, 1997
FACTS: Rose brought an action against a bank to enforce an alleged right to redeem certain real properties
foreclosed by the bank. With notice of the pending civil action, Leo purchased from the bank one of the properties
subject of the litigation. So Leo is now called the TRANSFEREE PENDENTE LITE. And later, Leo filed a motion to
intervene. Rose opposed Leo’s motion for intervention.
ISSUE: Is a transferee pendente lite of the property in litigation has a right to intervene?
HELD: The SC here made a distinction between the rights of a transferee pendente lite (Rule 3, Section 19) and
an intervenor (Rule 19).
“The purpose of Rule 19 on intervention is to enable a stranger to an action to become a party to protect
his interest and the court incidentally to settle all conflicting claims. On the other hand, the purpose of Rule
3, Section 19 is to provide for the substitution of the transferee pendente lite precisely because he is not a
stranger but a successor-in-interest of the transferor, who is a party to the action. As such, a transferee’s title
to the property is subject to the incidents and results of the pending litigation and is in no better position
than the vendor in whose shoes he now stands.”
“As such, he stands exactly in the shoes of his predecessor in interest, the original defendant, and is
bound by the proceedings had in the case before the property was transferred to him. He is a proper, but not
an indispensable, party as he would, in any event, have been bound by the judgment against his
predecessor.”
“How then can it legally be possible for a transferee pendente lite to still intervene when, for all intents and
purposes, the law already considers him joined or substituted in the pending action, commencing at the exact moment
when the transfer of interest is perfected between the original party-transferor and the transferee pendente lite? And
this even if the transferee is not formally joined as a party in the action. Because the transferee pendente lite simply
takes the place of the transferor, he is barred from presenting a new or different claim.”
“On the other hand, one who intervenes has a choice not to intervene and thus not to be concluded by any
judgment that may be rendered between the original parties to the action.”
Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no need for you to intervene because you are already a
(necessary) party. On the other hand, an INTERVENOR can decide whether or not he wants to join to be bound by the
judgment of the main case. So that is the ruling in SANTIAGO LAND.
There is another case on the issue again of intervention. The case of
FIRST PHILIPPINE HOLDINGS CORP. vs. SANDIGANBAYAN

253 SCRA 30 [February 1, 1996]
FACTS: There was a motion to intervene and the trial court denied it.
ISSUE: Is a writ of MANDAMUS available to compel a trial court to grant a motion for intervention?
HELD: “As provided under Rule 19, Section 1, intervention shall be allowed in the exercise of discretion by a
court. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of
discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is
entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue.”
196
Rule 20
CALENDAR OF CASES
Section 1. Calendar of cases. The clerk of court, under the direct supervision of the judge, shall keep
a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with
motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil
actions, and those so required by law. (1[a], R22)
The clerk of court has a calendar of cases – cases for pre-trial, trial cases, which were postponed. When will be the
continuation of the trial? May scheduling yan eh. Of course, the law says, preference shall be given to certain type of cases like
habeas corpus. It is very important because that involves the freedom of an individual.
Sec. 2. Assignment of cases. The assignment of cases to the different branches of a court shall be
done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall
be given so as to afford interested parties the opportunity to be present. (7a, R22)
For example, in Davao City, there are more than 10 branches. Now, when you file a case, how will we determine whether the
case will be assigned to Judge Malcampo or Judge Quitain or Judge Torres? Raffle ‘yan. Niraraffle ‘yan. I remember the ordinary
raffling day in Davao City is every Tuesday. They raffle the cases. All representatives of the different branches are there and then
they have a system of raffling. Which case will go to you? Para hindi ka makapili. So, that is how cases are assigned.
So, pag-raffle ng kaso, there should be adequate notice to the parties. This is one section where the clerk of court had a hard
time applying it. Do you know why?
Because the present practice, pag-file mo ng kaso, they will immediately raffle it and then i-assign na sa branch. The branch
clerk of court will now issue the summons. Meaning, by the time it reaches the defendant, naka-assign na. Suppose the defendant
will object, “When that raffling was done, I was not notified. I will question the raffle because it would seem that the requirement is
that the plaintiff and the defendant should be notified of the raffling.” Yaan!
Rule 21
SUBPOENA
Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. It may also require him to bring with him any
books, documents, or other things under his control, in which case it is called a subpoena duces tecum.
(1a, R23)
Rule 21 applies to both civil and criminal cases.
Q: What are the types of subpoena under the law?

A: The following are the types of subpoena:
1.) Subpoena Ad Testificandum; and
2.) Subpoena Duces Tecum
Now, the first one is commonly known as subpoena for short. So, when you say that refers to the first one.
Q: Define Subpoena Ad Testificandum.

A: SUBPOENA AD TESTIFICANDUM is a process directed to a person requiring him to attend and to testify at the hearing or
trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. So you are required to
appear there and testify in court.
Q: Define Subpoena Duces Tecum.

A: SUBPOENA DUCES TECUM is a process directed to a person where it requires him to bring with him any books,
documents or other things under his control. So, in other words we are more interested in his documents, which are in his custody.
Whereas in ad testificandum, we are more interested in his oral testimony.
Now, take note that a subpoena is a process which requires a witness to testify not only during the hearing or the trial of his
case but also any investigation conducted by “competent authority” like quasi-judicial bodies such as the Labor Arbiter or the
Senate Blue Ribbon Committee. Now, under Section 1, you may wonder what do you mean by subpoena “for the taking of his
deposition”? That because that will clearer when we reach Rule 23. So we will just reserve talking deposition when we reach Rule
23.
Sec. 2. By whom issued. The subpoena may be issued by:

a) the court before whom the witness is required to attend;
b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with investigations conducted by said
officer or body; or
d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending
within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall examine and study
carefully such application to determine whether the same is made for a valid purpose.
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No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any
penal institution shall be brought outside the said penal institution for appearance or attendance in any
court unless authorized by the Supreme Court. (2a, R23)
Q: Who are authorized to issue subpoena?

A: The following:
1. The court before whom the witness is required to attend – the most common is the court where the court is pending;
2. The place where the deposition is to be taken – we will discuss that when we reach Rule 23;
3. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body – Now,
even administrative bodies or quasi-judicial officers are authorized to issue subpoena like the Labor Arbiter in connection
with investigation conducted by said officer or body;
4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines –
So, practically any justice can issue a subpoena to attend a particular case although it is not before the SC. They are
empowered to issue a subpoena.
Q: Can you subpoena a PRISONER to appear in court?

A: YES, but the law says that the judge should be very careful to find out whether it is issued for a valid purpose because there
is a risk. If a prisoner is going to be brought out in jail because he has to testify in a case, that might be an occasion for him to
escape. So, the court should be very careful about that. The court should have to find out whether it is necessary.
And take note, “No person sentenced to death, reclusion perpetua, or life imprisonment and who is confined in a penal
institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the
Supreme Court.” This is something new.
I think this last paragraph is from the case of former Congressman Nicanor de Guzman of Nueva Ecija who was convicted of
gun running. He was sentenced in Muntinlupa then one day, because of subpoena to testify in his hometown, he was escorted in
his hometown to attend the fiesta and then I think he just used that as an excuse to attend the fiesta. And that was attacked by the
media – why was he allowed to leave the national penitentiary when he is sentenced to reclusion perpetua? So, this paragraph now
appears. You cannot remove him from any National Penal institution without authority of the SC.
Sec. 3. Form and contents. A subpoena shall state the name of the court and the title of the action or
investigation, shall be directed to the person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things
demanded which must appear to the court prima facie relevant. (3a, R23)
Now, actually that is simple. You are required to testify on this date or time or you are required to bring with you the following
documents, which was described in the subpoena duces tecum.
Now, can a subpoena be quashed? To quash means to have it dissolved. What are the grounds to quash a subpoena?
Section 4:
Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified therein if it is
1. unreasonable and oppressive, or
2. the relevancy of the books, documents or things does not appear, or
3. if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the
production thereof.
The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby.
In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage
allowed by these Rules were not tendered when the subpoena was served. (4a, R23)
GROUNDS TO QUASH SUBPOENA DUCES TECUM
Q: What are the grounds for quashing a subpoena duces tecum?

A: The following are the grounds:
1.) If the subpoena duces tecum is unreasonable and oppressive;
2.) The relevancy of the books, things or documents does not appear;
3.) the person in whose behalf the subpoena is issued fails to advance the reasonable cost for the production thereof.
First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND OPPRESSIVE
Well, the best example is if it violates Section 3 – it does not contain a reasonable description of the book, documents or things
demanded.
EXAMPLE: I will subpoena a business man to a business company, “Mr. Manager you are required to bring to court all your
ledgers, all your receipts, and all your documents from 1990 to the present.” My golly! That would involve how many truck lo ads.
Meaning, it would involve bringing to court thousand of documents. So, it becomes unreasonable and oppressive. The subpoena
duces tecum should be more specific.
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Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES NOT APPEAR
Meaning, there appears to be no connection between the documents which are being sought, and the issues in the case.
Example, in a collection case, you were required to bring your birth certificate, marriage contract, etc. My golly! Anong pakialam ng
mga niyan sa collection case?
Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS ISSUED FAILS
TO ADVANCE THE REASONABLE PRODUCTION THEREOF
This is a very common situation:
A bank received his subpoena duces tecum, “Present to court the ledger of the return check of somebody.” And this check was
issued and send to you four years ago. Do you know the inconvenience when a company is asked to bring to court documents
especially ‘yung matagal na? Practically, the company has to assign the employee out of his usual job. He is pulled out from his
usual job to look for these in the archives. Isa-isahin niya iyan. Maybe it will take him two or three days to locate and then he will be
required to go to court where you will miss your work because you will be in court and yet the person who demand the subpoena
duces tecum has never been bothered to pay service fee for that. Meaning, dapat magbayad siya reasonable cost.
Of course, the law does not say how much. Sa gobyerno nga papirma ka lang diyan ng isang pirma bayad ka na ng service
fee. How much more in the private sector, where you are requiring a company to look for a document? He is the one to look and
then somebody will go to court. He will not be reporting for job and yet you have not even offered anything to the company. We
experienced this many times subpoena duces tecum, and then the manager of the bank will say, “do we have to comply with
these?” Well, you do not want to comply. Puwede man.
When you received the subpoena duces tecum, may bayad ba? Did the person offer any amount for the trouble in looking for
these documents and in going to court? “Wala.” Okay, we will move to quash. In other words, sometimes companies and banks
just waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan. But it is a ground for quashing a subpoena.
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
Q: How do you quash a subpoena ad testificandum?

A: The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby.
Q: When is a witness not bound by a subpoena?

A: The best answer is Section 10 of this rule – if your residence is more than 100 kilometers from the place of trial. So,
you cannot subpoena someone from Cebu to come to Davao because that is more than 100 kms. But suppose you are
willing to pay for his transportation? Never mind, even if he is willing to pay the transportation. Pag ayaw niya, wala kang
magagawa because it is more than 100 kms.
In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, “You must also tender the witness
fees and kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I think that’s Rule 141, ‘yun bang pamasahe. There is a
computation there. How much you have to pay the witness for his transportation and witness fees. That is different from the
reasonable cost and reproduction in the first paragraph. So, these are the grounds for questioning a subpoena.
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in
sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for
the persons named in said notice by the clerk of the court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order
of the court. (5a, R23)
Now, let’s us skip Section 5 for the meantime because that is deposition.
Sec. 6. Service. Service of a subpoena shall be made in the same manner as personal or substituted
service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom
it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these
Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be made. The service must be made so as to allow the
witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces
tecum, the reasonable cost of producing the books, documents or things demanded shall also be
tendered. (6a, R23)
The first sentence says, “Service of the subpoena shall be made in the same manner as personal or substituted service of
summons.” That is a new provision. So, the mode of service of summons, personal or substituted is also the manner of serving
subpoena. So there is now a substituted service of summons. You can leave it to the wife.
Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no such thing as substituted
service of subpoena because in most cases, when you subpoena somebody, you go to the house, the witness is not there but the
wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo ito.” That is substituted service of subpoena. You must serve it
personally to the witness. There is no such thing as substituted service of subpoena Under the prior rule.
But NOW, the rule has changed because Section 6 is very clear: “It shall be made in the same manner as personal or
substituted service of summons.” Alright.
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And take note that You exhibit it to the witness. Then bayaran mo ‘yong kanyang pamasahe. You must serve the subpoena
with a reasonable time to me to allow him to travel. It’s very unbecoming that the witness be serve a subpoena today and he is
suppose to testify tomorrow. Suppose he has other commitments, bigyan mo siya ng time. And of course, as we discussed earlier,
the reasonable cost of producing the books, documents or things demanded shall also be rendered.
Sec. 7. Personal appearance in court. A person present in court before a judicial officer may be
required to testify as if he were in attendance upon a subpoena issued by such court or officer. (10, R23)
GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena.
EXCEPTION: Section 7 – a person present in court before a judicial officer maybe required to testify as if he is under
subpoena.
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And then the lawyer will say, “Our
first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was not under subpoena.” NO, You can be compelled because
you are present in court. Any person present inside the courtroom can be compelled to testify as if he is under subpoena.
So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag kang magtingin-tingin doon. It
happened several times. There was an instance I wanted to call a witness several times to surprise him. If I will have him
subpoena, baka makabantay. Alam din niya. And then I’ll talk to him. “O punta ka bukas ha? Sigurado ha.” In other words, I’ll
have to trick him into going into courtroom and then once inside, my first witness is that guy. Wala kang magawa. Because any
person present in court can be compelled to testify because if I will have him subpoena, he will be forewarn. So I do not want to
forewarn him.
FAILURE TO APPEAR; CONSEQUENCES
Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not show up. What are the
consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.
Sec. 8. Compelling attendance. In case of failure of a witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the
sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer
where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid
by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful
and without just excuse. (11, R23)
Sec. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon
him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule. (12a, R23)
Q: What are the consequences if the witness refuses to appear after he was subpoenaed>
A: The following:
1.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. That’s what you call a warrant
to arrest a recalcitrant witness. You move to arrest the witness para puwersahin mo ba;
2.) Declare him in contempt of court for failure to obey the subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply to a witness who
resides more than one hundred (100) kilometers from his residence to the place where he is to testify by
the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is
pending was obtained. (9a, R23)
Q: When is a witness not bound by a subpoena?

A: When his place of residence is more than 100 kms. to the place of trial. Actually, the old rule is 50 kms. lang. Now, the new
rule is double na – more than 100kms. So pag sobra ng 100 kms, you cannot compel the witness anymore to appear. Alright,
clear so far?
Although, this 100-km distance does not apply if it is a criminal case where the accused would like to seek the compulsory
process issued to secure the attendance of witnesses in his behalf because that is a superior right.
That is how the SC interpreted it in the case of PEOPLE vs. MONTEJO (21 SCRA 722 [1965]), reiterated in GENORGA vs.
QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation applies only to civil cases, but not to criminal cases,
especially if the person to be subpoenaed is a defense witness because of the constitutional right of the accused which is
a right which cannot be curtailed by the Rules of Court.
SUMMONS vs. SUBPOENA
Now, I’ve noticed among laymen that there is a confusion between a summons and a subpoena. I’ve tried noticing that for
years. The client will say, “Nakatanggap ako ng subpoena.” Pagtingin mo summon man under Rule 14. Sometimes, he will say,
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“Gi-summon ako ng court.” Iyon pala, subpoena. In other words among laymen, they think summon and subpoena are the same
but actually we know that they are not.
Summons is in Rule 14 and one good question is, distinguish summon from subpoena. I notice that there is no author has
ever bothered to explain at least to outline an answer in his book. I’ve gone to many books in remedial law, I still have to see an
author who says in his commentaries, summons and subpoena are two different things and these are the distinctions?
Now, suppose that will be asked in the bar, do not be afraid simply because you have not read it in the book. If you know an
idea, a legal concept – summons, alam naman ninyo ‘yan; subpoena – actually you can answer. You do not have to rely to any
author in answering the question.
As a matter of fact, I remember when I was taking the BAR, I never bother to read the distinction of any author. Why?
Because how can I memorized all of these distinctions in all subject? Impossible ‘no? It’s impossible for me to memorize
everything that the author said about distinctions and I don’t have to rely on any book. That’s the best. Now, yong mga author,
they only try to make your job easier by outlining the distinctions between this and that. But suppose there will be a question where
you are asked to differentiate this from that and you have not read that in any book, mag-panic ka? Huwag kang mag-panic. In
other words, once you know the concept, you can easily give an answer.
Alright, there should be no confusion between a subpoena and a summons. There are 2 different processes, although laymen
would tend to equate one with the other.
Q: Distinguish SUBPOENA from SUMMONS.

1.) SUBPOENA is directed to a witness; whereas

SUMMONS is directed to a defendant in a civil case;
2.) In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas
In SUMMONS, the defendant is informed that a complaint is filed against him and he must file a responsive pleading
within the period otherwise, judgment can be rendered;
3.) In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled by the issuance of a
warrant for his arrest; whereas
In SUMMONS, a judgment in default will be rendered against the defendant who fails to comply.
4.) SUBPOENA applicable to both criminal and civil case; whereas

SUMMONS applies only to civil cases.
5.) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas

In SUMMONS, there is no distance limitation.
Rule 22
COMPUTATION OF TIME
Section 1. How to compute time. In computing any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date of performance included. If the
last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day. (n)
This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE LAST DAY” rule. That is how it has always been done
even before this new rule. However, it was not expressed, there is nothing in the previous rules mentioning that rule but that was
really the rule followed.
So, if you received the summons today, for example and you have 15 days to answer, you start counting 1(one) tomorrow, not
today because the day of the act or event from which the designated period of time begins to run is to be excluded.
Q: Now what happens if the last day to answer falls on a Saturday, Sunday or a legal holiday?
A: Then, the time shall not run until the next working day. So there will be an automatic extension to Monday or the next
working day.
So at least, the new rules now embody the rule of computation of time.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the day after notice of the
cessation of the cause thereof.
EXAMPLE: The defendant received the summons and the complaint on a certain day. He has 15 days to file his answer. An
example of an act in between which effectively interrupts the running of the 15-day period is when the defendant files a motion to
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dismiss instead of filing an answer, or a motion for a bill of particulars. In which case, the running of the 15-day period stops. And
since it is stopped, you cannot declare the defendant in default.
Q: Now, when will it start to run again?
A: It will start to run again when the defendant receives a court order denying his motion to dismiss.
For example: A motion to dismiss is filed on the 7th day (instead of filing an answer). Then after several weeks, the court
denied the motion to dismiss and he received the order of denial.
Q: So how many days more to go?
A: Meron pa siyang eight (9) days to go. But the minimum guaranteed is five(5) days under Rule 12 and 16.
Now, what is the meaning of the last sentence “The day of the act that cause the interruption shall be excluded in the
computation of the period.” Let’s try to illustrate that:
FACTS:
January 31 – defendant is served with summons
February 8 – defendant files a motion to dismiss
February 15 – defendant receives order denying motion to dismiss
Q: What is the deadline for defendant to file his answer?

A: The 15-day period started to run on January 31. From January 31 to February 8, he consumed 8 days. From February 8
to 15, not counted because interrupted man by motion to dismiss. Then, on February 15, he received the order denying his motion
to dismiss.
So the remaining balance of the 15-day period starts to run again. And 15 minus 8 is equal to 7. Therefore, February 15 + 7 =
February 22. That is how you arrive at your (WRONG) answer.
Now, I’m sure if you ask majority of lawyers and judges with that kind of problem, they will give the same answer. But the
answer is WRONG. Why?
Q: How many days did he consume from January 31 to February 8?

A: Hindi naman 8 days eh. 7 days lang because the filing of the motion to dismiss has interrupted.
So when you file the motion to dismiss on February 8, interrupted na. So February 8 is not counted. So you
consumed 7 days only. Yaaaannnn…….
Therefore, if he consumed 7 days, he has 8 days pa from February 15 to file. So the deadline is February 23. Yaaaannnn!
Because the law says: “The day of the act that caused the interruption shall be excluded in the computation of the period.” The act
that caused the interruption is the filing of the motion to dismiss and it was filed on February 8. So, February 8 is already excluded
in the computation of the period.
Take note of that, that is a very important point because it may mean the answer is filed on time or out of time. Kahit sa
appeal, applicable din ito. That’s why that provision may sound very innocent but it is a very important provision.
Rule 23
DEPOSITIONS PENDING ACTION
We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit even some lawyers
and judges have a difficult time in comprehending Modes of Discovery.
A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards on the table. You
do not keep your opponent searching in the dark and that principle is manifested in so many rules.
Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in the complaint but also
the facts that is denied. It is not fair to state that my version is false, without stating your version. And if you do not make specific
denial, there is a general denial, an implied admission.
You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint to confuse him. He
has the right to clarify the allegation by motion for bill of particulars.
There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer are generally waived.
So, if you do not invoke the defense because you want to surprise the plaintiff, you will be the one who will be surprised because
the courts will not allow you. There is no such thing as surprise defense because under Rule 9, defenses not raised are deemed
waived. These provisions of the rules indicate the principle: LAY YOUR CARDS ON THE TABLE.
BUT there is still an element of surprise whether you like it or not because I’m obliged to state my cause of action or defense
but I’m not obliged to state the facts supporting that defense because the rules even say, evidentiary matters should not be alleged
in the pleading but is only proved in the trial.
So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to prove but you do not
know how I will prove it – the kind of evidence I will present – you know the factum probandum but you do but you do not know the
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factum probans. You do not know what documents I will present in court because I am not obliged to plead document which is not
actionable one. You do not know who are my witnesses, you do not know they will testify.
A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still an element of surprise –
you do not know my evidence until the trial or pre-trial.
Q: But if you want to avoid any surprise, is there a way of knowing then?
A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so popular among the
Filipino lawyers, in America these modes of discovery are popular among lawyers because if they see that the evidence is strong,
they settle the case even before trial. Modes of discovery are not only allowed but their use is encouraged.
BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts, but it is not an
instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery are intended to compel the other party to
reveal his evidence and evidentiary facts.
There are actually five (5) Modes of Discovery: DWRPP
1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before action or pending appeal (Rule 24);
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)
These are devises in the Rules of Court which are intended to compel the other party to reveal his evidences before the trial.
You cannot compel a party to reveal his evidence by a Bill of Particulars because Bill of Particulars is only intended to clarify vague
statements of ultimate facts but evidentiary facts cannot be compelled so the remedy are Modes of Discovery.
This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to use the Modes of
Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your witnesses to reveal their testimony under oath
through Modes of Discovery. So that during the trial, I would not be surprised anymore because meron na akong copy of your
testimony which is also under oath. And if you have some documents to present which you are hiding because they are not
actionable, puwede man kitang pilitin ba, by applying Rule 27. So with this, there are no more surprises.
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has two (2) types – deposition pending action (Rule 23) and
depositions before action or pending appeal (Rule 24). But actually Rule 24 is not new because that is Rule 134 (Perpetuation of
Testimony).
But before we discuss Rule 23, I will give you a general idea about what Rule 23 is all about.
EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now, of course, if A and B will testify, how will
they testify, that I do not know. But I want to know exactly what they will say during the trial, including you.
Q: How do I apply Rule 23?

A: I will take your deposition. Meaning, I will take your testimony in advance by compelling you to appear before someone
whom we call a Deposition Officer – the judge, or any judge, or even a notary public - who can administer oath. And then before
him, I will be asking now questions and you have to answer under oath. Your answers will then be recorded including that of your
witnesses.
Therefore, during the trial, when you or your witnesses will testify, there is no more surprise testimony that you can give me
because I already heard you in advance. You cannot contradict your answer. This is what you call deposition taking.
Now, if I can do that to you, you can also do that to me. The defendant can also use that against the plaintiff.
Q: How do you define deposition?

A: DEPOSITION is the written testimony of a witness given in the course of a judicial proceeding, in advance of the trial or
hearing, upon oral examination or in response to written interrogatories, and where an opportunity is given for cross-examination.
(16 Am. Jur. 699)
When I take the deposition of somebody, my opponent has the right to cross-examine the same witness. So practically, it’s a
dress rehearsal for the trial when I ask questions, my opponent can ask questions also. The questioning of the witnesses is done
the way it is done during the trial. The witness of the opponent has to undergo the same procedure in the rules of evidence. That is
Section 3:
Sec. 3. Examination and cross-examination. Examination and cross-examination of deponents may

proceed as permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24)
Q: Distinguish a deposition from an affidavit.

A: Affidavit is also a sworn statement of a witness but the statement is taken ex-parte (no cross-examination). But in deposition
there is cross-examination, there is a confrontation as if he is already testifying in court.
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Section 1. Depositions pending action, when may be taken. By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the action, or without such leave
after an answer has been served, the testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or written interrogatories. The attendance
of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be
taken only in accordance with these Rules. The deposition of a person confined in prison may be taken
only by leave of court on such terms as the court prescribes. (1a, R24)
Deposition-taking under Section 1 presupposes that there is a pending civil case kaya nga, the title is depositions pending
action. There is an existing civil case and I would like to take the deposition of certain people.
Q: When there is a pending action, is it necessary that leave of court or permission should be sought for deposition to be
allowed?
A: The rule is, it DEPENDS if there is already an answer or no answer:
1.) If the defendant has already filed an answer and therefore jurisdiction over the person of the defendant has
been obtained, leave of court is not required. All you have to do is send the questions to the other party;
2.) But if there is no answer, where the court has not yet acquired jurisdiction over the person of the defendant,
it requires a motion.
Another instance where leave of court is required under Section 1 is when what is to be taken is a deposition of a person
confined in prison.
Q: Whose deposition can you take?

A: The law says, you can take the testimony of any person whether a party or not at the instance of any party.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his witnesses? Yes, including Mr. A’s deposition. I can
also take the deposition of my own witnesses, even my own deposition. At least, before I die, nakuha na yung testimony ko. So I
can take the deposition of anybody in the world. That’s why the law says, “the testimony of any person whether a party or not may
be taken at the instance of any party.” And of course, Mr. A can also do what I was allowed to do.
Q: When you take deposition of this person, what do you call him?
A: The accurate term is that, he is called ‘DEPONENT.’ Some people call him witness.
Q: What are the modes of deposition taking?

A: Under the law, there are two (2) recognized modes:
1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
The deposition upon oral examination is more popular because it is just like how you question a witness in court: Questions
and answers, then it is recorded. And then later on, the other counsel would ask his questions and answer. Deposition upon written
interrogatories should not be confused with Rule 25 because the former is governed by Rule 23. Although they use the same
words.
Now, as we shall see, there must be a deposition officer and under the law, even a notary public is qualified to act as
deposition officer because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is located along San Pedro
Street. How can I force Ms. A to go to the office of that notary public? Can I force her?
A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this questioning for the
purpose of deposition. Section 1 says, “the attendance of witnesses may be compelled by the use of a subpoena as provided in
Rule 21.”
Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person
requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his deposition. It may also require him to bring
with him any books, documents, or other things under his control, in which case it is called a subpoena
duces tecum. (1a, R23)
PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in Davao to help you and
you are even willing to shoulder her transportation, but she refuses.
Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and testify even if the
distance is more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and take her deposition.
Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the deposition?
A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and under Rule 21, Section
5:
Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:
xxxxx
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b) the court of the place where the deposition is to be taken;
xxxxx
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in
sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for
the persons named in said notice by the clerk of the court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order
of the court. (5a, R23)
In other words, I will send the notice to my opponent, “I am going to take the deposition of my witness in Cebu.” And based on
that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a subpoena based on the notice to take
deposition on the Davao case. And under the Rules, the Cebu RTC has to issue a subpoena even if the case is not pending in that
(Cebu) court because this is only deposition. Kaya nga under Rule 21, Section 2 [b], a subpoena may be issued by the court of the
place where the deposition is to be taken.
There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in Davao. Then he applied for
a subpoena to require the deponent to appear before a notary public here. At least, tama siya doon. Ang mistake niya, he applied
for a subpoena in the Manila court where the case is pending and the judge there, maybe he did not read Rule 21, issued a
subpoena addressed to the person in Davao to appear before the notary public in Davao and the witness did not appear. So the
lawyer realized na mali siya. So he had to do it all over again in Davao, not in Manila. The subpoena has no more effect beyond
100 kilometers. It should be filed not where the case is pending but at the court of the place where the deposition is to be taken. In
other words, the error was corrected, but can you imagine the waste of time and effort.
Generally, depositions are taken at the start of the case before the trial. But in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]
ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can you still resort to
deposition under Rule 23 when the trial is already ongoing or it is only at the pre-trial?
HELD: “Depositions may be taken at any time after the institution of any action, whenever necessary or
convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition
against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of depositions of witnesses
before or after an appeal is taken from the judgment of a Regional Trial Court to perpetuate their testimony for use in
the event of further proceedings in the said court and EVEN during the process of execution of a final and executory
judgment.”
Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated. This is called wit h
another name in Rule 39 on execution, satisfaction or effects of judgments. (c.f. Rule 39, Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by section 16 or 18
of this Rule, the deponent may be examined
1. regarding any matter, not privileged,
2. which is relevant to the subject of the pending action,
3. whether relating to the claim or defense of any other party,
4. including the existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things and
5. the identity and location of persons having knowledge of relevant facts. (2, R24)
Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into?
A: The law says, the deponent may be examined regarding any matter whether related to the claim or defense of any other
party.
Example: Suppose if there is a case between me and somebody and I suspect Pedro knows something about the
facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro wherein practically I’m groping in the dark.
I just start asking questions left and right hoping that, I may stumble into something about the case.
Q: Is that allowed? Pataka lang ba ang style of asking questions.

A: YES, it is allowed. Precisely, the mode of discovery is a fishing expedition in the hope that you will discover something in the
course of a questioning. If I already know a fact, there is nothing to discover. It is very broad that I may discover something in the
course of questioning. You can ask the deponent any matter related to the claim or defense but there are limitations.
LIMITATIONS IN DEPOSITION TAKING
Q: What are the limitations or prohibitions in deposition taking?

A: The following are the limitations in Deposition Taking:
1.) The matter inquired into is not privileged either under the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of the pending action;
3.) The court may issue orders to protect the parties and its deponents under Sections 16 or 18.
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FIRST LIMITATION: That the matter inquired into is not privileged.
There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the wife to reveal in
court what her husband told her in confidence during their marriage. That is known as the marital privileged communication rule
(Rule 130, Section 24 [a]).
Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]); Physician-Patient
communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule (Rule 130, Section 24 [d]). Or, business trade
secrets such as the formula of your product.
So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking.
SECOND LIMITATION: The matter inquired into is relevant to the pending action.
While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond the topic. EXAMPLE: You
will ask the witness about an incident which happened and she was supposed to be there. “Where were you on this date?” “I was
there.” “Who was with you?” “I was with my boyfriend.” “When did he become your boyfriend?” or “How often do you date each
other?” or “What’s his favorite color? Malaki ba ang tiyan niya?” My golly! Those questions are irrelevant. Anong pakialam niyan sa
topic? Walang connection ba!
THIRD LIMITATION: The court may issue orders to protect the parties and
its deponents under Sections 14 or 18 of this Rule.
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a pending case and the
court has control over the case. That is why, while leave of court is not necessary, any party who is aggrieved can go to court and
complain. And the court is authorized to issue orders to protect the parties and its deponents under Sections 16 or 18 of this Rule.
Q: In what proceedings can a deposition be used?

A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good example is the remedy of
summary judgment under Rule 35. Under this Rule, a party can file a motion for summary judgment to demonstrate that the party
has no cause of action. In that sense, I will support my motions with affidavit, depositions or documents.
USE OF DEPOSITIONS
Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any
party who was present or represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
xxxxx
Q: In what proceedings may a deposition be used?

A: The following:
1.) At the trial;
2.) Upon a hearing of a motion; or
3.) Upon a hearing of interlocutory proceeding (e.g. issuance of a writ of preliminary injunction or attachment)
Q: Against whom may a deposition be used?

A: Against the following:
1.) against any party who was present; or
2.) against a party who was represented at the taking of the deposition; or
3.) against a party who did not appear or represented but was duly notified of the scheduled deposition taking.
So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the deposition taking of a
person. The other party is free to go there and participate. So if person appeared and participated, he is bound by the deposition.
If he fails to appear but sent a representative, the same effect – the person is bound. Suppose a person received the notice and
never bothered to go or participate, he is still bound because the law says, for as long as you are notified, you are bound.
So whether you will come or not, you are bound by the deposition taking. In this case, you might as well show up.
This is one area of procedure in which clients do not understand. Sometimes you will received a notice from the opposing
counsel that he is going to take the deposition of your client and witnesses. The client usually will oppose because they thought
that the only time you are going to tell the story is in court and not in the office of Atty. Hong Hunk. The lawyer has a hard time
explaining deposition taking to the client because the laymen usually does not know this. They do not know that the other party
could compel you under the law.
The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses can be compelled to
testify long before the trial, not inside the courtroom but in somebody’s place and everything is recorded and under oath. The
tendency is, samok kaayo ang imong client. Tell him, “Do not ask questions anymore, just believe me.”
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness;
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EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony, his testimony is in my
favor. I tell the court during trial that my next witness is Mr. Malaki but since he is busy and his deposition is taken beforehand, I will
no longer present him but instead I will present as evidence his deposition to take the place of his oral testimony in court.
Q: Is that allowed? Can a deposition substitute for his oral testimony?

A: NO, a deposition can only be used for the purpose of contradicting or impeaching the testimony of deponent as a
witness. It does not exempt the witness from testifying in court. It is only a means of knowing what the witness will testify.
When you take the deposition of a witness, you are already assured that this will be his story. If I asked you the same question
in court, naturally he will have the same answer. So there are no more surprises. If I am asking a question identical to my
deposition, I expect the answer to be identical during the trial.
Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is favorable to me but during
the trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not reliable. To IMPEACH the
testimony of a witness is to destroy his credibility. I will offer in evidence the deposition for impeachment purposes. This is known
as PRIOR INCONSISTENT STATEMENT under the rules on evidence. They cannot change story during the trial because I can
impeach them.
Therefore, a deposition is not a substitute for the testimony of the witness in court. You still have to present him in
court. He has to testify all over again but at least you already have a guideline. So, if he deviates from the deposition, you can
impeach him using the deposition taken under oath earlier.
(b) 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;
Q: What is the difference between paragraphs [a] and [b]?

A: The following:
1.) In paragraph [a], it is the deposition of a WITNESS and not a party, while
In paragraph [b], it is the deposition of the PARTY himself.
2.) In paragraph [a], the deposition of witness can be used only for contradicting or impeaching the testimony of
deponent as a witness, while
In paragraph [b], the deposition of a party can be used for any purpose. So it is broader than the first.
ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a record of his
testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach him. But suppose the deposition is in
my favor, I could present the deposition as an admission in my favor. I could use it as evidence against my opponent. Therefore, I
can use it as evidence or I can use it as a tool to impeach or contradict the other party.
In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only) and the deposition of
an ADVERSE PARTY is for any purposes because I can use it to impeach or I can use it as evidence. And if a witness say
something in my favor, I cannot use it as evidence. I have to ask the witness to repeat his statement in court. But if it is a party, I
can use it as evidence already under the rule on admission of evidence that the act or declaration of a PARTY maybe used as
evidence against him (Rule 130, Section 26). So, that is the difference between deposition of a party and a witness.
Q: Suppose the adverse party is a corporation

A: Under paragraph [b], you can take the deposition of any of its officers, directors, or managing agent of the corporation.
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if
the court finds:
(1) that the witness is dead; or

(2) that the witness resides at a distance more than one hundred (100) kilometers from the place of
trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party
offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
(4) that the party offering the deposition has been unable to procure the attendance of the witness by
subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used; and
Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a deposition of a witness for contradicting or
impeaching his testimony. It is only in paragraph [b] which applies the use of deposition for any purpose but it refers to the
deposition of the adverse party.
Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.
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DEATH
Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I have to present Juan or
only his testimony in the deposition as evidence?
A: I have to present my witness Juan because under paragraph [a], the deposition is only good for impeachment purposes but
not a replacement for his oral testimony.
Q: Suppose, when I’m about to present Juan during the trial, a day before that he died. So, I have no more witness. Can I
now present his testimony in the deposition as evidence?
A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead. However, if he is alive, apply
paragraph [a] – you cannot substitute his deposition to his oral testimony.
Now, it is true that when you take the deposition of your own witness, you are supplying the other party a means to impeach
the testimony of your witness. But if you look at paragraph [c], it is also important to take the deposition of your witnesses. The
purpose is just in case your witness will die before he can testify in court. At least, kung nakuha mo na ang deposition niya earlier,
masuwerte ka.
THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED (100) KILOMETERS FROM THE PLACE OF
TRIAL OR HEARING, OR IS OUT OF THE PHILIPPINES
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao and testify in a case
because of the 100-kilometer rule. The remedy is to go to Cebu and take his deposition there. When the case in Davao is called, I
will tell the court that my next witness is from Cebu and the distance from Davao is more than 100 kilometers. So I have no choice
but to take his deposition there. In this case, I can offer as evidence his deposition to take the place of his oral testimony. And that
is allowed as exception to paragraph [a].
And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or you might end up without
any witness. That is the advantage of paragraph [c].
WITNESS NOT FOUND
So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no longer be found. His
whereabouts is already unknown but I was able to take his deposition earlier.
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to
introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but when he was cross-
examined by the other party, he clarified his answers and turned out that his original answers were not really in my favor.
So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in my favor; PART
TWO, when the questions are specific, it turned out that it was not in my favor. So if I am the lawyer what I will offer is the part one
as my evidence because it is in favor of my client. The other party will present the other part.
In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now the job of the other
lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the picture created will only be half of the whole
picture.
Q: Is this unethical as it is suppressing the truth?

A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the Legal Ethics is it being espoused that
lawyers are told to lie. In fact, a lawyer must be honest and true for the administration of justice. It is the lawyer of the other side
who has the absolute right to complete the picture by offering the other half. I am not under obligation to help the other side. A
lawyer is no obligation to present everything. He is only under the obligation to support the interest of my client. What is unethical
is when you present something against the interest of your client. Yaaann!
Q: Is it not twisting the truth?

A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only presenting one side of the
story. But definitely the other party is not precluded from testifying to present the other half of the story. If the other party fails to
present the other half of the story, that is their problem. Do not blame me. [hmp!]
Sec. 5. Effect of substitution of parties. Substitution of parties does not affect the right to use
depositions previously taken; and, when an action has been dismissed and another action involving the
same subject is afterward brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if
originally taken therefor. (5, R24)
Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there was substitution. Is
there a need of taking depositions again? Will the deposition already taken be also applicable to the same case although the
parties are now different?
A: YES. The substitution of parties does not affect the right to use depositions previously taken.
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Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without prejudice. Jolina re-filed
the case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need of repeating the
whole process.
Sec. 6. Objections to admissibility. Subject to the provisions of section 29 of this Rule, objection may
be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were then present and testifying. (6,
R24)
Q: Can you object to the evidence which is being offered during the deposition taking?
A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule on the objection
later during the trial.
Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person his own witness for
any purpose by taking his deposition. (7, R24)
We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows nothing, then he is
useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa appendix ng tao!] You are not my witness.
If after taking your deposition, it turns out that everything you say is against me, am I bound by your testimony? NO. In fact, it is
the other party who will use you as his witness. But definitely, you are not my witness.
Sec. 8. Effect of using depositions. The introduction in evidence of the deposition or any part thereof
for any purpose other than that of contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of
a deposition as described in paragraph (b) of section 4 of this Rule. (8, R24)
GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer your deposition in
court, you are now my witness, especially if your are dead or when you are residing more than 100 kilometers.
EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.
1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your deposition to show the
court that you are a liar, I am not making you as my witness;
2.) When you offer the deposition of your opponent (adverse party), you are not making him your witness. That is
obvious. Napaka-istupido mo naman! Take note that anything that your opponent says in the deposition in favor of
you will bind you. But if it is not in your favor, it will not bind you precisely because he is not your witness – he is not
expected to say something in your favor.
Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other party. (9, R24)
It is just like a witness in court. If a witness says something in court, you can always prove that that is not true. If it is a
deposition, the same thing – you can always rebut the truth of what he said in his deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer? Section 10:
Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the Philippines,
depositions may be taken before any
1. judge,
2. notary public, or
3. the person referred to in section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken?
A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a judge in Manila to be
the deposition officer and he will not be the one to decide. He is only the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all lawyers are notary
public. To be a notary public, you have to apply for commission in the court of the place where you are practicing. If you
are a notary public for Davao City, you cannot be a notary public in any other place. And usually, a commission for notary
public is only good for 2 years. After 2 years, you have to re-apply.
3.) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of depositions. If the parties so stipulate in writing,
depositions may be taken before any person authorized to administer oaths, at any time or
209
place, in accordance with these Rules, and when so taken may be used like other depositions.
(24a, R24)
So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary public. It can be other person
who is authorized to administer oath such as prosecutors, clerk of court who is a lawyer, labor arbiters, etc. Anyway, they are
also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:
Sec. 11. Persons before whom depositions may be taken in foreign countries. In a foreign state or country,
depositions may be taken
(a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines;
(b) before such person or officer as may be appointed by commission or under letters rogatory; or
(c) the person referred to in section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under Section 14.
So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as well as the consul
general, vice-consul, although on a SC circular, if the judge will authorize the taking of deposition abroad, because this time leave
of court is required, you course it to the Department of Foreign Affairs. The parties are not supposed to communicate directly to the
Philippine Embassy.
Q: How about in places where we do not have embassy?

A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case, the person who is
authorize to take the deposition may be the one who is authorized by commission, or if not by commission, by letters rogatory.
What do you mean by commission or a letters rogatory? Section 12:
Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be issued only when
necessary or convenient, on application and notice, and on such terms and with such direction as are
just and appropriate. Officers may be designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign
country. (12a, R24)
By COMMISSION, somebody other than Philippine consul… like in Taiwan, we have Philippine Trade Department in Taiwan
because of our trade relations. The court will issue a commission to the head of the trade mission there to act as deposition officer.
Or any other person appointed by the judge by court order.
So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have no consulate but I
know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer abroad be authorized to take the
deposition of a person there. If the court agrees, it will issue what is known as a commission.
But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.
Q: Define letters rogatory.

A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the case and the name of
the foreign witnesses, and is requested to cause their depositions to be taken in due course of law, for the furtherance of justice,
with an offer on the party of the court making the request, to do the like for the other, in a similar case. (Ballentine’s Law Dict., 2nd
Ed., p. 744)
EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to issue a letters
rogatory. The judge will make a formal communication to the court in Pyongyang to please take W’s deposition with the following
request: to mail back the answer and offer to return the favor. If the request is ignored, there is nothing that we can do. But
normally, they comply.
So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a witness who is in their
jurisdiction and please send us a copy and we assure you in the future, if you have the same problem, we will reciprocate.
That is international law. Deposition can be understand by the officer in other country because it is internationally known. If the
officer in the foreign country will not do it, we have no choice because it is only a request. (kung ayaw mo, huwag mo!)
The SC defined again commission and letters rogatory and distinguished one from the other in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]
ISSUE #1: Distinguish a commission from letters rogatory.
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HELD: “A COMMISSION may be defined as an instrument issued by a court of justice, or other competent
tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal.”
“LETTERS ROGATORY, on the other hand, may be defined as an instrument sent in the name and by the
authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a
cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are
addressed.”
“A COMMISSION is addressed to officers designated either by name or descriptive title, while LETTERS
ROGATORY are addressed to some appropriate judicial authority in the foreign state.”
“Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and
issued only after a commission has been ‘returned unexecuted’ as is apparent from Form 21 of the Judicial
Standard Forms appended to the (1964) Rules of Court.” So as a matter of practice, the court should first resort to
commission. You must allege that the commission has been returned unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that the deposition-
taking will take place in a foreign jurisdiction not recognized by the Philippines in view of its one-China policy. Can a
deposition be taken in Taiwan where the Philippines has no diplomatic relations because of the one-Chine policy?
HELD: YES. What matters is that the deposition is taken before a Philippine official acting by authority of the
Philippine Department of Foreign Affairs and in virtue of a commission duly issued by the Philippine Court.
Sec. 13. Disqualification by interest. No deposition shall be taken before a person who is
1. a relative within the sixth degree of consanguinity or affinity, or
2. employee or counsel of any of the parties; or who is a relative within the same degree,
3. or employee of such counsel;
4. or who is financially interested in the action. (13a, R24)
You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get somebody who is
not related.
Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to take the deposition
of any person upon oral examination shall give reasonable notice in writing to every other party to the
action. The notice shall state the time and place for taking the deposition and the name and address of
each person to be examined, if known, and if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs. On motion of any party upon whom the
notice is served, the court may for cause shown enlarge or shorten the time. (15, R24)
There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written interrogatories.
The latter is governed by Section 15 which is the most popular: Question-answer and everything is recorded.
Take note that before deposition is take, there should be notice to the adverse party. The notice shall state the time and place
for taking the deposition and the name and address of each person to be examined.
The last sentence, “On motion of any party upon whom the noticed is served, the court may for cause shown enlarge or
shorten the time.” Suppose you will send me a notice that you are going to take the deposition of a witness from February 1 to 20
morning and afternoon. Twenty days is too much. I can go to court and complain. That should be reduced. The court may come in
and enlarge or shorten the time. The court may also do this even if leave of court is not required.
Sec. 16. Orders for the protection of parties and deponents. After notice is served for taking a deposition
by oral examination, upon motion seasonably made by any party or by the person to be examined and for
good cause shown, the court in which the action is pending may make an order that the deposition shall
not be taken, or that it may be taken only at some designated place other than that stated in the notice, or
that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or
that the scope of the examination shall be held with no one present except the parties to the action and
their officers or counsel, or that after being sealed the deposition shall be opened only by order of the
court, or that secret processes, developments, or research need not be disclosed, or that the parties
shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened
as directed by the court; or the court may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or oppression. (16a, R24)
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a pending case and the
court has control over the case. That is why, while leave of court is not necessary, any party who is aggrieved can go to court and
complain. Deposition is purely your concern provided nobody would come here and complain. That is one of the limitations of
deposition taking.
Q: What orders may court issue for the protection of parties and deponents; when may orders be issued; what court has power
to issue the orders?
A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the
person to be examined and for good cause shown, the court in which the action is pending may issue the following orders:
1.) That the deposition shall not be taken;

2.) That it may be taken only at some designated place other than that stated in the notice;
3.) That it may be taken only on written interrogatories;
4.) That certain matters shall not be inquired into;
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5.) That the scope of the examination shall be held with no one present except the parties to the action and their officers
or counsel;
6.) That after being sealed the deposition shall be opened only by order of the court;
7.) That secret processes, developments, or research need not be disclosed;
8.) That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes 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. (Section 16)
Sec. 18. Motion to terminate or limit examination. At any time during the taking of the deposition, on
motion or petition of any party or of the deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent
or party, the court in which the action is pending or the Regional Trial Court of the place where the
deposition is being taken may order the officer conducting the examination to cease forthwith from
taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in
section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only
upon the order of the court in which the action is pending. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an
order. In granting or refusing such order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable. (18a, R24)
Section 16 and 18 are similar. They both talk about the power of the court to control the deposition taking. Section 16 is about
protective orders BEFORE deposition taking. Section 18 talks about protective orders DURING the deposition taking where the
court may stop or limit the deposition taking.
Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be taken
shall put the witness on oath and shall personally, or by some one acting under his direction and in his
presence, record the testimony of the witness. The testimony shall be taken stenographically unless the
parties agree otherwise. All objections made at the time of the examination to the qualifications of the
officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct
of any party, and any other objection to the proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the
oral examination, parties served with notice of taking a deposition may transmit written interrogatories to
the officers, who shall propound them to the witness and record the answers verbatim. (17, R24)
Q: How is deposition in oral examination taken?

A: It must be under oath. The testimony will be taken by the stenographer. And objections must be recorded. Evidence
objected to shall be taken subject to the objections.
Q: Can the deposition officer make a ruling on the objection/s?

A: NO. He cannot. But the objection will be noted and the deponent must answer. Later on, if that deposition is offered
as evidence in court, the court will now rule on the objection. If the objection is overruled, the answer as recorded remains. If
the objection is sustained, the answer as recorded is erased as if it was never answered. That is the meaning of “evidence objected
to shall be taken subject to the objections.”
So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court where the case is
pending who will make the ruling on it.
Take note that answers to depositions not objected to cannot be objected to in court during the trial, UNLESS the
objection is based on a new ground which only come up after the deposition.
Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the
deposition shall be submitted to the witness for examination and shall be read to or by him, unless such
examination and reading are waived by the witness and by the parties. Any changes in form or substance
which the witness desires to make shall be entered upon the deposition by the officer with a statement of
the reasons given by the witness for making them. The deposition shall then be signed by the witness,
unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to
sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the
fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with
the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless
on a motion to suppress under section 29 (f) of this Rule, the court holds that the reasons given for the
refusal to sign require rejection of the deposition in whole or in part. (19a, R24)
So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the deponent for
examination. He may change his answers but he must state the reason for the change. And he signs it, unless the parties by
stipulation waive the signing, or the witness is ill, or cannot be found or refuses to sign. In the latter cases, the deposition will be
signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer shall certify on the deposition that the witness was
duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He
shall then securely seal the deposition in an envelope indorsed with the title of the action and marked
"Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the
action is pending or send it by registered mail to the clerk thereof for filing. (20, R24)
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Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the
parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of reasonable charges therefor, the officer shall furnish a
copy of the deposition to any party or to the deponent. (22, R24)
Any party can ask for a copy of the deposition upon payment of reasonable charges therefor.
Sec. 23. Failure to attend of party giving notice. If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to
the notice, the court may order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s
fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a witness in Davao.
And he came over. But the deposition did not proceed because the party sending the notice did not show up. So he caused the
other party a lot of inconvenience. The Manila lawyer can file a motion in court to ask for reimbursement of all his expenses in this
case.
Sec. 24. Failure of party giving notice to serve subpoena. If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does
not attend, and if another party attends in person or by counsel because he expects the deposition of
that witness to be taken, the court may order the party giving the notice to pay to such other party the
amount of the reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorney’s fees. (24a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a witness in Davao.
And he came over. The party sending the notice is also present. But this time it is the witness who is absent because the party
sending the notice forgot to have the witness subpoenaed. Again, the Manila lawyer can file a motion in court to ask for
reimbursement of all his expenses.
Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party desiring to
take the deposition of any person upon written interrogatories shall serve them upon every other party
with a notice stating the name and address of the person who is to answer them and the name or
descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days
thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the
deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who
has served cross- interrogatories. Within three (3) days after being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the party proposing to take the deposition. (25, R24)
The difference between a deposition upon oral examination and written interrogatories is that in oral examination, the
questions and the answers are oral.
In deposition upon written interrogatories, the questions are prepared already in advance and that is direct interrogatories. And
then they furnish you a copy and after receiving it, you may also, within 10 days, prepare your questions or cross-interrogatories
and you also furnish them copies of it. And based on that, they can ask further questions. If they are now sufficient, the deposition
officer shall compound the question one by one but every question requires an answer.
Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very expensive for you to go there
and conduct an oral examination. So, the practical means is only deposition upon written interrogatories.
Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all
interrogatories served shall be delivered by the party taking the deposition to the officer designated in
the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to
take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or
mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (26,
R24)
Sec. 27. Notice of filing and furnishing copies. When a deposition upon interrogatories is filed, the
officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to
the deponent upon payment of reasonable charges therefor. (27, R24)
Sec. 28. Orders for the protection of parties and deponents. After the service of the interrogatories and
prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion
promptly made by a party or a deponent, and for good cause shown, may make any order specified in
sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not
be taken before the officer designated in the notice or that it shall not be taken except upon oral
examination. (28, R24)
So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations.
Are the mistakes in deposition taking fatal?

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Sec. 29. Effects of errors and irregularities in depositions.
(a) As to notice.- All errors and irregularities in the notice for taking a deposition are waived unless
written objection is promptly served upon the party giving the notice.
(b) As to disqualification of officer.- Objection to taking a deposition because of disqualification of the officer
before whom it is to be taken is waived unless made before the taking of the deposition begins or as
soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(c) As to competency or relevancy of evidence.- Objections to the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by failure to make them before or during the taking
of the deposition, unless the ground of the objection is one which might have been obviated or removed
if presented at that time.
(d) As to oral examination and other particulars.- Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or
in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the
deposition.
(e) As to form of written interrogatories.- Objections to the form of written interrogatories submitted under
sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them
within the time allowed for serving succeeding cross or other interrogatories and within three (3) days
after service of the last interrogatories authorized.
(f) As to manner of preparation.- Errors and irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part thereof is made with reasonable promptness after such
defect is, or with due diligence might have been, ascertained. (29a, R24)
So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.
Rule 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
TWO TYPES OF DEPOSITION TAKING:

1.) Deposition Pending Action (Rule 23) and
2.) Deposition Before Action or Pending Appeal (Rule 24)
In Rule 23, you take a testimony or deposition of people in relation to a pending case. There is already a pending case in
court, so everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed. That is why it is called Depositions Before Action. Actually, the
concept of depositions before action is not really new. This is also found in the Rules prior to 1997 but was found in another rule. It
was called Perpetuation of Testimony (Rule 134 of the old Rules of Court). What the new rules did was simply to transfer Rule 134
to Rule 24.
But how can I apply deposition taking, wala mang kaso? That is why it was known as Perpetuation of Testimony under Rule
134.
EXAMPLE: Suppose there is a case which I would like to file against B. But for the moment I cannot file it yet. I intend to file a
case against him. So there is an expected case between us in the future only there are certain things that I still have to do. But if I
file a case against B, I have some witnesses who are all ready like A and C. But the trouble is, I learned lately that A will die soon.
He has cancer and C will have to leave for abroad, never to come back. Definitely, if I will file the case, there are no more witnesses
available.
Q: Is there a way of taking testimony or deposition in advance even before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court known as Petition to Perpetuate the Testimony of A and C.
Well, even if there is as yet no case, I will just file a petition under Rule 24. If I can prove really that the testimony would be relevant
or important the court will issue an order allowing me to take deposition in advance.
Section 1. Depositions before action; petition. A person who desires to perpetuate his own testimony or
that of another person regarding any matter that may be cognizable in any court of the Philippines, may
file a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)
Q: Where will you file it?

A: In the court of the place of the residence of any expected adverse party because there is still no case. So you have to file
an independent petition under Rule 24
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Sec. 2. Contents of petition. The petition shall be entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently
unable to bring it or cause it to be brought;
(b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it;
(d) the names or a description of the persons he expects will be adverse parties and their addresses
so far as known; and
(e) the names and addresses of the persons to be examined and the substance of the testimony
which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the petition for the purpose of perpetuating their
testimony. (2, R134)
Sec. 3. Notice and service. The petitioner shall serve a notice upon each person named in the petition
as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to
the court, at a time and place named therein, for the order described in the petition. At least twenty (20)
days before the date of the hearing, the court shall cause notice thereof to be served on the parties and
prospective deponents in the manner provided for service of summons. (3a, R134)
Sec. 4. Order and examination. If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an order designating or describing the persons whose
deposition may be taken and specifying the subject matter of the examination and whether the
depositions shall be taken upon oral examination or written interrogatories. The depositions may then be
taken in accordance with Rule 23 before the hearing. (4a, R134)
If the petition is granted, the court will now allow the deposition of these people to be taken and they are taken simply by
following Rule 23.
Sec. 5. Reference to court. For the purpose of applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in which the action is pending shall be deemed to refer to
the court in which the petition for such deposition was filed. (5a, R134)
Rule 23 says, “the court in which the action is pending.” But there is still no pending action here. So it automatically refers to
the court in which the petition for the perpetuation was filed.
Sec. 6. Use of deposition. If a deposition to perpetuate testimony is taken under this Rule, or if,
although not so taken, it would be admissible in evidence, it may be used in any action involving the
same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule
23. (6a, R134)
Q: How do you use the perpetuation of testimony?

A: The same uses of an ordinary deposition – for impeachment, for any other purpose like the witness is already dead – the
same under Rule 23. So the rule under Rule 23 is also applicable to Rule 24.
Sec. 7. Depositions pending appeal. If an appeal has been taken from a judgment of a court, including
the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses
to perpetuate their testimony for use in the event of further proceedings in the said court. In such case
the party who desires to perpetuate the testimony may make a motion in the said court for leave to take
the depositions, upon the same notice and service thereof as if the action was pending therein. The
motion shall state (a) the names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the
court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may
make an order allowing the depositions to be taken, and thereupon the depositions may be taken and
used in the same manner and under the same conditions as are prescribed in these Rules for
depositions taken in pending actions. (7a, R134)
Q: What is deposition PENDING APPEAL?

A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he discovered a material
witness whom he failed to present. So this is a newly discovered evidence (NDE). Had K known of his existence, he would have
won the case. So, K will file a motion for new trial based on NDE. If his motion is granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells him that he will be leaving
for Afghanistan and will come back no more. So, K will use Section 7. He will file a motion asking to take the deposition of a witness
pending appeal in the event that his motion for new trial is granted, because the witness has to go and cannot wait for the new trial.
So in the event that if I win the appeal, the case will go back. I can present the testimony because by that time he may already
be dead. In effect, para na ring deposition before appeal. So it is also perpetuating the testimony of a possible witness, in the
event the appeal is decided in your favor. That’s why it is called deposition pending appeal. [oo nga ano?]
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Rule 25
INTERROGATORIES TO PARTIES
Q: Going back to Rule 23, what are the modes of deposition taking?
A: The following:
(1) Deposition upon oral examination; and
(2) Deposition upon written interrogatories.
Rule 25 should not be confused with Rule 23, Section 25 – yung tinatawag na Deposition Upon Written Interrogatories.
In written interrogatories under Rule 23, questions are already prepared beforehand and they are going to be submitted to a
deposition officer who will propound the questions to the deponent and record the answers under oath. EXAMPLE is, if you want to
take the deposition of somebody abroad through a deposition officer abroad. Of course, it would be very expensive to go there and
conduct an oral examination. So, the best thing is to resort to deposition upon written interrogatories under Rule 23.
That is not the same as interrogatories to parties under this rule. We are going to distinguish one from the other later.
Interrogatories mean written questions. EXAMPLE: I file a case against Frudo. Frudo filed an answer and of course, he has
his affirmative defenses which are statements of ultimate facts. alang details, no evidentiary facts. But I am interested to find out
what are these evidentiary facts I will write a letter addressed to Frudo under Rule 25 and direct him to answer the following
interrogatories:
According to your answer, you already paid, please answer the following questions:
Q1: When did you pay?
Q2: Place?
Q3: Who was present when you paid?
Or
Q1: Mr. Frudo, you have been in continuous possession of this piece of land for 30 years, would you
kindly narrate the improvements that you introduced in the property?
Q2: What year did you introduce them?
Q3: Who are your witnesses? etc…
Now, under Rule 25, you are obliged to answer me also in writing. Then you sign your answer and you swear to the truth of it.
So I will ask you directing a question – How will you prove this? Who are your witnesses? I will compel you to reveal the
evidentiary facts. And that process is called written interrogatories to parties. Di para na ring deposition?
I can also ask the same questions through deposition taking under Rule 23. Why do I have to resort to Rule 25? The trouble
is under Rule 23, kukuha pa ako ng deposition officer and I will have to course everything to him. In Rule 25, walang
deposition officer. Diretsahan na ito. I will ask you a question and you will answer me. So, less expensive.
But take note, under Rule 25, you can only ask questions to your opponent. You cannot ask questions to a stranger.
Unlike in Rule 23, you can take the deposition of any person whether a party or not. In Rule 25, the questioning is direct.
Plaintiff questions the defendant, defendant questions the plaintiff. So, these are the differences between deposition upon written
interrogatories and interrogatories to parties.
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from DEPOSITION UPON WRITTEN INTERROGATORIES (Rule
23).
1.) Under Rule 23 on Depositions upon written interrogatories, the deposition is taken before a deposition
officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no deposition officer;
2.) Under Rule 23 on Depositions upon written interrogatories, questions are prepared beforehand. They are
submitted to the deposition officer who will ask the deponent the questions and he will record the
answers.; whereas
Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions defendant,
defendant questions the plaintiff. There is no third person who will intervene; and
3.) Under Rule 23 on Depositions upon written interrogatories, the deposition of any person may be taken,
whether he is a party or not, may be taken; whereas
Rule 25 on Interrogatories to Parties applies to parties only. You can send interrogatories only to parties. You
cannot ask question to a stranger.
SEC. 1. Interrogatories to parties; service, thereof – Under the same conditions specified in section 1 of
Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and
serve upon the latter written interrogatories have been served shall file and serve a copy of the answers
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on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court,
on motion and for good cause shown, extends or shortens the time. (1a)
Q: Is leave of court necessary to apply Rule 25? Do I have to apply for a court permission before I can send interrogatories to
parties?
A: IT DEPENDS. The Rule says “under the same conditions specified in Section 1 of Rule 23.” So the manner of resorting to
interrogatories are done under the same conditions for taking of depositions.
So if an answer has already been served, leave of court is not necessary. If no answer has been served, although the
court has already acquired jurisdiction over the defendant, leave of court is necessary. That is the same under the rule on
deposition.
SEC. 2. Answer to Interrogatories - The interrogatories shall be answered fully in writing and shall be
signed and sworn to by the person making them. The party upon whom the interrogatories have been
served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen
(15) days after service thereof, unless the courts, on motion and for good cause shown, extends or
shortens the time. (2a)
As I have mentioned, you are mandated by law to answer fully in writing my questions and signed and sworn by you. As a
general rule, you are given 15 days to answer my interrogatories.
SEC. 3. Objections to Interrogatories – Objections to any interrogatories may be presented to the court
within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be
deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a)
Q: Suppose you do not want to answer my questions because you believe my questions are improper, you want to object to
my questions, what is your remedy?
A: You go to the court where the case is pending and object. Let the court decide whether you will have to answer or not.
SEC. 4. Number of Interrogatories - No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party. (4)
It means, I send to you interrogatories and I thought tapos na. Then I remembered kulang pa pala iyon, so another set – ahh
hindi na pwede! Dapat once lang unless the court allows me to send to you another set.
So, as a general rule, when you send questions to your opponent, you better compile. Lahat ng gusto mong itanong, itanong
mo na because no party is given, as a rule, the privilege of securing more than one set of interrogatories.
SEC. 5. Scope and Use of Interrogatories - Interrogatories may relate to any matters that can be
inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided
in section 4 of the same Rule (5a)
Q: What kind of questions can you ask under Rule 25 to your opponent?
A: The same questions that you can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided it is relevant; and
2.) it is not privileged.
Q: Suppose there are already answers to the interrogatories given by your opponent, how do you use those answers?
A: They have the same uses under Rule 23 Section 4 – you can use it for impeachment, or any other purpose like to
prove an admission already made by the adverse party.
SEC. 6. Effect of Failure to serve written interrogatories – Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party
1. to give the testimony in open court, or

2. to give a deposition pending appeal (n)
This is entirely a new question. It has no counterpart in the old rules. Now, this is a very controversial section. Actually, you will
not understand this until you study Evidence where you can compel the adverse party to testify. This is actually related to Rule 132,
Sec. 10 (e) of the Rules of Evidence.
[The following discussions are taken from the Remedial Law Review Transcription 1997-98]
This is related to the rule on Evidence particularly Rule 132, Section 10 [e]:
Rule 132, Sec. 10. Leading and misleading questions. – A question which suggests to the witness the
answer which the examining party desires is a leading question. It is not allowed except:
xxxxxx
xxxxxx
(e) of a witness who is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party.
xxxxxx
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Rule 132, Section 10 [e] is the provision in the Rules which authorizes a party to call the adverse party to the witness stand. A
party may call the adverse party to the witness stand and interrogate him by leading questions – as an element of surprise. I can
call my opponent to the witness stand and he cannot refuse.
I can conduct direct examination on the adverse party and I am entitled under the Rules to ask leading questions as if he in
under cross-examination because he is the adverse party. He is not actually my witness. The purpose here is to actually secure
admissions from him while he is in the witness stand because anything that he says against me does not bind me even if I were the
one who called him to the witness stand. But anything he might say that is against himself binds him.
Under Section 6, if I intend during the trial to call him to the witness stand, I am obliged to send him ahead written
interrogatories. I have to follow Rule 25. Now, if I do not send written interrogatories to him, then I have no right to call
him to the witness stand. That is why Section 6 is a very radical provision.
So, if I am the lawyer of a party, then binigla mo ako dahil there is really that element of surprise as it has happened several
times before. The lawyer is caught by surprise when the opposing party says that it would present the adverse party to the witness
stand. The lawyer is then caught off-guard as he has not talked to his client yet.
Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by arguing that written interrogatories were not sent under
Rule 25. Hence, you can object to the opposing counsel’s motion to call your client to the witness stand.
This practically compels the lawyers to avail of the modes of discovery because if you will not compel him, chances are Filipino
lawyers do not make much use of the modes of discovery. So now, if the opposing counsel suddenly sends interrogatories to you,
the he must be planning to call you in the witness stand later.
Rule 26
ADMISSION BY ADVERSE PARTY
Rule 26 is also known as REQUEST FOR ADMISSION. Admission by adverse party or request for admission is similar to
interrogatories. You send questions to your opponent and he’s bound to answer in writing within 15 days under oath but the framing
of the questions are different.
In a request for admission, you are requiring the opposing party to admit the truth or authenticity of certain
documents. For example: “Do you admit the genuineness of the documents marked as Annex A?” We are talking here of
DOCUMENTS which are NOT ACTIONABLE because if the document is actionable then it has to be pleaded properly.
In other words, if I have 20 documents, to find out whether you will admit them or not, I will send you a copy and ask, “Do you
admit the genuineness of this? Do you admit the truth?” [secreeet!]
So, the main difference between Rule 26 and Rule 25 is in the framing of the question. If the question is framed in such a way
that the premise is laid down and I ask you whether or not you admit, then the question is proper under Rule 26. BUT if the
question if framed in such a way that it is not answerable by yes or no, then apply Rule 25.
Example: Suppose my question is like this – “who was with you?” That is proper under Rule 25. Pero sabi ko, “A and B were
with you, admitted?” That is Rule 26. Kaya nga the way the questions were framed determines what kind of mode of discover are
you going to apply.
Section 1. Request for admission. At any time after issues have been joined, a party may file and serve
upon any other party a written request for the admission by the latter of the genuineness of any material
and relevant document described in and exhibited with the request or of the truth of any material and
relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the
request unless copies have already been furnished. (1a)
Q: So, what will you request the other party to admit?

A: The genuineness of any material and relevant document described in and exhibited with the request or of the truth in the
request.
Q: When do you apply this mode of discovery?

A: “At anytime after issues have been joined.” Meaning, there is already an answer.
Q: Is LEAVE OF COURT required under Rule 26?

A: It is totally UNNECESSARY but a request for admission under Rule 26 can only be started according to Section 1, “At any
time after issues have been joined.” So it presupposes that there is already an answer. Unlike in interrogatories, you can do it even
before an answer is served provided there is leave of court. This is the second difference between Rule 25 and Rule 26.
Sec. 2. Implied admission. Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days
after service thereof, or within such further time as the court may allow on motion, the party to whom the
request is directed files and serves upon the party requesting the admission a sworn statement either
denying specifically the matters of which an admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those matters.
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Objections to any request for admission shall be submitted to the court by the party requested within
the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph
and his compliance therewith shall be deferred until such objections are resolved, which resolution shall
be made as early as practicable.(2a)
Q: So, if I send to you a request for admission, what is your duty?

A: Within 15 days, you must answer my request under oath, whether admitting or denying my request. Take note, ‘under oath’
also, parang interrogatories.
Q: Suppose you ignore my request within 15 days. You did not do anything. You did not bother to file any answer to my
request for admission. What is the effect of failure to answer the request?
A: You are deemed to have admitted. There is an implied admission of all the things that I asked you to admit. Section 2 says,
each of the matters of which an admission is requested shall be deemed unless you file your answer to the request. Meaning, if
you will not answer my request, under the law, all the matters which I request you to admit are deemed impliedly admitted. That is
the penalty for not bothering to file your reply under Rule 26.
BAR QUESTION : A sends a request for admission to B and B made an admission. However, during the trial, A did not offer in
evidence the answers to the request. Can the court take judicial notice of the answers?
A: Based on THE OLD RULES, it would seem NO because a request for admission is purely an extrajudicial matter between
the parties. But if the same question is asked,
NOW, the answer would be YES, because under the NEW RULES, you are already required to file and serve. Therefore
the court may now take judicial notice because it already forms part of the record.
BAR QUESTION: Suppose, I will file a case against you and I will attach to my complaint a Promissory Note – actionable
document. In your answer, you deny the genuineness and due execution of the Promissory Note. Meaning, as a defense you
allege that your signature is forged. There was a proper denial because it was under oath.
After a week, I will now send to you a request for admission under rule 26, where I attach the same promissory note, and I will
ask you, “Do you admit the genuineness and due execution of this promissory note?” Now, when you receive the request, you
ignore it because you already denied the promissory note under oath in your answer. So you argue, “Why do I have to deny it
again under Rule 26 when I already denied it under Rule 8? There is no need for me to deny it all over again.” I can also argue,
“Even if you denied it under Rule 8, under Rule 26 you are obliged to deny it all over again. Otherwise, you are deemed to have
admitted the genuineness and due execution of the document.” Who is right between the two of us?
ANSWER: There was an old decided case where the SC seemed to imply that even if the matter is already denied in your
pleading, if it is reiterated under Rule 26 (request for admission) it has to be denied all over again otherwise you’re impliedly
admitting it. To my mind, that is already answered in the 1988 case of:
PO vs. COURT OF APPEALS

164 SCRA 668
FACTS: There was an allegation made by the plaintiff in his complaint which allegation was specifically denied in
the answer. Plaintiff asked the same question in a request for admission. Inulit niya ang tanong and this time the
defendant did not answer the request for admission.
Now, under Section 2, if the party as requested to make an admission does not make so within 15 days, the
matter requested is deemed admitted - impliedly admitted - that is the penalty.
If you do not want to respond to my request, everything that I requested will be impliedly admitted. Now, you
already denied the allegation in my complaint specifically in your answer, I repeated it in a request for admission and
this time, you failed to respond.
Now, under Rule 26, the plaintiff can claim, “Well, since you did not respond, then it is already deemed admitted.”
Suppose the other party would say, “No, I already denied that in my answer. There is no obligation for me to the deny
the same all over again under Rule 26.”
ISSUE: Is there a need for another denial in the request for admission?
HELD: NO NEED. When a matter is already effectively denied in the pleading, then there is no need to ask
it all over again. In other words, what has already been denied is denied and therefore you cannot say that for failure
to deny it is already deemed admitted.
“A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s
pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the
request, whose purpose is to establish said party’s cause of action or defense. Unless it serves that purpose, it is
pointless, useless, and a mere redundancy.”
If we have to answer the same question under the ruling in PO, it would seem that the defendant is correct. Why do I have to
deny, if I have already denied it? So, there is no implied admission.
Sec. 3. Effect of admission. Any admission made by a party pursuant to such request is for the
purpose of the pending action only and shall not constitute an admission by him for any other purpose
nor may the same be used against him in any other proceeding.(3)
Section 3 is for the purpose of evidence. An admission made by a party pursuant to a request for admission in only good for
that case. It cannot be used in any other case or proceeding. It limits therefore the effectivity of an admission. It is only valid for the
pending case.
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Sec. 4. Withdrawal. The court may allow the party making an admission under this Rule, whether
express or implied, to withdraw or amend it upon such terms as may be just. (4)
Admissions made, expressly or impliedly (failure or refusal to respond) are nevertheless binding.
Q: Is the party admitting allowed to withdraw, change or amend his previous admissions?
A: YES, but with leave of court.
Sec. 5. Effect of failure to file and serve request for admission. Unless otherwise allowed by the court for
good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for
admission on the adverse party of material and relevant facts at issue which are, or ought to be, within
the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (n)
This is one of the more controversial sections in the new Rules. This is a mandatory mode of discovery. “A party who FAILS to
FILE and SERVE a request for admission on the adverse party of material and relevant facts in issue which are or ought to be
within the personal knowledge of the latter shall not be permitted to present evidence on such facts.” This is A VERY HARSH RULE
– a new rule which again shows the intention of the law to compel the lawyers to avail of the modes of discovery.
An example of the section: Let’s assume that there is a fact which I want to prove and I know that you know but I do not know
whether you’ll admit it or not. Under the rules, I have to send you a request for admission to confirm it.
Suppose I do not send you a request because anyway there are very few lawyers who do that. So, I did not send a
request and then during the trial, I will just try to prove it. Then the adverse party says, “Teka muna, what are you trying to
prove? You should have sent me a request for admission.” And then you say that you forgot to send one.
So, the adverse party here objects because he argues that I cannot present evidence to prove something which he
could have admitted in a request for admission. This is something which the party could have admitted had I resorted to a
request for admission under Rule 26, and since I did not, then he can now prevent me from proving it.
Hence, this is a very dangerous provision. Though, we still have to see a judge applying this rule because it is practically
placing the other party in estoppel. Basically the argument will go like this:
NASTY MACK: “Why did you not send me a request for admission? Had you sent me, I would have easily
admitted that but since you did not, then I will bar you form proving it.” (practically every fact aimed to be
proved can be objected to
BEN-DEATHA: “How could I have known what facts you will admit and not admit?”
NASTY MACK: “Precisely, that is why you should have sent me a copy, STUPID!”
See how dangerous this provision is? I can bar you from proving anything simply because you failed to avail of the modes of
discovery. This was not found in the Old Rules.
Generally, matters which are objectionable should be pushed by the party concerned or affected. That is because it is for his
benefit. I do not think it involves public policy that’s why even if you invoke it, the court may still refuse to apply it. Look at the
opening of the first paragraph: “Unless otherwise allowed by the court for good cause and to prevent a failure of justice.” So that’s
an exception.
So, even if you are correct, the judge may say that it’s too much. Even if you invoke it, the judge may still say that there will be
failure of justice if he will apply it. With more reason, no judge will use it if you will not invoke it. It is practically barring the party from
proving his case. That is why even if you invoke this, judges are very careful not to apply this. So, you have to invoke this at least,
to call the attention of the judge though the judge may still refuse because there might be a failure of justice.
The only purpose I see for these is to compel the parties and lawyers to avail of the Modes of Discovery.
Let’s go to some interesting cases on request for admission.
REBONERIA vs. COURT OF APPEALS

216 SCRA 627 [1992]
FACTS: A request for admission was sent by a party (Plaintiff) to the lawyer of the defendant (because anyway,
under Rule 13, the general rule is that everything should be coursed through the lawyer) So, the request was sent to
the lawyer. Since there was no response, can there be an implied admission?
HELD: NONE. In a request for admission, since we are questioning the party, we should address it to him,
and not to the lawyer. A request for admission should be served upon the party, not his counsel. The general
rule under Rule 13 cannot apply where the law expressly provides that notice must be served upon a definite person.
In such cases, service must be made directly upon the person mentioned in the law and upon no other in order
for the notice to be valid.
But the case of REBONIA should not be confused with the case of
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PSCFC FINANCING CORP. vs. COURT OF APPEALS
216 SCRA 838 [1992]
FACTS : A request for admission was sent to a party. The party told his lawyer to answer the request. So, it was
the lawyer who answered the request for admission under oath.
ISSUE: Was there an effective answer or reply to the request for admission as it was the lawyer who made the
reply ?
HELD : YES, because under the Rules, a client can always act through the lawyer and he is bound by the
actuations of his lawyer. This is practically the rule on Agency. If we will say that the lawyer has no authority even if
ordered by the client , then we are altering the Rules on Agency and also the rule that the lawyer can always act in
behalf of his client.
And assuming that a lawyer is not authorized to make the complaint, then why is the adverse party the one
complaining? It is the client who has the authority to impugn the acts of his lawyer and not the adverse party. Timang!!
Principles to remember in the case of REBONERIA and PSCFC:
1. A request must be directed to the party whose admission is sought. Service of request to any other person is not
a valid request at all.
2. A request must always be directed to the party whose admission is sought, but the latter may delegate to his
lawyer the right to answer the request. Such is valid so long as there is a valid authorization.
Rule 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
SEC. 1. Motion for Production or inspection; order – Upon motion of any party showing good cause
therefore, the court in which an action is pending may
(a) Order any party to produce and permit the inspection and copying or photographing by or on
behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs,
objects or intangible things, not privileged which constitute or contain evidence material to any matter
involved in the action and which are in his possession, custody or control; or
(b) Order any party to permit entry upon designated land or other property in his possession for
control for the purpose of inspecting, measuring, surveying or photographing the property of any
designated relevant object or operation thereon. The order shall specify the time, place and manner of
making the inspection and taking copies and photographs, and may prescribe such terms and conditions
as are just (1a)
EXAMPLE: Harry Potter sued Voldemortz. The case involves accounting. Voldemortz is in possession of several invoices and
receipts which he would present in trial. Harry wants to get hold of and inspect all these documents. Since these are not
actionable documents, Voldemortz is not required to show or include them in the pleadings. No need to plead. So, Harry want to
see these books, photographs, accounts, objects which Harry know Voldemortz will present during the trial. If Harry will ask
Voldemortz to show these things, I don't think Voldemortz will accommodate Harry.
Q: In the above example, what is the remedy of Harry?

A: Harry will apply Rule 27 by filing a motion in court stating that Voldemortz is in the possession of such documents and Harry
would like to see, inspect or have them copied, provided they are relevant and not privileged. And the court will issue an order
directing Voldemortz on a specified time on place to bring them for purposes of inspection, survey, copying, photocopying, etc.
Voldemortz have no choice but to show Harry all these objects.
EXAMPLE: Harry sued Voldemortz for recovery of ownership of land. Voldemortz in possession and such is in a position to
enable to properly describe the land and all its improvements. Harry would like to see the property to inspect and survey the same.
Q: What is Harry’s remedy?

A: File a motion in court to permit him (Harry) to enter the land for purposes of inspecting, measuring, surveying or
photographing the property. And the court will issue an order specifying the time, place and the manner of inspection. Now, Harry
will have an access to the documents, things, land, etc. which are under Voldemortz’s control or possession.
Q: Give the requisites of production or inspection of documents or things (Rule 27)?

A: The following are the requisites: MNDMNP
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1.) A motion (leave of court) must be filed by a party showing good cause therefor;
2.) Notice of the motion must be given to all other parties;
3.) The motion must sufficiently describe the document or thing sought to be produced or inspected;
4.) The document or thing sought to be produced or inspected must constitute or contain evidence material to
the pending action;
5.) The document or thing sought to be produced or inspected must not be privileged; and
6.) The document or thing sought to be produced or inspected must be in the possession of the adverse party
or, at least, under his control. (Section 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175; Alvero vs. Dizon, 76 Phil.
637)
NOTE: Rule 27 is not the same as Rule 21 on subpoena duces tecum. Therefore, the next question is:
Q: Distinguish Production or Inspection of Documents or Things under Rule 27 from Subpoena duces tecum under Rule 21.
1.) Rule 27 is essentially a mode of discovery (simply to discover), whereas

Rule 21 on subpoena duces tecum is a means of compelling production of evidence which must be brought
to court;
2.) Rule 27 is limited to parties in the action, whereas

Rule 21 on subpoena duces tecum may be directed to any person, whether a party or not;
3.) The order under Rule 27 is issued only upon motion with notice to the adverse party, whereas
A subpoena duces tecum under Rule 21 may be issued upon an ex-parte application.
Rule 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This is the fifth and last mode of discovery.
So in order to even things, I will have to request you to submit to a neutral doctor or psychiatrist for a physical or mental
examination. So the court will issue an order. Konti man lang ang kasong ganito. For example, damage suit in damage cases, the
plaintiff may be exaggerating his injuries.
The only way to confirm it is to have another doctor examine him to find out whether his injury is really genuine or sinadya may
be for the purpose of securing a bigger mount of damages. Remember the joke which we mentioned in Evidence about the plaintiff
who met an accident na na-dislocate yung shoulder, so permanent ang injury. So when he testified in court, he was asked to raise
his arm – higher, higher please! No more – the injury is permanent.
Sabi ng court, “So that was after the accident. What about before the injury? How high can you raise you arm?” A, ganito o!
So there is no more need for a physical examination because he has already demonstrated it (he was just exaggerating his injury).
SEC. 1. When Examination may be ordered – In an action in which the mental or physical condition of a
party is in controversy, the court in which the action is pending may in its discretion order him to submit
a physical or mental examination by a physician (1)
SEC. 2. Order for examination – The order for examination may be made only upon motion for good
cause shown and upon notice to the party to be examined and to all other parties, and shall specify the
time, place, manner, conditions, and scope of the examination and the person or persons by whom it is
to be made. (2)
Rule 28 applies in all actions where the mental or physical condition of a party is in question or controversy. EXAMPLES:
a.) annulment of marriage on the ground psychological incapacity. Under the Family Code, however, the state of
psychological incapacity must not have been existing only now for the first time. It must have existed at the time of
the marriage;
b.) annulment of marriage on the ground of impotency. The court can issue an order to subject the party to undergo
physical or medical examination by a doctor to test whether the allegation is true or not;
c.) annulment of contract on the ground of insanity at the time of execution (lack of consent);
d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am the defendant and I believe that you are merely
exaggerating the extent of your injury so that your claim for damages will be higher, and diskumpiyado ako sa doctor
mo, I will ask the court to issue an order for you to undergo physical examination by another doctor, so that we will
know whether your claim is really valid or not.
Q: Give the requisites of physical and mental examination of persons under Rule 28:
A: The following are the requisites:
1.) The physical or mental condition must be a subject of controversy of the action;
2.) A motion showing good cause must be filed; and
3.) Notice of the motion must be given to the party to be examined and to all other parties.
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Sec. 3. Report of findings. - If requested by the party examined, the party causing the examination to
be made shall deliver to him a copy of a detailed written report of the examining physician setting out his
findings and conclusions. After such request and delivery, the party causing the examination to be made
shall be entitled upon request to receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If the party examined refuses to
deliver such report, the court on motion and notice may make an order requiring delivery on such terms
as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony
if offered at the trial. (3a)
Sec. 4. Waiver of privilege. - By requesting and obtaining a report of the examination so ordered or by
taking the deposition of the examiner,
- the party examined waives any privilege he may have in that action or any other involving the
same controversy, regarding the testimony of every other person who has examined or may
thereafter examine him in respect of the same mental or physical examination. (4)
Example: Maya is subjected to examination by a doctor upon motion by Dino under Rule 28. So Maya asks for a copy of the
finding after examination. When Maya asks for the finding, Dino can also ask for Maya’s examination by the personal doctor of
Maya, previously made or thereafter.
The doctor cannot be compelled to relay what the patient told her. So if the doctor refuses to deliver such report, then under
Section 3, he cannot testify. He cannot give evidence.
Also, once a party asks for a report of the examination, he automatically waives the privilege of physician-patient relationship.
So if Dino does not want to waive the privilege, he should not ask a copy of the report of the physician.
Q: Going back to the different modes of discovery, when is leave of court required? Not required?
A: In the following cases:
1.) Depositions – pending action, no answer filed yet REQUIRED

– pending action, answer filed already NOT REQUIRED
– before action or pending appeal REQUIRED
2.) Interrogatories – no answer filed yet REQUIRED

– answer filed already NOT REQUIRED
3.) Request for admission NOT REQUIRED
4.) Production or Inspection of Documents or Things REQUIRED
5.) Physical and Mental Examination of Persons REQUIRED
Rule 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Rule 29 forms part of the study of the modes of discovery. The policy on modes of discovery is that it is allowed and
encouraged to determine, at earlier time, essential issues and to promote settlement or expeditious trial. Lawyers should avail of
the modes of discovery because they are very helpful in determining the issues and will even provoke a settlement if you believe na
wala kang laban.
And there were circulars issued by the SC on this matter. Example Circular No. 13-87 (July 13, 1987) where the SC said that
lawyers and parties should encourage to avail the modes of discovery procedures provided for in the rules. This is a neglect ed
area in judicial process. Its use will expedite the determination of cases.
Mode of discovery are popular in the US. 99 percent of lawyers in the US avail of these procedures. Practically, all parties avail
the same even before the trial. At pre-trial stage, all evidence are already prepared for the case. In the Philippines, it is the exact
opposite. Filipino lawyers rarely resort to modes of discovery despite the admonition by the SC. Siguro, it is our culture. As much
as possible we want to keep things to ourselves. [pinapalabas na lang sa pwet! he! he!]
Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa complained of the courts and the parties to avail 100%
of the process of pre-trial? There is another case naman involving the modes of discovery where the same Justice lamented the
inability of lawyers and even judges to effectively apply the modes of discovery. I’m referring to the case of
REPUBLIC vs. SANDIGANBAYAN

204 SCRA 212
HELD: “It appears to the Court that among far too many lawyers (and not a few judges), there is, if not a
regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of
discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them— which is a great pity
for the intelligent and adequate use of the deposition-discovery mechanism, coupled with pre-trial procedure, could,
223
as the experience of other jurisdictions convincingly demonstrates, effectively shorten the period of litigation and
speed up adjudication.”
“Evidentiary matters may be inquired into and learned by the parties before the trial. The desideratum is that civil
trials should not be carried on in the dark. The Rules of Court make this ideal possible through the deposition-
discovery mechanism set forth. The experience in other jurisdictions has been that ample discovery before trial, under
proper regulation, accomplished one of the most necessary ends of modern procedure: it not only eliminates
unessential issues from trials thereby shortening them considerably, but also requires parties to play the game with
the cards on the table so that the possibility of fair settlement before trial is measurably increased.”
“The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial
hearing under Rule 18, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining
the facts relative to those issues.”
“Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-
honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s
case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end,
either party may compel the other to disgorge whatever facts he has ill his possession. The deposition-discovery
procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period
preceding it, thus reducing the possibility, of surprise.”
SEC. 1. Refusal to answer. - If a party or other deponent refuses to answer any question upon
oral examination, the examination may be completed on other matters or adjourned as the proponent of
the question may prefer. The proponent may thereafter apply to the proper court of the place where the
deposition is being taken, for an order to compel an answer. The same procedure may be availed of
when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or deponent to answer the
question or interrogatory and 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.
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 incurred in opposing the
application, including attorney's fees. (1a)
Q: If a party or deponent refuses to answer a question on oral examination or written interrogatories under Rule 25, what is
your remedy?
A: You go to court and get an order to compel him to answer. And he can be held liable for the reasonable expenses incurred
in obtaining the order including attorney’s fees.
SEC. 2. Contempt of court. - If a party or other witness refuses to be sworn or refuses to answer any
question after being directed to do so by the court of the place in which the deposition is being taken, the
refusal may be considered a contempt of that court. (2a)
SEC. 3. Other consequences. - If any party or an officer or managing agent of a party refuses to obey
an order made under section 1 of this Rule requiring him to answer designated questions, or an order
under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28
requiring him to submit to a physical or mental examination, 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 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 a party for disobeying any of such orders except an order to submit to a physical or
mental examination. (3a)
These are other consequences in addition to Section 1. These refer to the refusal to obey an order under Rule 27 and Rule 28
which can even cost your case. The court will make an order that would make the disobedient party suffer. If he is the plaintiff, his
complaint will be stricken out.
Or if he is the defendant, judgment of default can be rendered against him although the judgment of default can only
be done if he failed to file an answer. But his refusal to comply with a mode of discovery is the exception to the case. This
is one instance when a judgment by default can be rendered against a defendant who filed an answer. And that is the
worst penalty for refusing to cooperate.
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SEC. 4. Expenses on refusal to admit. - If a party after being served with a request under Rule 26 to
admit the genuineness of any document or the truth of any matter of fact, serves as sworn denial thereof
and if the party requesting the admissions thereafter proves the genuineness of such document or the
truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making such proof, including attorney's fees. Unless the court
finds that there were good reasons for the denial or that admissions sought were of no substantial
importance, such order shall be issued. (4a)
Section 4 pertains to Rule 26 on request for admission. If X was able to prove something that Y refused to admit, Y can be
held liable for expenses and attorney's fees for refusing to admit something which turned out to be true. If it is something true, you
might as well admit it. Do not put the other party into trouble for you might be held liable for the expenses later on.
SEC. 5. Failure of party to attend or serve answers. - If a party or an officer or managing agent of a party
willfully fails to appear before the officer who is to take his deposition, after being served with a proper
notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that
party, and in its discretion, order him to pay reasonable expenses incurred by the other, including
attorney's fees. (5)
Section 5 is identical to previous consequences. If a party is served with interrogatories and he refuses to answer under Rule
25, he can be penalized with the ultimate penalty of dismissal of the case or judgment by default. Thus, the ultimate effect is that, a
party who refuses to cooperate may lose the case ultimately.
Normally, default judgment applies only to a defendant who failed to file an answer. But Rule 29 allows a default
judgment even if you filed an answer for failure to comply with the modes of discovery. So, this is one instance when a
judgment by default can be rendered against a defendant who filed an answer.
INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF APPEALS

238 SCRA 88 [1994]
FACTS: There was a refusal here of one party to answer an interrogatory. So the other party asked the court to
issue an order. The court then ordered the other party to answer, but he still refused.
So, the plaintiff filed a motion for judgment of default against the defendant (or dismissal of the case) citing
Section 5 – where if one refuses to cooperate, the case will be dismissed or a judgment of default can be rendered
against the party.
But the judge ruled that the case shall continue. The party now went to the SC contending that the judge
committed a grave abuse of his discretion in refusing to apply the sanctions allowed by law.
HELD: While it is true that there are sanctions allowed by law in cases of refusal to comply with the
modes of discovery, the same is DISCRETIONARY. Meaning, let the court decide whether justice will be served by
going to trial or not. So there was no grave abuse of discretion on the part of the judge.
“The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound
discretion of the court where the case is pending, having always in mind the paramount and overriding interest of
justice. For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they
are not contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the
circumstances of each case and to make their considered determination thereafter. It is only in clear cases of grave
abuse of that discretion when appellate courts will interfere in their judgment.”
In other words, courts are still given the leeway of whether or not to apply the ultimate sanctions.
NOTE: The ruling in this case was reiterated in the 1996 case of SANTIAGO LAND DEVELOPMENT CO. vs. CA,
July 9, 1996 (258 SCRA 535) and the 1998 case of DELA TORRE vs. PEPSI-COLA PRODUCTS, October 30, 1998
(298 SCRA 363)
FORTUNE CORPORATION vs. COURT OF APPEALS

229 SCRA 355
ISSUE: Are the 5 modes of discovery cumulative or exclusive? Can a party resort to any modes of discovery or
are they intended to be an exclusion of the other?
HELD: “The various methods of discovery as provided for in the Rules are clearly INTENDED TO BE
CUMULATIVE, as opposed to alternative or mutually exclusive.”
“Under the present Rules the fact that a party has resorted to a particular method of discovery will not bar
subsequent use of other discovery devices, as long as the party is not attempting to circumvent a ruling of the court,
or to harass or oppress the other party.”
There was a time when I did this. I used a variety or combination of the different modes. I was interested in knowing some
evidence from the other party. So, interrogatories, then sagot. I asked them on how they were going to prove it and whether they
going to present witnesses and documents. Yes daw. So, I used production and inspection na naman. So may order na naman. If
they have witnesses to be presented, then deposition na naman. In other words, we can avail all of this.
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There was this veteran practitioner who was one of my idols. He’s already retired but his style was that he handled only about
four cases a year para total effort and attention ang maibigay niya. But he charges big. In the millions for his fees, aaraw-arawin ka
niyan ng modes of discovery. So the other counsel will have no time. That’s why pag-sinabi ng cliente na si Atty. so and so ang
kalaban, dino-double nila ang charge because they know na maraming trabaho kapag siya ang kalaban. After a while, the lone
case will become 10 cases already para sa iyo sa dami ng trabaho if he is the counsel of your opponent.
So the modes of discovery can be used to really squeeze everything out of your opponent.
Q: To summarize, what are the instances when a defendant shall be considered in default even if such defendant has already
filed an answer?
A: The following are the instances:
1.) Failure to appear at the pre-trial conference (Rule 18); and
2.) Failure to cooperate in the mode of discovery (Section 5, Rule 29).
Rule 30
TRIAL
Section 1. Notice of trial. Upon entry of a case in the trial calendar, the clerk shall notify the parties of
the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before
such date. (2a, R22)
Of course, after the Pre-trial, the next step now is trial. And it is the duty of the clerk of court to send notices to the parties
about the date of the trial in such manner as shall insure his receipt of that notice at least five (5) days before such date. But
actually in real practice, it will even take more than a month to give you ample time to prepare for it.
Now, it is mandatory that the notice should reach the party or its lawyer at least five (5) days before such date. So, you should
mail it earlier. Do not mail it on the day of or one day before the trial because he may already have other engagement. Well, that is
only a very minor provision but it is now emphasized by the Rules.
Q: Define trial.
A: TRIAL is an examination before a competent tribunal of the facts or law put in issue in a case, for the purpose of
determining such issue. (Ballentine’s Law Dict., 2nd Ed., p. 1299) In a trial, there is always an issue where we cannot agree.
Therefore, the purpose of a trial is for the court to resolve that issue.
Sec. 2. Adjournments and postponements. A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one month for each adjournment, nor more than three
months in all, except when authorized in writing by the Court Administrator, Supreme Court. (3a, R22)
“A court may adjourn a trial from day to day” means that if the trial is not finished on the scheduled date, that will be postponed
on another day. That is how trials are being conducted. It is by staggered basis. That is what you call adjournment. But everything
is recorded anyway. If you look at the transcript stenographic notes, it would seem that the trial is continuous because everything
unfolds there. But actually, these occurred on different dates.
Now, Section 2 also provides that no party shall be allowed a postponement of more than one (1) month per postponement
and not more than three (3) postponements in all. As a GENERAL RULE: Not more than one (1) month for its adjournment BUT a
maximum of three (3) postponements. In effect, it will be exactly 90 days.
And that jives with the SC Circular 3-90 which contains a mandatory continuous trial for 90 days. In other words, the case must
terminate in 90 days.
The ONLY EXCEPTION is when authorized in writing by the court administrator. Meaning, the judge can go to the court
administrator to allow the court to go beyond the period allowed by law. And I do not know if this provision is being followed strictly.
There are cases which have been here for more than a year. But you can do it provided you are authorized in writing by the co urt
administrator. Yan!
Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the
ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of
such evidence, and that due diligence has been used to procure it. But if the adverse party admits the
facts to be given in evidence, even if he objects or reserves the right to their admissibility, the trial shall
not be postponed. (4a, R22; Cir. No. 39-98)
Generally, there are two main reasons why parties ask for postponement. One is, (1) absence of evidence like when the
witness is not available or the document is not available, or (2) somebody is sick – either the party or counsel is sick.
Now, of course the requirements of the Rules are really strict although courts and lawyers are very liberal on this. First of all, if
you want to postpone a trial on the ground of absence of evidence, there must be a verified affidavit. The affidavit must show the
materiality or relevancy of the evidence which is not available and that due diligence was used to procure it. In other words, you
tried your best to secure it earlier.
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Now, what is the meaning of the second sentence: “If the adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to their admissibility, the trial shall not be postponed”?
EXAMPLE:
LAWYER: “We are asking for postponement because our witness is not present. He is not available and his
testimony will be very material.”
ADVERSE PARTY: “Alright, what is going to be his testimony? What will he testify about in court?
LAWYER: “Well, this is his testimony …. he will prove this or he will prove that….”
ADVERSE PARTY: “OK. Admitted. I admit that if he is here, this is what he will say. Although I may object to the
admissibility of such testimony.”
Meaning, the other party may admit the evidence but object to its admissibility. That is two different things – admitting
the evidence but objecting to its admissibility in court. Meaning, objecting to the admissibility of the witness in court. Just like under
the Constitution, if a confession is made by a suspect without being afforded with the Miranda warnings, such confession is not
admissible. But such confession is evidence. Only, it is inadmissible.
So, I admit that, although I reserve my right to its admissibility. Then in such case, you have no more reason for postponement
because in the first place, there is no need to present your witness because the other party already admitted what will be the
substance of his testimony. Yaannn!
Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a trial
on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn
certification that the
1. presence of such party or counsel at the trial is indispensable and
2. that the character of his illness is such as to render his non-attendance excusable. (5a, R22)
The same thing for illness (2nd ground). Kung may sakit, there must be affidavit or sworn statement. So you must have a
sworn medical certificate and that the presence of such party or counsel is indispensable and the character of his witness
is such as to render his non-attendance excusable.
Now, of course the SC has already stated in some cases that when the sickness is sudden and unexpected such as accident,
you cannot require on the spot a medical certificate. Meaning, how can I produce something if he got sick only an hour ago? So,
the court should take that into consideration. They cannot object to the requirement of medical certificate.
So, a motion for postponement which is not verified upon the ground of illness of a party or counsel without a medical
certificate should be granted if it appears that the claim of the movant is meritorious.
Normally, we just say that if the other party insists on a medical certificate, we will submit it this afternoon or tomorrow because
there are things in which we cannot get a medical certification on time unless he has been sick for so long.
In the ultimate analysis, what is the policy of the SC on postponements? Motions for postponements is always addressed to
the sound discretion of the court (Casilan vs. Gancayco, 56 O.G. 2799, March 28, 1960; People vs. Martinez, 57 O.G. 7923, Oct.
30, 1961).
So if the motion for postponement is denied or granted or either way, it is so hard to have it overturn because the SC will
always give way to the discretion and rarely will it happen in court where it will interfere without discretion unless there is grave
abuse of discretion.
ORDER OF THE TRIAL
The order of trial in civil cases is a little bit more complicated compared to criminal cases.
Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for special
reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall
proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim
and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim
and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by
them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the
court directs the parties to argue or to submit their respective memoranda or any further pleadings.
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If several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence. (1a, R30)
Take note that the law says “the trial shall be limited to the issues stated in the pre-trial order.” That is now emphasized under
the Rule 30. That jives with Rule 18, Section 7 on what is the importance of a pre-trial order:
Sec. 7. Record of pre-trial. - The proceedings in the pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference,
the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions
made by the parties as to any of the matters considered. Should the action proceed to trial, the order
shall explicitly define and limit the issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20)
The pre-trial order shall limit the issues and shall control the subsequent course of the action. We already emphasized that the
pre-trial order prevails over the pleadings. The pre-trial order has the effect of superseding the complaint and the answer. Whatever
issues are stated in the pre-trial order shall be the issues to be tried during the hearing on the case.
Now going back to Rule 30, that is now emphasized. The trial shall be limited to the issues stated in the pre-trial order. So,
the pre-trial order will be a very important document to determine what are the issues to be tried.
Q: How will the trial proceed? In what order?

A: Section 5, paragraphs [a] to [g], including the last paragraph of Section 5.
Q: What is the reason for the rule prescribing an order of trial?

A: The reason is for orderly procedure, which must be followed if injurious surprises and annoying delays in the administration
of justice are to be avoided. Evidence cannot be given piece-meal. (Dir. of Lands vs. Archbishop of Manila, 41 Phil. 120)
You will notice the order of trial in civil cases follows more or less the same pattern with the trial in criminal case. The pattern is
the same although there may be cross-claims, third (fourth, etc.) party complaints, especially when there are more than one
defendant.
BASIC PATTERN (No cross-claim, counterclaim or 3rd-party complaint, etc.):
1.) Plaintiff presents evidence to prove his claim or cause of action. That is what you call EVIDENCE IN CHIEF, also
called as the MAIN EVIDENCE; (paragraph [a])
2.) Defendant presents evidence in chief or main evidence to prove his defense – negative or affirmative defense;
(paragraph [b])
3.) Plaintiff will present what we call REBUTTAL EVIDENCE to rebut defendant’s main evidence. (paragraph [f])
4.) Defendant is given the chance to present rebuttal evidence to rebut the rebuttal of evidence of the plaintiff. In legal
parlance, we call that SUR-REBUTTAL evidence; (paragraph [f])
5.) ARGUMENTS. Normally, it is what we call the filing of MEMORANDUM (written arguments) – the parties will submit
their respective memoranda, unless the case will be submitted for decision without arguments or memorandum.
(paragraph [g])
So, normally, that is the basic pattern of the order of trial. Now, plaintiff presents evidence ahead, after him defendant presents
evidence to prove his defense.
Now, in the case of

YU vs. MAPAYO
44 SCRA 163
FACTS: The plaintiff filed a complaint against the defendant to collect a loan which, according to the plaintiff, the
defendant has not paid. The defendant filed an answer admitting the loan but ang kanyang affirmative defense is, the
obligation is paid.
During the trial, the plaintiff said that he is no longer going to present any evidence to prove his cause of action
because anyway, the defendant has admitted the obligation; and since the defendant is the one invoking payment, it
is, therefore, his burden to prove payment.
The trial court agreed with the plaintiff, “Yes. Alright defendant, you present evidence that the obligation is paid.
Anyway, you are admitting that you borrowed money.”
Now, according to the defendant, the procedure is improper the order of the trial being altered, “Why will the
defendant prove his defenses ahead. The plaintiff is supposed to present evidence bago ako. Bakit uunahin ako?”
That is the objection of the defendant.
ISSUE: Can the defendant present his evidence first?
HELD: AH YES! Anyway, by admitting the obligation, you are invoking the affirmative defense of
payment. So, it is incumbent upon you to prove that it is paid.
Under Rule 16, the defendant is not obliged to file a motion to dismiss. That is optional. In fact, the defendant is
allowed, instead of filing a motion to dismiss, to file an answer invoking the ground for a motion to dismiss as an
228
affirmative defense. And then the defendant could even ask for a preliminary hearing for his affirmative defenses as if
a motion to dismiss has been filed.
Therefore, in the hearing for a motion to dismiss, the defendant is now converting his defense into a ground for a
motion to dismiss. In which case, the affirmative defense will be heard ahead of the main action. So, that is
allowed under Rule 16.
So, there is nothing basically wrong with an affirmative defense being heard ahead of the plaintiff, especially
when the plaintiff has nothing to prove anymore.
Well, of course that is more apparent in criminal procedure. In the order of trial in criminal procedure, the court may even direct
the accused to present evidence ahead of the prosecution when the accused is already admitting the facts constituting the crime
but only invokes a defense such as self-defense – when you are accused of homicide and your defense is that you acted in
self-defense. So, wala ng i-prove ang prosecution. Automatically, you are admitting that you killed the victim. The burden now is
shifted to you to justify the killing. That’s what they call “TRIAL IN REVERSE.”
So, in criminal cases where the law authorizes a reversed trial where the accused is directed to present evidence ahead of th e
prosecution, there is no reason why the same procedure cannot also apply in civil cases. That is the essence of the MAPAYO
ruling. So, more or less, that is the deviation from the normal order of trial.
Section 5 [f]: The parties may then respectively adduce rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case;
Paragraph is actually presentation of rebuttal evidence.
Q: What is the difference between the evidence mentioned in paragraph [f] and the evidence mentioned in paragraphs [a] and
[b]?
A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF to prove your main cause of action or your defense. In
paragraph [f], the evidence is not evidence in chief but REBUTTAL EVIDENCE to dispute the side of the other party.
Q: Is a party allowed to present evidence in chief in the rebuttal stage?

A: GENERAL RULE: NO, because paragraph [f] provides that the parties may then respectively adduce rebutting evidence
only. In other words, you do not go back to paragraphs [a] and [b]. If you have evidence to prove your cause of action or defense,
you should have done it earlier.
So generally, evidence in chief is not allowed during the rebuttal stage. But there is an exception: EXCEPTION: “Unless the
court, for good reasons and in the furtherance of justice permits them to adduce evidence upon their original case.” Meaning, it
permits them to adduce evidence in chief. But you need the permission of the court because normally, you should have done that
under paragraphs [a] and [b] and not in paragraph [f].
Q: Give instances when the court may allow the party to present additional evidence in chief during rebuttal to prove his cause
of action.
1.) When it is newly discovered;
2.) When the evidence was omitted through inadvertence or mistake;
3.) When the purpose is to correct evidence previously offered; (Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material and not merely cumulative or impeaching (64 C.J. 160-163)
Those are the possible instances when the court in the interest of justice may allow the parties to present evidence in chief
during the rebuttal stage which is normally not allowed.
And that is what I saw exactly years ago how this paragraph [f] operates. There was case here we were watching before.
There was a veteran trial lawyer from Manila who tried a case here. I think it was a damage suit against KLM Royal Airlines for
breach of contract of carriage because some of the passengers were from Davao City. Alright when they are already in the rebuttal
stage, the lawyer for the Airlines was presenting evidence and the counsel for the plaintiff argued, “Objection Your Honor, it is not
rebuttal evidence. It is evidence in chief which he is presenting. So it is not proper during this stage.”
And the trial court agreed, “Yes, it is improper. The evidence in chief should have been presented earlier. Therefore, objection
is sustained.” Lawyer for the Airlines, “So, you honor, may we move for a reconsideration because we believe it is rebuttal evidence
and it is very important.” So, balik na naman sila sa argument. And then the court said, “The motion for reconsideration is denied,
you are not allowed.”
So, patay siya. And it’s really true that what was presented was evidence in chief and not rebuttal evidence. So, hindi siya ba
makalusot or hindi siya makapasok. So, for a while, he closed his eyes and said, “Your Honor, in the interest of justice may we be
allowed to present evidence in chief for the rebuttal stage.” And the court said granted, “Sure pare basta ikaw! [Mas OK pa sa
ALRIGHT]!” So pasok na naman!
In other words, saan niya kinuha ito? When I looked at the Rules, iyon pala! He knows how to invoke it. In other words, you
can see the skill of a veteran lawyer. The rules are at his fingertips. So, that is how I saw this provision operates.
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Section 5 [g]: Upon admission of the evidence, the case shall be deemed submitted for decision,
unless the court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
Now, of course, pag tapos na kayo, main evidence and rebuttal, tapos na ang kaso. Meaning, the case is ready for decision.
But normally, the lawyer of the parties would say, “We would like to argue.” And the argument is normally not oral but in writing
where you will be asked to file what you call MEMORANDUM.
A MEMORANDUM is practically a thesis where you will summarize your position and you argue why you should win. That is
where you cite evidence. You convince the court that you have proven your cause of action or defense. Then you cite the
testimonies, the exhibits, the transcripts and of course, the argument, the jurisprudence, the law. That is where you argue. You do
not argue in your pleading. Pleadings, complaint, answer is not the time to argue. There, you only state the facts. You argue after
the trial where you interpret now the evidence and convince the court.
Sec. 6. Agreed statement of facts. The parties to any action 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.
If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts
in such order as the court shall prescribe. (2a, R30)
Alright, why do the parties present evidence 1, 2, 3, 4. What is the purpose there? To prove facts. Normally, we cannot agree
on the facts. I say something and you will say that is not true and this is what happened. So, normally, cases arise becaus e of the
issue of what happened.
Q: Now, is there a possibility that the court will decide whether there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts or the case
for decision. That is what we call JUDGEMENT ON AGREED STATEMENT OF FACTS or the more popular term: JUDGEMENT
BASED ON STIPULATION OF FACTS.
EXAMPLE: The plaintiff and the defendant agree on all the facts. “These are the facts,” sabi ng plaintiff. Then sabi ng
defendant, “Yes, I agree those are the facts.” Now if we agree on the facts, there is nothing more to prove. And what we are now
quarreling is who should win based on the facts agreed upon. So, ano ngayon ang kaso? That is purely a legal question. There is
nothing to prove because everything is admitted. They disagree only on the conclusion.
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is nothing to prove. In which case, we will go immediately to
step no. 5. So, if the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts for
decision, that is JUDGEMENT BASED ON STIPULATION OF FACTS which is encouraged by the law. This is one of the purposes
of Pre-Trial (Rule 18, Section 2 [d]) where the parties are encouraged to stipulate on facts, because really, it would save a lot of
time.
The best example of agreed facts would be examination problems. The facts are already given – this is what happened. You
cannot change that anymore. And you will be asked, “DECIDE: Is A correct or is B correct.” So in other words, you simply apply
the law. You do not apply anymore the issue of what happened because it is already agreed. Your answer would be similar t o a
JUDGMENT BASED ON STIPULATION OF FACTS.
Q: Why is an agreed statement of facts sufficient basis for a judgment?

A: The reason is that 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 vs. Manufactures Life Ins. Co., 87 Phil. 370)
Q: Now suppose they can agree on some facts but they cannot agree on others.
A: There is no problem. You can have a partial stipulation of facts and then we can try the rest with respect to the other
disputed facts.
That is why the second paragraph says, “If the parties agree only on some of the facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall prescribe.” At least, it would still be faster because the disputed facts are now limited.
Rather than proving ten (10) issues of facts, it will be reduced to 3 or 4. So, the trial would still be faster.
The court is not bound to find out what happened when the parties already agreed on what happened. EXAMPLE: The parties
will stipulate, “This case involves a piece of land with an area of 50 hectares, planted with coconut trees of about 5,000.” So,
parties agreed and then the court says, “No, I do not believe you. It might be more than 59 hectares.” NO. When the parties
agree, sundin mo yan because they themselves agree on the facts. You only determine the facts if they cannot agree. That is why
the court is bound by the stipulations made by the parties.
Sec. 7. Statement of judge. During the hearing or trial of a case any statement made by the judge with
reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the
stenographic notes. (3a, R30)
Take note that the trial is a formal court proceeding. Everything is recorded there – the statement of parties, their lawyers,
including the statement of the judge. Any statement made by the judge with reference to the case or to any of the parties,
witnesses, or counsel shall be made of record in the stenographic notes.
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Sec. 8. Suspension of actions. The suspension of actions shall be governed by the provisions of the
Civil Code. (n)
This is mentioned in Rule 18, Section 2 [h] which discusses the possibility of suspension of the proceedings. Meaning, huwag
munang gumalaw ang kaso – in suspended animation baah!
Q: And what is the possible good legal ground for the parties to ask for suspension of the hearing? Meaning, held in abeyance
ba. What would be the best possible ground?
A: The best possible ground is the one mentioned in Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by one or both parties; or
2. If it appears that one of the parties, before the commencement of the action or proceeding, offered
to discuss a possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action or proceeding and similar matters shall
be governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules
of court shall likewise provide for the appointment and duties of amicable compounders. (n)
According to Article 2030 of the civil code, if at anytime while the case is going on, one of the parties would like to discuss a
POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the suspension of proceedings. Why? The court of
the law favors compromises or amicable settlements in civil cases.
So at anytime that one party expresses its desire to settle, even in the middle of the case, the court is authorized to suspend
the action to give the parties opportunity to settle because of the policy of the law to encourage the parties to settle amicably.
That is why even former U.S. President Lincoln, who is more remembered as president rather than as a lawyer, was quoted,
“Discourage litigation. Persuade your neighbor to compromise whenever you can. Point out to them how the nominal winner is
often the real loser in fees, expenses and waste of time. As a peace-maker [Long Live the PeaceMakers!], the lawyer has the
superior opportunity of being a good man. There would still be business enough.”
Meaning, aregluhin ba hanggang maari, you better settle. When you settle, nobody is loser and nobody is winner. Both of you
win. Walang masakit ang loob ba. And marami pang negosyo, marami pang kaso. Do not make such money out of one case. If
you can settle, i-settle muna. Huwag mong sabihing “sayang iyong income” dahil marami pang kaso na darating. That was what he
said.
Now, of course, what happens if the party cannot agree to settle? Well, the procedure is, let the trial go on. That is why in the
1992 case of
GOLDLOOP PROPERTIES, INC. vs. COURT OF APPEALS

212 SCRA 498 [1992]
FACTS: The parties in a civil action manifested the possibility of submitting amicable settlement. The court gave
them 15 days to submit their compromise agreement. 15 days passed, no amicable settlement was submitted by the
parties. With that, the court dismissed the case.
ISSUE: Was the court correct in dismissing the case when the parties cannot settle?
HELD: The dismissal is WRONG. “Since there is nothing in the Rules that imposes the sanction of dismissal for
failing to submit a compromise agreement, then it is obvious that the dismissal of the complaint on the basis thereof
amounts no less to a gross procedural infirmity. While a compromise is encouraged, very strongly in fact, failure to
consummate one does not warrant any procedural sanction, much less an authority to jettison a civil complaint. What
the court should have done was to continue the action.”
In other words, why should you dismiss the complaint when the parties cannot settle? By that, technically, natalo ang plaintiff.
Kung hindi magkaareglo, then go on with the trial. You have no authority to dismiss the case simply because the parties cannot
settle.
However, there are certain matters which cannot be the subject of compromise. Practically, compromise is allowed on anything
under the sun, except certain matters such as those mentioned in Article 2035.
Q: What are the matters that cannot be the subject of compromise?

A: Under the Article 2035, New Civil Code, the following:
(1) The civil status of persons; (whether legitimate or illegitimate)

(2) The validity of a marriage or a legal separation; (w/n a marriage settlement exists)
(3) Any ground for legal separation;
(4) Future support; (always depends on the means of the party giving support)
(5) The jurisdiction of courts;
(6) Future legitime.
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So you cannot agree on these. You cannot compromise as a legitimate when in fact you are illegitimate. Where is the basis of
that? You cannot compromise that the marriage is valid when in fact it is not, or it is null and void. These things cannot be the
subject of agreement.
Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is
pending shall personally receive the evidence to be adduced by the parties. However, in default or ex
parte hearings, and in any case where the parties agree in writing, the court may delegate the reception
of evidence to its clerk of court who is a member of the bar.
The clerk of court shall have no power to rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the hearing. (n)
The Rules now expressly allows the court to delegate the reception of evidence to the clerk of court who must be a member of
the bar. Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS OCCIDENTAL and junking forever the ruling in LIM
TANHU vs. REMOLETE because in the case of REMOLETE, it was ruled that the judge cannot delegate the reception of evidence
to the clerk of court. Now, puwede na.
A good example is DEFAULT. But actually, it could also be a case where the parties agreed in writing or other cases where it
can be heard ex-parte other than default. Because there are many cases na to my mind that the judge does not really need to be
there listening.
Like for example, a petition for the issuance of lost or transfer of certificate – yung titulo mo nawala – your title is lost or you
misplaced it and you will prove na nawala. That should be heard in court but to my mind that is not a controversy, eh because there
is only one party there. So it is possible for the court to delegate that to the clerk of court in order that they (judges) can attend to
other controversial cases.
Now, please connect this provision with Section 3 of Rule 9 on Default:
Sec. 3. Default; declaration of. - If the defending party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant, unless the court, in its discretion requires
the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a,
R18)
So in default hearing, it is now the discretion of the court either to conduct an ex-parte reception of evidence which can be
delegated to the clerk of court, or the court may render judgment based on the pleadings. So, it is optional.
Now, to my mind, kung ang case is a collection case or any other cases which are simple, pag na-default ang defendant,
puwede na decision dayon. Pero kung controversial cases, do not render judgment based on the pleadings. You better conduct an
ex-parte reception of evidence and you may delegate the reception of evidence to the clerk of court.
Yun iyong mga out of ordinary cases which are really controversial where the court should require the presentation of
evidence. Pero yong mga kaso na not so complicated, no need of reception of evidence in order to expedite the process of
adjudication.
Rule 31
CONSOLIDATION OR SEVERANCE
SECTION 1. Consolidation. - When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay. (1)
To consolidate cases is to join 2 or more cases together as distinguished from separate trial where the different claims are tried
separately. So, separate trials – pag-hiwa-hiwalayin. Consolidation – pagsasama-samahin.
Q: When is consolidation of actions proper?

A: Consolidation is proper:
1.) when two or more actions involve the same or a common question of law or fact; and
2.) the said actions are pending before the same court. (Section 1, Rule 31; PAL vs. Teodoro, 97 Phil. 461)
First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A COMMON QUESTION OF LAW OR FACT
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Did you notice that phrase – “two or more actions involve the same or a common question of law or fact”? That phrase
seemed to be familiar. ”Common question of law or fact,” where did we meet that requirement before? That is in joinder of causes
of action – two or more causes of action can be joined in one pleading if they involve a common question of fact or law. Rule 3,
Section 6:
SEC. 6 Permissive joinder of parties – All persons in whom or against whom any right to relief in respect to
or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally,
or in the alternative, may, except as otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such
defendants may arise in the action; but the court may make such orders as may be just to prevent any
plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which
he may have no interest.
The phrase answers the questions:
Q: When may 2 or more parties be joined together in one complaint, either as co-plaintiffs or co-defendants?
A: There must be a common question of fact or law involved in their causes of action.
Q: When may actions be consolidated?

A: One of the requisites is: when the actions involve a common question of law or fact.
In other words, there must be a connection somewhere between the rule on Consolidation of actions in Rule 31, with the rule
on Permissive Joinder of Parties in Rule 3.
When we were in Rule 3, an EXAMPLE was given: Suppose 30 people were riding on a bus which met an accident and all the
plaintiffs were injured. After the incident, the 30 of them decided to file claims for damages against the bus company. They hired
the same lawyer.
Q: Can the lawyer file 30 complaints for each plaintiffs?

A: YES.
Q: Can the lawyer file only one complaint naming as co-plaintiffs the 30 injured passengers?
A: YES, that is permissive joinder of parties which is encouraged to expedite litigation, to avoid multiplicity of suits, to
economize the procedure or avoid repetition of evidence. There are the justification for permissive joinder of parties in Rule 3
Section 6 but they can only join one complaint if they have the same lawyer.
Q: But suppose the 30 passengers were injured and after their discharge from the hospital the 30 of them hired separate
lawyers.?
A: There can be no joinder of parties. You cannot join the parties in one complaint because each plaintiff is
represented by a different lawyer.
In this case, there should be 30 complaints filed let’s say, in the RTC of Davao City, and they are raffled to different branches
or judges. The defendant might feel that he would rather have the 30 cases tried together. Defendant says, “This is difficult.
Imagine 30 cases sa 30 salas? Iba-ibang courts. My witnesses would have to testify 30 times because there are 30 separate
complaints.”
Q: Can the 30 cases be joined together para isang judge na lang?

A: YES. The lawyer for the bus company can file a motion under Rule 31, Section 1 to consolidate the actions.
Meaning, the 30 cases should be raffled and assigned to only one judge, there being a common question of law or fact.
This is to economize the procedure if the evidence will be presented only once. Thus, every time when the case is called,
the 30 cases would be tried together. Para ka na ring nag-permissive joinder of parties.
The purpose of consolidation is to achieve the same effect of permissive joinder of parties under Rule 3, Section 6. You end in
having only one case, kaya lang 30 complaints are to be tried together. That is why there is a connection between consolidation
and permissive joinder of parties.
Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE SAME COURT
Q: In the example above, suppose one passenger filed his case in Davao City, another passenger filed his case in Tagum
because he resides there, and another files his case in Mati, can there be consolidation of their cases?
A: NONE. You cannot consolidate because they are pending in different courts in different provinces. The law says it
must be in the same court.
Take note that cases are consolidated because it will expedite their termination, thereby economizing on the procedure.
Cases are consolidated not only when the cases are before the trial court. There are many times when cases are consolidated
or joined together even when they are already on appeal, provided, there is a common question of law or fact.
If we look at the SCRA, sometimes the decision involves 2 or 3 cases. The caption sometimes has 3 or more cases, but
there’s only 1 decision. And these cases are coming from different parts of the country. Why are these cases joined before the
SC? Because there is a common question of fact or law or legal issue. So, even in the SC, cases are consolidated and decided
together for the first time. Ang tawag dyan is COMPANION CASES because the same issues are being raised in the petitions.
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CONSOLIDATION under RULE 31 vs. CONSOLIDATION OF
CRIMINAL ACTIONS under RULE 119
Now, there is also a provision in the rules on Criminal Procedure on consolidation of criminal actions under Rule 119, Section
14:
SEC. 14. Consolidation of trials of related offenses. - Charges for offenses founded on the same facts,
or forming part of a series of offenses of similar character may be tried jointly at the court's discretion.
(Rule 119)
Q: Distinguish Consolidation of civil actions from Consolidation of criminal actions.

1.) In civil cases, one or more causes of action may be embodied in one complaint because when there is permissive
joinder, there is automatic consolidation also; whereas
In criminal cases, only one offense can be the subject of one complaint or information. consolidation of criminal
actions is exclusively for joint trial;
Q: Can you file one complaint or information embodying two or more crimes?
A: NO. You cannot. That is what you call duplicitous complaint or information. There is no such thing as
joinder of crimes. Therefore, the so-called consolidation of criminal actions is not actually filing one information
but it is only for the purpose of joint trial.
2.) In civil cases, the opposite of consolidation is severance under Section 2; whereas
In criminal cases, the opposite of consolidation is separate trial. In reality, there is actually no consolidation of criminal
cases. There is only joint trial of criminal cases.
Under the rules on Criminal Procedure the accused may reserve the right to file the civil action separately when the criminal
action is filed, the civil action is deemed instituted unless the offended party will make a reservation to file it separately. Or, when
the civil action was instituted ahead, the subsequent filing of the criminal case will mean there is no more civil action there. And
Section 2 of Rule 111, suppose the offended party made a reservation to institute a civil action and a criminal case is filed, he
cannot file the civil action – that’s the rule. He must wait for the outcome of the criminal case. The criminal case enjoys priority.
Q: What happens if na-una na-file yung civil action?

A: According to Section 2, Rule 111 from the moment the criminal case is filed, the trial of the civil case is suspended to wait
for the outcome of the criminal case.
Q: Is this prejudicial to the offended party? What is the remedy of the offended party?
A: There is a way out according to Section 2, Rule 111. The first thing for him to do is to file a petition to consolidate the trial of
the criminal and civil case for them to be tried together and the evidence already presented in the civil case is deemed
automatically reproduced in the criminal case. This is what you call the consolidation of the civil and criminal action under
Section 2, Rule 111:
“…Nevertheless, before judgment on the merits rendered in the civil action, the same may, upon motion of
the offended party, be consolidated with the criminal action in the court trying the criminal action…” (Section 2,
Rule 111)
Q: Is this consolidation mandatory?

A: NO. It is permissive. Actually, the offended party is the one to initiate this because if not, then he has to wait for the
criminal case to be terminated before he can file the civil case.
Q: Can you move to consolidate in one court the criminal and the civil case when actually the degree of proof required in one
case is different from the degree of proof required in another case?
A: That was answered in the affirmative in the case of
CAÑOS vs. PERALTA

115 SCRA 843
FACTS: This case originated in Digos, Davao del Sur, involving the late Dr. Rodolfo Caños, who owned the
Caños Hospital there. The respondent here was former CFI Judge Elvino Peralta. There was an incident which led
to the filing of a criminal case by A against B. A reserved the right to file a separate civil action under the rules on
criminal procedure. A filed a separate civil case, but arising out of the same incident. Both of the cases were
assigned to Judge Peralta.
When Judge Peralta noticed that the 2 actions arose out of the same incident – and the accused in the criminal
case is also the defendant in the civil case, and the offended party in the criminal case is the plaintiff in the civil case,
he ordered the consolidation of the 2 cases under Rule 31, Section 1, to be tried together.
Dr. Caños objected to the consolidation because according to his lawyer, consolidation of cases under Rule 31,
Section 1 applies only when there are 2 or more civil cases to be considered.
ISSUE #1: Was the consolidation proper?

HELD: The order of consolidation is correct. Rule 31, Section 1 allows the consolidation of a criminal
and civil case because of the fact that there is a common question of fact or law between them and that they
are pending before the same court. As a matter of fact, before the same judge.
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ISSUE #2: How do you reconcile these cases because the degree of proof in the criminal case is not the same in
the civil case?
HELD: The consolidation was proper under Rule 31 because there is a common question of fact and law. They
can be consolidated but for purposes of decision, the court will now apply two (2) different criteria: Proof beyond
reasonable doubt in the criminal case and preponderance of evidence in the civil case. So there is no incompatibility.
SEC. 2. Separate trials. - The court, in furtherance of convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue
or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)
Section 2 is the exact opposite of Section 1. In Section 1, there are 2 or more cases which shall be joined together for joint
trial. In section 2, there is one case with several claims, i.e. counterclaims, cross-claims and third-party complaints. The rule states
that they should be tried together, one after the other, and then one decision.
So for example, you ask the judge for a separate schedule for your 3rd-party claim. Then there will be a separate schedule for
the 3rd–party complaint rather than following the order of trial under Rule 30. Under the order of trial, I have to wait for my turn to
prove my 3rd-party claim. If we follow Rule 30 (order of trial) before it reaches the 3rd-party complaint, matagal masyado.
But under Section 2, the court may grant a separate trial for your 3rd-party claim or permissive counterclaim especially when
there is no connection between my permissive counterclaim with the main action.
Rule 32
TRIAL BY COMMISSIONER
Trial by commissioner applies when there is something to be tried which requires some technical expertise, like
accounting ba, which the court feels it does not possess, and it will be a waste of time if everything will be tried in court. So, the
court will refer it to a commissioner, “You hear that and then you submit a report. Submit you report, you finding and your
recommendation.” And that person is known as a commissioner.
SEC. 1. Reference by consent – By written consent of both parties, the court may order any or all of
the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed
by the court. As used in these Rules, the word “commissioner” includes a referee, an auditor and an
examiner.
This was mentioned when we were talking about pre-trial. This is one of the purpose of a pre-trial. That is Rule 18, Section
2 [f]: “(f) The advisability of a preliminary reference of issues to a commissioner; ” This provision is actually referring to Rule 32.
Example #1:
Prof. X and Magneto had continuous transactions. After a long while, their records do not anymore reconcile. Prof. X
filed a case against Magneto on the ground that Magneto has not yet paid an obligation which is already due. Based on
Magneto’s records, bayad na lahat. Wala na syang utang. This is a question of accounting.
The court will have to determine whose records are correct and accurate – invoices, receipts, etc… must be
presented, which might be hundreds or thousands in volume. This will consume a lot of time of the court.
The fact that the case involves accounting and the judge is not an accountant (it is different if the judge is a
CPA/lawyer, hindi mahirap), the judge then should appoint an accountant to assist him. That accountant is known as the
commissioner. That will certainly shorten the time and expedite the resolution of the case.
The judge can then attend to other cases while the parties are presenting all their invoices and receipts before the
accountant/commissioner.
Example #2:
Prof. X and Magneto are owners of adjoining properties. Magneto put up a fence. Prof. X sued Magneto for forcible
entry on the ground that Magneto encroached on Prof. X’s ground, and praying for the recovery of, say, 200 meters.
Magneto contends that he built the fence on the boundary line.
The judge will look at the title of the land: “point degree 9, etc..” – only surveyor or a geodetic engineer understands that! In this
case, the court may appoint a geodetic engineer, order the submission of the titles of the lands to him, he will go to the area,
sukat-sukatin niya, and he will draw a sketch and then based on the sketch, he will determine whether or not there is an
encroachment. The appointed surveyor or geodetic engineer is called a commissioner.
This is what you call trial by commissioner. And take note that under Section 1, trial by commissioner is possible by
mutual agreement of the parties. The parties must agree. Either you can agree on who is the CPA, who is the engineer, or you
can ask the court to appoint somebody
Q: Suppose the parties cannot agree, or one party files a motion asking for the appointment of a commissioner. Is the court still
empowered to apply Rule 32?
A. YES, under section 2:
SEC. 2. – Reference ordered on motion – When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a reference to a commissioner in the following cases:
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a.) When the trial of an issue of fact requires the examination of a long account on either side, in which
case the commissioner may be directed to hear and report upon the whole issue or any specific question
involved therein;
b.) 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;
c.) 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.
Section 1 is reference by consent and Section 2 is reference ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.
In (a), it requires an examination of a long account. The best example here is example #1 – accounting.
In (b) and (c), notice that a commissioner may be appointed for carrying a judgment or order into effect. Thus, a
commissioner, can be appointed not only to help the court render a decision, but also help the court enforce a decision – even if
tapos na ang case. Because sometimes, problems arise on how to implement a decision of the court. Example:
There was a case of boundary dispute. Prof. X built his house near the boundary of his property. According to his neighbor,
Magneto, a portion of the house of Prof. X encroached on his land. About 25 sq. m. lang. Prof. X lost. The court says to Prof. X:
“You are directed to return the 25 sq. m. which you occupied.” The sheriff will go there to return the 25 sq. m. Which part of the
house will the sheriff demolish? The sheriff returns to the court because he cannot understand and he does not know how to
implement the decision. So, the court solves that by appointing a surveyor as a commissioner to find out where that 25 sq. m. will
be taken from the portion of the house.
Q: Give other examples of trial by commissioner.

A: The following:
1.) Special Civil Action of Expropriation under Rule 67 – when the court has to determine just compensation. Under
Rule 67, it is mandatory for the court to appoint a commissioner in order to determine as to how much the value of the
property;
2.) Special Civil Action of Partition under Rule 69. When the heirs cannot agree on how to partition a property under co-
ownership, the court may appoint a commissioner to study and submit its report.
So take note that trial by commissioner is allowed not only for the purpose of the court rendering the judgment but
also for the purpose of carrying a judgement or order into effect.
SEC. 3. Order of reference; powers of the commissioner. - When a reference is made, the clerk shall
forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit
the powers of the commissioner, and may direct him to report only upon particular issues, or to do or
perform particular acts, or to receive and report evidence only, and may fix the date for beginning and
closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in
the order,the commissioner has and shall exercise the power to regulate the proceedings in every
hearing before him and to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of
evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court.
(3a, R33)
So a commissioner is parang judge rin. In effect he is an assistant judge. Biro mo, he can issue subpoenas, swear witnesses,
and unless otherwise provided in the order of reference, may rule upon the admissibility of evidence, of course, subject to the final
approval of the court.
Compare that with Rule 30 when there is an ex-parte reception of evidence where the clerk of court is delegated to
receive evidence. But the clerk of court cannot rule on the admissibility of evidence.
To my mind, for example, in cases involving accounting, the best commissioner would be a CPA-lawyer because he knows
about the law on evidence and accounting. Kung boundary conflicts naman, the best commissioner would be a geodetic engineer-
lawyer. However, you rarely find that combination.
SEC. 4. Oath of commissioner. - Before entering upon his duties the commissioner shall be
sworn to a faithful and honest performance thereof. (14, R33)
SEC. 5. Proceedings before commissioner. - Upon receipt of the order of reference and unless
otherwise provided therein, the commissioner shall forthwith set a time and place for the first
meeting of the parties or their counsel to be held within ten (10) days after the date of the order
of reference and shall notify the parties or their counsel. (5a, R33)
SEC. 6. Failure of parties to appear before commissioner. - If a party fails to appear at the time
and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the
proceedings to a future day, giving notice to the absent party or his counsel of the adjournment.
(6a, R33)
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SEC. 7. Refusal of witness. - The refusal of a witness to obey a subpoena issued by the
commissioner or to give evidence before him, shall be deemed a contempt of the court which
appointed the commissioner. (7a, R33)
EXAMPLE: I, as a commissioner, subpoenaed you and you will not show up. I will report you to the court which
appointed me and the court which appointed me will declare you in contempt of court. Remember, the commissioner is
acting by authority of the judge. That’s why he has powers under the law.
SEC. 8. Commissioner shall avoid delays. - It is the duty of the commissioner to proceed with all
reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for
an order requiring the commissioner to expedite the proceedings and to make his report. (8a, R33)
The commissioner shall expedite the proceedings. He should hurry up the report.
Sec. 9. Report of 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. When his powers are not specified or limited, he shall set forth his findings of fact
and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers
and the transcript, if any, of the testimonial evidence presented before him. (9a, R33)
SEC. 10. Notice to parties of the filing of report. - Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of
objections to the findings of the report, if they so desire. Objections to the report based upon grounds
which were available to the parties during the proceedings before the commissioner, other than
objections to the findings and conclusions therein set forth, shall not be considered by the court unless
they were made before the commissioner. (10, R33)
Of course, the parties are given a copy of the report. And if it is against you, you can question the findings of that
commissioner. Sometimes, it is very difficult because there is already a court appointed commissioner but you have to get
another CPA to check on his report.
SEC. 11. Hearing upon report. - Upon the expiration of the period of ten (10) days referred to in the
preceding section, the report shall be set for hearing, after which the court shall issue an order adopting,
modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the
parties to present further evidence before the commissioner or the court. (11a, R33)
When the commissioner files his report with the court, the court will now schedule it for hearing. The parties will be furnished
copies and during the hearing, if you do not agree with the report, you can present objections thereto or criticize the report. You
can defend or attack it. The court will then determine whether to accept the report or not.
That’s why under Section 11, the court shall issue an order adopting, modifying, rejecting the report, in whole or in part, or
recommitting (ibalik) it to the commissioner with instruction, or requiring the parties to present further evidence. The court is not
bound 100% to swallow everything in the report. But the court rarely rejects the report of the commissioner, unless talagang there
is no basis for it. Chances are, when the report has support, talo ka na. Although it is not conclusive.
Now take note that when the court approves a report, the findings of the commissioner becomes the findings of the court.
Q: So, can the findings of the commissioner on question of fact be questioned by the parties?
A: YES, under Section 11.
Q: Is there an exception that the finding of the commissioner on factual issues become final and no longer be questioned?
A: YES, under Section 12:
SEC. 12. Stipulations as to findings. - When the parties stipulate that a commissioner's findings of fact
shall be final, only questions of law shall thereafter be considered. (12a, R33)
This is the only instance where you cannot question the commissioner’s report – when there is already an agreement
beforehand that the findings of fact by the commissioner are final, we accept. So the principle of estoppel applies in this case and
only questions of law will then be considered. Meaning, factual issues are binding upon the parties.
SEC. 13. Compensation of commissioner. - The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party,
or apportioned, as justice requires. (13, R33)
Q: Is the commissioner entitled to compensation?

A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a reputable CPA tapos walang bayad? Sinong papayag
niyan?
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Q: How is the commissioner paid?
A: To be taxed as costs against the defeated party, or apportioned. In most cases it is apportioned – 50-50 [isa gatos tanan!]
Rule 33
DEMURRER TO EVIDENCE
Q: Define demurrer to evidence.

A: Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case, on the
ground of insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)
SEC. 1. 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. If his motion is denied, he shall have the right to present evidence.
If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have
waived the right to present evidence. (1a, R35)
Now, there is a similar rule in criminal procedure under Rule 119, Section 23 – demurrer to evidence in criminal cases. Rule
33 is demurrer to evidence in civil cases.
DEMURRER TO EVIDENCE IN CRIMINAL CASES (Review)
Q: By way of review what is the rule on demurrer to evidence in criminal cases all about? What is the procedure on demurrer in
criminal cases?
A: In the rules on criminal procedure: Trial. The prosecution presents evidence to prove the crime and that the accused
committed the crime. After that, tapos na – the prosecution has rested. It is now the turn of the accused to present evidence to
prove his defense. Alright, that’s the procedure.
But under the rules on demurrer to evidence in criminal cases, the accused, instead of presenting evidence, may opt to file
instead a demurrer. It is a motion by the accused to dismiss the criminal case on the ground that the prosecution failed to prove his
guilt. Remember that under the Constitution, the accused is presumed innocent until his guilt is proven. It is the burden of the
prosecution to prove his guilt, to destroy the presumption of innocence.
Now, suppose the prosecution fails to prove the crime or the guilt of the accused. There is no evidence. The evidence is
insufficient to prove that the accused is guilty. So, the prosecution failed to meet its burden. It failed to rebut the presumption of
innocence. The accused may ask, “why will I present evidence? Why will I prove my innocence when I’m still presumed innocent?
Because my guilt has not been established.” Therefore, the accused will file a demurrer. Actually, it is a motion to dismiss
challenging the sufficiency of the evidence for the prosecution.
SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action
on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of
court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce
evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused
waives the right to present evidence and submits the case for judgment on the basis of the evidence for
the prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and
shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The
prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible
period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a
similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or by certiorari before judgment. (n)
It is now emphasized in Section 23, Rule 119 that a demurrer may be filed with or without leave of court. If you file demurrer
with or without leave and it is granted, then you have no problem because the accused will be acquitted.
The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence to prove at least the guilt of
the accused. If the demurrer was filed with prior leave of court and it is subsequently denied, the accused is allowed to present
But if he filed the demurrer without prior leave of court and the demurrer is denied, then you are already convicted because the
accused has forfeited his right to present evidence. It is practically equivalent to a waiver of his right to present evidence. So
conviction automatically follows.
NOTE: Under the new rules on Criminal Procedure, when the accused will file a leave of court to file a demurrer, he must
specifically state the grounds. (c.f. Rule 119, Section 23, third paragraph)
Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.
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DEMURRER TO EVIDENCE IN CIVIL CASES
Q: Under the Rule on Trial, who presents evidence first?

A: It is the plaintiff. The plaintiff presents evidence to prove his cause of action. He must prove his case or his claim by
preponderance of evidence.
Q: Suppose after the plaintiff has rested, the plaintiff has not proven his cause of action?
A: I’m the defendant, why will I prove my defense when you have not proven your claim? So, instead of presenting evidence,
the defendant may move to dismiss the complaint on the ground of insufficiency of evidence and that is known as the demurrer.
To borrow the language of the law, after the plaintiff has completed the presentation of his claim, the defendant may move for
dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. Meaning, you have not proven
your cause of action by preponderance of evidence.
Q: Now, suppose the defendant filed that motion to dismiss (demurrer) but the court disagrees with the defendant. In the
opinion of the court, plaintiff had presented sufficient evidence to prove his cause of action. Meaning, the motion is denied. What
will happen now?
A: Defendant will now present evidence to prove his defense. That is why under Section 1, “If his motion is denied, he shall
have the right to present evidence.”
So, no harm done ‘no? Because if I will file my motion to dismiss and it is denied, I will be given my right to present my side.
So, there is no prejudice on the part of the defendant by filing a motion to dismiss and his motion to dismiss is denied. What is risky
is when your motion is granted.
“If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right
to present evidence.”
Q: Suppose the court agrees with the defendant and his motion is granted. In other words, the defendant has succeeded in
dismissing the complaint without even presenting his own side – I won a boxing bout without even throwing a single punch. What
will happen now?
A: The court will dismiss the case. BUT if plaintiff appeals to the CA and insists that his evidence is sufficient to prove his
cause of action, therefore the order of the dismissal by the RTC is wrong, and CA agrees with the plaintiff – that the plaintiff’s
evidence is sufficient to prove his claim – the CA will reverse the order of dismissal. The CA will immediately now decide the case
in favor of the plaintiff and the plaintiff will automatically win.
Q: The defendant may argue: “Well, the order was reversed. Eh di ibalik ang kaso. Let’s go back to the RTC and let me
present my side.” Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial court and is reversed on appeal, the defendant loses forever his
right to present his evidence. Therefore defendant has no more right to present his side. That is tantamount to saying the
defendant automatically loses the case.
So, that is what a demurrer in civil cases is all about. Very risky no? If you file a demurrer and your motion is denied, Okay
lang – no prejudice – I will present my evidence. You do not waive your right to present evidence. BUT if the court agrees with you
and grants your motion, that is the start of your headache. In other words, if the plaintiff appeals, you better pray that the appellate
court will sustain or affirm the order of dismissal. Otherwise if it is reversed, talo ka na automatically and you cannot say, “Alright,
ibalik natin ang kaso. Let’s return the case to the RTC because I will now present my side.” No, you have already waived it.
Favorite BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases with the rule of demurrer in
criminal cases?
1. In CIVIL cases when the demurrer is denied, the defendant will now present his evidence to prove his defense
because the defendant does not waive his right to present in the event the demurrer is denied; whereas
In CRIMINAL cases, if the demurrer of the accused is denied the accused is no longer allowed to present
evidence if he had no prior leave of court;
2. In CIVIL cases, if the defendant’s demurrer is granted and the case is dismissed and the plaintiff appeals to
the appellate court and on appeal the court reverses the order of dismissal, the appellate court renders
judgment immediately in favor of the plaintiff. Goodbye! – talo na ang defendant. There is no more
remanding. The defendant loses his right to present evidence; whereas
In CRIMINAL cases, if the demurrer is granted, there is no more appeal by the prosecution because the
accused has already been acquitted. Otherwise, there will be a case of double jeopardy;
3. In CIVIL cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests without any
demurrer by the defendant. There is no such thing as motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own initiative after giving the prosecution the
chance to present its evidence.
In both cases, the motion is raised only after the prosecution or the plaintiff has presented his case and the ground is based on
insufficiency of evidence.
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Take note that under Rule 9 of the Old Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. Among the exceptions (lack of jurisdiction, res adjudicata, etc.) is “when there is no cause of
action.” Meaning, the ground of no cause of action cannot be waived. The same can be raised at any stage during the trial or
even on appeal.
Now, such ground is not anymore found under the New Rules. What does it mean? Do you mean to tell me that such ground
is waivable now? NO. The ground of no cause of action is now incorporated under Rule 33, such that during the trial when there is
really no cause of action, your remedy is to file a demurrer to evidence under Rule 33. So there is no need to refer to Rule 9
anymore.
Q: One thing, what is the difference between the “no cause of action” under Rule 16 and the “no cause of action” under Rule
33?
A: Under Rule 16, the ground of no cause of action is based on the complaint, while under Rule 33, the ground of no
cause of action is based on the plaintiff’s evidence.
NOTE: If the complaint states cause of action, the defendant cannot file a motion to dismiss under Section 1[g], Rule
16 because he hypothetically admits the allegations in the complaint. So they have to go to trial. Now, if during the trial,
the plaintiff failed to prove his cause of action (meaning, there is really no cause of action), it is now proper for the
defendant to file a motion to dismiss on the ground of insufficiency of evidence under Rule 33, and not under Rule 16
because in the first place, the plaintiff’s complaint states cause of action.
ENOJAS vs. COMELEC

283 SCRA 229 [1997]
HELD: “The motion to dismiss on the ground of jurisdiction can be easily be differentiated from a motion to
dismiss on demurrer to evidence in that, in the latter case, the movant admits the truth or factual allegations in the
complaint and moves for the dismissal of the case on the ground of insufficiency of evidence. The legal effect and
consequence of a demurrer to evidence is that in the event that the motion to dismiss on demurrer to evidence is
granted and the order of dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf.”
“However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does not lose his right to
present evidence.”
“It likewise bears stressing that a demurrer to evidence under Rule 33 is in the nature of a motion to
dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests its case. It thus
differs from a motion to dismiss under Rule 16 which is grounded on preliminary objections and is presented
at the outset of the case, that is before a responsive pleading is filed by the movant and within the period for
the filing thereof.”
Rule 34
JUDGMENT ON THE PLEADINGS
SEC. 1. Judgment on the pleadings.- Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading, the court may, on motion of that party, direct
judgment on such pleading.
EXC:
However, in actions for declaration of nullity or annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be proved. (1a, R19)
Judgment on the pleadings is an expeditious way of terminating a civil action. There is no more trial and judgment will be
rendered based on what the plaintiff says in his pleadings.
Illustration:
PROBLEM: Plaintiff files a complaint. Defendant files an answer. The answer contains what you call defenses – negative,
affirmative defenses. Now, after the defendant files the answer, his issues are joined. Next step is pre-trial. If the case is not
terminated in pre-trial, next step is trial. That’s the procedure.
But suppose I will file a complaint against you and you file your answer where you admitted everything that I said in my
complaint. All the allegations in the complaint are admitted and no defense was interposed by the defendant. So, meaning,
the defendant filed an answer which contains no defense at all. Everything is admitted. Should the case go to trial? Should
the plaintiff prove his cause of action? What is there to prove when you admitted everything? So, there is no more trial
because everything is admitted by the defendant.
Q: In the above case, what should the plaintiff do?

A: The plaintiff will now apply Rule 34. He will file a motion in court which is known as Judgment on the Pleadings. He will
ask the court to render judgment based on what the complaint says and what the answer says. No more evidence. Eto ang
sabi ng complaint, “Oh! You borrowed money, and you did not pay.” Sabi ng answer, “admit! admit! admit!” Oh, ano pa?
What is there to be tried? You admitted everything, so the court will now decide! You can render a decision based on what
the complaint says and what the answer says and the court will immediately render judgment for the plaintiff. So wala ng trial.
Rule 34 is one of the procedures or remedies under the Rules of Court for the prompt expeditious resolutions of civil actions –
one of the fastest ways of resolving a civil dispute because plaintiff files the complaint, defendant files his answer, plaintiff asks for
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judgment and the case is decided. No more pre-trial, no more trial. Why? There is nothing to try kasi wala ka mang depensa.
Everything that I say in my complaint you admit.
Q: Under Rule 34, what are the grounds for Judgment on the Pleadings?
A: The following are the grounds:
1.) When an answer fails to tender an issue; or
2.) When an answer otherwise admits all the material allegations of the adverse party’s pleading.
Q: When does an answer fails to tender an issue?

A: An answer fails to tender an issue:
1.) when it neither admits nor denies the allegations in the complaint;
It neither admits nor denies. So, you cannot do that. Either you admit or you deny the allegations in the
complaint. You cannot say, “Defendant does not admit, he does not also deny the allegation.” Meaning you are
trying to be evasive. That is not allowed.
2.) when all the denials in the answer are general denials and not specific.
A denial is general if the pleader does not state the facts relied upon in support of his denial – “Defendant
denies the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.” That is an answer which does not tender an issue
because all the denials are general, or no knowledge or information sufficient to form a belief. Just like what
happened in the case of CAPITOL MOTORS vs. YABUT.
So if an answer contains evasive allegations, denials which are general, it does not also tender any issue aside from the fact
that it also admits the law. Consider it as an admission of the material allegations of the complaint. Therefore plaintiff will now
move for an immediate judgment in his favor. That is why it is called judgment on the pleadings.
Now, judgment on the pleadings has already been mentioned in the previous rule that we took up. Let’s go back to pre-trial in
Rule 18 because there is a mention there on judgment on the pleadings. Section 2, Rule 18:
SEC. 2. Nature and purpose. - The pre-trial is mandatory. The court shall consider:
xxx
g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to exist.
xxx
In other words, during the pre-trial, the defendant there and based on his pleadings, meron siyang defense. But during the pre-
trial, he makes now an admission, “Actually, your honor, wala akong depensa ba. I have no defense.” Court: “Ah, wala ka ba?
Okay. Judgment on the pleadings!” – tapos!
Or, another example: Collection case. According to the defendant in his answer the obligation is paid. And then during the
trial, the court asks the defendant, “Are you serious that the obligation is paid?” Defendant: “Actually your honor, wala pa. Hindi pa
bayad.” Court: “Ganoon ba? O plaintiff, what do you say?” Plaintiff: “I move for judgment on the pleadings.” Tapos! The case is
finished because the admission is made in the course of the pre-trial that he has no valid defense.
EXCEPTIONS TO THE RULE ON JUDGMENT ON THE PLEADINGS
Q: Give the exceptions to the rule on judgment on the pleadings. DALUC

A: Judgment on the pleadings does not apply:
1.) in actions for declaration of nullity or annulment of marriage; or
2.) in actions for legal separation;
3.) when the issue is the amount of unliquidated damages because there must always be evidence to prove such amount
(Rule 8, Section 11);
4.) when only conclusions of law are being alleged.
So, judgment on the pleading is not allowed on actions for nullity of marriage or for legal separation. It cannot be resolved
based only on what the complaint and what the answer says. Otherwise, if we will allow Rule 34 in that kind of action, then it is
very easy for husbands and wives to have their marriages annulled or in obtaining a legal separation. So, the husband and the
wife, they quarrel and they decide: “O, sige. I-admit mo lahat para judgment on the pleadings na! Eh, di tapos!”
My golly! The court will never allow that to succeed simply because the other party admitted everything. That would be a
license for collusion. It’s not as easy as that. Walang judgment on the pleading sa marriage. In other words, no allegation is
deemed admitted even if the other party admits. You still have to prove or disprove.
So, the premise is similar to Rule 9 on Defaults. There is no default judgment in actions for legal separation based on the
same principle eh! It is a one-sided story and collusion or connivance between the parties is possible.
Rule 35
SUMMARY JUDGMENTS
Rule 35 is another important rule – Summary judgments. The rule on summary judgments and judgment on the pleadings are
similar no? They are related to each other. I would say they are brothers. Rule 34 and Rule 35, magkapatid ‘yan silang dalawa
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because they have a common denominator. Rule 35 is also a speedy procedure for the early resolution or decision in a civil case.
The same concept but with a difference. In Rule 34 on judgment on the pleadings, the answer filed by defendant has put up
no defense at all. No defense has been raised or the answer admits all the material allegations in adverse party’s
pleadings. In Rule 35, the answer filed by defendant puts up a defense but the defense is not a genuine defense.
Meaning, it is invoked only for the purpose of delay and the defense is not actually seriously being interposed.
Q: Define summary judgment procedure.

A: Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as
to any material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)
How do we apply summary judgment?
EXAMPLE: I will file a complaint and your answer invokes defenses, many defenses. But the trouble is these defenses are not
genuine. They are dilatory. They are invoked only for the sake of invoking and they are not seriously raised. They are just to delay
the case.
So, if we go to trial, I will prove my complaint. And when it is your turn, you still lose because you have no genuine defenses,
still you have succeeded in delaying the case. So I would like to get a judgment immediately in my favor and curb your dilatory
tactics by showing that your defenses are fake and dilatory.
Q: How am I going to do that?

A: I will file a motion for summary judgment under Rule 35 on the ground that there is no genuine issue to be tried. And under
Section 1 and 2, I will attach to my motion for summary judgment affidavits, admissions, and depositions.
Sec. 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declamatory relief may, at any time after the pleading in answer thereto has
been served, move with supporting affidavits, depositions or admissions for a summary judgment in his
favor upon all or any part thereof. (1a, R34)
For EXAMPLE: I will file a collection case against you and then you claim that you have paid already. But in reality, it is not
paid. So I know that you are lying. Ikaw naman na defendant, you know also that you are lying, what you are after is to prolong the
case.
Q: As the plaintiff, what should I do?

A: I should execute affidavit stating under oath and under pain of perjury that you have not paid me. I will attach that to my
motion. Well, of course, you know very well that if I file an affidavit by stating that what you are saying is false, and if I tell a lie, you
can file a case of perjury against me. But since I know that I am correct, I will dare to execute an affidavit under oath. Therefore,
since his defense is false, I’m asking for an immediate decision.
Now, if you are the defendant and you received a copy of my motion, you can oppose my motion for summary judgment where
you will say, “No! I paid and my defense is genuine!” The defendant must also execute an affidavit to support his position. So you
will say under oath that you paid me.
So it will become a battle of affidavits versus affidavits under oath. It is possible that one of us will go to jail for telling a lie. So
tingnan natin kung sinong matapang dito. Kung baga, if your defense is not very serious and not genuine, chances are, you will not
dare to execute an affidavit claiming that you have paid the obligation. Takot ka man diyan ba. So if you will not execute an affidavit
but you still claim that you have paid me, it is now very obvious that the defense of payment is false … and the court will say,
“Tama na ang pagsisinungaling! Taob ka na!”
That is summary judgment where the court will say, “No more trial. The affidavit will take the place of evidence in court.” That is
what the rule is all about.
Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In judgment on the pleadings, the
answer does not put up a defense while in summary judgment, here it puts up a defense but the defense is not genuine –
it is a false defense which should easily be exposed by way of affidavits for summary judgment.
Now take note, there is no genuine issue because if you look at the complaint and the answer there is an issue because the
answer alleges payment. That is an issue. But in reality that is a false issue. That is why it is not a genuine issue.
Some text writers call the law on summary judgment another name – it is known as the law on Accelerated Judgment.
Meaning, the process will accelerate, you can easily go to trial. Instead of going to trial, there is no more trial. The motion for
summary judgment will determine who is telling the truth and who is not telling the truth…immediately. So at least, the delay has
been avoided.
What is the example I gave you, no? “A party seeking to recover a claim…” Ako, I will file against you a case of recovery of an
unpaid debt. “or cross-claim etc. at any time after the pleading if answer thereto has been served…” meaning , after your answer
has been served, I will move with supporting affidavits, depositions or admissions for a summary judgment in my favor.
So my motion for summary judgment must be supported with affidavits, or depositions, or admissions. These will be the basis
unlike in the previous rule (Rule 34), there are no affidavits to support a judgment on the pleadings. All you have to do is ask the
court , “Look at the complaints and look at the answer…” But here, you will prove that the defense is false and you demolish it by
way of affidavits.
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Q: Is summary judgment applicable to all kinds of civil actions?
A: YES, because in most cases, defendants will file an answer with defenses but they are all false. In other words,
these defenses are only interposed to delay the case. So, summary judgment is applicable to accelerate the decision.
That’s why it is similar to Judgment on the Pleadings.
Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like declaration of nullity of marriage,
annulment of marriage, legal separation, based on the same principle that there must always be a trial in these cases, where a
ground was established based on the same principle of analogy.
Q: Is Summary Judgment available only to the plaintiff? Can a defendant move for Summary Judgment against the plaintiff?
A: YES, that is also allowed under Section 2:
Sec. 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof.
(2a, R34)
Normally, the party who avails of summary judgment is the plaintiff. But this remedy is not limited to the plaintiff. The
defendant can also file a motion for Summary Judgment against the plaintiff because the cause of action is sham. SO, if
the remedy of Summary Judgment is available to the plaintiff, it can also be availed by the defendant. How?
EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause of action, but I know very well that
your cause of action is false, although it’s very rare, usually it is the defendant who is delaying the case. Well, I could always file an
answer and there would be pre-trial but sabi ko, “Matagal pa iyon!” So under Section 2, instead of filing an answer, I can file a
motion for Summary Judgment and I will attach to my motion affidavits to show that the cause of action is not genuine. And if the
plaintiff believes that his cause of action is genuine, he might as well oppose my motion with counter-affidavits. Now, if you will not,
then the court will rule in my favor, dismissing your complaint.
So you notice, Summary Judgment may be availed of by either party – either the defense is not genuine or the cause
of action is not genuine.
SEC. 3. Motion and proceedings thereon. - The motion shall be served at least ten (10) days before
the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. (3a, R34)
If I will file a motion for Summary Judgment, I must set it for a hearing just like any other motion. Now, generally, if I will file a
motion for Summary Judgment, you must be served a copy at least 10 days before the hearing. That’s an exception to the
general rule in Rule 15 (general rule: you are only required to give the other party 3 days).
The reason is the other party should also be given time to oppose it with affidavits. That’s why you have to give him a long er
period to oppose and if he decides to oppose, he must also file his opposition together with affidavits but he must furnish me with
his copy of opposition at least 3 days before the hearing.
Under the rule on deposition, I can take the deposition of my own opponent and based on your deposition, I can
prove that your defense is false. So depositions can be used not only during the trial but to support or oppose a motion
for Summary Judgment.
Rule 23, SEC. 4. Use of depositions – At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used
against any party who was present or represented at the taking of the deposition, or who had due notice
thereof, in accordance with any one of the following provisions:
So, depositions can be used at the trial or upon the hearing of a motion.
Q: Give examples of a motion where you can use a deposition to support your motion.
A: The following:
1.) a motion for Summary Judgment. Under Rule 35, the motion should be supported by affidavits, depositions, etc…
based on what the other party will admit. And based on Rule 23 Section 4, the deposition of the adverse party may be
used for any purpose. So I can use it to prove that your cause of action or defense is false, or another way of
supporting a motion for Summary Judgment under Rule 35, affidavits, depositions and admissions.
2.) Rule 26 – Request for Admission – I can avail of the Mode of the Request for Admission based on your admissions.
According to Section 3, all the issues which are not genuine can be resolved immediately EXCEPT as to amount of
damages. Meaning the amount of damages to be recovered by the plaintiff cannot be adjudicated through a motion for
Summary Judgment because you still have to present evidence as to how much really is the damages.
Practically every issue can be resolved summarily except the exact amount of damages. Some people find this hard to
imagine, “Paano ba yon? I will file a motion for Summary Judgment and then there will be a judgment except as to the amount of
damages? Ano ba ‘yan?”
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EXAMPLE: An action for damages based on quasi-delict where I will accuse you of negligence and then you deny that you are
negligent. Now, the issue is: who is negligent and who is not. Suppose I will file motion for Summary Judgment and the court will
decide in my favor. Therefore the I am telling the truth, the defendant is telling a lie. And then the court will say, “Let the case be
heard to determine exactly how much damages the plaintiff is supposed to recover.” So there will be a trial but during the trial, I will
just prove how much I am entitled. But the issue of negligence, tapos na, talo ka na, terminated na ‘yung issue. Damages generally
cannot be granted without evidence. You have to support really the exact amount you are entitled to receive.
If you will notice, the issue as to the fact that damages, especially unliquidated damages,which is also subject to proof, is also
mentioned in Rule 8, Section 11:
Rule 8, SEC. 11. Allegations not specifically denied deemed admitted – Material averment in the
complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when
not specifically denied.
Meaning, how much are you entitled cannot be just given to you even if your opponent will not deny an allegation. You must
still prove it and that is very clear even in Rule 35 – summary judgment can be granted except as to the amount of damages.
SEC. 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the
motion, by examining the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are actually and in good
faith controverted. It shall thereupon make an order specifying the facts that appear without substantial
controversy, including the extent to which the amount of damages or other relief is not in controversy,
and directing such further proceeding in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts accordingly. (4a, R34)
Q: Is there such a thing as a motion for partial Summary Judgment?

A: YES. Well, if you say Motion for Partial Summary Judgment, some issues are genuine, some are not. So the court
can decide immediately on the issues which are not genuine but with respect to issues which are genuine, the law says, trial shall
be conducted on the controverted facts summarily under Rule 35 on the issues which are not genuine.
SEC. 5. Form of affidavits and supporting papers. - Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of
all papers of parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5a,
R34)
Q: What are the forms of affidavits under Rule 35?

A: The following:
1.) Supporting affidavits – to support the motion for Summary Judgment;
2.) Opposing (counter-) affidavits – to oppose the motion for Summary Judgment.
Q: Give the requisites of supporting or opposing affidavits to a motion for Summary Judgment.
A: The following: PACC
1.) The affidavit shall be made based on personal knowledge;
2.) It shall set forth such facts as would be admissible in evidence;
3.) The affiant is competent to testify to the matters stated therein; and
4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall be attached thereto or
served therewith.
“The affidavits of your witnesses, or your affidavit must be made on personal knowledge and shall set forth such facts as would
be admissible in evidence and shall show affirmatively that the affiant is competent and the matters stated therein.”
What does that mean? Suppose the case will go to trial, so the witness will take the witness stand. He will testify. When a
witness testifies under the Rules on Evidence, there must be a showing that what he is talking about is known by him. Otherwise, it
will be hearsay. And based on the law of evidence, the testimony is inadmissible. What I will say should be admissible under the
law on evidence otherwise my testimony will not be allowed and I must show that I’m in a position to know what I’m talking about.
That’s what the witness will have to demonstrate in court. Since in a motion for Summary Judgment, there is no more trial,
there is no more witnesses who will testify in court, what will take the place of a witness is his affidavit which must also show that
the witness has personal knowledge, etc. Meaning, what you should show during the trial, if you are, they must also be shown in
your affidavit.
If your testimony in court is not admissible, because you are telling only what you heard from other people, then an affidavit
which contains the same thing would also be inadmissible. So, in other words, the affidavit merely takes the place of oral testimony
in court.
Q: What procedure is similar where the one who will decide, who will only read the affidavits of both sides and render a
decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation – the fiscal conducts a preliminary investigation on the affidavits
lang. The complainant will submit his affidavit. The respondent will file his counter-affidavit. Then the fiscal will go over the
affidavits and will resolve the issues and determine whether there is probable cause to file the information or none. So, the
resolution is practically based on affidavits. So walang hearing.
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SEC. 6. Affidavits in bad faith. - Should it appear to its satisfaction at any time that any of the affidavits
presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court
shall forthwith order the offending party or counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur, including attorney's fees. It
may, after hearing, further adjudge the offending party or counsel guilty of contempt. (6a, R34)
Well, of course, the affidavits required by law must be filed in good faith.
EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment against you alleging that your defense is
false and I will support it with affidavit. Ang defendant, malakas ang loob, he opposed my motion claiming that his defense is true
and genuine and he also supported it with affidavits. Once the opposing party does that, the court will automatically deny my
motion. The court is not in the position now to know who is telling the truth. Both maintaining under oath that he is telling the truth.
So if you oppose my motion with supporting affidavits, the court will deny my motion for Summary Judgment and the courts says
let’s go to trial and during the trial, mabisto na naman and it turned out really that you have no defense, talo ka pa rin.
Q: What is the penalty for you for filing earlier an opposition to my motion supported by affidavits in bad faith?
A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable expense which the filing of affidavits
caused me to incur, including attorney’s fees. The court may also, after hearing, adjudge you or your lawyer guilty and I will add
what is not found in the law, I will file a case of perjury against you for executing a false statement.
That is a criminal sanction under the RPC. I can also file a case of disbarment against the lawyer for assisting in the filing of an
affidavit in bad faith.
So in other words, if you execute an affidavit in bad faith, you must be ready to face all these later – damages, contempt,
perjury under the RPC and the lawyer to face disciplinary proceedings.
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)
Their similarity is that, both of them are methods for promptly disposing civil actions, wherein a civil case can be
adjudicated without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34).
1.) as to the ground

Summary Judgment is proper if there is no genuine issue of fact to be tried; whereas
Judgment on the Pleadings is proper where there is no issue of fact at all to be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)
2.) as to how the judgment rendered

Summary Judgment is rendered on the basis of facts appearing in the pleadings, affidavits, depositions
and admissions on file, whereas
Judgment on the Pleadings is rendered on the basis only of the pleadings; (Nagrampa vs. Mulwaney, Etc.,
97 Phil. 724)
3.) as to who can ask for the judgment

Summary Judgment is a remedy available for both claimant and defendant; whereas
Judgment of Pleadings is available only on the claimant because the answer fails to tender an issue.
VERGARA, SR. vs. SUELTO, ET AL

156 SCRA 753
ISSUE: When does an answer fail to tender an issue? When is there no genuine issue?
HELD: “Section 1, Rule 19 (now Rule 34) of the Rules of Court provides that where an answer fails to tender an
issue, or otherwise admits the material allegation of the adverse party's pleading, the court may, on motion of that
party, direct judgment on such pleading. The answer would fail to tender an issue, of course, if it does not
comply with the requirements for a specific denial set out in Section 10 (or Section 8) of Rule 8; and it would
admit the material allegations of the adverse party's pleadings not only where it expressly confesses the
truthfulness thereof but also if it omits to deal with them at all.”
“Now, if an answer does in fact specifically deny the material averments of the complaint in the manner
indicated by said Section 10 of Rule 8, and/or asserts affirmative defenses (allegations of new matter which,
while admitting the material allegations of the complaint expressly or impliedly, would nevertheless prevent
or bar recovery by the plaintiff) in accordance with Sections 4 and 5 of Rule 6, a judgment on the pleadings
would naturally not be proper.”
“But even if the answer does tender issues — and therefore a judgment on the pleadings is not proper — a
summary judgment may still be rendered on the plaintiff's motion if he can show to the court's satisfaction that except
as to the amount of damages, there is no genuine issue as to any material fact, that is to say, the issues thus
tendered are not genuine, are in other words sham, fictitious, contrived, set up in bad faith, patently
unsubstantial. The determination may be made by the court on the basis of the pleadings, and the depositions,
admissions and affidavits that the movant may submit, as well as those which the defendant may present in his turn.”
Now, Summary Judgment is related to Rule 17 Section 1 in which summary judgment is first mentioned:
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Rule 17, Section 1. Dismissal upon notice by plaintiff. - A complaint may be dismissed by a plaintiff by
filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment.
xxx
Q: Can the plaintiff dismiss his complaint as a matter of right?

A: YES, at any time before the defendant has filed his answer or of a motion for summary judgment. (Rule 17, Section 1)
The second time that it was mentioned was in Rule 18 Section 2:
Rule 18, Sec. 2. Nature and purpose. - The pre-trial is mandatory. The court shall consider:
xxx
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to exist;
xxx
During the pre-trial conference, it is possible for the court to render a judgment on the pleadings under Rule 34 or a summary
judgment under Rule 35. Judgment can be rendered summarily during the pre-trial.
DIMAN vs. ALUMBRES

299 SCRA 459 [Nov. 27, 1998]
FACTS: The plaintiff files a motion for summary judgment where he said under oath that the defense is false.
The trial court denied it, “A summary judgment is not proper where the defendant presented defenses tendering
factual issues which call for the presentation of evidence.” Is the trial court correct.
HELD: “Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the judge are proper
for the denial of a motion for judgment on the pleadings – as to which the essential question, as already
remarked, is: are these issues arising from or generated by the pleadings? – but not as regards a motion for
summary judgment – as to which the crucial question is: issues having been raised by the pleadings, are
those issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions accompanying
the application therefor?” So those are the questions to be answer in a summary judgment, not whether or
not there is an answer.
“Errors on principles so clear and fundamental as those herein involved cannot but be deemed so egregious as
to constitute grave abuse of discretion, being tantamount to whimsical or capricious exercise of judicial prerogative.”
Last point to remember: as a General Rule, you cannot secure judgment by motion alone. This is because a MOTION is
defined as any petition for relief other than the relief prayed for in the pleadings. (Rule 15, Section 1)
A motion prays for relief other than through a pleading. The other way of stating it is, a motion prays for relief other than
through a judgment because a judgment is prayed in a pleading and not in a motion. So a motion as a rule, cannot pray for
immediate judgment.
But there are three (3) known exceptions where a motion can already pray for immediate relief. They are:
1.) Rule 33 – Demurrer to evidence;
2.) Rule 34 – Judgment on the Pleadings; and
3.) Rule 35 – Summary Judgment.
In those exceptions, the movant is already asking for a judgment which normally is not stated in a motion.
Rule 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
There are three (3) important stages in a civil action.
Q: What are these three (3) stages?

A: The following:
1.) First stage: Issue Formulation Stage

It is the stage in which we are trying to find out what are the issues we are quarreling about. This is done by filing
a complaint, answer to know the defenses, counterclaim, answer to counterclaim, third party complaint. This is the
stage of formulation of issues.
After the last pleading is filed, we go to pre-trial where we will discuss the simplification of issues, advisability of
amending the pleadings, etc. Therefore, during pre-trial we are still formulating issues to be tackled. When the pre-
trial is terminated and there is no settlement, we proceed to stage 2:
2.) Second stage: Stage of Proof (Rule 30 on Trial)

We are now on trial where the parties will now offer their evidence. It is called the stage of proof. Plaintiff
presents evidence to prove his claim. Defendant presents evidence to prove his defense. Parties present rebutting
evidence. So this is the stage where the parties will prove their respective contentions.
After the case has been tried and everything has been argued under Rule 30, the last stage is…. [sound plis…
tadadadan!tadan!]
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3.) Third stage: Judgment Stage (Rule 36)
This is the stage where the court will now decide and render judgment.
Q: Define Judgment.
A: Judgment is the final consideration and determination by a court of the rights of the parties as those rights presently exists,
upon matters submitted to it in an action or proceeding. (Gotamco vs. Chan Seng, 46 Phil. 542)
Q: What are the requisites of a valid judgment?

A: There are five (5) requisites for a valid judgment:
1.) the court rendering judgment must have jurisdiction over the subject matter;
2.) the court rendering judgment must have jurisdiction over the person of the defendant, and in case the
defendant is a non-resident, the court rendering judgment must have jurisdiction over the res;
3.) the court rendering judgment must have jurisdiction over the issues, that is, the judgment shall decide only
the issues raised by the parties in their pleadings;
4.) the court rendering judgment must be validly constituted court and the judge thereof, a judge de jure or de
facto; Thus, the court has not been abolished; the judge has been appointed and has not retired nor separated from
service. That is why there is a rule even in criminal cases that if the judgment is promulgated after the judge has
already retired, the judgment is void. There must be another promulgation.
EXAMPLE: Judge tries a case, prepares the decision and signs it. Before the decision is promulgated, the
judge died or retired. In this case, any promulgation to be made cannot be valid. The next judge must be the one
to promulgate it – write the decision again and sign it. What is important is the judge who rendered.
ABC DAVAO AUTO SUPPLY vs. COURT OF APPEALS

284 SCRA 218 [January 16, 1998]
FACTS: The case was tried by a judge (Agton) who was temporarily assigned to Mati. He wrote the
decision and had it released but by that time, he was already back in Mati. The losing party contended that
the judgment was not valid.
HELD: The judgment is VALID because when the new judge denied the motion for reconsideration, he
effectively adopted in toto the decision of the Mati judge. And besides, the Mati judge was still a judge when
he rendered his decision.
“The subsequent motion for reconsideration of Judge Agton's decision was acted upon by Judge
Marasigan himself and his denial of the said motion indicates that he subscribed with and adopted in toto
Judge Agton's decision. Any incipient defect was cured. Branches of the trial court are not distinct and
separate tribunals from each other. Jurisdiction does not attach to the judge but to the court.”
5.) the judgment must be rendered after lawful hearing, meaning that due process must be observed. (Busacay
vs. Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L-13764, Jan. 30, 1960; Rojas vs. Villanueva, 57 O.G.
7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct. 26, 1966)
There must be a trial where both sides are given the chance to be heard. In case of a defaulted defendant, due
process was observed because he was given the opportunity to defend himself. But he did not file an answer. The
essence of due process is the fact that you are given the opportunity to be heard.
Sec. 1. Rendition of judgments and final orders. - A judgment or final order determining the merits
of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by him, and filed with the clerk of the court. (1a)
Q: What are the FORMAL requisites of a valid judgment?

A: There are four (4) formal requisites:
1.) The judgment shall be in writing;
2.) It shall be personally and directly prepared by the judge;
3.) It shall state clearly and distinctly the facts and the law on which it is based; and
4.) It shall be signed by the judge and filed with the clerk of court.
First formal requisite: THE JUDGMENT SHALL BE IN WRITING
There is no such thing as an oral judgment.
BAR QUESTION: After the parties presented their evidence, the judge asked the lawyers, “Are you going to argue?” The
parties said, “No more, Your honor. We are waiving our right to argue.” So the judge dictated the decision to the clerk of court.
The judgment was against the defendant. The defendant appealed next day. Do you count the period of appeal from that date
when he heard the decision?
ANSWER: NO. You still have to wait for the written decision. Presumably, what is dictated by the judge will be transcribed.
From the time you receive it is the reckoning period for appeal, notwithstanding the hearing of such decision in open court. That is
not yet the formal decision because under the law, there is no such thing as oral decision. The judgment must be in writing.
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Officially the decision is known to you on the date you received the written judgment. Not the date when he dictated it in your
presence. There are judges before who could do that. Even now those judges in Manila who became justices today do practice
such type of judgment. At present, judges no longer possess such skill. They are given 90 days to decide the issue and yet at
times, they could not do so within the period mandated by law. How much more on the spot decision?
Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY PREPARED

BY THE JUDGE
It is presumed that the judgment will be made by the judge himself. Although sometimes it happens otherwise. The judge
should not delegate the writing to other people. There must be no ghost writer.
Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT IS
BASED
The most important – the decision should state clearly and distinctly, the facts and the law on which it is based. Meaning, there
must be a justification for the dispositive portion. The judge must argue why the party won or lost.
Normally in the facts, either the facts presented by plaintiff are right and the facts presented by the defendant are wrong or
vice-versa. If you think the facts as presented by the plaintiff are correct or not, you have to state why do you believe that it is
correct or not, and also with the evidence of the defendant. The same thing with legal questions because the plaintiff or the
defendant relies on the provisions of the laws or decided cases.
You have to state why the position of the defendant is wrong, why is the law that he cited not applicable. You have to state
your facts and conclusions of law.
In the SCRA, the Supreme Court will discuss both sides, “According to the plaintiff like this…According to the defendant like
this…..and so forth.” Then the decision will start by saying, “While the petitioner is correct…” or, “While the defendant is correct…”
It is called the discussion of the facts and the law on which the decision is based. It is a requirement in the Constitution, Article
VIII, Section 14:
Sec. 14. No decision shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based. xxx (Article. VIII, 1987 Constitution)
If a judge will render a decision like this: “This is a civil action to collect an unpaid loan. According to the plaintiff: He borrowed
money for the sum of P80,000.00 payable on this date and despite demands, he did not pay. According to the defendant in his
answer: the obligation is fully paid. ISSUE: Whether the loan has been paid or not yet paid. Plaintiff, to prove his cause of action
presented the following witnesses and evidence. On the other hand, the defendant, to prove his defense presented the following
evidence. WHEREFORE, the court renders judgment dismissing the complaint.”
Such decision has no discussion on the findings of facts and the law. There is no basis of the dismissal of the complaint. MY
GOLLY! What kind of decision is that? There is no discussion on why is the evidence of the plaintiff believable and why is the
position of the defendant is like that. So there is no discussion of the facts and the law on which it is based. That is a decision
which violates the Constitution and Rule 36.
Another Illustration:
In an action for sum of money, plaintiff is unpaid. Defendant claims the loan has been paid. The following is the evidence of
the plaintiff and the following is the evidence of the defendant. Then the court now says: “After the meticulous study and analysis of
the evidence offered by both sides, the court is of the opinion that plaintiff’s evidence is more logical, acceptable, probable and
worthy of credit. THEREFORE, judgment is hereby rendered ordering the defendant to pay the loan.”
Q: Is this decision correct?

A: NO. It still violates the law. There are no findings of facts or conclusions of the law. Therefore, when the court said,
“plaintiff’s evidence is more logical, acceptable, probable and worthy of credit” those are conclusions. They are not findings of
facts. Meaning you have to argue – why is it logical, why is it acceptable, why is it probable, why is it worthy of credit. You must
state it and rebut the other side.
If that is how decisions are prepared, you just recite what the plaintiff said or what the defendant said, and you will conclude,
“Therefore, find the plaintiff is logical…”, then every nincompoop person is qualified to be a judge – everybody can write a decision.
It is just like asking questions in the examinations. You will not answer that “A is correct because his argument is correct
(period!).” You have to state why he is correct. That is also the case in the decision. You must support your answer with details.
Now, every decision of every court must state the facts and the law on which it is based. It must be in every court, no
exceptions, whether SC or an MTC. The Constitutional provision on this requirement applies to all courts from the highest to the
lowest.
However, the Judiciary Law allows the appellate court to make a Memorandum Decision. If you are the appellate court (CA),
you either affirm or reverse the decision of the lower court. If the CA will reverse the findings of the RTC, definitely the CA has to
justify why the findings of the RTC is wrong.
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But suppose the CA will affirm, so there is nothing wrong with the judgment of the RTC. Now, in order to shorten the
period for waiting for the decision and in order to hasten it, Section 40 of BP 129 allows the appellate court to simply
quote verbatim the findings and conclusion of the trial court and adopt it as its own.
This is what is called the Memorandum Decision. The concept of memorandum decision which is found in Section 40, BP
129 is now in Rule 51, Section 5 of the 1997 Rules, to wit:
Sec. 5. Form of decision.- Every decision or final resolution of the court in appealed cases shall
clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which
may be contained in the decision or final resolution itself, or adopted from those set forth in the decision,
order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n)
So the appellate court is now authorized to simply copy or refer the true findings of fact and conclusions at the trial court if it is
affirming the latter’s decision. This is what we call memorandum decision. The SC said that it is only allowed in simple cases,
not in complicated ones. Otherwise the CA will be very lazy – they will just affirm and affirm. Affirm para walang trabaho.
Reverse, madami. To reverse means to argue for the opposite, rebut everything that the trial court said, it takes time to study, etc.
Hence the limitation, which we will discuss later.
Q: Does the law require a particular style of writing a decision?

A: NO, style is based on every individual, so long as the facts and the law are distinctively stated. That is the minimum
requirement. The law does not care how you do it because the manner of presenting the facts and the law and the discussion is a
matter of style. Every person has his own style, and whether it is good or bad does not matter as long as you comply with the law.
As a matter of fact, there are many instances where the SC commented on the writing styles of judges. The most vehement
critics on sloppy style of decision writing is retired Justice Isagani Cruz, because he is a very effective writer. He is intolerant of
poorly written decisions. Kaya from time to time although not necessary, he will criticize poorly written decisions. He makes sub-
comments. Like in the cases of
NICOS INDUSTRIAL CORP. vs. COURT OF APPEALS

206 SCRA 127 [1992]
HELD: “Kilometric decisions without much substance must be avoided, to be sure, but the other extreme, where
substance is also lost in the wish to be brief, is no less unacceptable either.” Too long is bad, too short is bad either.
“The ideal decision is that which, with welcome economy of words, arrives at the factual findings, reaches the legal
conclusions, renders its ruling and, having done so, ends.” This means, brief but comprehensive.
PEOPLE vs. GONZALES

215 SCRA 592
HELD: “Every judge has his own writing style, some tedious, some terse, some pedestrian, some elegant,
depending upon his training and outlook. Each is acceptable as long as the factual and legal bases are clearly and
distinctly stated therein.”
PEOPLE vs. AMONDINA220 SCRA 6
HELD: “The decision of the trial court is exceedingly long, without any effort to trim the fat and keep it lean.
Judges are not stenographers transcribing the testimony of the witnesses word for word. Judges must know how to
synthesize, to summarize, to simplify. Their failure to do so is one of the main reasons for the delay in the
administration of justice. It also explains the despair of the public over the foot-dragging of many courts and their
inability to get to the point and to get there fast.”
There is one MTC judge here, who is very fond of quoting the allegations of the parties: “An action for collection of money.
Plaintiff filed a complaint quoted as follows….” Every paragraph is quoted. “Defendant filed an answer quoted as follows…
Evidence of plaintiff, quoted as follows…” Then his decision is only one paragraph. My golly! How long will it take your
stenographer to type it. Can it not be reduced to 3 pages? This is what we call writing with style.
One of the best writers in the SC right now is Justice Panganiban. As a matter of fact, in one of the latest volumes of the
Lawyers Review, he has an article entitled, “My Style of Decision Writing.” Very nice. Every judge must read that. He is giving tips
on how to write elegant decisions.
But of course what applies to decision writing also applies to answering questions in the Bar. Some elegant, some tedious. The
same answer but different styles of presentation. Other get high scores, low scores because of style. So you must also know how
to answer. Especially in the Bar exams where the corrector is correcting more than 4,000 notebooks and he has a deadline, your
notebook must project itself as if your notebook is telling the corrector: Read me! Read me!!
Q: How do you distinguish a judgment from a decision?

A: Actually, the decision is the entire written effort from the first sentence, “This is an action for a sum of money” until
the end. It contains everything from the findings of facts, discussion of evidence.
The judgment is usually the last paragraph – ‘yung “WHEREFORE” – the dispositive portion or the decretal portion.
Sometimes it is called the fallo of the case.
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The fallo is yung “WHEREFORE…” Iyung discussions, findings of facts, conclusion of law to justify the fallo is called the ratio
decidendi – the reasoning. (Contreras vs. Felix, 78 Phil. 570)
Q: In case of conflict between judgment and decision, which shall prevail?

A: The judgment shall prevail in case of such conflict, for it is an elementary rule of procedure that the resolution of
the court in a given issue, as embodied in the dispositive part of the decision, is the controlling factor that determines and
settles the rights of the parties and the issues presented therein. (Manalang vs. Rickards, 55 O.G. 5780, July 27, 1959)
ASIAN CENTER vs. NLRC

297 SCRA 727 [October 12, 1998]
FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating sa WHEREFOR (judgment), A’s action is
dismissed! And there was no statement in favor of B. A appeals. B contended that the judgment prevails. Is B correct?
HELD: “The general rule is that where there is a conflict between the dispositive portion or the fallo and the body
of the decision, the fallo controls. This rule rests on the theory that the fallo is the final order while the opinion in the
body is merely a statement ordering nothing. However, where the inevitable conclusion from the body of the
decision is so clear as to show that there was a mistake in the dispositive portion, the body of the decision
will prevail.”
TYPES OF JUDGMENTS:
A.) Sin Perjuicio judgment

B.) Conditional judgment
C.) Incomplete judgement
D.) Nunc pro tunc judgment
E.) Judgment upon a compromise or Judgment upon an amicable settlement
F.) Judgment upon a confession
A.) SIN PERJUICIO JUDGMENT
Q: What is an SIN PERJUICIO judgment?

A: A sin perjuicio is one which contains only the dispositive portion of the decision and reserves the making of findings of fact
and conclusions of law in a subsequent judgment. (Dir. of Lands vs. Sanz, 45 Phil. 117) So, there is a “WHEREFORE” without a
ratio decidendi. It does not state how the court arrived at a certain decision.
Q: Is a SIN PERJUICIO judgment valid?

A: A sin perjuicio judgment is a VOID judgment for it violates the constitutional provision that “no decision shall be
rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is
based” (Sec. 14, Art. VIIII), and the provision of the Rules of Court that the judgment shall state “clearly and distinctly the facts and
the law on which it is based. (Rule 36, Section 1)
B.) CONDITIONAL JUDGMENT
Q: What is a CONDITIONAL judgment?

A: A conditional judgment is one which is subject to the performance of a condition precedent and is not final until
the condition is performed. (Jaucian vs. Querol, 38 Phil. 707)
EXAMPLE: A sued B. Then the court said: “The A is correct because so and so…. However, there is another case
now pending before the SC where the same issue is being raised. In the meantime, A is correct. But in the event that SC
decision comes out and is not favorable to A, then this decision should also be automatically changed in favor of B.” So,
this is a conditional judgment. Is it a valid judgment?
Q: Is a conditional judgment valid?

A: It is NOT valid. In truth, such judgment contains no disposition at all and is a mere anticipated statement of what
the court shall do in the future when a particular event should happen. For this reason, as a general rule, judgments of
such kind, conditioned upon a contingency, are held to be NULL and VOID. (Cu Unjieng y Hijos vs. Mabalacat Sugar Co., 70
Phil. 380)
C.) INCOMPLETE JUDGMENT
Q: What is an INCOMPLETE judgment? What is its effect?

A: An incomplete judgment is one which leaves certain matters to be settled in a subsequent proceeding. (Ignacio vs.
Hilario, 76 Phil. 605) There is a decision but there is still other matters to be incorporated later in such decision. Parang
interlocutory judgment.
EXAMPLE: There is judgment against B for a damage suit, “Wherefore, judgment is hereby rendered ordering
defendant to indemnify the plaintiff, moral and exemplary damages (period!).” It does not state how much. Mamaya na
natin malaman kung magkano. So kulang pa ang decision.
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My golly! What is there to execute? You do not even know how much is the award. It does not settle any question that may be
the subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45) The judgment can never become final, it having left certain matters
to be settled for its completion in a subsequent proceeding. (Ignacio vs. Hilario, 76 Phil. 605) So, the judgment is again
defective.
D.) NUNC PRO TUNC JUDGMENT
Q: (Bar Question) What is a judgment NUNC PRO TUNC and what is its function?
A: A judgment nunc pro tunc literally means a ’judgment now for then.’ Its function is to record some act of the court
done at a former time which was then carried into the record. And the power to make such entries is restricted to placing
upon the record evidence of judicial action which has actually been taken. It may be used to make the record speak the
truth, but not to make it speak what it did not speak but ought to have spoken. (Lichauco vs. Tan Pho, 51 Phil. 862)
Example: When a judge renders a decision, he must base his findings on what happened on the trial or on the evidence
presented. Normally, the judge cites facts as bases for his findings. Suppose, the judge, in his hurry, made some findings but
forgot to incorporate all those other important matters which can support his findings. Na-overlook ba! He rendered his decision
which was lacking in something – inadvertently omitted. The judge may now amend his judgment by including the matters missed
– such matters that have been admitted on record. Then, the judge now has an improved decision – the judgment now is NUNC
PRO TUNC. What are to be added are things which really happened. The judge has no power to include something which did
not actually happen. That would be irregular. How could you quote something which never transpired during the trial.
So it is an amended judgment where certain matters which are contained in the records and transpired in court were
not incorporated. So when you made the decision, parang kulang. So in order to make it clearer, we will incorporate those
matters which should have been incorporated in the amended decision. That is known as judgment nunc pro tunc. But
you can only place there matters which transpired, not matters which did not transpire.
Q: In what cases is a judgment nunc pro tunc NOT proper?

A: A judgment nunc pro tunc is not proper in the following instances:
1. It cannot remedy errors or omission in an imperfect or improper judgment. (Lichauco vs. Tan Pho, 51 Phil.
862)
2. It cannot change the judgment in any material respect. (Henderson vs. Tan, 87 Phil. 466) and
3. It cannot correct judicial errors, however flagrant and glaring they may be. (Henderson vs. Tan, 87 Phil. 466)
E.) JUDGMENT UPON A COMPROMISE or

JUDGMENT UPON AN AMICABLE SETTLEMENT
Q: What is a JUDGMENT UPON A COMPROMISE?

A: A judgment upon a compromise is a judgment rendered with the consent of the parties for the purpose of effecting
a compromise or settlement of an action. (31 Am. Jur. 105-108)
This is the type of judgment which the law encourages because it is a judgment with the consent of the parties for the purpose
of effecting a compromise or settlement. Usually mga collection cases ito – tawaran – like i-condone ang interests, or half of the
amount na lang, etc. The court will render judgment copying word for word what the parties say. So the compromise agreement
becomes the judgment and for a as long as the agreement is not contrary to law, the court will approve it.
Q: In a compromise judgment, is the court required to make findings of fact and conclusions of law? Why?
A: In a compromise judgment, the court is not required to make findings of fact and conclusions of law. In contemplation of
law, the court is deemed to have adopted the statement of facts and conclusions of law made and resolved by the parties
themselves in their compromise agreement; and their consent has made it both unnecessary and improper for the court to make a
preliminary adjudication of the matters thereunder covered. (Palarca vs. Anzon, L-14780, Nov. 29, 1960)
Q: How do you define a compromise?

A: Under Article 2028 of the New Civil Code:
Art. 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid
a litigation or put an end to one already commenced. (Civil Code)
So the essence of compromise is reciprocal concessions – give and take. It is a mutual concession to avoid litigation or, if
there is already, that which will put an end. There are other definitions given by the SC although the essence or substance is the
same. In the case of
SMITH BELL AND CO. vs. COURT OF APPEALS

197 SCRA 201
HELD: “A compromise is an agreement between two (2) or more persons who, in order to forestall or put an end
to a law suit, adjust their differences by mutual consent, an adjustment which every one of them prefers to the hope of
gaining more, balanced by the danger of losing more.”
If we go to trial, well, winner take all – either the plaintiff wins or the defendant wins. If you are not sure of your position, then
you might as well get something out of it rather than risk losing everything.
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EXAMPLE: You sue me for P1 million. Then I say, “I would like to offer a settlement”. You would say, “How much do you
offer? Well, my complaint is 1 million, so you pay me P1 million.” That is not compromise, that is surrender. Kaya nga umaareglo
ako para makatawad. And if you will not receive anything less than a million, you are not asking for a compromise, you are
demanding total surrender. If that is so then, let us go to court and find out if you will get your P1 million and let us find out how
many years from now you can get your money.
Kaya in a compromise agreement, there are no winners and there are no losers.
REPUBLIC OF THE PHILIPPINES vs. SANDIGANBAYAN

226 SCRA 314
FACTS: This is a case involving a compromise between the government and Benedicto, a crony of President
Marcos. He entered into a compromise with the PCGG and the Supreme Court approved it.
HELD: “Any compromise has its very essence reciprocal concessions, one must give and one must take. If only
one takes all, then one must first win. But in a compromise, all win by taking some and giving some.”
Let’s go back to the law on Obligations and Contracts. There are four (4) types of defective contracts: (a) void; (b) voidable; (3)
rescissible; and (4) unenforceable. Under the Civil Code, if one party enters into a contract where he lacks the requisite authority,
the contract is unenforceable but it is a valid agreement.
Q: What is the effect of a compromise agreement entered into by a lawyer, without any special authority from his client? Is it a
null and void agreement?
A: A lawyer cannot, without special authority, compromise his client’s litigation. A judgment upon a compromise
entered by the court, not subscribed by the party sought to be bound by the compromise agreement, and in the absence
of a special authority to the lawyer to bind his client in the said agreement, is UNENFORCEABLE. (Dungo vs. Lopena, L-
18377, Dec. 29, 1962)
Q: Suppose in the above case, the client learned about what his lawyer did and he did not reject the agreement, as a matter of
fact he complied with it, what is now the effect on such agreement?
A: The agreement is now perfectly VALID and ENFORCEABLE because the party himself did not question his lawyer’s
authority. When it appears that the client, on becoming aware of the compromise and the judgment, failed to repudiate
promptly the action of his lawyer, he will not afterwards be heard to contest it. (Banco Español-Filipino vs. Palanca, 37 Phil.
921)
Q: What are the legal effects of a judgment based upon a compromise agreement?
A: A judgment upon a compromise agreement produces the following legal effects:
1.) The compromise judgment is not appealable and it is immediately executory. (Reyes vs. Ugarte, 75 Phil. 505;
Serrano vs. Miave, L-14687, March 31, 1965)
2.) It cannot be annulled unless it is vitiated with error, deceit, violence or forgery of documents. (Morales vs.
Fontanos, 64 Phil. 19; Article 2038, Civil Code)
3.) It constitutes res adjudicata. (Art. 2037, Civil Code; Sabino vs. Cuba, L-18328, Dec. 17, 1966) Meaning, the
same subject matter or cause of action can no longer be reopened in the future in another litigation.
Q: Suppose you enter into a compromise agreement and there is a judgment. You want to escape from the compromise
judgment on the ground that your consent was vitiated by mistake, error, deceit, violence. How do you question it? What is your
remedy?
A: There are so many conflicting answers here. Some say you file a motion to set aside the compromise judgment because
your consent was vitiated. And if the motion is denied, you appeal from the order denying your motion to set aside. But definitely,
you cannot appeal from the compromise judgment because it is not appealable. You appeal from the order denying your motion to
set aside the compromise judgment. However, under the new rules, you cannot anymore appeal 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 (Section 1, Rule 41)
So an order denying a motion to set aside a judgment by compromise on the ground of fraud, mistake, or duress or any other
ground vitiating consent is not appealable. Therefore, whatever the answers before are not anymore true now. So what is the
REMEDY now?
It would seem that the correct remedy based on the new rules in relation to some new cases, among which was the case of:
DOMINGO vs. COURT OF APPEALS

255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court of
Appeals pursuant to Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule 47)
“A compromise may however be disturbed and set aside for vices of consent or forgery. Hence, where an aggrieved
party alleges mistake, fraud, violence, intimidation, undue influence, or falsity in the execution of the compromise
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embodied in a judgment, an action to annul it should be brought before the Court of Appeals, in accordance with
Section 9(2) of Batas Pambansa Bilang 129, which gives that court (CA) exclusive original jurisdiction over actions for
annulment of judgments of regional trial courts.”
F.) JUDGMENT UPON A CONFESSION (COGNOVIT JUDGMENT)
Q: What is a judgment upon a confession?

A: A judgment upon a confession is a one entered against a person upon his admission or confession of liability
without the formality, time and expense involved in an ordinary proceeding. (Natividad vs. Natividad, 51 Phil. 613)
A judgment upon a confession is also known as “cognovit” judgment. (Pronounced as konyuvit)
EXAMPLE: You file a case against me. Without filing an answer, I simply appeared in court and tell the court that I am not
contesting the claim. I am admitting the complaint to be true and I am willing to have judgment rendered against me. Or, I can also
file my answer kunwari lang ba, and then in court I will admit my liability. That would be the basis of the judgment upon a
confession.
As distinguished from judgment on the pleadings (Rule 34), in judgment on the pleadings you have to go through the process
of filing an answer but actually your answer puts up no defense. In judgment upon a confession, I may not even file an answer.
Hindi talaga ako maglaban. Upon receiving the complaint, I just say that I am admitting liability. So there is no need of a default
order. In American Law, they call it no lo contendere, meaning no contest. Sa criminal case pa, I am pleading “guilty.”
Judgment upon a confession, Judgment upon the pleadings, Default judgment – Magkahawig sila. Only they vary a little bit.
In default judgment, the defendant failed to file an answer. So, he is declared in default. In judgment upon the pleadings,
defendant filed an answer but the answer contains no defense. In judgment upon a confession, he will not file an answer
but will tell the court that he is admitting liability. So, lahat will end up on the same thing: There will be a judgment
rendered against the defendant.
Now, during the commonwealth era, there were many American lawyers who practiced law in the Philippines. Many judges
were Americans, even Justices of the Supreme Court – many of them were Americans. American lawyers brought to the
Philippines types of agreements in American contracts. There was one particular agreement known as “Warrant of Attorney to
Confess Judgment.” That is a standard clause in American contracts.
EXAMPLE: I am a bank. You borrow money from me and you sign a promissory note which contains stipulations normally to
the advantage and in favor of the bank. They usually insert the American clause “Warrant of Attorney to Confess Judgment” that in
the event that the bank will sue you on this promissory note, you are entering into a confession judgment immediately. Meaning, I
am not going to defend myself and I am immediately confessing judgment to the court. And who will confess judgment to the
court? The debtor will say “I hereby appoint the bank as my representative to confess judgment to the court in my behalf.” Parang
Special Power of Attorney ba. The bank will go to the court and say, “Under this paragraph, I represent the defendant-debtor
because he appointed me as his attorney-in-fact. And in behalf of the defendant, I am confessing.”
The Supreme Court ruled that such stipulation is null and void in the old case of:
NATIONAL BANK vs. MANILA OIL

43 Phil 444
HELD: Such type of clause is null and void for being contrary to public policy because the defendant
waives his right in advance to defend himself. That is unfair because even before you are sued, you have
already waived your right to defend yourself.
But the judgment of confession is still allowed but one has to do it himself, and must not be done in
advance. Meaning, it must not be done like the above acts of American lawyers as such is against public policy. One
must be first be given a chance for defense which right be later on waived through voluntary confession.
Q: Distinguish a judgment upon a COMPROMISE from a judgment upon a CONFESSION.

1.) In a judgment upon a COMPROMISE, the liability of the defendant is to be determined in accordance with the
terms of the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant confesses the action and consents to the judgment that
the court may render in accordance with the compromise and the prayer therein (31 Am. Jur. 108); and
2.) In a judgment upon a COMPROMISE, there is give and take; the parties haggle, bargain and agree on the
terms of the judgment; there is mutual or reciprocal concessions; whereas
A judgment upon a CONFESSION is unilateral. It comes from the defendant who admits his liability and
accepts that judgment be rendered against him.
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Sec. 2. Entry of judgments and final orders. - If no appeal or motion for new trial or reconsideration is
filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the
clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be
deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final
order and shall be signed by the clerk, with a certificate that such judgment or final order has become
final and executory. (2a, 10, R51)
If you lose a case, what are your options? I can either appeal within the time provided by the Rules. Or, within the same
period, I will file a motion for a new trial or a motion for reconsideration. In any case, the finality of the judgment will be stopped.
Q: Suppose the prescribed period has lapsed, there is no appeal, no motion for new trial or reconsideration, what happens to
the judgment?
A: The judgment now becomes final and executory.
According to Section 2, once the judgment has become final, it shall be entered by the clerk of court in the Book of Entries of
Judgments. If you go to the office of the RTC, you will find an official book which contains a chronological arrangement of cases,
based on the date of filing. Malaking libro yan.
Now, the second sentence is new and its effects are also significant, “…the date of the finality of judgment or final order
shall be deemed to be the date of its entry.” The rule is, when does a judgment become final? After the lapse of the period to
appeal and no appeal is filed.
EXAMPLE: Today, March 4, the lawyer for the defendant received a copy of the judgment. The last day to appeal is March 19.
Suppose there is no appeal, then March 20 is the date of finality. On March 20 or immediately thereafter, the clerk of court should
know the judgment became final on March 20. Suppose the clerk of court placed it in the book on March 30. So, the date of finality
is March 20 but the date of entry is March 30.
Sometimes the clerk of court forgets to make the date of entry. That is why under the old rules, the date of finality of judgment
does not coincide with the date of entry of judgment because the clerk of court may do that thing months later. This creates a lot of
trouble. So to cure the discrepancy, the second sentence is now inserted by the new law: “the date of finality of judgment shall be
deemed to be the date of its entry.”
Meaning, the judgment became final on March 20 although the clerk of court noted it on March 30. Under the new rules, the
date of entry (March 30) retroacts to March 20. That is the significance of the second sentence, they will automatically coincide.
Kahit i-enter pa yan next month, everything will retroact to the date of finality. It is simplier now.
Q: When the judgment becomes final and executory, what are the effects?
A: The finality of a judgment produces three (3) effects, to wit:
1.) The prevailing party is entitled to have the judgment executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial duty of the court (Rule 39);
2.) The court rendering the judgment loses jurisdiction over the case so that it can no longer correct the judgment in
substance, except to make corrections of clerical errors and omissions plainly due to inadvertence or negligence.
(Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L-13927, Feb. 28, 1960; Maramba vs. Lozano, L-21533,
June 29, 1967)
If after the judgment is rendered, you file a motion for reconsideration or new trial, there is a possibility for the
court to change its mind and its judgment. But once the judgment has become final, the court has no more power to
change its judgment substantially. The error will also become final, you can no longer change anything substantial.
EXCEPTION: There is one type of judgment which can be changed substantially even long after it became final
as an exception to this rule. In the study of Persons, Judgment for Support. The judgment for support, which can
be modified at any time because the obligation to give support depends not only on the resources of the
obligor, but also on the ever-changing needs of the obligee. (Malabana vs. Abeto, 74 Phil. 13)
EXAMPLE: The father refuses to support his minor child. After trial, the court orders the father to support the
child at P1,000 per month. Four years later, the father is already well-off and the child is already in nursery or
kindergarten. So the child tells his lawyer that the amount for support must be increased from P1,000 to P5,000. The
father says, “the court said P1,000 and if you change that to P5,000, that would be substantial.” The father is wrong.
The amount for support can be changed anytime. In the same manner. The amount can also be lowered, as when
the father loses his job.
3.) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May 15, 1962)
The same cause of action between the same parties can never be the subject matter of another litigation in the
future. Any subsequent case is barred by prior judgment.
Sec. 3. Judgment for or against one or more of several parties. - Judgment may be given for or against
one or more of several plaintiffs, and for or against one or more of several defendants. When justice so
demands, the court may require the parties on each side to file adversary pleadings as between
themselves and determine their ultimate rights and obligations. (3)
254
Q: Suppose there are 2 plaintiffs A and B, can the court render judgment in favor of plaintiff A and against plaintiff B? Or, is it
possible that in one case, one defendant will win and the other defendant will lose?
A: YES, especially when the causes of action or defenses are not the same. One may invoke a defense that is only applicable
to him but not applicable to others.
Sec. 4. Several judgments. - In an action against several defendants, the court may, when a several
judgment is proper, render judgment against one or more of them, leaving the action to proceed against
the others. (4)
Same concept. When there are 2 or more defendants, normally the court renders judgment sabay-sabay. That is possible.
Q. Is it possible that more than one judgment will arise in a civil action?
A. YES. There’s a judgment in favor of the plaintiff against the defendant and the trial still continues with respect to other
defendants. That would involve more than one decision. Judgment in favor of one defendant is rendered already but the trial will
continue with respect to other defendants is possible under Section 4.
EXAMPLE: There was a case where the government filed a case for expropriation against several landowners. The lands are
adjoining each other and the government would like to expropriate all these properties. The government had to file on complaint
against several landowners. One landowner asked that his case be tried ahead of the others. He was allowed under Rule 31 on
Separate Trial. His case was tried ahead. After trial, the court rendered judgment against him. His land was ordered expropriated.
Now, what happened to the other defendants? The Supreme Court said let the case continue against the other landowners. But
there would be a judgment in so far as one defendant is concerned. (Municipality of Biñan vs. Garcia, 108 SCRA 576)
Sec. 5. Separate judgments. - When more than one claim for relief is presented in an action, the court,
at any stage, upon a determination of the issues material to a particular claim and all counterclaims
arising out of the transaction or occurrence which is the subject matter of the claim, may render a
separate judgment disposing of such claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining claims. In case a separate
judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent
judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit
thereof to the party in whose favor the judgment is rendered. (5a)
Section 5 is also similar to Section 4.
Q: Can there be judgments at periods or stages of proceedings?

A: YES. There can be judgment insofar as one cause of action and the proceedings will continue as to other causes of action.
Let us go back to Rule 30 on Order of Trial. You will notice that there is order of trial when there are several claims in one
action.
EXAMPLE: Plaintiff files a complaint against several defendants. One defendant files a cross-claim against another defendant.
Two defendants file permissive counterclaims against the plaintiff. One defendant will file a third-party complaint against a third-
party defendant. The court renders judgment. It may render judgment as far as complaint is concerned, then the decision for the
cross-claim, then for the counterclaim.
The normal procedure is you try the case, tapusin mo lahat, then you render one judgment disposing of the complaint,
counterclaim, cross-claim and third-party complaint. Yet, separate judgments is also permissive under Section 5. If there are
separate trials for all these (counterclaim, cross-claim, etc), it is also possible that there would be separate trials.
Distinctions:
Section 3 – refers to an action by several parties
Section 4 – refers to an action against several defendants
Section 5 – refers to several claims for relief in an action
Sec. 6. Judgment against entity without juridical personality. - When judgment is rendered against
two or more persons sued as an entity without juridical personality, the judgment shall set out their
individual or proper names, if known. (6a)
Does that sound familiar? Two or more persons sued as an entity without juridical personality. Let’s go back to Rule 3 Section
15 and Rule 14 Section 8.
PROBLEM: Three people are members of an entity without juridical personality. They transact business with Mr. Alama. Mr.
Alama has no idea who are really the members of the said entity. He wanted to sue the members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 – Mr. Alama will file a case against the defendants by using the name of the entity they are using.
Q2: How should summons served to these defendants?

A: Rule 14, Section 8 – Summons may be served on anyone of them or to the person in charge of the place of business.
Q3: How should judgment be rendered against them?

A: Rule 36, Section 6 – when judgment is rendered, the judgment shall set out their individual and proper names.
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Rule 37
NEW TRIAL OR RECONSIDERATION
The counterpart of Rule 37 in criminal procedure is Rule 121. In criminal procedure, there is also the remedy of new trial and
reconsideration.
Section 1. Grounds of and period for filing motion for new trial or reconsideration. Within the period for
taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order
and grant a new trial for one or more of the following causes materially affecting the substantial rights of
said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have
guarded against and by reason of which such aggrieved party has probably been impaired in his rights;
or
(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and
produced at the trial, and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move for reconsideration upon the grounds
that
1. the damages awarded are excessive, that the

2. evidence is insufficient to justify the decision or final order, or
3. that the decision or final order is contrary to law.(1a)
Q: When may an aggrieved party file a motion for new trial or a motion for reconsideration?
A: Within the period for taking an appeal. Meaning, before the judgment becomes final and executory.
We have not yet discussed the law on appeal but the general rule is just like in criminal cases. If you lose, you have 15 days to
file an appeal. If there is no appeal within 15 days, the judgment will become final and executory.
Q: If I lose in a civil case, is there other remedy aside from appeal?

A: YES. You can file a motion for new trial but such motion must also be filed within 15 days. After 15 days, you can no longer
file a motion for new trial because the judgment becomes final and executory.
Q: What is the effect when judgment becomes final and executory?

A: Under Rule 36, the court loses jurisdiction over the case. The decision cannot be changed anymore. But as long as
judgment is not yet final, the court can change the decision.
Q: What is the effect of filing a motion for new trial or reconsideration on the period to appeal?
A: The period to appeal is suspended. When your motion is denied, you still have the remaining balance of the period to
appeal. Period to appeal is suspended except if your motion for new trial or reconsideration is pro-forma under Sections 2 and 5.
- Amended by naypes ruling, fresh 15 day period
NEW TRIAL
Q: What are the grounds for a motion for new trial in civil cases?
A: Under Section 1, there are two (2) GROUNDS:
1.) Fraud, Accident, Mistake, Excusable negligence (FAME);

2.) Newly Discovered Evidence (NDE)
FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence (FAME)
Let us relate this to Rule 9, Section 3 [b] on Default. The ground to lift or set aside the order of default is also FAME – that he
failed to answer because of FAME. So, there is a connection between Rule 9 and the first ground of a motion for new trial.
Q: How do you determine when to use Rule 9 or Rule 37 when one is declared in default?
A: Use Rule 9, Section 3 [b] after notice of the order of default but before judgment;
Use Rule 37 if there is already a judgment but not yet final and executory. Rule 37 is the remedy in case the defendant
who is declared in default failed to avail of Rule 9, Section 3 [b].
256
But Rule 37 on motion for new trial on the ground of FAME is broader. It applies to plaintiff or defendant whether in defau lt or
not because a defendant can still lose the case through FAME although he is not in default. Or, for example: The plaintiff, because
of his failure to appear in the case, the court dismissed the case. But the reason why the plaintiff failed to appear is because of
FAME. So the remedy for plaintiff is to move to set aside the dismissal and have the case continued by filing a motion for new trial
on the ground of FAME.
But definitely, Rule 37 also applies to a defendant declared in default and that is the connection between Rule 37 and Rule 9.
FRAUD (Extrinsic)
What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: na-utis) Under the law, there are two (2) TYPES of Fraud:
EXTRINSIC FRAUD and INTRINSIC FRAUD
GARCIA vs. COURT OF APPEALS

202 SCRA 228 [1991]
HELD: EXTRINSIC FRAUD is that type of fraud which has prevented a party from having a trial or from
presenting his case in court. INTRINSIC FRAUD is based on the acts of a party in a litigation during the trial, such as
the use of forged instruments or perjured testimony, which did not affect the presentation of the case, but did prevent
the fair and just determination of the case.
Q: When is fraud a sufficient ground for new trial?

A: FRAUD, to be a ground for new trial, must be EXTRINSIC – where the aggrieved party was misled by the adverse
party, and by reason thereof, he was prevented from presenting his case properly. (Gisburne Supply Co. vs. Quiogue, 34 Phil.
913; Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-30694, Oct. 31, 1969)
So, intrinsic fraud is not a ground for a new trial.
EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The case will be tried tomorrow.
I called you up and asked you to postpone the trial, “I will tell the court that I talked to you and you agreed that the trial will be
postponed.” The following day, I appeared in court. When the case is called, I said that I’m ready. Court: “Saan ang defendant?” I
said, “Wala! Awan!” I then moved to continue the trial.
So, naisahan kita. I maneuvered a scheme in such a way that you will not appear in court. You lost your opportunity to present
your side. That is EXTRINSIC FRAUD. Your remedy now is to file a motion for new trial on the ground that you have been a victim
of EXTRINSIC FRAUD by the plaintiff’s lawyer.
EXAMPLE: There is a case between you and me. During the trial, I presented witnesses to prove my cause of action. All my
witnesses were lying – they testified falsely. I presented falsified documents to prove my case. And I won the case because of
those perjured testimonies and falsified documents. You file a motion for new trial alleging FRAUD – that the testimonies and
documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC because you were not prevented you from going to
court. So, your remedy is to expose my perjured and falsified evidence. You can present rebuttal evidence. It is your obligation to
prove that my witnesses are lying and my documents are false. Definitely, you cannot ask a motion for a new trial.
ACCIDENT
What is ACCIDENT? It is something unforeseen, something unexpected or unanticipated. When is accident a sufficient
ground for new trial?
EXAMPLE: A party failed to appear in court because he got sick at the last minute. Or, in the middle of the trial, the lawyer of
the party becomes sick. With that, the complaint was dismissed or there was a judgment against you. You can move for new trial
on the ground of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil. 983)
EXAMPLE: The defendant was declared in default because he did not file an answer but actually he filed an answer through
mail, but somehow the post office did not deliver it to the court (baka may anthrax). That is an accident. With that, I can move for
new trial or lift the order of default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)
EXAMPLE: The trial was this morning. But I received only the notice of trial on March 9, 1998 stating that the trial is on March
5. So the notice of hearing was received days after the scheduled date. That is an accident which is a ground for new trial. (Soloria
vs. Dela Cruz, L-20738, Jan. 31, 1966)
MISTAKE
What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya pa, ‘nasayop.’
257
EXAMPLE: Defendant received summons and complaint. The defendant, instead of seeking assistance of a lawyer, went to
the plaintiff and asked for settlement. They kept on talking with the settlement but in the meantime, the period to file answer is also
running. Fifteen days had passed by they did not settle yet. Plaintiff moved to declare defendant in default. The court issued
judgment on default. Defendant said, “Layman man ako. Anong malay ko diyan sa ‘default-default’ na yan.” The lawyer said,
“Sana answer muna before you settle with the plaintiff.” So the lawyer filed a motion for new trial on the ground of MISTAKE. The
court granted it. (Salazar vs. Salazar, 8 Phil. 183)
GENERAL RULE: A client is bound by the mistakes of his lawyer and he cannot file a motion for new trial on the ground of
mistake of his lawyer. In the case of
BELLO vs. LABONG

L-10788, April 30, 1959
HELD: “The mistake of an attorney is not generally a ground for new trial. The mistake or lack of foresight or
preparation on the part of the attorney cannot be admitted as reason for new trial in civil cases, otherwise there would
never be an end to a suit so long as a new counsel could be employed who could allege and show that the prior
counsel had not been sufficiently diligent, or experienced, or learned.”
What the SC is trying to say is this: Suppose we will grant a new trial for the party on the ground of mistake of his first lawyer,
and after the new trial, the party still lost. So such party will now hire a third lawyer who will say, “Do you know why you lost? That
is because of the mistake of your second lawyer so we will file a motion for new trial.” So the third lawyer will allege mistake of the
second lawyer and then we will grant again a new trial and then he loses again. Then he gets a fourth lawyer and the fourth lawyer
will allege the ground of mistake of the third lawyer.
So, there will never be an end to a case. So the general rule to remember is, a client is bound by the mistakes of his lawyer
and he cannot file a motion for new trial on the ground of mistake of his lawyer. So that is not the type of mistake contemplated by
Rule 37.
The only EXCEPTION is based on equity decision like the case of
PEOPLE vs. MANZANILLA

43 Phil. 167
HELD: “A new trial is sometimes granted where the INCOMPETENCY or NEGLIGENCE of the party’s counsel in
the conduct of the case IS SO GREAT that party’s rights are prejudiced and he is prevented from presenting his
cause of action or defense.”
EXCUSABLE NEGLIGENCE
EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not a ground for new trial. But sometimes, it is difficult to
determine whether the negligence is excusable or inexcusable. That is also very difficult because there is negligence whether you
like it or not.
When is negligence excusable and when is it inexcusable? Our only guide here is decided cases because there are many
cases where the SC said that, it is excusable so we will grant a new trial. Or sometimes naman, wala, that is not excusable so no
new trial. So, we can go on the pattern and find out what type of negligence warranted a new trial and what type does not warrant
a new trial.
INEXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: If a defendant lost a case because his lawyer failed to file an answer. And the excuse of the lawyer was, “I
forgot about the deadline. Nalimutan ko. I did not keep tract of the deadline to file an answer.” And the SC said, “No dice. That is
not excusable on the part of the lawyer.”
EXAMPLE #2: Your case was dismissed because you failed to appear in court. Here comes now your lawyer asking for new
trial on the ground of excusable negligence, “I failed to appear in court because I again forgot about that schedule” or “because I
failed to wake-up because the night before, I and my friends went to a (Wigmore) party and I went home drunk.” Do you think the
SC will honor that? Is that excusable? Of course not!
EXAMPLE #3: In many cases, the reason is, “I failed to appear in court because my secretary in my law office failed to inform
me about that notice. Hindi niya nalagay ‘yung notice that I have to appear in court today.” SC said, “You are bound by the
mistake of your secretary and the client is also bound by that mistake of the lawyer. In the first place, why did you hire that kind of
secretary?”
EXAMPLE #4: In some cases, “Well, you see your honor, I failed to appear in court because my secretary did not calendar it.”
O, bakit niya hindi inilagay? “Well, she’s just a newly hired secretary, she does not know yet the importance of these things. First
time niya.” The SC said, “Hung hang! Pasensiya ka! Why did you not orient her before hiring her.”
So all these things hindi lumusot. All these things failed to convince the SC that the negligence of the party of the lawyer if
excusable.
EXCUSABLE NEGLIGENCE; Examples:
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EXAMPLE #1: The answer has to be filed the following day. The lawyer told the secretary, “I’m leaving tonight. I’ll come back
one week later. You better file tomorrow the answer because tomorrow is the deadline.” Then he left but the secretary failed to file it
because she also got sick. Ayan. Nagkapatong-patong na ang malas. Excusable iyan.
EXAMPLE #2: “I failed to appear in court because I had to come from Manila and the plane was delayed or the flight was
cancelled. But if the flight proceeded on time I would have been in Davao City by 7:00 A.M. and I would have been in court at 8:30
A.M.” Sometimes that happens eh where the flight is cancelled or delayed. Ano ngayon yan? Sabihin, you should have taken the
flight the night before para sigurado. “Eh, the night before fully booked na! Anong magagawa ko?” Ayan.
So in other words, these things, you could also consider it as what? Parang accident din no? Magkahawig eh! In other words
you should use your common sense. Whether the negligence is forgivable or not.
And to borrow the language of the SC, “The standard of care required of a party is that which an ordinarily prudent man
bestows on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)
So, for EXAMPLE: You are a businessman and you have an appointment with somebody who will give you a deal of P50
million. And you are scheduled to see him on this date and on this time. Can you afford to forget that transaction? I think there is
something wrong with you if you forgot it. You do not know what is important and what is not important. (Ang importante is yung
mahalaga! Di ba?)
There are things which you forget and somehow in forgetting it you cannot be blamed because it’s not really important. But
there are things which you cannot afford to forget.
EXAMPLE: Your classmate tells you, “This coming Saturday you go to the house.” “Why? Is there a (Wigmore) party there?”
“Wala man. I’m just inviting you to come ha?” And by Monday, “I was waiting for you, you did not show up!” “Tama ‘no? Sorry
nalimutan ko.” Now, is forgetting your appointment with your classmate two days before forgivable or not? I think forgivable iyan.
Anyway, istorya-istorya man lang. Para bang, “O, sige, di sa susunod na Sabado na lang.” Meaning, madaling ma-erase sa mind
mo yang mga ganyang klaseng appointment ba!
EXAMPLE: But suppose on Saturday morning you are supposed to go to church for your wedding, hindi ka nakasipot. And
then you tell your bride or the groom, “Pasensiya ka na ha? Kasal pala natin, nakalimutan ko eh. (Sana t-in-ext mo ako. Wala kang
load ‘no? hahaha!)” I think he or she will kill you for that kind of reasoning.
EXAMPLE: If a lawyer says, “I forgot that this is the day I should file an answer for my client.” Or, “I forgot to appear in court on
the day of his trial.” Is the court’s schedule or the schedule of a lawyer something important for him or not? I think you know the
answer ‘no?
Ayan! Kaya iyan ang guide. That is the meaning of excusable negligence.
NEWLY DISCOVERED EVIDENCE
Section 1(b). Newly discovered evidence, which he could not, with reasonable diligence, have
discovered and produced at the trial, and which if presented would probably alter the result.
Q: What is Newly Discovered Evidence (NDE)?

A: NDE is evidence which was discovered after trial, or cannot be discovered during trial given the exercise of reasonable
diligence, and if admitted, such evidence would probably alter the result of the case. There is a fighting chance ba! So, you could
not have discovered the evidence even with exercise of due diligence.
This is also one of the grounds for new trial in criminal cases. You lost a case maybe because you do not have enough
evidence to prove your cause of action. Kulang ba! Kulang ka ng ebidensiya kaya natalo ka. Then after you lost the case, you
came across an important evidence, maybe a witness or a document and you learned about it for the first time. Ang sayang ‘no? If I
was able to present this evidence baka panalo ako.
EXAMPLE: You are a defendant being sued because of non-payment of an account. Ang depensa mo, bayad na. Pero saan
ang resibo? “Basta binayaran ko siya, ok naman. Sabi nga niya wala na raw akong utang.” Now, so it’s your word against his word
and the court did not believe you. Then eto naman ang sabi ni X, “Natalo ka? Bayad naman yan ba.” Kung ganun, bakit alam mo?
X: “Nandoon man ako ba. I was there watching when you paid him.” Meaning, kung nagtestify ka (X) noon, baka daug ako
because my defense would have been corroborated by you. Yaaann!
Q: What are the REQUISITES for NDE?

A: The following:
1.) That the evidence was discovered after trial;

2.) That it could not have been discovered during trial even with exercise of reasonable diligence; and
3.) That if admitted, such evidence would probably alter the result.
THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;
Q: What happens if evidence is there all along and you failed to present it?
A: That is not NDE. That is forgotten evidence and not a ground for new trial.
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EXAMPLE: There was a case where a party, through his lawyer filed a motion for new trial based on this document. Bakit hindi
mo pre-ni-sent sa trial? “I misplaced it in my drawer. Nalimutan ko na meron pala akong resibo. So, let’s have a new trial because I
will now introduce a ground for new trial.” Obviously, it was discovered after trial. It was in your possession for so long. And
according to the SC, that is not a newly discovered evidence. (That is katangahan!) That is forgotten evidence which is not a
ground for new trial.
THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL

EVEN WITH EXERCISE OF REASONABLE DILIGENCE
Meaning, even if you try your best to look for it, you would not have found it. Now na natalo ka, you suddenly found it.
Now, because there are clients who are lazy eh. So, meron ka bang dokumento? “Wala eh. You see, marami akong file diyan
pero tingin ko wala eh.” “Wala gyud?” “Wala.” So, talo. Walang ebidensiya eh! After a while pag-halungkat, “Atty., naa man diay.”
“My golly! Nganong karon man lang. I gave you several months to look for that. You’re so lazy. Now, that you lost, you only find it
for an hour.” In this case, you did not comply with the second requisites – that it could not have been discovered before trial even
with the exercise of reasonable diligence.
THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE RESULT
Meaning, if there is a new trial and the newly discovered evidence will be admitted, it would probably alter the result. Probably
lang. May fighting chance, pero ‘chance’ lang. You are not saying that if the new evidence will be admitted, you will automatically
win. There is a probability that you will win. And the court will say, “I think probable. Ok, new trial granted. Then defendant,
PASOK!” (cguro, d jdge hir is myk enriquez?) Then, the evidence will be presented and we will find out if you can win.
NEW TRIAL vs. REOPENING OF TRIAL
The SC has already made pronouncements on what the reopening of trial meant. Reopening of trial is not found in the law.
There is no express rule, but it is admittedly allowed. Now give an example of reopening of trial.
EXAMPLE: Tapos na ang trial. What will come next is decision and then the party said, “Your honor, could we reopen the trial?
Meron kaming nakalimutan eh. I forgot an important piece of evidence.” Now, that cannot be new trial because wala pa man ang
judgment. Rule 37 applies only when there is already a judgment. In the example, is that a motion for new trial? No. It should be
called a motion for reopening of trial.
So if the motion is filed after the judgment is rendered, it is called motion for new trial. When the motion is filed before
a judgement is rendered, it should be called a motion for reopening of trial.
EXAMPLE: A judge after trying the case, “Alright, I will not decide yet. I want to go to the area and look at the property.”
Meaning, the court, on its own, would like to conduct an ocular inspection. That is a reopening of the trial. Now, was there any
motion by anybody? Wala man ba. The court itself initiated it. And that is allowed said by the SC. Reopening of trial is
bound by no rules. The judge with or without a motion can do it. The only ground for reopening of trial is interest of
justice. And that is very broad. So there are no rules.
The SC said: New trial should be distinguished from the exercise of the discretionary power of the court to REOPEN a trial for
the introduction of additional evidence, to clarify its doubts on material points. This discretionary power is subject to no rule other
than the paramount interest of justice and will not be reviewed on appeal unless the exercise thereof is abused. (Arce vs. Arce, L-
13035, Nov. 28, 1959) So it is one of the inherent powers of the court.
MOTION FOR RECONSIDERATION
Q: What is the ground for a motion for reconsideration?

A: Third paragraph of Section 1:
Within the same period, the aggrieved party may also move for reconsideration upon the grounds
that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final
order, or that the decision or final order is contrary to law.(1a)
Q: When do you file a motion for reconsideration?

A: Within the same period for filing a motion for new trial. Meaning, within the period for taking an appeal.
Q: What are the grounds for a motion for reconsideration?

A: The following are the GROUNDS for a motion for reconsideration:
1.) The damages awarded are excessive;

2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong)
Motion for reconsideration is more common. Motions for new trial are very rare.
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In a motion for reconsideration, you convince the court that the decision is wrong, “Dapat panalo ako, hindi siya.” You convince
the court, that its decision is wrong, that the decision is contrary to law. If you can convince the court, the court will issue another
decision reversing itself where from a loser [loooosseer!], you are now the winner and the original winner is now the loser
[loooosseer!]. Ganyan man yan ba, very common.
MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS
Sec. 2. Contents of motion for new trial or reconsideration and notice thereof. The motion shall be made in
writing stating the ground or grounds therefor, a written notice of which shall be served by the movant
on the adverse party.
A motion for new trial shall be proved in the manner provided for proof of motions.
A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits.
A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses
by whom such evidence is expected to be given, or by duly authenticated documents which are
proposed to be introduced in evidence.
A motion for reconsideration 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.
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.
(2a)
Q: What should be the form of a motion for new trial?

A: It must be in writing. You must state the ground or grounds for the motion, whether it is FAME or newly discovered
evidence. Then, of course, you must serve a copy of the motion to the adverse party. Meaning, you comply with all the requisites of
a valid motion.
PEOPLE vs. COURT OF APPEALS

296 SCRA 418 [Sept. 25, 1998]
FACTS: Inday filed a motion for new trial without a notice of hearing (this is a violation of paragraph of Section 2).
But she filed the motion within 15 days. Inday filed a supplemental motion with notice of hearing but filed beyond the
15-day period. Should the court deny the motion?
HELD: The motion should be denied. “A supplemental pleading subsequently filed to remedy the previous
absence of notice will not cure the defect nor interrupt the tolling of the prescribed period within which to
appeal.”
“We are not impressed by the argument that the supplement filed by the appellants on May 30 should be
deemed retroactive as of the date the motion for reconsideration was filed and, therefore, cured the defect therein. To
so consider it would be to put a premium on negligence and subject the finality of judgments to the forgetfulness or
whims of parties-litigants and their lawyers. This of course would be intolerable in a well-ordered judicial system.”
The second paragraph says, “A motion for new trial shall be proved in the manner provided for proof of motions…” What does
that mean? What is the proof of motions? The manner or proving motions is also found in Rule 15, Section 3:
Rule 15, Sec. 3. Contents. - A motion shall state the relief sought to be obtained and the grounds
upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall
be accompanied by supporting affidavits and other papers. (3a)
Q: Everytime you file a motion, is it necessary that the ground for your motion is supported by affidavits or other papers?
A: If it is necessary –YES. If it is not necessary – NO NEED. If necessary, you must attach documents or supporting affidavits
like a medical certificate for a motion to postpone due to illness.
Q: Is it necessary that when you file motion for new trial, you must attach affidavits?
REQUIREMENTS WHEN THE GROUND IS F.A.M.E.
Section 2, second paragraph says, “A motion for the cause mentioned in paragraph [a] of the preceding section shall be
supported by affidavits of merits…” Paragraph [a] is FAME. So, a motion for new trial on the ground of FAME must be
accompanied by affidavits of merits.
Q: What is an affidavit of merits?

A: An AFFIDAVIT OF MERITS is one which recites the nature and character of FAME on which the motion is based and
stating the movant’s good and substantial cause of action or defense and the evidence he intends to present if the motion is
granted, which evidence should be such as to warrant reasonable belief that the result of the case would probably be otherwise.
(Paz vs. Inandan, 75 Phil. 608; Manila Surety vs. Del Rosario, 101 Phil. 412)
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Meaning, you must state the facts surrounding FAME and your meritorious cause of action or defense whether you are the
plaintiff or the defendant. You explain why you are a victim of fraud, etc. and that you have a good cause of action or defense which
if there will be a new trial, you might win. It is not enough that you are a victim of FAME, you must also have a meritorious cause of
action or defense.
Q: What happens if you file a motion without affidavit of merits?

A: Then, your motion for new trial will be immediately denied. It is a fatal mistake. Your motion for new trial is
classified as a PRO-FORMA motion for new trial.
Q: Briefly, how do you classify a pro-forma motion for new trial?

A: It is a motion for new trial which does not comply in substance or in form with Sections 1 and 2 of Rule 37.
Q: What is the EFFECT of a pro-forma motion for new trial?

A: The period to appeal is NOT interrupted by the filing of such motion for new trial. Even the right to appeal may be
forfeited because of this defect. The effect is now stated in the last paragraph of Section 2:
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.
(2a)
When you lose a case you have exactly 15 days to appeal. Let’s say on the tenth day, I file a motion for new trial under Rule
37. And the motion was acted after one month. Shempre lampas na yung 15 days. Meaning, pag-tanggap ko ng decision, ten days
na ang nakaraan, and then another one month so 40 days na. But no problem because when you filed your motion on the 10th
day, the running of the period to appeal is interrupted. If denied, meron ka pang limang araw to appeal.
But, if the court says, “Your motion is denied because it is pro forma, there is no affidavit of merits.” Then, you cannot appeal
anymore because when you filed your motion, the period to appeal keeps on running. So by the time your motion is denied, even
the right to appeal is also lost. Iyan ang epekto ng pro-forma motion for new trial. It never interrupts the period to appeal. [Trivia:
PRO-FORMA means, PuRO pORMA lang, wala namang sinabi]
Q: Suppose a movant will file a motion for new trial in the ground of FAME with the affidavits of merits and says “I am a victim
of fraud and if such motion is granted, I have a good and meritorious cause of action or good and meritorious defense.” Is the
affidavit sufficient?
A: SC –No, those are generalities, you must recite the facts constituting the FAME. You must describe exactly what happened
to you. To say that you have good cause of action or defense is INSUFFICIENT.
You must state what is the nature of that cause of action or defense and evidence you intend to present. So, there is an
affidavit of merit but it is fatally defective. Again what will happen to the motion. It will be treated as pro-forma. The affidavit of
merit is defective.
MANIPOL vs. LIM TAN

55 SCRA 202
FACTS : A defendant in an action for damages based on quasi-delict filed a motion for new trial citing FAME. He
says, “I have a good and meritorious cause of action or defense. I intend to prove that I exercised due diligence in the
selection or supervision of my drivers and which if proven relieves the employer from liability.”
HELD: Affidavit of merits is defective. It is pro-forma motion. It does not state the meritorious defense. There is
only a general statement or conclusion of the defendant. The defendant should state the details of how he supervised
his employees. You go to specifics.
The law is very strict about affidavits of merits. It is not enough that you state your defense. You must demonstrate that you
have a meritorious claim of defense so that the motion for new trial will be granted. What is the used of granting a new trial if after
the new trial you will still end up losing the case? It would be a waste of time. According to SC, “ It would be pointless to reopen a
case if a party does not have a meritorious cause of action of defense for like a mirage it would merely raise false hopes and at the
end avail the movant nothing.” (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It would raise false hope if you will grant a new trial
when in fact the movant has no meritorious cause of action. It’s like a mirage or illusion – seeing things which are not there.
[malayo ang tingin, hindi naman duling…]
It seems that there are really two affidavits. Normally when a lawyer files motion for new trial, there is one affidavit reciting
FAME and reciting the meritorious cause of action or defense. If you follow the SC there are two (2) affidavits: FIRST – affidavit
regarding the FAME; and SECOND – affidavit regarding the meritorious cause of action of defense.
But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied that the real Affidavit Of Merits should be the second
one – that I have a good and meritorious defense. In reality, there should be two (2) affidavits – one reciting the FAME and
one reciting the substantial cause of action. That is why a motion for new trial on FAME should ordinarily be accompanied
by two affidavits. One setting forth the facts and circumstances alleged to constitute FAME and the other an Affidavit of
Merits setting forth the particular claims to constitute the movant’s meritorious defense or cause of action. The real
Affidavit of Merits is the second one.
REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE
Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the requirement?
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A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for the cause mentioned in (Section 1) paragraph [b] (NDE)
shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.”
Meaning, when the ground is newly discovered evidence, the motion shall be supported by affidavits also – affidavits of the
newly discovered witness – or a copy of the newly discovered document. You have to state what is the newly discovered evidence,
what the witness will say.
Q: What happen when such requirement is not complied with?

A: The motion for new trial on the ground of NDE is treated as PRO-FORMA and it never tolled the reglementary period to
appeal.
MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS
Q: Again, what are the grounds for a motion for reconsideration?

A: The following are the GROUNDS for a motion for reconsideration:
1.) The damages awarded are excessive;

2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong)
Q: Can you file a motion for reconsideration by just simply stating that “the decision is wrong or contrary to law,” or “the findings
of the judge are not supported by evidence”?
A: NO. Under Section 2, 3rd paragraph, you must 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.
So, you must point out what findings is not supported by evidence – what conclusion is contrary to law. Do not let the judge
look for it. The judge will never bother to look for it. You tell him what portion of the decision is wrong. You have to cite the
evidence too and the law which is violated or what provisions – ituro mo yan! Point it out clearly.
Q: What happen when you file a motion for reconsideration without making any reference, exhibit etc? Meaning, you did not
comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will never interrupt the reckoning of the prescriptive period.
The SC once defined a pro forma motion as one filed for the sake of form. (Dapin vs. Dionaldo, G.R. No. 55488, May 15, 1992)
Another POINT: when you file an motion for reconsideration on the ground that the judgment is contrary to law, it is not
enough for you to say that. You must always point out clearly why it is contrary to law, otherwise your motion will be denied or
treated as pro-forma.
Q: When you file an motion for reconsideration and it is denied, does it mean to say that your motion is pro-forma?
A: NO, because maybe the judge was not convinced but you tried your best. The denial of motion for reconsideration on the
ground that the decision or judgment is wrong does not automatically make the motion a pro-forma. What makes it pro-forma is, if
your motion for reconsideration does not specifically point out why judgment is wrong. But if you comply with Section 2, that is
already sufficient.
In the case of
MARIKINA VALLEY DEV’T. CORP. vs. FLOJO
251 SCRA 87 [1995]
HELD: “A motion for reconsideration merely reiterates or repleads the same arguments which had been
previously considered and resolved in the decision sought to be reconsidered, the motion is a pro forma one.”
“The circumstance that a motion for reconsideration deals with the same issues and arguments posed and
resolved by the trial court in its decisions does not necessarily mean that the motion must be characterized as merely
pro forma. A pleader preparing a motion for reconsideration must of necessity address the arguments made or
accepted by the trial court in its decision. The movant is very often confined to the amplification or further discussion
of the same issues already passed upon by the trial court.” Precisely, when I filed a motion for reconsideration, we will
go over the same points which the court has already discussed.
“Where the circumstances of a case do not show an intent on the part of the movant merely to delay the
proceedings, our Court has refused to characterize the motion as simply pro forma. The doctrine relating to pro forma
motions for reconsideration impacts upon the reality and substance of the statutory right of appeal, that doctrine
should be applied reasonably, rather than literally. The right to appeal, where it exists, is an important and valuable
right.”
“A motion for reconsideration which is not as starkly bare but which, as it were, has some flesh on its bones, may
nevertheless be rendered pro forma where the movant fails to make reference to the testimonial and documentary
evidence on record or the provisions of law said to be contrary to the trial court’s conclusions. In other words, the
movant is also required to point out succinctly why reconsideration is warranted.”
“It is not enough that a motion for reconsideration should state what part of the decision is contrary to law or the
evidence; it should also point out why it is so. Failure to explain why will render the motion for reconsideration pro
forma.” Meaning, when I point out part of the decision that is contrary to the law, it is not pro forma. But still it is pro
forma if I will not state that it is contrary to law.
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“Where a substantial bonafide effort is made to explain where and why the trial court should be regarded as
having erred in its main decision, the fact that the trial court thereafter found such argument unmeritorious or as
inadequate to warrant modification or reversal of the main decision, does not, of course, mean that the motion for
reconsideration should have been regarded, or was properly regarded, as merely pro forma.”
So, I point the decision but the court does not agree with me. That does not mean that my motion is automatically pro forma
because there was attempt to convince the court why it is wrong.
EFFECTS WHEN MOTION IS GRANTED
Sec. 3. Action upon motion for new trial or reconsideration. The trial court may set aside the judgment or
final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court
finds that excessive damages have been awarded or that the judgment or final order is contrary to the
evidence or law, it may amend such judgment or final order accordingly. (3a, R37)
Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance with the
provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material
and competent to establish the issues, shall be used at the new trial without retaking the same. (5a)
Q: In Section 3, how will the court resolved your motion for new trial?
A: The court may either deny or may set aside the judgment or final order and grant a new trial. Literally, if the
judgment is set aside, there will be a trial de novo, a Latin word for new trial.
BAR QUESTION: If Cholo files a Motion For New Trial and it is granted, will there always be a trial de novo?
A: It DEPENDS on the ground for the motion:
a.) If the ground is FAME, there will be a trial de novo because the proceeding will be set aside;
b.) If the ground is NDE, there is no trial de novo. The evidence admitted which is based on the same decision
will remain. The case will be opened only for the purpose of admitting the new evidence.
Q: If Cholo files a Motion For Reconsideration and it is granted, will there be a trial de novo?
A: There is NO trial de novo. The court will simply amend its judgment. It is only a re-study of provision. The court will
study its decision and go over the evidence and find out whether it made a mistake or not.
Sec. 4. Resolution of motion. A motion for new trial or reconsideration shall be resolved within thirty
(30) days from the time it is submitted for resolution. (n)
There is now a deadline for the court to act on the motion – within 30 days from the time it is submitted for resolution.
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION
Sec. 5. Second motion for new trial.
A motion for new trial shall include all grounds then available and those not so included shall be
deemed waived.
A second motion for new trial, 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.
No party shall be allowed a second motion for reconsideration of a judgment or final order. (4a, R37;
4, IRG)
As a rule, the motion for new trial shall include all grounds then available and those not included are deemed waived. So, if the
motion for new trial is based on two (2) grounds – FAME and NDE – either or both grounds should be included in the motion.
Q: Suppose a motion for new trial, which is based only on FAME, was denied, can there be a second motion for new trial on
the ground of NDE?
A: It DEPENDS:
a.) If the NDE is already existing when the first motion was filed, then the second motion for new trial will be
denied because of failure to raise it earlier – the second ground is deemed waived for failure to raise the
same;
b.) However, if the ground for the second motion for new trial is something not known or not existing or not
available when the party filed the first motion, then the second motion is allowed. The second motion is
not a pro forma motion.
So, what the law prohibits is you file a motion for new trial and you do not include all the grounds then available. If the ground
surfaced only later, then it is allowed. Therefore, the motion for new trial is an example of omnibus motion as defined in Rule 15,
Section 8:
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Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall include all objections then available, and all objections
not so included shall be deemed waived. (8a)
Q: What happens if you file a second motion for new trial on a ground which is then available when the first motion was filed?
A: The second motion is a pro forma motion and will not interrupt the remaining balance of the period to appeal after the first
motion was denied. There was a clear violation of omnibus motion rule.
Q: So, there are two (2) types of pro forma motion for new trial under Rule 37. What are they?
A: The following:
1.) A motion for new trial which is not supported by affidavits of merits – one which does not comply in
substance or in form with Section 2; and
2.) A second motion for new trial on a ground available to the party when the first motion was filed (Section 5).
Take note that the 2nd paragraph of Section 5 provides that “No party shall be allowed a second motion for reconsideration of
a judgment or final order.” Therefore, a second motion for reconsideration is always treated as a pro forma motion because it is
totally prohibited by Section 5.
NEW TRIAL vs. MOTION FOR RECONSIDERATION
Take note that in New Trial, there could possibly be trial de novo. If granted, everything is set aside and the party will now
present their evidence. But in trial de novo, we will not erase everything. Proceedings or evidence admitted will remain. Only, we
will open it for the purpose of introducing the new evidence and then the court will study it all over again.
In Motion for Reconsideration, there is no reopening of the case because all the court has to do is to go over the evidence
again and go over the decision to find out whether its decision is wrong and should change it. So, there is actually no trial de novo
in a motion for reconsideration.
Q: Distinguish a Motion for New Trial from a Motion for Reconsideration.

1.) As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME and NDE, whereas
In a MOTION FOR RECONSIDERATION, the grounds are excessive damages, decision is not supported with
evidence, or decision is contrary to law;
2.) As to trial:
If a MOTION FOR NEW TRIAL is granted, there could be a trial de novo; whereas
If as MOTION FOR RECONSIDERATION is granted, there is no trial de novo. The court will only amend its
decision
3.) As to a second motion:

A second MOTION FOR NEW TRIAL is allowed if the ground was not existing when the first motion for new
trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always prohibited under the rules.
Sec. 7. Partial new trial or reconsideration. If the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than all of the matter in controversy, or 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. (6a)
Q: Is there such a thing as motion for partial new trial or a motion for partial reconsideration?
A: YES, if the party is questioning only one aspect or portion of the case. Therefore, the rest can become final while the
disputed portion does not become final.
So, there could be a new trial or reconsideration only on such issues and there will be a final judgment with respect to the other
issues of the case. How could this happen? The best example is Rule 31, Section 2:
Rule 31, Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may
order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate
issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)
If the cross-claim or third-party complaint are tried separately, there will be different judgments. And in effect, you can file a
partial motion for new trial or reconsideration to the facts contemplated by the case.
Sec. 8. Effect of order for partial new trial. 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. (7a)
This is a continuation of Section 7.

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Q: When there is a partial new trial, what will happen to the judgment on the undisputed facts?
A: Either:
a.) the court will enter judgment on it; or
b.) the court may stay the enforcement until after the new trial.
The following rules will describe the situation in Section 8:
Rule 36, Sec. 5. Separate judgments. When more than one claim for relief is presented in an action, the
court, at any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may
render a separate judgment disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a
separate judgment is rendered, the court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure
the benefit thereof to the party in whose favor the judgment is rendered. (5a)
Finality of judgment with respect to one portion of the case and the trial continues with the other portion. There are several
judgments involving one action and technically, if one is finished, it can be enforced unless the court provided otherwise. Another
provision is Rule 39, Section 2 [b]:
Rule 39, Sec. 2. Discretionary execution.

xxxxx
(b) Execution of several, separate or partial judgments.— A several separate or partial judgment may be
executed under the same terms and conditions as execution of a judgment or final order pending appeal.
(2a)
Discretionary execution or execution pending appeal. In case of an appeal, Section 1, Rule 41 [g]:
Rule 41, Section 1. Subject of appeal. 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 these Rules to be
appealable.
No appeal may be taken from:
xxxxx
(g) 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
xxxxx
Let’s go back to Rule 37.
Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a
motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment
or final order. (n)
An order denying a motion for new trial or reconsideration is not appealable (c.f. Rule 41, Section 1 [a]. The remedy being an
appeal from the judgment or final order.
ILLUSTRATION: The judgment is against you. So you filed a motion for new trial or reconsideration. The court denied your
motion. So there is an order denying your motion for new trial or reconsideration. Now, you want to appeal.
Q: Appeal from what? From the main judgment or from the order denying your motion?
A: You appeal from the judgment. You cannot appeal from the order denying your new motion for new trial. That is related to
Rule 41, Section 1 [a]:
Rule 41, Section 1. Subject of appeal. 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 these Rules to be
appealable.
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration;
x x x x x x[
Well, of course, the filing of this motion will stop the running of the 15-day period, unless your motion for new trial is pro-forma.
Generally, the law does not allow an appeal from the order denying your motion for new trial. You appeal from the decision, not
from the order denying your motion. This provision will come out again when we reach the rule on appeal.
OUTLINE of the process: (after trial)
1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new trial or reconsideration;
4.) Appeal based on the decision/judgment and not based on the order denying your motion.
Rule 38
RELIEF FROM JUDGMENTS, ORDERS,
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OR OTHER PROCEEDINGS
Section 1. Petition for relief from judgment, order, or other proceedings. When a judgment or final order is
entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident,
mistake, or excusable negligence, he may file a petition in such court and in the same case praying that
the judgment, order or proceeding be set aside. (2a)
Rule 38 is known as the remedy of petition for relief from judgment or final order. The grounds cited here are actually the same
as the grounds for new trial – FAME. We are meeting FAME for the third time. It seems to be a ground that keeps on going back.
First in Default, then New Trial, and now a ground for petition for Relief from Judgment.
Q: What are the different remedies available to a defaulted defendant granted by the rules?
A: The following:
Upon service of the order of default but before judgment upon default is rendered under Rule 9 you can file a
motion to set aside the order of default on the ground that his failure to file answer was because of FAME;
If there is already a default judgment, the correct procedure is to file a motion for new trial under Rule 37 on the
ground of FAME within the period to appeal, meaning, before judgment becomes final and executory;
If the judgment is already final and executory, the remedy is to file a petition for relief from judgment under Rule
38 on the ground of FAME.
So if you are a passenger and you want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip, Rule 38 is last trip.
Are those the only remedy? For bar purposes pwede na! But if gusto mo ng mas maganda, marami pa. [abangan! See
discussions under Rule 47]
Q: Distinguish between relief from judgment under Rule 38 and new trial under Rule 37.
A: Rule 37 is substantially similar to Rule 38, the only difference being that the remedy is called Motion for New Trial if filed
before the judgment or final order has become final and executory, and Petition for Relief if filed thereafter but within the period
prescribed in Section 3, Rule 38.
And take note that only FAME could be the ground for Rule 38. There is no newly discovered evidence under Rule 38. Newly
discovered evidence is not a ground for petition for relief from judgment. Newly discovered evidence is available in Rule 37 but not
in Rule 38.
Q: In what court can you file a petition for relief from judgment?
A: “In such court and in the same case.” Meaning, in the very court where you lost and in the same case number. So,
para ka na ring nag-file ng motion for new trial because motion for new trial is filed before the same court and in the
same case.
Under the OLD RULES, when you want to file a petition for relief from the judgment of the RTC, you file your petition for relief
in the same RTC and in the same case. And if you want to file a petition for relief from judgement of the MTC, you file it in the RTC
like an appeal. The RTC will be the one to grant the relief from the judgment of the MTC. The MTC has no power to set aside its
own judgment. It can only be done by the RTC. But the RTC has the power to set aside its own judgment just like a motion for new
trial.
But NOW, under Section 1, you can file a petition for relief from judgment in ANY COURT on the ground of FAME, IN SUCH
COURT and in the same case. So, if you want to file a petition for relief from judgment of the MTC, you should file it in the same
MTC court. Now, MTC has authority to entertain petition for relief from judgment unlike the previous rule. That is a major change.
Q: Can a petition for relief from judgment be filed in the CA?

A: YES because of “in any court.”
Can you file a petition for relief not from a judgment but from an order? Section 2:
Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court
in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented
from taking an appeal, he may file a petition in such court and in the same case praying that the appeal
be given due course. (1a)
In most cases, or 95% of petition for relief, a party files a petition for relief from the judgment rendered against him. Actually
that is not true. The remedy of petition for relief is not only limited to judgments but the law says “orders, or other proceedings.”
That is very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal was beyond 15 days. So, there will be an order denying my
appeal because my appeal should be within 15 days.
Q: And suppose such order prevented me from taking an appeal because of FAME, can I file a petition for relief?
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A: Yes, not from the judgment but from the order denying my appeal on the ground of FAME. And the court will grant me relief
by allowing me to appeal. So there, I am not questioning the judgment but I am only questioning the order not allowing me to
appeal.
But as I said, in most cases, petition for relief are based on Section 1 rather than Section 2. Bihira yung petition for relief from
the order denying the appeal.
Is there a deadline in filing a petition for relief from judgment? YES. Section 3:
Sec. 3. Time for filing petition; contents and verification. A petition provided for in either of the preceding
sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such
judgment or final order was entered, or such proceeding was taken; and must be accompanied with
affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts
constituting the petitioner's good and substantial cause of action or defense, as the case may be. (3)
Q: When you file a petition for relief from judgment, or final order, what are the formal requirements?
A: The formal requirements are:
The petition must be verified;

The petition for relief must be accompanied with affidavits showing the FAME relied upon and the facts
constituting the petitioner’s good and substantial case of action or defense as the case may be.
Q: Now, does that requirement sound familiar again, that there must be an affidavit showing the fame and the petitioner’s
substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial, affidavit of merits. Therefore, AFFIDAVIT OF MERITS which is
a requirement in Rule 37 is also a requirement in Rule 38. That is the identical feature of new trial of fame and petition for relief.
Q: What will happen if a party files a petition for relief without any affidavit of merits, or with a defective affidavit?
A: The defect is FATAL and the petition will be denied outright because of lack of affidavit merits. It is the affidavit of merits
which serves as the jurisdictional basis for the court to entertain a petition for relief. (Fernandez vs. Tan Tiong Tick, L-15877, April
28, 1961)
Q: When do you file a petition for relief?

A: Once the judgment complained of has become final and executory because the remedy of new trial is lost. But it
does not mean that you can file your petition for relief anytime. There is also a deadline.
Q: What is the DEADLINE?

A: Under Section 3, the petition must be filed within:
SIXTY (60) DAYS from the time the petitioner learns of the judgment, order, or other proceedings to be
set aside, AND
Not more than SIX (6) MONTHS after such judgment or final order was entered, or such proceeding was
taken.
Q: What is the date of entry of judgment or final order?

A: It is the date of finality of judgment or final order (Rule 36, Section 2). So, the date of entry is deemed to be the date
of finality.
So there are two (2) periods: 60 days and 6 months; and BOTH periods must be complied with (Dirige vs. Biranya, L-22033,
July 30, 1966). Otherwise, if you fail to comply with the two periods the petition for relief will be denied for being filed out of time.
PROBLEM: There was a judgment rendered against me in June 1997 and it became final and there was entry of final judgment
in June 1997, meaning talo na ako last year pa. But I learned about it only last week or seven days ago. Today is February 1998.
So I asked my lawyer to file a petition for relief this week.
Q: Is the petition filed on time?
A: NO. It is filed out of time. It is true that I only learned about it a week ago. But definitely, the filing is beyond 6 months from
the date of its entry which is June 1997. You complied with the first period but you did not comply with second period. Both periods
must be complied.
PROBLEM: The judgment was entered against me last December 1997, and there was entry of final judgment in December
1997. I learned about it last December also; and now March, 1998, I will file a petition for relief from judgment.
Q: Can I still file the petition for relief?
A: No more. Although it is within 6 months (December to March is only 3 months) from date of entry BUT definitely, between
December to March is more than 60 days. So the petition can no longer be filed. That is how you apply the two periods. Both
periods must be complied.
Q: Is the period for filing a petition for relief extendible?

A: The remedy allowed by Rule 38 is merely an act of grace or benevolence intended to afford a litigant a penultimate
opportunity to protect his interest. Considering the nature of such relief and of the purpose behind it, the periods fixed by said rule
are NON-EXTENDIBLE and is never interrupted; nor can it be subject to any condition or contingency because it is itself
devised to meet a condition or contingency. (Smith, Bell & Co. vs. Phil. Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs.
Tameta, L-16473, April 20, 1961)
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Well, of course, petition for relief according to SC, is penultimate remedy given by the law to a victim of FAME. Because, if you
are a victim of FAME, you lose the case because of that reason. Somehow the law would like to help you lalo na pagna-default ka.
O.K., you have Rule 9, file ka nang motion to lift order of default. “Hindi ako nakahabol eh, may-judgment na.” O sige, Rule 38 –
petition for relief. But paglumampas ka dyan, sorry na lang.
Meaning, the law cannot help you forever. The law can only help you up to a certain period. If you still do not do anything
about it, pasensiya ka na.
Sec. 4. Order to file an answer. If the petition is sufficient in form and substance to justify relief, the
court in which it is filed, shall issue an order requiring the adverse parties to answer the same within
fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may
direct, together with copies of the petition and the accompanying affidavits. (4a)
You file a petition for relief, the court will issue an order requiring the other party to answer. It is like a complaint all over again
where you are given 15 days to answer. Meaning sagutin mo “Would you agree that your opponent is a victim of FAME?” In other
words, do you agree or disagree? – yan ang sagutin mo. “Do you agree that he has meritorious cause of action (or defense)?”
Meaning, you are given the right to oppose the petition for relief.
Sec. 5. Preliminary injunction pending proceedings. The court in which the petition is filed, may grant
such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon
the filing by the petitioner of a bond in favor of the adverse party all damages and costs that may be
awarded to him by reason of issuance of such injunction or the other proceedings following the petition;
but such injunction shall not operate to discharge or extinguish any lien which the adverse party may
have acquired upon the property of the petitioner. (5a)
Preliminary injunction actually is a type of provisional remedy which is governed by Rule 58. Injunction is to stop ba, to enjoin
somebody or stop the court from doing an act. That is the essence of injunction.
EXAMPLE: I lost in a case. The judgment became final and executory because I did not make an appeal. However, I filed a
petition for relief. In the meantime, my opponent is asking the court to execute the decision which is his right because the judgment
is already final and executory. In other words, I am questioning the judgment of the court while siya naman, he is asking the court to
enforce the judgment.
Q: Now, what is my remedy to stop the enforcement of the judgment?

A: Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop the enforcement of the judgment. But I
have to put up a BOND conditioned that in the event that my petition for relief is not meritorious, I will pay for all the damages that
the other party will incur because of the delay in the execution.
Sec. 6. Proceedings after answer is filed. After the filing of the answer or the expiration of the period
therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are
not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the
judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter
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. (6a)
BAR QUESTION: When a petition for relief from judgment is filed, what are the hearings that will be conducted by the court?
A: In proceedings for relief from judgment, there may be two (2) hearings, to wit:
a hearing to determine whether the judgment or order complained of should be set aside, and
if the decision thereon is in the affirmative, a hearing on the merits of the principal case.
So, the FIRST HEARING is to determine whether the petition should be granted or not – is the petition meritorious or not?
Was there FAME? Is there affidavit of merit? Is the affidavit proper? Is the petition filed within the period allowed by the law or not?
Now, if the petition is denied that is the end of the story. Wala na.
Now, if the petition for relief is granted, the judgment will be set aside as if it never existed. Then we will now try the case all
over again as if a motion for new trial has been filed. That is the second hearing. The SECOND HEARING is the trial on the merits
or a trial de novo.
Now, somebody was commenting, “Ito bang petition for relief parang appeal din? Is this similar to appeal?” The answer is NO.
In the first place, there is no appeal here. Kaya nga the judgment has become final and executory because there was no appeal.
Now, in an appeal, for example: Natalo ka sa kaso. When you appeal and you win, the decision will be overturned. From losing,
you become the winner. That is the effect of appeal.
But in petition for relief, you are not asking the court to change its decision. When a petition for relief from judgment is granted,
the decision against you will be set aside as if it was never rendered and we will try the case all over again. In a petition for relief,
the court has no power to change its decision because it has already become final and executory. But its power under
Rule 38 is to set it aside as if it was never rendered and conduct a new trial as if a motion for new trial has been filed. So
please do not confuse Rule 38 with the remedy of appeal.
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Sec. 7. Procedure where the denial of an appeal is set aside. 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. (7a)
This is a continuation of Section 2 – what can be questioned in Rule 38 is not only a judgment but also an order, such as an
order denying an appeal.
Q: Can I file a petition for relief from the denial of an appeal?

A: YES.
Q: And if my petition for relief from the order denying the appeal is granted, what will happen?
A: According to Section 7, the court will now grant the appeal and allow the appeal to proceed as if it was filed on time.
Meaning, the judgment will not be set aside but I will be given the right to appeal if the failure to file an appeal as due to FAME.
Rule 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Rule 39 is on the subject of Execution, Satisfaction and Effect of Judgments. This is the longest rule in the study of Civil
Procedure. Take note that there are 48 Sections. Let us first review the fundamentals.
Q: Define execution.
A: EXECUTION is the remedy provided by law for the enforcement of a judgment. (21 Am. Jur. 18) It is the fruit and the end of
the suit and is very aptly called the life of the law (PAL vs. Court of Appeals, 181 SCRA 557).
It would be useless if there is judgment but you cannot enforce the same. When you receive the decision of court in your favor,
what will you do with that? If there is no way to enforce that decision, i-laminate mo na lang yan. Useless eh!
Q: Who will enforce the judgment?

A: The very same court which rendered the judgment.
Q: How is execution generally done?

A: It is generally done by filing a motion for execution by the prevailing party and the court will then issue an order of
execution, which will be followed with a writ of execution, and the sheriff will enforce the judgment.
So, we file a motion in court after the judgment has become final and executory.
Q: How can the court issue the order when it has already lost jurisdiction over the case? because from what we have learned
here is that, one of the effects of the finality of judgment is that the court loses jurisdiction over the case. And when the court loses
jurisdiction, it can no longer act on the case. So, how can it still issue orders in that case when actually, once the judgme nt
becomes final and executory, the trial court loses jurisdiction over the case and it can no longer act in that case?
A: What is meant by that statement is that, the court can no longer change the judgment. That is why new trial and
reconsideration is not anymore available in this stage. The judgment is beyond the power of the court to change or alter.
BUT definitely the court can act on that case for the purpose of enforcing its judgment because it is absurd to claim
that a trial court has the power to try and hear a case but once the judgment has already become final, it has no more
power to enforce it. If you will really describe jurisdiction in its complete aspect, we can say jurisdiction is “the power of
the court to act on the case, to try, to decide and to enforce its judgment.” That would be more complete. Because
enforcement is part of the court's jurisdiction.
Q: Against whom shall the execution issue?

A: Generally, execution can issue only against a (losing) party to the case and not against one who is a complete stranger
because majority of judgments are in personam. They are only enforceable against the parties themselves or their successors-in-
interest – people who derive their rights from him. And a judgement can never be enforced against a complete stranger who never
had his day in court. (Cruzcosa vs. Concepcion, 101 Phil. 146; Castañeda vs. De Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs.
Enriquez, 55 O.G. 10545, Dec. 21, 1959)
Q: What portion in the decision is normally the subject of execution ?

A: It is the dispositive portion – the “WHEREFORE…” – that is going to be enforced. (Robles vs. Timario, 58 O.G. 1507, Feb.
19, 1962)
CLASSES OF EXECUTION
Q: What are the classes of execution under the law?

A: The following:
I. As to their nature:
1.) COMPULSORY execution – known as Execution as a Matter of Right (Section 1)
2.) DISCRETIONARY execution – known as Execution Pending Appeal (Section 2)
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II. As to how it is enforced (Section 6):
1.) EXECUTION BY MOTION
2.) EXECUTION BY INDEPENDENT ACTION
COMPULSORY EXECUTION
(Execution as a matter of right)
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Section 1. Execution upon judgments or final orders. – 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.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for
in the court of origin, on motion of the judgment obligee, submitting therewith 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.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct
the court of origin to issue the writ of examination.
Q: What are the conditions for compulsory execution?

A: The following are the conditions:
1.) FIRST CONDITION: If a judgment has disposed already of the action or proceeding then it can be executed ;
2.) SECOND CONDITION: The period to appeal has expired and no appeal has been filed/taken from the
judgment.
Under the first condition, if a judgment has disposed already of the action or proceeding then it can be executed because if the
judgment or order has not yet disposed of the action or proceeding, that is called an interlocutory judgment or order.
One of the effects of finality of a judgment under Rule 36 is that the prevailing party is entitled to have the judgment executed
as a matter of right. And it is the ministerial duty of the court to execute its own judgment. So once the judgment has become final,
all that the winner or prevailing party has to do is to file an action in court for execution, the court has to issue.
When the law says it is a matter of right upon a judgment or order that disposes the action or proceeding, it means that after
the judgment was rendered, there is nothing more for the court to do because its job is over. Therefore, if there is something more
that the court can do, as a rule, you cannot execute. That is why conditional judgments, incomplete judgments cannot be executed.
Under the second condition, we must wait for the period to appeal to expire before we can move for execution. So, if the period
to appeal has not yet expired, then we cannot execute the judgment. As corollary to that rule we have this question:
Q: May the court refuse to execute a judgment on the ground that the judgement was wrong or erroneous?
A: NO, because it is a matter of and the issuance of the corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which is compellable by mandamus. (Ebero vs. Cañizares, 79 Phil.
152) The principle is: No matter how erroneous a judgment may be, so long as the lower court had jurisdiction over the
parties and the subject matter in litigation, (in short the judgment is valid), the said judgment is enforceable by execution
once it becomes final and executory. The error also becomes final. If it is erroneous, the remedy is to appeal, otherwise
the error becomes final as well.
In execution, if you are not careful, there are lawyers who are very good in thwarting an execution where a series of
maneuvers are utilized - we can still be delayed by questioning this and that and sometimes courts are unwitting accomplices. That
is why in the 1994 of
PELAYO vs. COURT OF APPEALS

230 SCRA 606
HELD: “We have time and again ruled that courts should never allow themselves to be a party to maneuvers
intended to delay the execution of final decisions. They must nip in the bud any dilatory maneuver calculated to defeat
or frustrate the ends of justice, fair play and prompt implementation of final and executory judgment. Litigation must
end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a
judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put
an end to controversies, courts should frown upon any attempt to prolong them.”
GENERAL RULE: Judgment is enforceable by execution once it becomes final and executory.
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)
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1. When there has been a change in the situation of the parties, which makes the execution inequitable;
2. When it appears that the controversy has never been submitted to the judgment of the court;
3. When the judgment was novated by subsequent agreement of the parties;
4. When it appears that the writ of execution has been improvidently issued;
5. When the writ of execution is defective in substance;
6. When the writ of execution is issued against the wrong party; and
7. When the judgment debt has been paid or otherwise satisfied.
[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION OF THE PARTIES
WHICH MAKE THE EXECUTION INEQUITABLE. (Supervening Fact Doctrine)
One of the most important exceptions is the first one: When there has been a change in the situation of the parties which make
the execution inequitable. Meaning, from the time na nagkaroon ng final judgment up to the present, there has been a change in
the situation of the parties so that if we will execute, the judgment becomes inequitable already. So, this is just another way of
saying that there has been a SUPERVENING EVENT that happened which makes execution inequitable.
EXAMPLE: There was a case where A filed a case to eject B from his property and B lost the case and there was a judgment
ordering him to vacate the property of A. But while the case was going on, A mortgaged his property to the bank. In the meantime,
he failed to pay his loan and the bank foreclosed the mortgage. So the property was sold at public auction. And at the auction sale,
B, the one occupying it, bought the property. The owner now is B. But there is a final judgment ejecting him. Now, shall we insist on
the judgment ejecting B? No because B is now the owner. The fact that B became the owner is a supervening event.
PHIL. VETERANS BANK (PVB) vs. IAC

178 SCRA 645
NOTE: There was a time before that the PVB was closed for 5 to 6 years because I think they have some
problems. So the Central Bank has to take over. The Central Bank has ordered to stop the operation – placed under
receivership, the Central Bank will control. Now under the Central Bank Law, once the Central Bank takes over the
control of a private bank, all its assets has to be preserved. No assets will be sold or disposed of.
FACTS: There was somebody who sued PVB, and PVB lost. So there was a judgment which became final. And
the winner asked the court to execute. Practically, you have to levy on the property of the bank. In the meantime, the
PVB was placed under receivership, where under the law, it cannot be disposed of because it is under the control of
the Central Bank.
ISSUE: Can the prevailing party insist on the enforcement of the judgment and get and levy the property of the
PVB?
HELD: NO. The placement of the bank under receivership is a SUPERVENING EVENT. “Once a decision has
become final and executory, it is the ministerial duty of the court to order its execution, admits certain exceptions. The
fact that petitioner is placed under receivership is a supervening event that renders a judgment notwithstanding its
finality unenforceable by attachment or execution.”
SAMPAGUITA GARMENTS CORP. vs. NLRC

233 SCRA 260
FACT: An employee was terminated by his employer on the ground of theft. He stole company property. The
management filed also a case of theft against the employee. But in the meantime the employee also filed a labor case
against the employer for illegal dismissal and prayed for reinstatement with back wages. After hearing, the NLRC
ruled that there was illegal termination and ordered the reinstatement of the employee and payment of backwages.
The NLRC decision became final. In the meantime, the accused was convicted in the criminal case for theft and
ordered to go to prison.
ISSUE: What happens now to the final judgment of the NLRC reinstating the employee?
HELD: “An employee’s conviction for theft, which was affirmed by the RTC and the CA, is a
SUPERVENING CAUSE that renders unjust and inequitable the NLRC decision mandating the employee’s
reinstatement with backwages.”
Take note however that for the supervening event to apply, the supervening event must happen after the judgment
has become final and executory. Not that the supervening event happened while the case was going on. If the case is going
on and something happened which you believe would make the decision against you unfair, your duty is to bring it to the attention
of the court so that the court deciding the case would take that into consideration. In the case of
VALENSONA vs. COURT OF APPEALS

226 SCRA 36
HELD: “While the rule is that a stay of execution of a final judgment may be authorized if necessary to
accomplish the ends of justice, as for instance, where there has been a change in the situation of the parties which
makes such execution inequitable, nevertheless the said rule cannot be invoked when the supposed change in the
circumstances of the parties took place while the case was pending, for the reason that there was then no excuse for
not bringing to the attention of the court the fact or circumstance that affects the outcome of the case.”
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The ruling in VALENZOLA was reiterated in
ABOITIZ vs. TRAJANO

278 SCRA 387 [1997]
HELD: “We are of course well aware of the rule authorizing the court to modify or alter a judgment even after the
same has become executory, whenever circumstances transpire rendering its execution unjust and inequitable.
However, this rule, we must emphasize, applies only to cases where the facts or circumstances authorizing such
modification or alteration transpired after the judgment has become final executory.”
[3] WHEN THE JUDGMENT WAS NOVATED BY SUBSEQUENT AGREEMENT.
QUESTION: Can the parties enter into a compromise agreement when there is already a decision?
ANSWER: YES. Compromise agreement is welcome anytime – before the case is filed, while the case is going on, while the
case is on appeal.
Q: Now suppose there is a decision in my favor against you and then you approach me and say, “Pwede ba pag-usapan na
lang natin ito?” “Sige okay.” Then we arrive at another agreement which we signed, where the agreement is different from the
decision in my favor. Can it be done?
A: Yes, I can waive my rights under the judgment. There is now a new agreement between us.
Q: Can I execute on the original judgment?

A: No more, because the new agreement novated the judgment. Take note that in case of novation, the new obligation
must be totally incompatible with the first obligation.
A related question:
Q: Can one court by injunction or restraining order stop the execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to interference.
EXCEPTIONS:(when the enforcement of a final judgment may be stopped by way of injunction)
1.) Rule 38, Section 5:
Rule 38, Section 5: Preliminary injunction pending proceedings. – The court in which the petition is filed,
may grant such preliminary injunction as may be necessary for the preservation of the rights of the
parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if the
petition is dismissed or the petitioner fails on the trial of the case upon the merits, he will pay the
adverse party all damages and costs that may be awarded to him by reason of the issuance of such
injunction or the other proceedings following the petition; but such injunction shall not operate to
discharge or extinguish any lien which the adverse party may have acquired upon the property of the
petitioner.
In effect, there is a final and executory judgment but the court will issue an injunction to stop this enforcement
because of the pendency of a petition for relief from judgment.
2.) When there is an action for annulment of judgment of the RTC filed in the CA.
The CA may issue a writ of preliminary injunction – annulment of judgment, certiorari, or prohibition cases where the CA will
issue a preliminary injunction to stop the RTC from enforcing its judgment pending the resolution of whether its judgment was
rendered in excess or without jurisdiction- annulment of judgement, certiorari, or prohibition cases where the CA will issue a
preliminary injunction to stop the RTC from enforcing its judgement pending the resolution of whether its judgement was
rendered in excess or without jurisdiction.
So, those are the exceptions.
SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
Q: Is there any other instances where a judgement maybe executed as a matter of right?
A: YES, when the losing party appealed the RTC decision to the CA and the CA affirmed the decision of the RTC. Kung may
appeal, the judgment is not final, you cannot execute. The case is now in the CA, the CA decided in your favor, the RTC judg ment
was affirmed and the CA decision has also become final and executory. So you can now execute.
Q: How do you execute in that situation?

A: That is now covered by the second and third paragraphs of Section 1:
in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the
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the court of origin to issue the writ of execution.
Now the usual procedure no, when you win in the RTC and the losing party appeals, the records of the case will be brought to
the CA. Later, there will be a CA decision: The judgment of the RTC of Davao City is affirmed in toto. Now you have to wait for the
CA judgment to become final because that may be appealed further to the SC. If the judgment becomes final, the clerk of court will
make an entry of final judgment of the CA decision. Normally after that, the records from the CA will be returned to Davao. It will be
sent back to the court of origin. Once the record is back, the RTC is supposed to tell you, the records are here. That is the time you
file a motion for execution. You will file it in the RTC.
But sometimes, it takes months for the CA to return the records. That is the trouble with the CA. It takes them several months,
when the case is appealed, before they tell you that the record is here.
In the PRESENT rules, this is taken from the SC Circular 24-94 which took effect in 1994, hindi na kailangan hintayin ang
records na bumalik dito. Just get a certified copy of the CA decision, get a copy of the entry of final judgment of the CA. You just
attach a copy of the CA judgment and a certificate from the CA clerk of court that it is already final and executory - meaning, that
there is already entry of final judgment. This is much faster than waiting for the records to be returned.
The first paragraph in Section 1 normally deals with judgment usually becoming final and executory in the RTC. The rest of the
paragraph deals with appeal which affirmed the decision of the RTC. So that is the procedure for execution – both cases, execution
is a matter of right because judgment is final and executory.
The alternative which is the last paragraph, in the interest of justice, you can file also your motion for execution in the CA and
the CA will direct the RTC to issue the writ of execution.
THIRD INSTANCE: CASES UNDER SECTION 4
Q: Is there another instance when execution becomes a matter of right?

A: This is the third instance found in Section 4:
Sec. 4. Judgments not stayed by appeal. -IRAS Judgments in action for injunction, receivership,
accounting and support, and such other judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in
its discretion may make an order suspending, modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party. (4a)
GENERAL RULE: If there is an appeal, the judgment will be stayed.

EXCEPTIONS (Under Section 4): Judgments in actions for injunction, receivership, accounting, support, judgment
declared to be immediately executory.
So, actions for injunction, receivership, accounting, support. So for example: there’s an injunction from the court: “The
defendant is enjoined from trespassing on plaintiff’s land.” Then you appealed. So, the decision is not final. Now, if the judgment is
not yet final, what will you do in the meantime. So, you’ll say; “I’ll just continue to trespass because anyway the judgment is not yet
final.” Ah hindi yan pwede. Even if the judgment is not yet final, even if it is on appeal, you have to honor the injunction. So, in
effect, it is a matter of right.
Another Example: An order directing you to render an accounting. Take the case of recovery of possession of land with
accounting of the income that you received. After trial, “Okey, Defendant, you turn over the possession of the property to the
plaintiff and you render an accounting.” Appeal ka. Pag appeal mo, there must be an accounting in the meantime.
So, if there is a judgment for an action for support, you must comply with the judgment even before it becomes final. So, the
amendment now includes support and this phrase, “such other judgments as are now or may hereafter be declared to be
immediately executory.” Any judgment which is declared by law to be immediately executory has to be enforced even before it
becomes final and executory even if there is an appeal.
Q: Give an example of a law which declares a judgement to be immediately executory?

A: The best example would be the Summary Procedure – where a decision of the MTC in a civil case is appealed to the
RTC, the decision of the RTC is immediately executory even if we go to the CA. It has to be executed unless the appellate court will
stop the execution in the meantime.

FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES
Q: Is there another instance when execution becomes a matter of right?
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A: YES, under Rule 70 – a judgment of the MTC in a forcible entry or unlawful detainer case is immediately executory (i.e.
subject to immediate execution) even if it is not yet final and executory.
TO SUMMARIZE:
Q: When is execution a matter of right?
A: In the following:
1.) Section 1, paragraph 1 – no appeal; judgment becomes final;
2.) Section 1, paragraph 2 – there is an appeal; once the CA judgment becomes final;
3.) Section 4 – Judgment in an action for injunction, receivership, accounting, support, judgment declared to be
immediately executory; and
4.) Rule 70 – Judgments in Forcible Entry and Unlawful Detainer cases.
DISCRETIONARY EXECUTION
(Execution pending appeal)
Section 2. Discretionary execution. –

(a) Execution of a judgment or final order pending appeal. – On motion of the prevailing party with notice
to the adverse party filed in the trial court while it has jurisdiction over the case and is in the possession
of either the original record or the record on appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order the execution of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing.
(b) Execution of several, separate or partial judgments. - A several, separate or partial judgment may be
We’ll now go to the second type of execution - discretionary or execution pending appeal. Discretionary, meaning, the court
may or may not order the execution.
Here, the prevailing party files a motion for execution within the 15 days period. So in other words, the judgment is not yet final
and executory, normally, within the period to appeal.
Q: Normally, can you file a motion for execution within the period to appeal?
A: As a rule, you cannot because it is not yet final. But by EXCEPTION, Section 2 allows you, provided, according to
the last paragraph, discretionary execution may only issue upon ‘good reason’ to be stated in the special order after
due hearing.
Q: Therefore, what are the requisites for discretionary execution?

A: The following are the requisites for discretionary execution:
1.) There must be a motion filed by the prevailing party;
2.) There must be a notice of the motion given to the adverse party; and
3.) There must be good reasons to execute to be stated in a special order after due hearing.
Why discretionary? Because the court may or may not grant the execution depending on whether there is a good reason or no
good reason. Unlike in Section 1, when the judgment has become final and executory, you do not have to cite any good reason.
The only reason for the execution is that the judgment becomes final and executory. But in the case of execution pending appeal,
you must justify it – the party must convince the court to grant the execution. And remember according to the SC, execution under
Section 2 is not the general rule, that is the exception.
“The requirement of good reason is important and must not be overlooked, because if the judgment is executed and, on
appeal, the same is reversed, although there are provisions for restitution, oftentimes damages may arise which cannot be fully
compensated. Accordingly, execution should be granted only when these considerations are clearly outweighed by superior
circumstances demanding urgency, and the above provision requires a statement of those circumstances as a security for their
existence.” (City of Bacolod vs. Enriquez, 101 Phil. 644)
It is even a misnomer – execution pending appeal. For all you know, the losing party may or may not appeal. It is actually
called execution pending appeal because you are filing the motion within the period to appeal.
Q: What will happen if there are no good reasons?
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A: The writ of execution is void because it does not state why you are executing a judgment. (AFWU vs. Estipona, L-17934,
Dec. 28, 1961) And remember that execution pending appeal is the exception rather than the rule. And there is a possibility that the
judgment in your favor will be reversed on appeal.
Q: Suppose we will execute the judgment pending appeal and the appeal will proceed then it will be reversed, what will happen
then?
A: If that happens, then there is Section 5 – eh di, magsaulian tayo if it is reversed totally, partially, or annulled on appeal or
otherwise. There will be MUTUAL RESTITUTION. That is the remedy under Section 5. But the trouble is ang hirap man ng saulian,
eh. There could not be a 100% perfect restitution. That is the same asking the question, how can you unscramble an unscrambled
egg? This is one reason why execution pending appeal is not favored.
Section 5. Effect of reversal of executed judgment. - Where the executed judgment is reversed totally or
partially, or annulled, on appeal or otherwise, the trial court, may, on motion, issue such orders and
justice may warrant under the circumstances (5a)
Q: Give examples of GOOD REASONS which would justify execution pending appeal.
A: Following are example of good reasons:
1.) When there is danger of the judgment becoming INEFFECTUAL. (Scottish Union vs. Macadaeg, 91 Phil. 891);
In this case of MACADAEG, the plaintiff sued a foreign corporation doing business in the Philippines. So it has assets
no? The plaintiff sued the foreign company and he won, there was award, but hindi pa final. In the meantime, plaintiff
learned the foreign company is going to stop completely its business in the Philippines and they are going to send back all
their assets abroad. Sabi ng na plaintiff: “Aba delikado ako. Suppose after the appeal, I still win and I will start running
after the defendant na wala naman dito. It has no more office, no operations, no assets; but in the meantime meron pa”?
So the plaintiff filed a motion for execution pending appeal. If we will wait for the judgment to become final, by that time the
judgment will become ineffectual.
2.) OLD AGE; There was a case an old woman files a case against somebody to recover her land from the defendant which
the latter has deprived her of the property for years. The defendant enjoyed the property and the fruits. After years of
litigation she won, she was about 80. And then mag-aappeal pa yong kalaban. The old woman filed a motion in court
asking for immediate execution even if the judgment is not yet final on the argument that “I have been deprived for years
of the possession and of the property; and there is a probable appeal which may take another couple of years. By the time
I win the case on appeal, I may already be dead. I have not enjoyed the property and the fruits.” The SC said, all right that
is a good reason.
3.) Where the appeal is for the purpose of DELAY;
Q: How about the argument that the intended appeal is dilatory? It is only intended to prolong the supposed execution
and therefore the losing party has a chance to win the appeal. Is that a good ground for execution pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300) and JAVELLANA vs. QUERUBIN (July 30, 1966) the
SC said that, that is a good reason – when the appeal is interposed for delay.
However, in the case of AQUINO vs. SANTIAGO (161 SCRA 570) the SC said that it is not a ground because it is as
if the trial court is already acting like the CA. It is only the CA which has the power to claim that the appeal is without merit.
That’s another reasoning.
But in the case of HOME INSURANCE CO. vs. CA (184 SCRA 318), the SC ruled that, that would be a good reason
again specially that there are many factors to show the inequity of not executing the judgment immediately (if coupled with
other reason). That’s why in the case of
HOME INSURANCE CO. vs. COURT OF APPEALS

184 SCRA 318
HELD: “A good and sufficient reason upon which to issue execution of the judgment pending appeal is when
the appeal is being taken for the purpose of delay. While it is true that it is not for the trial court to say that the
appeal may not prosper or that it is frivolous [so, the SC is aware of these pronouncements], there are
circumstances which may serve as cogent bases for arriving at such a conclusion.” Dean I: An example where
the trial court maybe justified in saying that the appeal is dilatory is in default judgements where there is no
evidence for the defendant. And then the defendant appeals. Now what is the chance of reversal when all the
evidence is for the plaintiff? The possibility that the judgment will be reversed is almost zero (0). Therefore the
court can rule that the appeal is dilatory and then order the execution of the judgment pending appeal upon
motion of the plaintiff.
The SC continues: “Another vital factor which led trial court to allow execution pending appeal was the
pendency of the case for more than 17 years so that the purchasing power of the peso has undeniably declined.
Petitioner should be given relief before it is too late.”
PB COM. vs. COURT OF APPEALS

279 SCRA 364 [Sept. 23, 1997]
HELD: “It is significant to stress that private respondent Falcon is a juridical entity and not a natural person.
Even assuming that it was indeed in financial distress and on the verge of facing civil or even criminal suits, the
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immediate execution of a judgment in its favor pending appeal cannot be justified as Falcon's situation may not
be likened to a case of a natural person who may be ill or may be of advanced age.”
“Even the danger of extinction of the corporation will not per se justify a discretionary execution unless there
are showings of other good reasons, such as for instance, impending insolvency of the adverse party or the
appeal being patently dilatory. Hence, it is not within competence of the trial court, in resolving a motion for
execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as its basis for finding
good reason to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an
additional good reason in upholding an order for execution pending appeal which may have been issued by the
trial court for other good reasons, or in cases where the motion for execution pending appeal is filed with the
appellate court in accordance with Section 2, paragraph (a), Rule 39 of the 1997 Rules of Court.”
4.) When the successful party files a BOND;
Q: Here is a controversial question: How about an instance when the winning party offers to put up a bond. He says; “Alright, I
am asking for an order pending appeal. I will put up a bond to answer for any damages that the defendant may suffer in the
event that he wins the appeal.”
A: In the old case of HACIENDA NAVARRA vs. LABRADOR (65 Phil 635), the SC simply implied that there is a good
ground. HOWEVER, the SC denied that implication in later cases. Among which were the cases of ROXAS vs. CA (157
SCRA 370) and PNB vs. PUNO, (170 SCRA 229) and PHOTOQUICK INC. vs. LAPENA, JR. (195 SCRA 66).
PHILIPPINE NATIONAL BANK vs. PUNO

170 SCRA 229
HELD: “The mere filing of a bond would not entitle the prevailing party to an execution pending appeal.
Whatever doubts may have been generated by early decisions involving this matter, starting with Hacienda
Navarra, Inc. vs. Labrador, et al., have been clarified in Roxas vs. Court of Appeals, et al.”
“To consider the mere posting of a bond a ‘good reason’ would precisely make immediate execution of a
judgment pending appeal ROUTINARY, the rule rather than the exception. Judgments would be executed
immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond
to answer for the damages that might result therefrom. This is a situation, to repeat, neither contemplated nor
intended by law.”
So, we might say that the posting of a bond would be an ADDITIONAL GOOD REASON but it is NOT BY
ITSELF a good reason. So, the case of HACIENDA NAVARRA VS. LABRADOR has been misinterpreted.
The second paragraph of Section 2 [a]:
appellate court.
Q: Where can you file your motion for execution pending appeal?
A: It DEPENDS:
1.) TRIAL COURT - while it has jurisdiction over the case and the court is still in possession of the records of the
case. Meaning: (1.) the judgment has not yet become final - it is still within the 15 day period, and (2.) the
court still is in possession of the records of the case.
2.) APPELLATE COURT – after the trial court has already lost jurisdiction, the motion for execution pending
appeal may already be filed in the appellate court.
So, if the RTC has no more jurisdiction, then doon ka na mag-file ng motion sa CA.
Q: When will the court lose jurisdiction over the case ?

A: With regard to execution pending appeal, you can correlate this with RULE 41, SECTION 9 , to wit:
Rule 41, Section 9. Perfection of appeal; effect thereof. - 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.
A party’s appeal by record on appeal is deemed perfected as to his with respect to the subject matter
thereof upon approval of the record of appeal filed in due time.
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.
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.
In either case, prior to the transmittal of the original record of the record on appeal, the court may
issue orders for the protection and preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal.
(9a)
The phrase “order execution pending appeal in accordance with Section 2 of Rule 39” was not there in the Old Rules. Now,
that has been added and it jives with Section 2 paragraph (a). Now, for as long as the motion is filed, before the court loses
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jurisdiction and provided that the records are still with the trial court , even if the appeal is subsequently perfected, it can still act on
the motion for execution pending appeal.
Now, let us go back to Section 2, Rule 39 on execution of several, separate or partial judgments – meaning, there are several
judgments arising from the same case:
Rule 39, Section 2 [b]:
b) Execution of several, separate or partial judgments. - A several, separate or partial judgment may be
(2a)
Let us correlate this provision with Rule 36, Sections 4 and 5 AND Rule 37, section 8:
RULE 36, Sec. 4. Several judgments. - In an action against several defendants, the court may, when a
several judgment is proper, render judgment against one or more of them, leaving the action to proceed
against the others. (4)
RULE 36, Sec. 5. Separate judgments. - When more than one claim for relief is presented in an
action, the court, at any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may
render a separate judgment disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a
separate judgment is rendered, the court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure
the benefit thereof to the party in whose favor the judgment is rendered. (5a)
RULE 37, Sec. 8. Effect of order for partial new trial. - When less than all of the issues are ordered
retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of
such judgment or final order until after the new trial. (7a)
Q: Can there be two or more judgments arising out of one case?

A: YES. (Rule 36, Sections 4 and 5)
Q: Can the first judgment be immediately executed while waiting for rendition of the second judgment?
A: Generally, the court will decide. If the court agrees, there has to be a good reason.
There is one interesting case on execution pending appeal – the case of
RCPI vs. LANTIN

134 SCRA 395
FACTS: The case of Lantin was an action for damages. The court awarded the plaintiff said damages. So, the
plaintiff moved for discretionary execution.
ISSUE: Whether or not execution pending appeal is proper in a judgment for damages.
HELD: The execution pending appeal may be proper for enforcing the collection of ACTUAL DAMAGES,
but it is not proper to enforce the payment of moral or exemplary damages. So, this is where the SC
distinguished.
Why is it that execution pending appeal is proper for the collection of actual damages? In actual or
compensatory damages, the amount is certain. Normally, there are receipts. The amount is based on
evidence.
But the award for moral or exemplary damages is uncertain and indefinite. It is based on abstract factors
like sleepless nights, besmirched reputation. It is hard to quantify it based on evidence.
The SC said, in many cases the trial court awards a huge amount for exemplary damages but on appeal, the CA
refused to award or totally eliminate the award. So, if the award of moral or exemplary damages is not certain or fixed,
the execution pending appeal may not be proper to enforce its execution.
Sec. 3. Stay of discretionary execution. - Discretionary execution issued under the preceding section
may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded
against on motion with notice to the surety. (3a)
Q: Now, assuming that there is an execution pending appeal in favor of the plaintiff under Section 2 and I am the defendant, is
there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now ask the court to fix a supersedeas bond to stop the execution
pending appeal. The bond will answer for any damages that the plaintiff may suffer if the defendant’s appeal is not meritorious.
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And once the supersedeas bond is filed, the court has to withdraw the execution pending appeal. Supersedeas bond under
Section 3 is 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.
GENERAL RULE: When a defendant puts up a supersedeas bond, the court shall recall the execution pending appeal
because discretionary execution is the exception rather than the general rule.
EXCEPTION: Notwithstanding the filing of the supersedeas bond by the appellant, execution pending appeal may still
be granted by the court IF THERE ARE SPECIAL AND COMPELLING REASONS justifying the same outweighing the
security offered by the supersedeas bond. (De Leon vs. Soriano, 95 Phil. 806)
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may be executed pending appeal even
notwithstanding the filing of a supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil. 806) Support is something
which should not be delayed. What is the use of the supersedeas bond when the need of the plaintiff is today and not 5 or 6 weeks
from now? [aber?]
Alright, let us go to the next important classification of execution. The other classification as to the manner of enforcement
could be by MOTION or by INDEPENDENT ACTION.
EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by independent action. - A final and executory judgment or order may be
executed on motion within five (5) years from the date of its entry.
After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be enforced by motion within five (5) years from the
date of its entry and thereafter by action before it is barred by the statute of limitations. (6a)
Q: How do you execute a judgment?

A: You file a motion for execution before the same court which rendered the judgment.
Q: How is the execution enforced?

A: There are two 2 modes under Section 6:
1.) Execution by motion – within five (5) years from the date of its entry; and
2.) Execution by independent action – within five (5) to ten (10) years.
Execution BY MOTION means that the prevailing party shall ask the court to issue a writ of execution by simply filing a motion
in the same case.
EXAMPLE: I am the plaintiff and I have a judgment here against the defendant. I do not know of any assets of the defendant
because the defendant for the meantime is as poor as a rat. But after a certain period of time he becomes a wealthy man. All I have
to do is to file a motion and the court will order the execution, provided the motion is filed within 5 years from the date of the entry of
judgment. The date of the entry of judgment and the date of finality are the same (Rule 36, Section 2).
Q: Suppose the defendant becomes rich after 5 years, can I still file a motion to execute?
A: No more, because execution by motion must be filed within 5 years only from the date of its entry. If the judgment was not
executed within the 5-year period, the judgment has become dormant.
Q: What is a dormant judgment?

A: A DORMANT judgment is one that was not executed within 5 years.
Q: So, how can that (dormant) judgment be awaken?

A: The procedure is to file another civil action. A civil action for revival of judgment. That is what you call EXECUTION BY
INDEPENDENT ACTION which must be filed before it is barred by the statute of limitations. The second sentence states,
“after the lapse of such time (which is 5 years) and before it is barred by the statute of limitations, a judgment may be enforced by
action.”
Q: When will it be barred by the statute of limitations ?

A: According to Article 1144 of the New Civil Code, the judgment may be enforced only within ten (10) years.
Therefore, since the judgment will be enforced by motion for five (5) years, then after the fifth year, it will be enforced by
independent action. So, I will start the civil action for revival of judgment between or after the 5th year but before the 10th year. So,
that is what we have to remember.
Q: Do you mean to tell me that I have to file the case all over again, practically repeating what happened 5 years ago?
A: NO, because the judgment in the independent action is a judgment reviving the first judgment.
For example, more than 5 years ago I sued you to collect on a promissory note and you alleged payment, and you lost and the
court said that you are liable to me. On the seventh year when I revived that judgment, my rights are no longer based or derived on
the promissory note but on such judgment. But you can still invoke other defenses such as lack of jurisdiction, fraud. But you
cannot question the correctness of the original judgment because that is already res adjudicata. You are entitled to put up any
defense that you have against me provided that you cannot question the correctness of the original judgment. That is the rule.
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Q: Discuss briefly the nature of the action for enforcement of a dormant judgment.
A: The action for enforcement of a dormant judgment is an ordinary civil action the object of which is two-fold, namely, (a) to
revive the dormant judgment, and (b) to execute the judgment reviving it, if it grants the plaintiff any relief. Hence, the rights of the
judgment-creditor depend upon the second judgment. Being an ordinary civil action, it is subject to all defenses, objections
and counterclaims which the judgment-debtor may have except that no inquiry can be made as to the merits of the first
judgment. Therefore, defenses that do not go to the merits of the first judgment, such as lack of jurisdiction, collusion, fraud, or
prescription, may be set sup by the judgment-debtor. (Cia. Gral. De Tabacos vs. Martinez, 17 Phil. 160; Salvante vs. Ubi Cruz, 88
Phil. 236) [Taken from Remedial Law Reviewer by Nuevas]
Q: Give the exception to the rule on dormant judgment.

A: The only exception is the judgment for support which does not become dormant, nor does it prescribe. You can
execute it anytime even beyond the 5-year period and any unpaid installment may be executed by motion. (Florendo vs. Organo,
90 Phil. 483) So, even if the judgment is more than 5 years old, the defendant defaulted on the seventh year, you just file a motion
to collect that judgment.
Q: Suppose the judgment was executed and the property of the defendant was levied on the 4th year, and the next stage is the
auction sale.
A: The SC said the auction sale must also be WITHIN 10 years. So, even if the property was levied, the auction sale
must be within 10 years. Not only the levy of the property must be done within 10 years but also the including the auction
sale, otherwise, any auction sale done beyond 10 years in null and void.
Now, look at the last sentence in Section 6: “The revived judgment may also be enforced by motion within five (5) years from
the date of its entry and thereafter by action before it is barred by the statute of limitations.”
For example, I have here a judgment nine (9) years ago. I want to enforce it by action to revive judgment. You mean to tell me
that the revived judgment is good for another ten (10) years? Another 5 years for motion to a right of action and then I can still
revive it within 10 years?
Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the SC said that the period applies all over again from the
finality of the revived judgment. So, you have another ten (10) years. However, this principle is abandoned in the later case of PNB
vs. VELOSO (32 SCRA 266), the SC said that the original period is only computed from the date of the original judgment.
And of course, because of those 2 conflicting cases, the court resolved those issues in the case of LUZON SURETY CO. vs.
IAC (151 SCRA 652) where the SC said, the later doctrine of VELOSO prevails. So, with that ruling, the 10-year period applies only
from the date of the original judgment, but you cannot say that once it is revived, you have another 10 years.
But now, you look at the new law: “The revived judgment may also be enforced by motion within five (5) years from the date of
its entry and thereafter by action before it is barred by the statute of limitations.” Ano yan? That is a revival of the BONDOC ruling!
Binalik yung original ruling which is, the revived judgment is good for another 10 years.
So, I repeat, the last sentence has resurrected the ruling in the case of PNB vs. BONDOC and superseded again LUZON vs.
IAC. You are entitled to another 10 years from the date of the revived judgment.
ILLUSTRATION:
Example: First judgment became final in 1990. You can enforce that until 2000 by motion (1990-1995) or by independent
action (1995 – 2000). Suppose in 2000, you were able to secure a second judgment reviving the first judgment, under the new
rules, there is another ten years. The first judgment by motion. The next 5 years is by independent action. So, to illustrate:
1990 1995 2000 2005 2010
5 years 5 years 5 years 5 years

by motion by independent action by motion by independent action
10 years 10 years
Article 1144, Civil Code last sentence of Section 6
ARCENAS vs. COURT OF APPEALS

299 SCRA 733 (December 4, 1998)
HELD: “The purpose of the action for revival of a judgment is not to modify the original judgment subject of the
action but is merely to give a creditor a new right of enforcement from the date of revival.”
“The rule seeks to protect judgment creditors from wily and unscrupulous debtors who, in order to evade
attachment or execution, cunningly conceal their assets and wait until the statute of limitation sets in.”
Sec. 7. Execution in case of death of party. - In case of the death of a party, execution may issue or be
enforced in the following manner:
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(a) In case of the death of the judgment obligee, upon the application of his executor or
administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against his executor or administrator or successor
in interest, if the judgment be for the recovery of real or personal property, or the enforcement of a lien
thereon;
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his
property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the
sale shall account to the corresponding executor or administrator for any surplus in his hands. (7a)
This is related to Rule 3, Section 20.
Q: What is the effect of a death of a party on the execution of a judgment?

A: The following:
1.) If it is the obligee (the creditor) will die after he wins the case, his executor or administrator, his legal
representative or his heirs and successors in interest can enforce the judgment. They will be the one to
collect. (paragraph [a])
2.) If it is the defendant (obligor) who dies and there is final judgment which is recovery of real or personal
property, the judgment is executed against the administrator or executor because this is an action which
survives. (paragraph [b]);
3.) Under par. (c), it is the death of the obligor in a money claim. This is related to Rule 3, Section 20. However, the
timing of the death is different. Let us connect these with Rule 3, Sec. 20:
Sec. 20. Action on contractual money claims. - When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry of final judgment in the court in which
the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person. (21a)
So, for EXAMPLE: A filed a case against B to collect an unpaid loan. What is the effect to the case if B dies? It will depend on
what stage of the case he dies. If he died before final judgment could be rendered by the court (before entry of final judgment),
there will be a substitution of party and the case will continue until entry of final judgment.
Suppose, there is already entry of final judgment and he dies, it will depend whether there was already a levy on execution.
Meaning, there was already entry of final judgment but before the property is levied. This should not apply in Rule 39 because
Section 7 [c] states that “after execution is levied.”
But my question is no levy. The procedure there is found in the Special Proceedings. The judgment shall be enforced in the
manner provided for by the Rules on claims against the estate of the deceased under Rule 86. And that is also mentioned in Rule
3, Section 20. It shall be enforced in the manner provided for against the estate.
Q: Suppose the defendant dies when there is already a levy. What will happen?
A: The auction sale will proceed as scheduled in connection with Section 7 [c] because the law says “the same may be sold
for the satisfaction of the judgment obligation.” Meaning, the auction sale or the execution sale shall proceed as scheduled.
No more substitution here.
So that question, “What is the effect of the death of a party on a pending civil case” is a question with so many angles – anong
klaseng kaso?; is it one which is personal in nature or not?; if it is not, is it one which survives or one which does not?; if it does not
survive, who died?; the plaintiff or the defendant? – if it is the defendant, did he die before entry of final judgment?; did he die after
entry of final judgment but before there could be levy or execution?; or did he die after levy or execution? – This last question is
answered by Section 7 [c].
Sec. 8. Issuance, form and contents of a writ of execution. - The writ of execution shall:
(1) issue in the name of the Republic of the Philippines from the court which granted the motion;
(2) state the name of the court, the case number and title, the dispositive part of the subject
judgment or order; and
(3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its
terms, in the manner hereinafter provided:
(a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with
interest, out of the real or personal property of such judgment obligor;
(b) If it be against real or personal property in the hands of personal representatives, heirs, devisees,
legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such
property;
(c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the
proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of
execution.
(d) If it be for the delivery of the possession of real or personal property, to deliver the possession
of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the personal property of the person against whom it was
rendered, and if sufficient personal property cannot be found, then out of the real property; and
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(e) In all cases, the writ of execution shall specifically state the amount of the interest, costs,
damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of
the foregoing reliefs sought by the movant. (8a)
WRIT OF EXECUTION is actually the document which is issued by the court addressed to the sheriff. The writ is actually the
instruction to the sheriff on what he should do. It would depend on what kind of decision – is it an action for sum of money or is it for
recovery of real property? Mimeographed iyan, addressed to the sheriff. These are standard forms in court.
Now, with respect to Section 8, the changes can be found in paragraph [e] which mandates now that the writ of execution must
state the exact amount to be collected. That is why according to the last sentence of paragraph [e], “for this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought by the movant.”
Normally, when lawyers file a motion to execute they will just quote the principal, but they do not state the costs or
interests. Now, under the new rule, when you file the motion for execution, you must also state how much is the costs or
interests.
EXECUTION OF MONEY JUDGMENT
How do you execute judgment for money? Contractual debts or damages. Example, the defendant is ordered to pay defendant
P1 million with interest, how does the sheriff enforce that? Section 9 provides a detailed explanation on how judgment for
money is enforced. Let us go over the first paragraph:
Sec. 9. Execution of judgments for money, how enforced. -
(a) Immediate payment on demand. - The officer shall enforce an execution of a judgment for money
by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of
execution and all lawful fees. 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. The lawful fees shall be handed under proper receipt to the executing sheriff who shall
turn over the said amount within the same day to the clerk of court of the court that issued the writ.
STEPS: (under paragraph [a])

1.) The sheriff must demand payment from the obligor;
2.) The obligor can pay in cash, certified bank check payable to the judgment obligee (creditor) or any other form of
payment acceptable to the latter. Kung sabihin ng obligor: “Yung kotse ko na lang.” That will be alright so long as
it is also alright with the obligee;
3.) The payment shall go to the obligee;
4.) The lawful fees shall be paid to the executing sheriff who shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ.
This assumes that the obligee is present with sheriff. Suppose the creditor is not around? Let us go to the second paragraph:
Section 9 [a], 2nd par. – If the judgment obligee or his authorized representative is not present to
receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The
latter shall turn over all the amounts coming into his possession within the same day to the clerk of court
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 Regional Trial Court of the locality.
If the plaintiff is not there, the payment is made to the sheriff and he is supposed to endorse it to the clerk of court. The clerk of
court will look for the obligee to remit the money.
In the second sentence, this usually happens if the execution is to be done outside of the locality. For example, the decision in
Davao will be enforced in Cotabato. So, the sheriff in Cotabato will be the one to enforce and he will give the payment to the clerk
of court there who in turn will transmit the money to the clerk of court in Davao. This is because the decision to be executed is one
in Davao.
Let us go to the third paragraph:
The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the
court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in
satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the
lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check be made payable to him.
This assumes that the property of the defendant which was levied in Cotabato but judgment is one which originated in Davao –
clerk to clerk.
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The last sentence says “In no case shall the executing sheriff demand that any payment by check be made payable to him.” It
shall be payable to the obligee. I think what the SC would like to avoid here is that which happened in the case of PAL – a labor
case where PAL paid check payable to the sheriff. The sheriff ran away with the check. PAL was made to pay all over again.
(b) 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, the officer shall levy
upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed
of for value and not otherwise exempt from execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to satisfy the judgment. 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 sufficient to answer for the judgment.
So, under paragraph [a], the first step is when the judgment debtor has enough money, bayaran niya in cash or check.
Q: Suppose walang pera, or the cash is not sufficient. What will the sheriff do?
A: He shall levy upon the properties of the judgment obligor not otherwise exempt from execution. In the vernacular term,
sasabihing ‘na-sheriff’ ka.
Q: Define levy.
A: Levy is the act whereby a sheriff sets apart or appropriates, for the purpose of satisfying the command of the writ, a part or
the whole of the judgment-debtor’s property. (Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963) Normally, this is done on
personal property. Kung lupa naman, they will annotate on the title. Parang mortgage ba.
Q: What is the importance of levy with respect to execution of a money judgment?

A: Levy is a pre-requisite to the auction sale. In order that an execution sale may be valid, there must be a previous
valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title. (Valenzuela vs. De Aguilar, L-
18083-84, May 31, 1963)
Q: What kind of property can be levied?

A: Any – real, personal, tangible, intangible – except those properties exempt from execution.
Q: Does the debtor has the right to tell the sheriff what property he should levy?
A: YES. The law gives the debtor or defendant the option to immediately choose which property or part thereof may be levied
upon sufficient to satisfy the judgment. Example: I am the debtor and I have many properties. And the sheriff would like to levy on
my house and lot, or ‘yung Toyota Altis ko. Under the law, I have the right to choose among them.
The phrase “giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to
satisfy the judgment.” This did not appear under the old law. This is taken from the case of PHILIPPINE MILLS vs. DAYRIT (192
SCRA 177), where the SC said the debtor is given the option of which property shall be levied.
And the sequence of levying is to levy the personal properties first. Then real properties if personal properties are not
sufficient.
Under the second paragraph of [b], when the sheriff levies on the property of the judgment debtor and the judgment debtor has
more than sufficient property to cover the judgment debt, the sheriff cannot levy all the properties. Or else, he will be made liable.
For example, the debt is only P 30,000, tapos ang i-levy mo kotse (Toyota Altis) at bahay, which worth millions? My golly! That’s
too much! You sell only up to the point that the judgment will be satisfied.
Q: But if it is real property or intangible personal property like shares of stock, debts, credits (collectibles), can you levy on
these?
A: YES. And under the last paragraph of [b] They may be levied upon in like manner and with like effect as under a writ of
attachment under Rule 57 on attachment.
GARNISHMENT – HOW TO LEVY
Paragraph [c] of Section 9 is on how to levy intangibles. When you want to levy or you want to execute on intangible
property, the legal term there is garnishment.
(c) Garnishment of debts and credits. - The officer may levy on debts due the judgment obligor and
other credits, including bank deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control of third parties. Levy shall be made
by serving notice upon the person owing such debts or having in his possession or control such credits
to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy
the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (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. 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 ten (10) working days from
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service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid
directly to the court.
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.
The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery
of payment to the judgment obligee. (8a, 15a)
Q: So, what are these properties which may be the subject of garnishment?
A: Credits which include bank deposits, financial interests, royalties, commissions and other personal property not capable of
manual delivery – intangibles bah! You send a notice upon the person owing such debts or having in his possession or control such
credits. And it shall cover only such amount as will satisfy the judgment.
Example of garnishment: bank account. I will file a case against you, talo ka. I learned that you have a deposit with Saniko h
Bank. Puwede kong habulin yan ba, because that is credit. In obligations and contracts, the relationship of the depositor and the
bank is that of a creditor and debtor. It is not a contract of deposit because actually, the bank is borrowing money from you. Kaya
nga, it pays you interest eh.
So, under garnishment, the bank is being commanded not to pay you but instead pay the sheriff. Yaan!! Yan ang concept ng
garnishment. Garnishee refers to the debtor, like the bank. When the bank deposit is garnished, the second paragraph tell us what
the bank will do. And if there are 2 or more banks na ma-garnish, under the next paragraph, the debtor obligor will determine. If he
does not exercise his option, then the judgment creditor will determine.
EXECUTION OF JUDGMENT OTHER THAN MONEY
Section 10 is the procedure for executing a judgment other than to collect money. Sometimes, money is only incidental. There
are court decisions could be something else like specific performance, or accion publiciana. You are more interested in recovering
your property. Another is Unlawful Detainer where unpaid rentals may be paid but the plaintiff is more interested in the ejectment –
the unpaid rentals can be collected in the same manner as Section 9.
Sec. 10. Execution of judgments of specific act. -

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a party to
execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform
any other specific act in connection therewith, and the party fails to comply within the time specified, 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. If real or personal
property is situated within the Philippines, the court in lieu of directing a conveyance thereof 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. (10a)
xxxxx
EXAMPLES of the first sentence:

1.) An action for reconveyance of property where you are asking the defendant, a title owner, to convey to you his
property. The property will be held in trust or that the title be in your name instead of his;
2.) Pacto de retro. I sold to you my land and I am repurchasing it, pero ayaw mo. You refuse to execute a deed of sale
returning the property to me;
3.) Public Land Law. I am the owner of a property under homestead or free patent and sold it after the prohibition period.
Under the public land law, I have the right to repurchase it within 5 years. Ayaw mong ibalik, so idemanda kita. Of
course, if I win, you will be directed to return to me the property and execute a deed of sale.
4.) An action for specific performance to compel you to return to me said property. And the court will order: “Alright,
execute a deed of sale.” You refuse. The court may order the clerk of court to sign the deed of sale or the Register of
Deeds will be ordered to register the same as if done by the obligor. The obligor’s signature is not needed.
(b) Sale of real or personal property. - If the judgment be for the sale of real or personal property, to
sell such property, describing it, and apply the proceeds in conformity with the judgment. (8 [c] a)
The best example for [b] is an action for termination of co-ownership where there are 50 co-owners of one (1) hectare – the
property will be ordered sold and the proceeds will be distributed among the co-owners.
(c) Delivery or restitution of real property. - 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 three (3) working days, and restore possession thereof to the
judgment obligee; otherwise, the officer shall oust all such persons therefrom with the assistance, if
necessary, or 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. Any costs, damages,
rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.
(13a)
Now, with respect to Section 10, particularly paragraph [c] – delivery or restitution of real property. – this is applicable to
actions for forcible entry, unlawful detainer, accion publiciana.
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Q: So, what is the procedure?
A: The sheriff will give the defendant the chance to vacate the property, “I am giving you the chance to vacate within three (3)
working days and restore possession thereof.” And then ayaw mo pa rin, I will use force to oust you with the assistance of the
appropriate peace officers and place the judgment obligee in possession of such property.
And if there are damages or unpaid rentals, I will also levy the property under Section 9. Because sometimes, aside from
ousting the defendant, meron pang money judgment like unpaid rentals. So, the property of the defendant may be levied. That is
the procedure.
In the 1995 case of
SAN MANUEL vs. TUPAS

249 SCRA 466
HELD: “The immediate enforcement of a writ of ejectment execution is carried out by giving the defendant a
notice of such writ and making a demand that defendant comply therewith within a reasonable period, normally from
three (3) to five (5) days, and it is only after such period that the sheriff enforces the writ by the bodily removal of the
defendant and his personal belongings.”
(d) 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 upon special order of the court,
issued upon motion of the judgment obligee after due hearing and after the former has failed to remove
the same within a reasonable time fixed by the court. (14a)
Q: When you oust the defendant in regard of a possession case, is a writ of execution a sufficient basis for the removal of
improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment obligee still have to get a special order from the court by filing a petition to
authorize the destruction or removal of the improvements of the property after the defendant is given a reasonable time to remove
his shanty or house voluntarily.
In other words, there must be a special order. The writ of execution only authorizes you to oust the defendant
physically, but not to destroy any property. Just like in squatters, you need a special order for demolition.
(e) Delivery of personal property. - In judgments for the delivery of personal property, the officer shall
take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment
for money as therein provided. (8a)
Paragraph [e] is related to REPLEVIN – action to recover personal property – where the plaintiff is trying to repossess a
personal property from the defendant. For example, bili ka ng appliance tapos hindi mo nabayaran, babawiin yan ng appliance
center. Or, the finance company or the car dealer will resort to replevin to recover the unit by filing an action for replevin against the
buyer.
Take note that the procedure for enforcing a money judgment is different from enforcing a judgment for ejectment, or recovery
of possession. Enforcement of money judgment is in Section 9 – you get the money. Kung walang money, you levy on the property
of the defendant. If it is ejectment or recovery of possession of property, you follow Section 10, paragraph [c].
Now, here is an interesting case involving these two sections (Sections 9 & 10) –the 1995 case of
ABINUJAR vs. COURT OF APPEALS

243 SCRA 531
FACTS: The case of Abinujar started when the plaintiff filed a case for unlawful detainer against the Abinujar
spouses for the latter to vacate their house in Manila. When the case was going on, the parties executed a
compromise agreement which became the basis of the judgment by the court, so a compromise judgment.
The agreement stated that the Abinujar spouses shall pay the plaintiffs the amount specifically agreed upon:
P50,000 on January 31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until September 30. It further states
that failure on the part of the Abinujar spouses to pay three (3) consecutive payments, the plaintiffs shall be entitled to
a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution on the ground that the Abinujars failed to pay the
three installments. The trial court granted the motion and the notice to the defendant to voluntarily vacate the
premises was served on the Abinujars.
The Abinujars attacked the validity of the sheriff’s notice to vacate by way of enforcing the compromise judgment.
They maintained that their obligation is monetary and therefore you should apply Section 9 – you collect but do not
eject us. The plaintiffs argued that what is applicable is Section 10 on ejectment because this is an unlawful detainer
case.
ISSUE: Which section shall be applied – Section 9? or Section 10?
HELD: The contention of the Abinujars is meritorious – meaning, you cannot eject the Abinujars.
“When the parties entered into a compromise agreement, the original action for ejectment was set aside
and the action was changed to a monetary obligation.
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“A perusal of the compromise agreement signed by the parties and approved by the inferior court merely
provided that in case the Abinujars failed to pay three monthly installments, the plaintiffs would be entitled to a writ of
execution, without specifying what the subject of execution would be. Said agreement did not state that Abinujars
would be evicted from the premises subject of the suit in case of any default in complying with their obligation
thereunder. This was the result of the careless drafting thereof for which only plaintiffs were to be blamed.
“As Abinujar’s obligation under the compromise agreement as approved by the court was monetary in nature,
plaintiffs can avail only of the writ of execution provided in Section 9, and not that provided in Section 10.”
ORDINARY AND SPECIAL JUDGMENT
Sec. 11. Execution of special judgments. - When a judgment requires the performance of any act
other than those mentioned in the two preceding sections, a certified copy of the judgment shall be
attached to the writ of execution and shall be served by the officer upon the party against whom the
same is rendered, or upon any other person required thereby, or by law, to obey the same, and such
party or person may be punished for contempt if he disobeys such judgment. (9a)
There are two (2) types of judgment under the law: (1) SPECIAL and (2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the defendant to pay money, like a collection case (Section 9) or to deliver
real or personal property (Section 10).
SPECIAL JUDGMENT – is a judgment which requires the defendant to perform an act other than payment of money or
delivery of property. It refers to a specific act which a party or person must personally do because his personal qualifications and
circumstances have been taken into consideration.
EXAMPLE of a special judgment: Usurpation of government office. You are the city treasurer and somebody else is appointed
city treasurer and you refuse to vacate. So there will be a quo warranto proceeding. Then the judgment will order you to vaca te
your position, such judgment is a special judgment because you are not ordered to pay anything nor deliver property.
Q: What is the difference between the Ordinary and Special judgments?

A: A special judgment may be enforced by contempt if the defendant refuses to comply with the judgment. But if it is
an ordinary judgment and the defendant refuses to comply, it is not a ground for contempt.
Under Section 9, if the judgment-debtor refuses to pay his debt, you cannot cite him in contempt because under the
Constitution, no person shall be imprisoned for debt. The correct procedure under Section 9 is you look for properties of the
defendant and then ipa-levy mo. You do not send the debtor to jail.
Under Section 10 if the squatter refuses to vacate, you cannot cite him in contempt and send him to jail. Kung ayaw, you get
police for back up. That is the procedure.
But under Section 11, if defendant is ordered to vacate his office because he is no longer the city treasurer, the plaintiff can
have him arrested and brought to jail because that is a special judgment which can be enforced by contempt.
Q: Give an specific rule on special judgment.

A: Section 9 of Rule 65 – Special Civil Action for Certiorari, Prohibition and Mandamus, to wit:
Rule 65, Sec 9. Service and enforcement of order or judgment.- A certified copy of the judgment
rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct,
and disobedience thereto shall be punished as contempt. An execution may issue for any damages or
costs awarded in accordance with section 1 of Rule 39. (9a)
Therefore, a judgement in a certiorari, prohibition or mandamus case, if not complied with, is punishable by
contempt.
Sec. 12. Effect of levy on execution as to third persons. - The levy on execution shall create a lien in
favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at
the time of the levy, subject to liens and encumbrances then existing. (16a)
This is related to Property Registration Decree.
EXAMPLE: I own a piece of land which I mortgaged with the bank. The bank annotated the mortgage on my title. My land is
now subject to a lien or an encumbrance. I also owe money to A. He sued me. He won and my land is levied.
Q: What happens to the mortgage lien of the bank? Will it be affected by the levy of A?
A: NO. Even if the property is sold at public auction and we will assume that it will go to A, that property is still under mortgage.
A has to respect the lien – nauna yung sa bank eh! Wherever the property goes, it is subject to the mortgage lien of the bank
because the bank’s lien is superior.
Therefore, an execution is always subject to the liens and encumbrances of the property then existing.
PROPERTIES EXEMPT FROM EXECUTION

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We already discussed the rule that to satisfy a money judgment, the sheriff can levy on the properties of the judgment obligor.
All properties are subject, except those exempt from execution. What are the properties of a defendant-debtor which cannot be
subject to a levy or execution?
Sec. 13. Property exempt from execution. - Except as otherwise expressly provided by law, 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;
You have a house where your family resides. You call it “FAMILY HOME” – it is the house where the members of the family
reside, including the lot.
Q: For instance, you lost in a case where you are liable for P200T. You have no other property left except that house where
you live. Can the sheriff levy the house to answer such obligations?
A: NO. The judgment obligor’s family home and the land necessarily used in connection therewith is exempt. That is a
guarantee that no matter how many obligations you have, there is no way for you to be thrown to the street – to be a homeless
person. Your house cannot be levied; but in the Family Code, there’s a limit, if your house is a mansion worth millions, that is not
exempt. Please review your Family Code on this matter.
(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
This is self-explanatory. If you are a carpenter, you earn your living by being a carpenter. What are the ordinary tools that you
must have? Saw, hammer, etc. By public policy and by legal provision, the tools and implements used by a carpenter in his trade,
employment, or livelihood cannot be levied by the sheriff.
Under the prior law, there was no word “ordinary” and “personally”. The old law says, “tools and implements used by him”. In
the new rules, the words “ordinary” and “personally” are added. What is the reason behind this? This provision is in accordance
with what the SC ruled in the 1990 case of
PENTAGON SECURITY vs. JIMENEZ

192 SCRA 492
FACTS: The Pentagon Security and Investigation Agency (PSIA) is a security agency owned by somebody who
is engaged in security services. Because of a money judgment against the agency in a labor case, the sheriff levied
all the firearms of the agency. PSIA claimed that the firearms are exempt from execution under paragraph [b] since
they are tools and implements used by the agency in its trade, employment or livelihood because how can a security
agency operate without firearms.
ISSUE: Is the argument of PSIA correct?
HELD: NO. The firearms owned by PSIA are not covered by the exemption.
“The term ‘tools and implements’ refers to instruments of husbandry or manual labor needed by an artisan
craftsman or laborer to obtain his living. Here, PSIA is a business enterprise. It does not use the firearms personally,
but they are used by its employees. Not being a natural person, petitioner cannot claim that the firearms are
necessary for its livelihood.”
“It would appear that the exemption contemplated by the provision involved is personal, available only to
a natural person, such as a dentist’s dental chair and electric fan. If properties used in business are exempt
from execution, there can hardly be an instance when a judgment claim can be enforced against the business
entity.”
Meaning, if the exemption is extended to a juridical person like a corporation, then practically all the properties needed by the
business could be considered as tools and implements. For EXAMPLE, you will sue a carrier like Bachelor Bus and you won. Then
you will levy on the bus. Bachelor will claims exemption because that is a tool or implement.
Or, you file a case against PAL. They lost. You levy on the airbus. PAL alleged exemption because it is a tool or implement. My
golly! Lahat ng properties, “tools or implements!”? Di pwede yan! That is not what the law contemplates.
Now, what is interesting in the PENTAGON case is that the SC says that firearms can be levied, they can be sold at public
auction. SC: “However, for security reasons, and to prevent the possibility that the firearms to be sold at the execution sale may fall
into the hands of lawless and subversive elements, the sale at public auction should be with the prior clearance and under
supervision of the PNP.” Otherwise, the persons who might bid are kidnappers, NPA, Abu Sayyaff, (Kuratong Baleleng, MILF,
MNLF, Lost Command, Kulto Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must be a prior clearance on the
sale of the firearms during the auction sale.
(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;
For example, you are a farmer. You plow your land by a carabao. You cannot levy the carabao. OR, if you are a cochero, you
have a horse for your caretela. You cannot levy the horse. [ang horse shit, pwede! Pero yung horse mismo, di pwede!] And under
the prior rules, only 2 horses, 2 cows or carabaos are exempt. The new rules make it three (3).
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(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
You cannot levy on the debtor’s wardrobe. These are articles for ordinary personal use. This article excludes jewelry. Alahas,
pwede i-levy. All other things for basic needs are exempt, like personal comb, toothbrush, etc.
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one
hundred thousand pesos;
Household furniture like dining table, dining chair, sala set, utensils necessary for housekeeping and used for the purpose by
the obligor and his family like plates, forks, spoons. How can you eat without those utensils. BUT there’s a limit that the value does
not exceed P100,000. If the value exceeds, it can be levied.
There was a sheriff who asked me (Dean I). According to him, he was enforcing a money judgment. The sheriff went to the
house of the debtor. He took the stereo, TV set, refrigerator. Defendant said, “Hindi pwede dahil hindi pa umabot ng P100,000.”
Sabi ko, you look at the law: You cannot levy those furnitures if not exceeding P100,000. In my (Dean’s) view, covered yan. But
utensils not necessarily for living are not covered by the exemption. They are luxury, not necessary. These TV, sala set, refrigerator
can be levied because they are not necessary for living as contrasted to kutsara, plato, etc. (Dean however refused to answer the
sheriff whether the properties in question can be levied. Tanungin mo ang abogado mo!)
(f) Provisions for individual or family use sufficient for four months;
For example, one sack of rice for daily consumption, canned goods – provisions for consumption good for 4 months are
exempt. If you have one bodega of rice, ibang storya yan.
(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other professional, not exceeding three hundred
thousand (P300,000.00) pesos in value;
Your books, books of judges and professionals and equipment – maybe the computer, typewriter, dentist’s chair, equipment of
engineers are exempt provided the value does not exceed P300,000.
(h) One fishing boat and accessories not exceeding the total value of one hundred thousand
(P100,000.00) pesos owned by a fisherman and by the lawful use of which he earns his livelihood;
Example: Fishing boat of a fisherman, the accessories – net, provided these do not exceed P100,000.
(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;
The salary of a person within 4 months is exempt. For example, you have backwages of 6 months. Only 2 months salary can
be levied. Exempt ang 4 months.
Technically, wages and salaries are exempt as long as they are necessary for support of living. If you earn a minimum wage,
everything may be exempted. But if you earn P50,000 a month and you support only two people, the court may levy on the excess.
(j) Lettered gravestones;
Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on lettered gravestones? My golly!
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life
insurance;
The proceeds of life insurance. The amount received by the beneficiaries cannot be levied, not a single centavo.
(l) The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government;
The right to receive legal support. The right ba! For instance, ako na lang ang mag receive ng support mo. Hindi pwede yan.
Also the money given monthly to you if you are receiving support cannot be levied. Any pension or gratuity from the government –
GSIS pension, for example.
(m) Properties specially exempted by law.
This is very broad – any other property exempt by special law.
Q: Give an example where a property is exempt from execution under the special law?
A: The following:
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1.) Property obtained pursuant to a free patent application, HOMESTEAD. That is not subject to any claim within 5 years.
You cannot even sell that within 5 years, how much more kung embargohin sa iyo? That is under CA 141 –
Public Land Law;
2.) Under Social Legislation, SSS benefits are also exempt from execution, just like GSIS benefits;
3.) Under CARP law, the property acquired by a tenant under that law cannot be levied also.
Section 13, last paragraph:
But no article or species of property mentioned in this section shall be exempt from execution
issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.
(12a)
The last paragraph of Section 13 says that if for example, you ordered books and you failed to pay, you cannot claim the
exemption because the obligation arose from the same item. For example:
BAR PROBLEM: A lawyer went to Alemars professional books supply. He bought books worth half a million. That was utang –
P500,000. The store decided to sue the lawyer for such amount not paid. The bookstore got a judgment. There was a levy on the
lawyer’s property. The sheriff levied on the same books which became the source of the case. The lawyer claimed exemption under
Section 13 up to P300,000 because it forms part of his professional library. Is the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of Section 13 that no article or species of properties mentioned in this
section shall be exempt from execution issued upon a judgment recovered for the price or upon a judgment of foreclosure of a
mortgage thereon.
What the law says, is the properties mentioned here (in Section 13) are exempt, EXCEPT when that debt arose out of
that property. For example, here, why are you indebted to Alemars? Because of unpaid books. So the very books which gave rise
to an obligation are not exempt from execution.
But if another creditor will file a case against the lawyer, and that other creditor will win, that creditor cannot levy on the books
because they are exempt. But the creditor from whom the books were bought can levy on the same books which gave rise to an
obligation.
The same thing with FAMILY HOME. For example, you will build a family home and then, hindi mo binayaran ang materials,
labor and there was judgment against you. The creditor and the owner can levy on the house. He cannot claim exemption because
the debt arose out of that same family home.
Another example: You borrowed money from the bank. You mortgaged your house. Later on, you cannot pay the loan. The
bank foreclosed the mortgage. You cannot argue that your house cannot be levied. Kaya nga may utang ka because of your house.
Since you mortgaged it, that is not covered by the exemption.
Q: What is the REASON behind this exemption?

A: The reason for this exemption is PUBLIC POLICY. And common sense no? – the debtor should pay but this should not
deprive him of a means to earn his living. You can levy on his property but not to the extent of depriving him of his provisions for
support, means of livelihood by throwing him on to the street, homeless, penniless, despondent, dejected, mournful, melancholy,
forlorn…
LIFETIME OF WRIT OF EXECUTION – FIVE (5) YEARS
Sec. 14. Return of writ of execution. - The writ of execution shall be returnable to the court issuing
it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied
in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the
reason therefor. Such writ shall continue in effect during the period within which the judgment may be
enforced by motion (5 years). The officer shall make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and
copies thereof promptly furnished the parties. (11a)
Under the OLD RULE, the lifetime of a writ of execution is only 60 days. After that, expired na yung writ. The sheriff has to use
the writ to levy on the property of the defendant within 60 days. If the defendant has no property at present, and the writ has already
expired, and assuming that there will be some properties found in the future, the procedure under the old rules is, the plaintiff has
to file a motion for an ALIAS WRIT of execution, because once it is issued, it is again good for another 60 days.
Under the PRESENT RULE, the 60-day period is already obsolete. The effectivity now of a writ of execution is, for as long as
the judgment may be enforced by motion. And under Section 6, a judgment may be enforced by motion within five (5) years. So in
effect, the writ of execution is valid for FIVE (5) years. The lifetime now has been extended from 60 days to 5 years.
Of course, as much as possible, the writ must be enforced within 30 days and after that, the sheriff will tell the court about what
happened after 30 days.
So, the sheriff says based on the RETURN, “Wala pang property ang defendant.” Now, he just keeps on holding the writ. And
maybe after one or two years, meron na’ng property ang defendant, he can now enforce the writ. But definitely, there is no need
for the defendant to go back to the court to ask for another alias writ of execution because the writ can still be enforced – for as long
as the judgment may be enforced by motion.
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Although every 30 days, the sheriff has to make a periodic report with the court. I do not know if the sheriffs here follow this
procedure. But definitely, a writ is good for 5 years and in every 30 days, the sheriff has to make a report.
NOTICE OF SALE
Sec. 15. Notice of sale of property on execution. - Before the sale of property on execution, notice
thereof must be given as follows:
(a) In case of perishable property, by posting written notice of the time and place of the sale in three
(3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public
market in the municipality or city where the sale is to take place, for such time as may be reasonable,
considering the character and condition of the property;
(b) In case of other personal property, by posting a similar notice in the three (3) public places
above-mentioned for not less that five (5) days;
(c) In case of real property, by posting for twenty (20) days in the three (3) public places above-
mentioned a similar notice particularly describing the property and stating where the property is to be
sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing
a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major regional language published, edited and circulated or, in the
absence thereof, having general circulation in the province or city;
(d) In all case, written notice of the sale shall be given to the judgment obligor, at least three (3)
days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time
before the sale, in the same manner as personal service of pleadings and other papers as provided by
section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale which should not be earlier than
nine o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale may be
agreed upon by the parties. In the absence of such agreement, the sale of real property or personal
property not capable of manual delivery shall be held in the office of the clerk of court of the Regional
Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate
court. In the case of personal property capable of manual delivery, the sale shall be held in the place
where the property is located. (18a)
Auction sale follows levy. There must be notices because auction sale is open to the public. Notices must be posted in 3 public
places preferably in the municipal hall, post office and public market. In paragraph [c], if the property to be sold is REAL property,
the notices must describe the property, its location, assessed value if exceeding P50,000. Aside from notices, the law requires
PUBLICATION in a newspaper so that many people can read it.
You try to go there in the Hall of Justice, may bulletin board diyan sa labas. Notices are posted there. If you are interested in
buying something, para mura, tingnan mo diyan.
The law is very detailed now. The notice must specify the date of the sale, time, place etc. And the SC ruled that these
requirements are to be strictly complied with.
For example: You do not comply with the posting in 3 conspicuous places. Dalawa lang sa iyo, that is VOID. The SC said the
requirements of the law for the holding of the public auction should be strictly followed. Why? Because in a public auction, you are
depriving somebody of his property – the judgment debtor. So, all the requirements of the law intended to deprive the owner of his
ownership over his property should be followed.
Even lawyers sometimes do not pay much attention to this Rule 39. It is perhaps because of the length of the rule or the length
of the provisions. Lawyers usually have a general idea, not really the details. Oftentimes, they rely on the sheriff eh. They presume
that the sheriff knows more about the details because the latter is responsible for enforcing it. Actually, the sheriff knows less than
the lawyers because many of them are not lawyers naman eh.
Illustration based on Dean’s experience:
There is a property located in Panacan which is owned by Corporation X. Corporation X sold the property to Corporation Y.
(xx end of tape xx) Dean does not know who was at fault. Definitely, the custodian, instead of registering the transaction in the
Register of Deeds so that a title may be issued in the name of the buyer, tinago! Nalimutan ang pag-register ng Deed of Sale. Yun
pala, the seller, Corporation X, has a creditor also in Davao. The creditor sued Corporation X for a sum of money. Corporation X
lost the case and the creditor looked for property to levy. He found that piece of land in Panacan. Corporation X said, naibenta na
iyan.
The buyer, Corporation Y did not know there was an auction sale of that property. The buyer entered into a deal with a
corporation in Japan. One of the requirements of the Japanese buyer is: please list down all your assets, all your properties. Of
course, Corporation Y included that land in Panacan in the list. Saan man ang titulo? Walaaa. Nalimutan i-register.
Who should bear the loss?? The BUYER CORPORATION because he did not register the sale. He was given the option to
pay the loan plus P200,000 damages and interest. But if Rule 39 is to be followed strictly, Dean says the sheriff cannot make it.
Meron talagang malimutan because sheriffs usually are not lawyers. Rule 39 is so detailed that you cannot easily follow the
requirements. Isa-isahin mo iyan, pag may nakita kang mali, you file a motion to annul the execution.
I (Dean) said: I will recommend to the plaintiff company na bayaran ka rin pero hindi naman P200,000. Masyadong malaki yan.
Nakabayad na ang buyer sa owner tapos babayaran pa rin ang utang sa creditor? I talked to the corporation and made a
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compromise. We settled for P80,000. Kung ayaw niya ituloy ang kaso. Hindi nga na-register and Deed of Sale pero mali-mali
naman ang levy. What if ma-annul ang levy, the plaintiff will get nothing. Chances are, hahabulin niya ang seller ng property. So,
this is an example of a dead case being resurrected to life because of the principle: nagkamali ang sheriff sa execution. Dean also
stressed that if the trial for annulment of the execution proceeds, the court might dismiss it because the sheriff’s mistakes ay maliit
lang. It’s not really substantial. But Dean is proud that he had succeeded to scare the plaintiff! [ehem!]
TERCERIA (THIRD-PARTY CLAIM)
SECTION 16. Proceedings where property claimed by third person. – If the property levied on is claimed
by any person other than the judgment obligor or his agent, and such person makes an affidavit of his
title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the
same upon the officer making the levy and a copy thereof upon the judgment obligee, 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.
In case of disagreement as to such value, the same shall be determined by the court issuing the writ
of execution. 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 one hundred twenty days from the date of 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. Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property in a separate action, or prevent the judgment obligee from
claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or
plainly spurious claim.
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, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held
liable therefore, 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. (17a)
Section 16 is a third-party claim procedure in execution. In Spanish, it is called the remedy of TERCERIA.
ILLUSTRATION: Lolo decided to go on a prolong vacation and he entrusted to Karen (ang paborito ni Lolo) all his personal
property like appliances – TV, refrigerator, car, etc. Karen used the property owned by Lolo while he was not around. Unknown to
Lolo, Karen has a pending civil case filed by Gina. Gina obtained a judgment against Karen. There was levy on execution. The
sheriff went to the premises of Karen, he found all these properties and he enforced the levy.
Lolo came home and went to get the property from Karen. Karen said, they were all levied by the sheriff. Lolo is a person who
is not the defendant but his properties were erroneously levied because the sheriff thought they belong to Karen who was in
possession of them.
Q: What is the remedy of Lolo who is not a defendant?
A: The remedy is to apply Section 16, Rule 39 – You file with the sheriff, copy furnish Gina, what is known as the third-party
claim or TERCERIA. Terceria is an affidavit asserting that he is the owner of the property levied. So with that the sheriff is now
placed on guard because the sheriff may be held liable if he continues to sell the property of the defendant. So, he is not bound to
the proceedings regarding the sale unless the judgment obligee, on demand of the sheriff, files a bond approved by the court to
indemnify a third party claimant in the sum not less than the value of the property levied on.
Suppose sabi ni Gina: “Huwag kang maniwala diyan. Kalokohan iyan. Drama lang yan ni Karen at Lolo. Proceed with the
auction sale!” Gina has to file a bond if he insists that the auction sale must proceed. Gina must put up a bond approved by the
court to indemnify the third-party claimant, a sum not less than the value of the property. If the property is worth half a million, the
bond must also be half a million. Then auction sale may proceed because there’s already a bond to answer for the damages. The
sale may go on despite the third party claim.
THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
Now, do not confuse a third-party claim under Rule 39 with a third-party complaint under Rule 6.
Q: What is a third-party complaint under Rule 6?

A: A third-party complaint under Rule 6 is a PLEADING filed by a defendant against the third person not a party to the
action for contribution, indemnity, subrogation, or any other relief in respect of the plaintiff’s complaint.
Q: What is a third-party claim under Rule 39?

A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT made by a third person who claims to be entitled to
the property in the custody of a sheriff by virtue of a writ of execution.
The one who files a third party claim is technically called third-party CLAIMANT. The one who files a third party complaint is
called third-party PLAINTIFF. I notice that even in SC decisions, the SC commits that lapse: “The defendant filed a third party
complaint” or sometimes “third party claimant.” But actually, the correct term is third-party plaintiff.
Q: Now, under the law, where will you file your third-party claim?
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A: You file it with the sheriff although legally, it is considered as it is filed in the court because the sheriff is only an agent of the
court. The sheriff does not have the power to rule on the legal issues. Only the judge can. And it is the court which decides on the
validity of a third party claim.
Q: If I am the third person and I want to vindicate my claim to that property, is a third party claim procedure the only remedy I
have under the law? Even if there’s a third party claim, auction sale may proceed as long as there’s a bond. But I want the auction
sale not to proceed and I want the property to be returned in my favor, do I have any other remedy?
A: YES. Second paragraph: “Nothing herein contained shall prevent such claimant or any third person from vindicating his
claim to the property in a SEPARATE ACTION.” So, the remedy of third-party claim is NOT exclusive. There is nothing in Section
16 which says that a third person is deprived of a right to file a separate action.
As the lawyer of Lolo, I have another option: instead of filing a third party claim, I would file a case in court – the separate case
would name Gina as the defendant. The cause of action is that the sheriff mistakenly or erroneously levied the properties not
owned by Karen because I am the real owner. Since there was a mistaken levy, I am also asking the court to declare the levy as
null and void, the auction sale should not proceed.
The court might rule in my favor, so a separate action is allowed. Thus, a third-party claim is not the only remedy available
under the law for the third party claimant.
The second part also contains a new provision, “…or prevent the judgment obligee from claiming damages in the same or a
separate action against a third party claimant who files a frivolous or plainly spurious claim.”
Remember that it is possible for a third-party claimant to be a dummy when it is a frivolous claim, without basis or spurious,
para tulungan lang niya ang defendant. There are people like that. Now, under the new law, the prevailing party has the right to
claim damages against the third-party claimant for filing frivolous claims. He can claim the damages in the same action or in a
separate action.
Now, many people do not really understand what is a third-party claim, even some lawyers:
Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng another case? Can I not just complain to the court which
rendered the decision? Can I not just file a motion asking the judge to order the release of the property? Is a separate action not a
violation of the rule against multiplicity of suits?
A: NO! You cannot bring out the issue to determine the ownership of the property. INTERVENTION here is not proper. [Is this
not a ground for intervention? GROUNDS FOR INTERVENTION: (1) the intervenor has legal interest in the subject matter; (2) the
intervenor has an interest in the success of either parties; (3) the intervenor has an interest against both parties; and (4) The
intervenor is adversely affected by a distribution of a property in the custody of a court or an officer thereof.]
The SC said YOU CANNOT INTERVENE because under Rule 19, an intervention can only be done at any time before
judgment. But here in Rule 39, we are now on the stage of execution – meron ng judgment! Tapos na ang kaso…. [Gago!!]
Intervention comes to late. The judge has already decided the case. Now, bakit bigyan mo naman siya ng bagong trabaho? That’s
another issue different from a case already tried. So, a separate action is the proper remedy.
On the other hand, such doctrine should be reconciled with what the SC said in the case of
SY vs. DISCAYA
181 SCRA 378
HELD: If your property was erroneously levied under Rule 39, you can seek relief from the very same court which
rendered the judgment by simply filing a motion to question the actuation of the sheriff, because execution is part of
the process in that case and the sheriff is an officer of the court and the court has the complete control over the
actuation of the sheriff. Therefore, why require the 3rd-party to file another action when he can seek relief in the same
case? Meaning, the third party can seek relief in the same case but only to determine whether the sheriff
acted rightly or wrongly, BUT not for the purpose of determining the issue of ownership. Questions of
ownership cannot be decided here. There must be a separate action for the issue of ownership.
“A third person whose property was seized by a sheriff to answer for the obligation of the judgment debtor may
invoke the supervisory power of the court which authorized such execution. Upon due application by the third person
and after summary hearing, the court may command that the property be released from the mistaken levy and
restored to the rightful owner or possessor. What said court can do in these instances, however, is limited to a
determination of whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of
judgment, more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The court
does not and cannot pass upon the question of title to the property, with any character of finality. It can treat
of the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not.”
So, the court that renders the judgment cannot decide on the issue of ownership to a third person. So your remedy is
to file another case. But in the case of DISCAYA, the court which renders the judgment can determine whether the sheriff
has acted wrongly or correctly. And if it is wrong it can order the property erroneously levied to be released without need
of filing a separate action.
Q: So how do you reconcile the two doctrines?

A: If it is obvious that the sheriff committed a mistake – 100% mistake, i.e. he levied property belonging to a third
person who is not a defendant – to require a third person to go to court and file another case will be tedious. Why can he
not seek relief from the same court? Anyway if it is very obvious that the sheriff acted wrongly, that is only incidental.
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But when the issue is whether the property is owned by the defendant or the third person, and the issue is
controversial – who is the rightful owner – that cannot be decided summarily by the court which rendered decision. It
should be threshed out in an independent separate civil action. So that will be the consideration.
The SC summarized all these remedies in the 1995 case of:
EVANGELISTA vs. PENSERGA

242 SCRA 702
HELD: The remedies of a third person whose property was seized by the sheriff to answer for the obligation of a
judgment obligor are the following:
1. Invoke the supervisory power of the court which authorized such execution (Sy vs. Discaya);
2. Terceria - third party claim (Rule 39, Section 16); and
3. Any proper action to vindicate his claim to the property, meaning a separate civil action. (second
paragraph, Section 16, Rule 39)
So these are the three remedies of a third person whose property was seized by a sheriff to answer for the obligation of
another person.
Sec. 17. Penalty for selling without notice, or removing or defacing notice. - An officer selling without
the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount of
five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages, both to
be recovered by motion in the same action; and a person willfully removing or defacing the notice
posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale,
shall be liable to pay five thousand (P5,000.00) pesos to any person injured by reason thereof, in addition
to his actual damages, to be recovered by motion in the same action. (19a)
Notices in the auction sale should be posted in three public places. For example, you go to the hall of justice. You can see
there a bulletin board, maraming nakalagay, half man niyan mga notice of public aution ba. Now, do not go there and kunin ang
mga papel doon. Baka multahan ka. You are not supposed to remove or deface them.
Sec. 18. No sale if judgment and costs paid. - At any time before the sale of property on execution,
the judgment obligor may prevent the sale by paying the amount required by the execution and the costs
that have been incurred therein. (20a)
Q: Can the debtor stop the auction sale? Is there a way for the debtor to prevent the sale of his property?
A: YES, if the obligor pay the amount required by the execution and the costs – bayaran mo lahat ang utang mo, ‘di wala na.
That’s what the law says. For example, the bank is foreclosing your mortgage and sell the property at public auction. To stop the
bank from proceeding with the sale, you go to the bank and pay all your obligations. So, wala ng auction sale. But you have to pay
all. “Kalahati lang ang bayaran ko.” Ah, hindi puydi yan.
Sec. 19. How property sold on execution; who may direct manner and order of sale. All sales of property
under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in
the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any
excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his
authorized representative, unless otherwise directed by the judgment or order of the court. When the
sale is of real property, consisting of several known lots, they must be sold separately; or, when a
portion of such real property is claimed by a third person, he may require it to be sold separately. When
the sale is of personal property capable of manual delivery, it must be sold within view of those attending
the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at
the sale, may direct the order in which property, real or personal, shall be sold, when such property
consists of several known lots or parcels which can be sold to advantage separately. Neither the officer
conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or
indirectly in any purchase at such sale. (21a)
Execution sale shall be done at public auction. The public is invited to bid kaya may public notice. There are even publication
for real property “TO THE HIGHEST BIDDER.” How does it happen? Normally, ang unang magbi-bid diyan is iyong creditor. And
normally, his bid will be equal to the judgment in his favor. For example, the judgment against B is P1 million which includes
principal and interest. Ang bid ko P1 million din. Okay lang, bahala ka kung sinong mas mataas diyan. That is how it normally
happens.
Q: Now, suppose there are many properties levied. What is the process?
A: You sell them one by one. Hindi pwede sabay-sabay. [Maysa-maysa laeng balong!] After sufficient property has been sold
and that is enough to satisfy the debt, then do not sell anymore. Do not sell more than what is necessary to satisfy the judgment.
“When the sale is of real property, consisting of several known lots, they must be sold separately.”
Years ago, I witnessed an auction sale of subdivision here. Obviously, the owner of the subdivision could not pay his account.
So there was a public auction. Of course, the subdivision consists of more than 100 lots — iba-iba ang location, may mapa eh.
Now, you cannot say, “Alright, 150 lots. Pila man?” Hindi puydi iyan. Isa-isa dapat – Lot #1, lot #2, lot #3… “kaya pa ba iyan? I may
be interested to buy only one lot.” So, lot #1, highest bidder, lot #2…until the proceeds are enough to satisfy the account. So hindi
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pwedeng one time, garapalan iyan, kapal ng sheriff niyan. “Mga 170 lots…” ah hindi pwede iyan—isa-isa dapat. That is how
tedious it is.
The law says, the debtor, if he is present, he can intervene. He says, “Alright, unahin mo muna ito…” because he may know of
somebody who is willing to buy his property. So he can tell the sheriff, “If you want to sell unahin mo muna ito because merong
malaking bayad yan eh…” in order for his other properties to be saved from the execution.
Now, the last paragraph, the last sentence says, “neither the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any purchase at such sale”. So the sheriff and his deputy cannot
participate in the auction, these are prohibited interest.
I think there is also a prohibition in the Civil Code on this — on prohibited sales. The judge cannot be interested in the sale of a
property which is the subject matter of the litigation. The lawyer here cannot purchase a property involving a case which he
handled, to prevent conflict of interest.
Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by him for property
struck off to him at a sale under execution, the officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned thereby; but the court may order the refusing
purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if
he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the
proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds
shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of
such purchaser who refuses to pay. (22a)
Auction sale: “We are now going to sell this piece of property. Alright, highest bidder—P10,000, next P11,000, P12,000,
P13,000.” Sabi noong isa, “Alright, P40,000!” Sheriff: “Any other bid?—wala na? Ok wala na! then, it’s sold to you. Saan ang pera
mo?” Bidder: “Wala akong pera, biro lang iyon.”
My golly! Pwede kang i-contempt niyan ba! [nagpapatawa, hindi naman kalbo!] You can be declared in contempt of court. Hindi
ito biruan. This is a proceeding. So we will repeat the procedure kasi wala man. Kalokohan pala ito. Bwiset!
Q: May he bid again?

A: No more. The officer may thereafter reject any subsequent bid of such purchaser who refused to pay. So do not fool
around there when you make a bid. You must be serious and you must be ready to pay for you bid.
Sec. 21. Judgment obligee as purchaser. When the purchaser is the judgment obligee, and no third-
party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his
judgment. If it does, he shall pay only the excess. (23a)
Q: Can the judgment obligee – the creditor-plaintiff – participate in the auction sale?
A: YES, under Section 21. The sale is open to the public. As a matter of fact, in normal auction sale, the first bidder is the
plaintiff himself.
A: Suppose, he is the highest bidder. So the property is declared sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on compensation – I owe you money on the purchase price for your
property but you also owe me money based on the judgment. So quits na tayo. Wala ng bayaran! Iyang property na ang pinaka-
bayad mo.
EXCEPTION: Two (2) instances when obligee may be required to pay for his bid:
1.) When his bid is higher than the judgment. So he has to pay the cash for the excess or
EXAMPLE: The judgment in my favor is P1 million, my bid is P1.2 million and I’m the highest bidder. So I have
to pay you the balance, the P200,000 because that is more than the judgment in my favor.
2.) when the property which is to be sold is a subject of a third party claim because it is really controversial whether
the property is really owned by the judgment debtor.
So, if there is a 3rd party claim, he has to pay because it is controversial - as to who really is the owner of the
property. Of course, iyong pera naka-deposit iyan. Your money will be returned to you if it turns out the claim is
frivolous. If the third party claim turns out to be valid, it will be given to the real owner because the property that you
bought turned out to be owned by somebody who is not your debtor.
Sec. 22. Adjournment of sale. By written consent of the judgment obligor and obligee, or their duly
authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them.
Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so
for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned.
(24a)
Suppose the auction sale was scheduled today. Hindi natapos because there are many properties to be sold like 200 lots.
Then we can continue tomorrow.
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Suppose we will continue next week. Then both parties must agree by written consent of the judgment obligor and obligee if
we will postpone it to another date na mas malayo.
Q: Do you know why these things are very important?

A: Because you already advertised that it will be held on this day. So any change on the date has to be strictly complied
with. That’s the reason behind these.
Q: Now, what properties can be sold at public auction?

A: It’s either personal property or real property. We are sure about that.
TWO TYPES OF PERSONAL PROPERTY:

1.) one capable of manual delivery; and
2.) one not capable of manual delivery – iyong mga intangibles ba!
Q: What is the procedure for the sale of personal property capable of manual delivery and one not capable of manual
delivery?
A: You have Section 23 and Section 24.
Q: When it comes to real property, what is the procedure?

A: The procedure is Section 25.
So let’s go over there, conveyance to purchaser of personal property capable of manual delivery. Like a car and appliance or
any other tangible object.
Sec. 23. Conveyance to purchaser of personal property capable of manual delivery. When the purchaser of
any personal property, capable of manual delivery, pays the purchase price, the officer making the sale
must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale.
The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of
the date of the levy on execution or preliminary attachment. (25a)
Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery. When the
purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer
making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys
to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy
on execution or preliminary attachment. (26a)
Q: What is the procedure for the sale of property capable of manual delivery?
A: When the property is CAPABLE OF MANUAL DELIVERY, and you are the highest bidder, I will deliver the car to you, and
execute and deliver to you a certificate of sale. The certificate of sale should be signed by the sheriff to prove that you are the
highest bidder. And with that certificate of sale, you can register that with the LTO. Automatically, the LTO will transfer the
ownership and the registration of the car in your name.
Q: What is the procedure for the sale of property NOT CAPABLE OF MANUAL DELIVERY? Mga intangible assets?
A: There is nothing to physically give you. But according to Section 24, the officer making the same must execute and deliver
to the purchaser a certificate and that is actually tantamount to delivery already.
Q: When you buy a personal property at an auction sale and the sheriff executes a certificate of sale in your favor, do you
become the owner of the property?
A: Both sections say, “the sale conveys to the purchaser all the rights which the judgment obligor have in such
property as of the date of the levy on execution.” At the sale, you acquire all the rights which the obligor had in such
property. You become the owner because you acquire the judgment obligor’s right of ownership over such property.
BUT suppose the obligor holding the property is not the owner of the property although he has some right over the property
and his rights where sold, then you only acquire whatever rights he has over the property. You do not acquire ownership. A spring
cannot rise higher than its source.
EXAMPLE: You are the defendant but you enjoy rights over the property as usufructuary – you are the beneficial owner of the
property but not the naked owner. And your rights as usufructuary were levied. I am the purchaser. Can I acquire naked
ownership? Of course NOT. I only acquire beneficial ownership. I only acquire whatever right the debtor has over the property.
The SC made a commentary on that issue on the nature of the sheriff’s sale and one of which is the case of
LEYSON vs. TAÑADA

109 SCRA 66 [1981]
HELD: “At a sheriff’s sale they do not sell the land advertised to sell, although that is a common acceptation, but
they simply sell what interest in that land the judgment debtor has; and if you buy his interest, and it afterwards
develops that he has none, you are still liable on your bid, because you have offered so much for his interest in open
market, and it is for you to determine before you bid what is his interest in the property.”
So, it is for you to determine what his interest is before you bid. That is why you look at the sheriff’s notice of sale, meron mang
warning ba: “Notice to prospective bidders. You are advised to find out whatever interest the debtor has.”
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For EXAMPLE: You buy the land and it turns out na hindi pala may-ari iyong taong iyon, iba ang rights niya. Then you are to
uphold his rights, “Ah, I will hold the sheriff liable!” No you cannot. There is no warranty here on ownership.
So, do not confuse this with private sale of property—warranty against eviction—wala iyan sa sheriff’s sale. The
sheriff does not warrant the ownership of the property. The law only warrants the guarantee that you will acquire whatever
interest he has. And if his interest is less than what you expect, pasensha ka. This is a case of CAVEAT EMPTOR – let the
buyer beware. That is the thing you have to remember about action sale.
Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds.
Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year from the date of the registration of
the certificate of sale.
Such certificate must be registered in the registry of deeds of the place where the property is
situated. (27a)
If the property sold at public auction is a piece of land (real property), the sheriff will execute in your favor what is known as the
sheriff’s CERTIFICATE OF SALE. Ano’ng nakalagay diyan? It is practically what a normal deed of sale provides – the description of
the land, the property sold, the whole price paid, the lot if there are different parcels, how much per parcel.
The important paragraph is [d]: “A statement that the right of redemption expires one (1) year from the date of the registration
of the certificate of sale”.
Q: What is the main difference between a sale of personal property under Section 23 and sale of real property under Section
25?
A: When the property sold at public auction is real property, the debtor has one (1) year to redeem the property.
That’s what you call the RIGHT OF REDEMPTION from the purchaser. But if the property sold at public auction is personal
property, like cars or appliances, there is no right of redemption.
There is no right of redemption in personal property. That is only recognized in real property. So if your (personal) property is
sold at public auction, and then there is a highest bidder, you cannot say, “Anyway, pwede ko namang bawiin iyon.” NO, wala iyang
bawi, kanya na yan. But if the property sold at public auction is real property, that is not kissing your land goodbye. You have one
year to redeem it. That is your last chance.
Q: Summary: If you are the highest bidder, when do you acquire ownership of the property sold in a auction sale?
A: It DEPENDS whether the property sold is personal or real:
a.) If it is PERSONAL PROPERTY, the title is transferred after payment of the purchase price and delivery upon
the purchaser. Delivery is either physical or symbolic; (Sections 23 & 24)
b.) If it is REAL PROPERTY, the title is transferred, not after the auction sale, but after expiration of the right to
redeem. (Section 25)
There is no right of redemption under personal property. It can only be exercised in real property.
Now, take note that the period to redeem is ONE YEAR FROM THE DATE OF THE REGISTRATION of the certificate of sale
in the office of the registrar of deeds. It is NOT from the date of the auction sale.
Under the old law, malabo eh: “from the date of sale.” Anong sale? Date of the auction sale or date of the issuance of
certificate of sale? According to the SC, the date of the registration. That is the start of the counting. Kaya nga if there is a sale in
your favor, pag i-delay mo ang registration, ikaw ang kawawa because the longer you delay it, the redemption period is being
stretched. Instead of cutting after one year, period of redemption has not been cut off kaya there must be a registration.
Under the present rule, the right of redemption expires after one (1) year from the date of the registration of the certificate of
sale. Under the old law, it expires after twelve (12) months.
Q: Is the ‘one year’ under the present rule and the ‘12 months’ under the old rules the same?
A: NO, and we know that 12 months is 360 days. One month is 30 days times 12 is 360 days. But one year is 365 days. So
they are not the same.
That’s why before, the redemption period for extrajudicial foreclosure of mortgage is one year. And the redemption in execution
under Rule 39 is 12 months. So there is a difference. But NOW, pareho na.
That’s why the old case of STATE INVESTMENT HOUSE when the SC made the distinction between the one year period for
mortgage and the 12 months period under Rule 39 is already MEANINGLESS because the one year period. NOW is uniform.
Q: Can you attack the validity of an auction sale?

A: GENERAL RULE: NO, you cannot attack the auction sale on the presumption that every fair sale is final. There is
a presumption of regular performance of duty by the sheriff.
EXCEPTION: When an execution may be set aside:
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1.) When it is shown from the nature of the irregularity or from intrinsic facts injury resulted therefrom. (Navarro
vs. Navarro, 76 Phil. 122) Meaning, there were serious irregularities committed by the officer in conducting
the sale like no publication, no notice, no prior levy, etc.;
2.) When the price obtained at the execution sale is shockingly inadequate and it is shown that a better price can
be obtained at a resale. (Barrozo vs. Macadaeg, 83 Phil. 378) Meaning, the highest bid is shockingly inadequate.
EXAMPLE: I owed you for P100,000 – P100,000 ang judgment! And what is levied is a brand new Mercedes Benz. So sobra
na yon na pambayad sa utang. But the highest bid is P30,000. Just imagine the highest bid is 30,000, tapos meron pang deficiency
judgment for P70,000 – of course, there is something wrong here. So, that is an exception, no! That is, when the price obtained at
the execution sale is SHOCKINGLY INADEQUATE to the senses and it is shown that a better price can be obtained.
‘Shocking to the senses’ means hindi naman yung the difference is very slight.
EXCEPTION TO THE EXCEPTION: The rule that you can question the validity of the auction sale if the price obtained
is shockingly inadequate applies ONLY when the property sold is PERSONAL property. The exception does not apply
when the property sold is real property because if the property sold is a personal property, there is no right of
redemption. But if the property sold is real property, you cannot complain because, anyway, you have one year to pay and
the redemption price is lower. So, you are not really prejudiced. So why are you complaining? That’s what the SC said in the
case of
RAMOS vs. PABLO

146 SCRA 5 [1986]
HELD: “A reading of plaintiffs' (petitioners') complaint shows that inadequacy of price was raised as one of the
issues. Assuming that the price was shockingly low, the same cannot vitiate the auction sale for redemption would be
comparatively easier.”
That is because the property sold in RAMOS is real property. Pero kung personal property, I think it is really unfair. You lose
the property forever with a very small amount.
Sec. 26. Certificate of sale where property claimed by third person. When a property sold by virtue of a
writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff
pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such
third-party claim. (28a)
If the property sold at public auction is a subject of a third party claim under Section 16, the certificate of sale to the property is
issued subject to the outcome of the third party claim by a stranger.
Sec. 27. Who may redeem real property so sold. Real property sold as provided in the last preceding
section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his successor in interest in the whole or any part of the property;
(b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or
on some part thereof, subsequent to the lien under which the property was sold. Such redeeming
creditor is termed a redemptioner. (29a)
That is an important section.
Q: Who are entitled to redeem real property?

1.) The judgment obligor or his successor-in-interest; and
2.) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent
to the lien under which the property was sold. He is know as the REDEMPTIONER.
JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST
Judgment obligor is clear – the defendant who lost the case – the defendant whose property was levied. Or, his successor-in-
interest. For EXAMPLE: During the one year period to redeem, the judgment debtor died. So it could be his heirs, his children, his
spouse who could exercise the right to redeem because they step into his shoes. Also, successor-in-interest would also refer to a
person to whom the obligor assigned or transferred his right to redeem.
Q: Can the defendant sell, aside from transferring, his right to another person?
A: YES, because the right to redeem is property by itself. My right to redeem is also property such as an interest to
the real property which can be the subject matter of a sale.
EXAMPLE: “Alright, may property ako worth P5 million. Na-sheriff for P2 million. Wala na, hindi ko na kaya. Ibenta ko sa iyo for
P3 million. Give me P1 million cash at ikaw na ang mag redeem sa purchaser.” Ginansiya ka pa rin di ba? P5 million gud iyon. So I
can sell, and once I sell the right to redeem to you, you are classified as successor-in-interest for the judgment obligor.
REDEMPTIONER
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Q: Define redemptioner.
A: A redemptioner is a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on
some part thereof, subsequent to the lien under which the property was sold.
ILLUSTRATION: Suppose there is a title owned by X and he has four (4) creditors. Let’s say the property is worth P10 million
and he owes A for P2 million. So A levied the property. Now there’s another judgment in favor of B and there is no other property,
ito na lang. So ang ginawa ni B, tinatakan niya – another P2 million.
Under the Law on Land Titles and Deeds, B has inferior rights. In other words, the right of A is superior to the right of B. A has
no obligation to respect the right of B but B is obliged to respect the right of A. And Assuming that there is a third creditor – C – for
another P2 million. Thus, subsequent holder din si C. If D is also a creditor, apat na sila.
Of course, the right of A is superior. He levies the property, may one year to redeem. Sabi ni X, “Wala na akong property, so
ano pang pakialam ko kay B?” Suppose X will not redeem, so A becomes the owner after one year. What happens to B, C and D?
Bura lahat kayo because you are underneath. A has no obligation to respect your liens.
In other words, A acquires the entire property for only P2M because hindi na interesado si X. Shempre si B interesado. So B
will pay A within the redemption period para matanggal si A. Yung utang ni X na P2M binayaran niya kay A. So P4 million na ang
hawak ni B. And B will now be the number one. B will now acquire the property. Pero sabi ni C, “Hindi pwede iyan, lugi ako!” Kasi
pagna-acquire na ni B ang property, patay na naman si C and D. Sabi ni C, “Bababuyin, ah este… Babayaran kita (B)! O ayan ang
P4 million. Saksak mo sa baga mo!” D can do the same thing to C.
Iyan ang tinatawag na redemptioners – people who have lien subsequent because that is your only way to protect your lien
over the property. Anyway, even if D will pay everybody, hindi pa rin lugi because the property is worth P10 million. But he spent P8
million because he had to buy or redeem it from people who are ahead of him. That is the illustration of redemptioners, they have a
personality or a right to redeem the property from whoever is ahead of him in order to protect his lien over the property because if
he will not redeem, the quickest one will acquire the property free from any lien or encumbrance. Eh, kung wala na yung property?
Patay na ako. What property will I get to satisfy the account wala na akong property, isa nalang. That is the rule on redemption.
That is what Section 27 is all about.
Take note that redemptioners cannot redeem if the judgment debtor redeems.
(For Review Class) Now, let us discuss the case of PALICTE vs. REMOLITE, infa. This case is instructive on the issue of right
of redemption under Rule 39 in relation to special proceedings – the estate of deceased person. This is what happened:
PALICTE vs. REMOLETE

154 SCRA 132 [1987]
FACTS: A man lost a case and his properties were levied. So let’s say his properties were levied for P1 million.
But during the 1-year period of redemption, he died. And he is survived by 5 children. And there is an administrator
appointed by the court to administer the properties of the deceased. During the one period to redeem, one of five
children, siguro mayaman, redeemed the properties of their father.
Take note that only one of the heirs redeemed the entire property from the judgment creditor- obligee. And one of
the issues raised is whether one heir alone has the personality to redeem from the creditor the property of the estate
when there is an administrator. Remember, ha – the legal representative under the law, is the administrator.
ISSUE #1: So, who has the right to redeem? The heir or the administrator?
HELD: The HEIR has the right to redeem. “At the moment of the decedent’s death, the heirs start to own
the property, subject to the decedent’s liabilities. In fact, they may dispose of the same even while the
property is under administration. If the heirs may dispose of their shares in the decedent’s property even while it is
under administration with more reason should the heirs be allowed to redeem redeemable properties despite the
presence of an administrator.”
ISSUE #2: Must the one redeeming prove that the other co-heirs, the administrator and the court expressly
agreed to the redemption? Is it necessary for him to get their consent?
HELD: “There is NO NEED for such prior approval. While it may have been desirable, it is not indispensable.
There is likewise nothing in the records to indicate that the redemption was not beneficial to the estate.” Anyway, the
estate was benefited. The property was returned to the estate rather than acquired by the creditors.
ISSUE #3: How can one specific heir redeem alone when his interest in the estate is not fixed and determinate
pending the order of distribution by the court? He is just a 1/5 owner and then he is redeeming everything, how can
that be done?
HELD: “It may be true that the interest of a specific heir is not yet fixed and determinate pending the order of
distribution BUT, nonetheless, the heir’s interest in the preservation of the estate and the recovery of its properties is
greater than anybody else’s, definitely more than the administrator’s who merely holds it for the creditors, the heirs,
and the legatees.”
ISSUE #4: Can we not consider the administrator as the judgment-debtor himself and the only one successor-in-
interest?
HELD: NO. “The estate of the deceased is the judgment-debtor and the heirs who will eventually acquire that
estate should not be prohibited from doing their share in its preservation.”
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ISSUE #5: So, sabi ng redeeming heir, “Okey, so now let the property be registered in my name because pera ko
man ang ginamit. I spent my money in paying the property including the shares of my brothers and sisters who have
no money.” Is the redeeming heir correct?
HELD: NO. “The motion to transfer the titles of the properties to the name of the redeeming heir cannot
prosper at this time. Otherwise, to allow such transfer of title would amount to a distribution of the estate.”
That is tantamount to premature distribution of the estate. You cannot distribute the estate in favor of one
heir immediately.
So, what is the solution? “The other heirs are, therefore, given a six-month period to join as co-
redemptioners in the redemption made by the petitioner before the motion to transfer titles to the latter’s
name may be granted.”
So meaning, if the other heirs are given 6 months, hindi nyo mabayaran, pwede na yan, kasi pera man niya ang ginamit.
Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and
filed. The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time
within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser the
amount of his purchase, with one per centum per month interest thereon in addition, up to the time of
redemption, together with the amount of any assessments or taxes which the purchaser may have paid
thereon after purchase, and interest on such last named amount at the same rate; and if the purchaser be
also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such
purchase was made, the amount of such other lien, with interest.
Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon
payment of the sum paid on the last redemption, with two per centum thereon in addition, and the
amount of any assessments or taxes which the last redemptioner may have paid thereon after
redemption by him, with interest on such last-named amount, and in addition, the amount of any liens
held by said last redemptioner prior to his own, with interest. The property may be again, and as often as
a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the
last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in
addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after
the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner
prior to his own, with interest.
Written notice of any redemption must be given to the officer who made the sale and a duplicate filed
with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if
he has or acquires any lien other than that upon which the redemption was made, notice thereof must in
like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the
property may be redeemed without paying such assessments, taxes, or liens. (30a)
ILLUSTRATION: Brown Sugar is a judgment obligor. She has four creditors (A, B, C, and D) and all of them obtained judgment
against her and all of them levied on the same property. Brown Sugar is given one year from the registration of the sale to redeem
it from A. Now, suppose SUGAR cannot redeem, B will be the one to redeem because the first redemptioner and the judgment
obligor have one year to redeem from the date of registration. That is what Section 28 says “the judgment obligor, or redemptioner.”
Now, C is given 60 days to redeem. After that, wala ng right. Suppose C was able to redeem, D has another 60 days to redeem
from C.
Q: So what is the period of redemption?

A: There are two periods of redemption: The judgment obligor and first redemptioner are given ONE YEAR from the
date of registration of the certificate of sale to redeem and after that all subsequent redemptioners are given 60 days.
So the second redemptioner can redeem it within 60 days. So, within 60 days, the 3rd redemptioner can redeem it. Pasa yan,
in order that the redemptioner can protect their lien over the property. So, the redemption period is ONE YEAR and 60 DAYS
respectively.
Q: Now, suppose Brown Sugar or B would like to redeem the property from A. How much will the property be redeemed?
A: Under Section 28, the purchase or the bid price for the property PLUS one percent per month interest, and reimbursement
for taxes of the property with interest also. But definitely, the redemption price = the bid price + 1% interest month. So, if you will
redeem after one year, the bid price and 12% of the bid price.
ILLUSTRATION: So kung P1 million ang bid price plus + P120,000 (1%/month) = P1.12 million
Now there are two interesting cases here which I want you to remember. The conflicting ruling in PNB vs. CA (140 SCRA 360)
and the case of SY vs. CA (172 SCRA 125). The two cases involved a foreclosure of mortgage not execution but the Rules of Court
applies. Under the extra-judicial foreclosure of mortgage Act 3135, the provision of the Rules of Court are also applicable to
redemption in a foreclosure sale. So the provision in Section 28 also applies to the redemption during an extrajudicial foreclosure of
property.
PNB vs. COURT OFAPPEALS

140 SCRA 360 [1985]
FACTS: Suppose I will borrow money from the bank and stipulate an interest at 24% per annum. During the
auction sale, it was sold to the bank. Within one year, you approach me, gusto mo na i-redeem. Magkano ang bid
price—P2M plus interest of 2% per month for the next seven or eight months. Sabihin ng debtor, “No, 1% lang. Di ba
nakalagay sa law 1% lang.” Pero ang usapan natin is 3% monthly.
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ISSUE: So which prevails - the 1% per month under the Rules of Court or the 2% per month as stipulated in the
promissory note?
HELD: The 1% of the Rules of Court prevails. Why? The rights of the debtor or creditor, the bank for example,
under the promissory note, or even under the mortgage law, is only good up to the auction sale. From the moment the
auction sale is finished and there was already a bid, we are now talking of the one year period to redeem. So the rate
in the promissory note is no longer applicable.
The case of PNB was somehow modified by the SC in the subsequent case of Sy vs. CA (172 SCRA 125) where the facts are
identical.
SY vs. COURT OF APPEALS

172 SCRA 125 [1989]
FACTS: They borrowed money from the bank at 2% a month and they failed to pay the loan. Thus, there was a
foreclosure of mortgage then there was an execution of sale.
ISSUE: Within the one year period of redemption, pila man ang interest? The debtor will say 1% but according to
the bank, it is 2% as stipulated. Which will prevail?
HELD: The 3% a month stipulated under the mortgage contract prevails. Why? Because of a special law –
Section 78 of the General Banking Act R.A. 337. Between Section 28 of Rule 39 and Section 78 of the General
Banking Act, the latter prevails because it is a special law. It applies to banks.
“The General Banking Act partakes of the nature of an amendment to the mortgage law in so far as the
redemption price is concerned. When the mortgagee or the creditor is a bank or banking credit institution, Section 6 of
the mortgage law in relation to Section 28 of Rule 39 of the Rules of Court is inconsistent with Section 78 of the
General Banking Act.” So the bank rate prevails.
Paano nangyari ito? I have only one single explanation. Hindi nakita ng mga abogado ng PNB ang provision na iyon. They did
not research very well. They failed to cite the provision of the General Banking Act which authorizes the bank to continue charging
the higher rate even during the redemption period. Ginamit ng SC ang general rule eh. So mas magaling ang lawyer nung bank in
the second case because they were able to detect an exception under the general rule.
You know, if you are a lawyer of a bank, you must know all the laws regarding banks. Just the same, if you are a labor lawyer,
you master all the labor laws. But if you are a bar candidate, you master all laws! Yaaaann!
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon;
to whom payments on redemption made. If the judgment obligor redeems, he must make the same
payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption
shall be allowed and he is restored to his estate.
The person to whom the redemption payment is made must execute and deliver to him a certificate
of redemption acknowledged before a notary public or other officer authorized to take acknowledgments
of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of
the place in which the property is situated, and the registrar of deeds must note the record thereof on the
margin of the record of the certificate of sale. The payments mentioned in this and the last preceding
sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale.
(31a)
Q: Suppose Tikla redeems the property from Joshua. If the sheriff will execute in favor of Tikla a certificate of redemption, to
whom should Tikla pay?
A: The law says she can pay directly to the purchaser, the redemptioner or the person who made the sale.
Sec. 30. 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 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, if he redeems upon a mortgage or other lien, a memorandum of the record
thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary
to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually
due on the lien. (32a)
When the ORIGINAL OWNER wants to redeem the property from B, there is NO NEED for him to prove his right as a
judgment debtor. The judgment debtor has the automatic right to redeem.
But when it is B, C or D (REDEMPTIONERS) who wants to redeem, they MUST PROVE to the sheriff that they are
qualified to redeem. They must prove their status because not every person in the world has the right to redeem. The right to
redeem is only given to the debtor, the successor-in-interest or the redemptioner. Thus, you must prove your personality to effect
redemption.
Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time
allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the
property by injunction, on the application of the purchaser or the judgment obligee, with or without
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notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to
possession afterwards, during the period allowed for redemption, to continue to
1. use it in the same manner in which it was previously used; or
2. to use it in the ordinary course of husbandry; or
3. to make the necessary repairs to buildings thereon while he occupies the property. (33a)
PROBLEM: Suppose X is the debtor, A is the purchaser because the highest bidder could be any person. During the 1-year
period to redeem, who is in possessor of the property? The purchaser or the debtor?
A: The DEBTOR. During the one-year period, iyo pa rin yan. The buyer or the purchaser cannot take over during the
institution. He has to wait for the one-year period to expire before he can take over. Therefore, X continues to occupy the
property. He continues to use it the same manner it was previously used. Use it in the ordinary course of husbandry, to make the
necessary repairs to buildings thereon while he occupies the property.
Q: Suppose 8 months has passed. Sabi ni X, “Mukhang wala na akong pag-asa. Hindi ko na ito mababayaran. Sige, wasakin
ko na lang ang property. Sirain ko na lang. I will make a waste of the land. I will cut all the coconut trees. I will destroy all the
improvements. Para pag-take-over mo, wala na. Bwahahaha!” What is the remedy of A?
A: He can ask the court to issue a writ of injunction according to Section 31 – an injunction to restrain the commission of
waste on the property. So, you can also stop him by injunction.
Sec. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner
shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the
value of the use and occupation thereof when such property is in the possession of a tenant. All rents,
earnings and income derived from the property pending redemption shall belong to the judgment obligor
until the expiration of his period of redemption. (34a)
Section 32 is the continuation of Section 31.
Q: My property was sold on execution in your favor. But my property earns income. May mga tenants diyan na nagbabayad ng
renta. During the one-year period, who will get the rentals? The purchaser or the debtor?
A: The DEBTOR. He continues to receive all the earnings. For defensive purposes, he is still the owner. Do not say
that, “Ako ang highest bidder, akin ang income!” (Gunggong!) You wait for the one-year redemption period to expire to get the
income.
Under the OLD rules, the 1964 Rules, during the one-year period to redeem, the debtor/defendant continues to get the income
of the property but when the creditor may opt: “Your Honor, akin ang income ha?” That’s allowed by the old law. But everything is
deductible also form the redemption price. NGAYON wala na yan. 100% the debtor is the one enjoying the income over the
property. That is a major amendment introduced by the 1997 Rules.
Q: Now, what happens if after the lapse of one year there is no redemption? What is the next step?
A: That is Section 33:
Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given.
If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the
purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty
(60) days have elapsed and no other redemption has been made, and notice thereof given, and the time
for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all
cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of
the sale to redeem the property. The deed shall be executed by the officer making the sale or by his
successor in office, and in the latter case shall have the same validity as though the officer making the
sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of
the levy. The possession of the property shall be given to the purchaser or last redemptioner by the
same officer unless a third party is actually holding the property adversely to the judgment obligor. (35a)
If the period to redeem expires, no more right of redemption. What will happen? The sheriff now will now execute in favor of the
highest bidder or purchaser what is known as the final deed of sale or DEED OF CONVEYANCE. Remember that there are two
documents here which the sheriff executes in case of real property.
Q: What are they (two documents which the sheriff executes in case of real property)?
A: The following:
1.) CERTIFICATE OF SALE. After the auction sale, he will execute in your favor the certificate of sale under
Section 25, by the time you register that, you start counting the one year.
2.) DEED OF CONVEYANCE. If after one year there is no redemption, a deed of conveyance is executed. (Section
33)
Q: Which of the two documents transfers the ownership to the purchaser?

A: Only the DEED OF CONVEYANCE transfers title to the property.
The certificate of sale one year ago does not transfer the ownership of the land to the purchaser. It is only a memorial that you
are the highest bidder, that you paid so much and that you are the purchaser but there is no transfer of ownership. Only the final
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deed of sale in Section 33 conveys title to property. So do not confuse the sheriff’s certificate of sale under Section 25 with the final
deed of sale under Section 33.
Although in an extra-judicial foreclosure, there is no need of deed of sale. Only affidavit of consolidation is needed under
the mortgage law.
Q: How can the sheriff give it to you? Suppose the debtor refuse to vacate, is there a need to file another action of unlawful
detainer or forcible entry?
A: There is no more need of filing another action to eject the former owner. The procedure is, the purchaser can ask the court
to issue a WRIT OF POSSESSION under the Property Registration Decree to take over the property.
Now, another interesting case about this stage in relation to property exempted from execution, is the case of
GOMEZ vs. GEALONE

203 SCRA 474 [1991]
FACTS: The property of the defendant was levied and sold in a public auction to the highest bidder. One year
after, there was no redemption. Then after the period has expired, here comes the defendant questioning the auction
sale because the property was exempt from execution and the property really turned out to be exempt from execution.
ISSUE: Is there a deadline for a judgment debtor to claim exemption from execution of his property? Can the
debtor still raise the issue that the property is exempt from execution after the expiration of the redemption period.
HELD: The rules do not expressly mention up to what point “although the rules of court does not prescribe the
period within which to claim the exemption, the rule is, nevertheless, well-settled that the right of exemption must be
claimed by the debtor himself at the time of the levy or within a reasonable time thereafter.” What is “reasonable
time”?
“’REASONABLE TIME,’ for purposes of the law on exemption, does not mean a time after the expiration of the
one-year period for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory
final bills of sale on execution and defeat the very purpose of execution - to put an end to litigation.”
“We now rule that claims for exemption from execution of properties under Section 13 must be presented
before its sale on execution by the sheriff.”
Meaning, you raise the issue of exemption at the time of the levy but not later that the auction sale. There is a deadline
because if you claim exemption after that, masyadong ng atrasado—too late na ba. Thus, the claim for exemption must be raised.
That’s the ruling in the case of GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale not effective; revival of judgment. 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 because the
judgment has been reversed or set aside, or because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property, he may on motion in the same action or
in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof
as has not been delivered to the judgment obligor; or he may, on motion, 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. 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. (36a)
Q: Suppose A is the highest bidder. There is a third-party claim which turned out to be valid. So the property is removed from
A. So, paano naman si A? Nakabayad gud siya diyan. Paano niya babawiin ang kuwarta niya?
A: A’s options under Section 34:
1.) Recover the money from obligee (A here is not the judgment obligee); or
2.) Have the judgment revived in your name and you look for other properties of the obligor to execute because:
a.) He lost possession of the property;
b.) He was evicted;
c.) There was irregularity of the proceedings;
d.) The judgment has been reversed or set aside on appeal;
e.) The property sold was exempt from execution; or,
f.) A third person has validity of his claim of the property.
That’s one way of property being removed from the purchaser. Your remedy is to recover the money from the obligee
ASSUMING that the obligee is different from the purchase. Or have the judgment revived in your name – hahabol ka na lang sa
ibang properties ng debtor. That’s the procedure alright.
Sec. 35. Right to contribution or reimbursement. When property liable to an execution against several
persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds
of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion,
he may compel a contribution from the others; and when a judgment is upon an obligation of one of
them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his
property or before sale, he may compel repayment from the principal. (37a)
Q: The judgment is against A, B, and C, solidary debtors. A paid everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
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Or if the surety was made to pay the loan, he can claim reimbursement from the principal debtor. That’s under the Law on
Obligations and Contracts—right to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are the so-called provisions of the rules in aid of execution – remedies “in
aid of execution” – because execution is a difficult process. The purpose of the remedies in aid of execution is to help the obligee
realize the fruits of the judgment.
It is sometimes very hard to grasp out properties of the obligor especially if he knows how to hide them by conveying remedies
to assist him in locating the properties of the defendant and these remedies in aid of execution are found in Section 36 to Section
43. And the most famous are those found in Sections 36 and 37:
Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the return of a writ of
execution issued against property of a judgment obligor, or any one of several obligors in the same
judgment, shows that the judgment remains unsatisfied, in whole or in part, 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, 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
proceedings may thereupon be had for the application of the property and income of the judgment
obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear
before a court or commissioner outside the province or city in which such obligor resides or is found.
(38a)
Sec. 37. Examination of obligor of judgment obligor. 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
upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other
juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order,
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 be examined concerning the same. The service of the order shall
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
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. (39a)
So under Section 36, you can ask the court to render judgment to allow you to subpoena the obligor and take the witness
stand subject to questioning so that you can discover where his properties are. So in effect, Section 36 is related to modes of
discovery. This is actually a mode of discovery. This is a type of deposition taking. It is related to the subject of deposition taking
where the discovery of the witness stand to effect execution.
EXAMPLE: The sheriff did not find any property of the obligor. So the obligee can file a motion under Section 36 for
examination of the obligor under oath hoping that in the course of asking questions, he might make some admissions. And the
procedure is the same as in deposition but this is only done right inside the courtroom.
On the other hand under Section 37, you can also examine people whom you believe owe the obligor such as his debtors, or
those holding his property, so that you can discover all his collectibles and ask that the same be garnished. So this time, it is the
“obligor” of the judgment obligor who will be examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a sum of money. The obligee can file a motion under
Section 37 to subpoena Kenneth, Thadd and Francis to find out if it is true that they are indebted to the judgment obligor. In this
case, the obligee can as the court to garnish the money.
So, those are the objects of Sections 36 and 37. Of course there are others, just go over them.
Sec. 38. Enforcement of attendance and conduct of examination. A party or other person may be
compelled, by an order or subpoena, to attend before the court or commissioner to testify as provided in
the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to
answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time,
until they are completed. If the examination is before a commissioner, he must take it in writing and
certify it to the court. All examinations and answers before a court or commissioner must be under oath,
and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer
or agent thereof. (40a)
Section 38 is the continuation of Section 37. If the judgment obligor, or Kenneth, Thad and Francis refuse to comply with the
subpoena, they can be punished for contempt.
Sec. 39. Obligor may pay execution against obligee. After a writ of execution against property has been
issued, a person indebted to the judgment obligor may 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
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prescribed in section 9 of this Rule, and the sheriff's receipt shall be a sufficient discharge for the
amount so paid or directed to be credited by the judgment obligee on the execution. (41a)
Here, there is a change of the party creditor. The best example is garnishment from a bank. B is the debtor of the judgment
obligor. If B, instead of paying the judgment obligor, will pay the judgment creditor, B is no longer indebted to the judgment obligor.
Sec. 40. Order for application of property and income to satisfaction of judgment. 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.
If, upon investigation of his current income and expenses, it appears that the earnings of the
judgment obligor for his personal services are more than necessary for the support of his family, the
court may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any
such installment when due without good excuse, may punish him for indirect contempt. (42a)
If upon investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal
services are more than necessary for the support of his family, the court may order that he pay the judgment obligee in fixed
monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish him for indirect
contempt.
Q: Can the salary of an employee be garnished?

A: Yes IF there is excess for support of his family. (Section 40) Section 40 related to Section 13, paragraph [i] properties
exempt from execution:
(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;
Normally, you cannot levy on the earnings of a person which he needs for support of his family. But actually, it is not the entire
earnings because if you’re earning a lot, it is more than sufficient for your family. So the excess of your income can be garnished
under Section 40.
Sec. 41. 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. (43a)
The court may appoint a receiver who is an officer of the court who will manage the property of the litigants pending litigation.
This remedy is found under Rule 59 on Receivership. The purpose of receivership is to preserve the property by placing it in the
hands of the court to remove it from the control of a party because a party may dispose of the property.
Sec. 42. Sale of ascertainable interest of judgment obligor in real estate. If it appears that the judgment
obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver
may be ordered to sell and convey such real estate or the interest of the obligor 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.
(44a)
EXAMPLE: The obligor turns out to have an interest in real property as a mortgagee, or he has a right to redeem, or right to
foreclose, or right to repurchase. The obligee can levy on these rights because these rights are property rights by themselves. This
time, it is not the property which is sold but your interest.
Sec. 43. Proceedings when indebtedness denied or another person claims the property. If it appears that a
person or corporation, alleged to have property of the judgment obligor or to be indebted to him, claims
an interest in the property adverse to him or denies the debt, the court may authorize, by an order made
to that effect, the judgment obligee to institute an action against such person or corporation for the
recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt within one
hundred twenty (120) days from notice of the order, and may punish disobedience of such order as for
contempt. Such order may be modified or vacated at any time by the court which issued it, or by the
court in which the action is brought, upon such terms as may be just. (45a)
EXAMPLE: The obligee cannot find any property of the obligor. But there is a rumor that Pong owes the obligor a sum of
money. Upon examination, Pong denies indebtedness. But the obligee believes that he has evidence that Pong owes the obligor
money. In this case, the obligee can ask the court that he be allowed to file a collection case against Pong on behalf of the
obligor.
Q: Can the obligee considered as a real party in interest in this case?

A: YES. The obligee is now considered as a representative party. Section 43 is an example of the phrase, “or a party
authorized by law or these Rules…” under Rule 3, Section 3:
Sec. 3. Representatives as parties. x x x x x A representative may be a trustee of an express trust, a

guardian, an executor or administrator, or a party authorized by law or these Rules. x x x x x x
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SATISFACTION OF JUDGMENT
Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment shall be entered by
the clerk of court in the court docket, and in the execution book, upon the return of a writ of execution
showing the full satisfaction of the judgment, or upon the 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 upon the endorsement
of such admission by the judgment obligee or his counsel on the face of the record of the judgment.
(46a)
Sec. 45. Entry of satisfaction with or without admission. Whenever a judgment is satisfied in fact, or
otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his
counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the
last preceding section, and after notice and upon motion the court may order either the judgment obligee
or his counsel to do so, or may order the entry of satisfaction to be made without such admission. (47a)
Q: What does satisfaction of judgement mean?

A: SATISFACTION OF JUDGMENT is the compliance with or fulfillment of the mandate thereof (31 Am. Jur. 354).
Execution is not the same as satisfaction. Execution is the method of enforcement of a judgment. Satisfaction refers
to compliance with or fulfillment of the mandate of judgment. Normally, execution precedes satisfaction. But you can satisfy a
judgment without execution by simply paying voluntarily. And when the judgment is satisfied, it has to be recorded the manner of
which is found in Sections 44 and 45 – either the sheriff himself will record “fully satisfied,” or, the creditor will file an admission
that the judgment is fully satisfied, or, the debtor on motion will ask that it be recorded that he has already paid.
Q: Who may compel satisfaction of judgment?

A: Satisfaction of judgment may be compelled by the judgment-creditor by means of execution, or by the judgment-
debtor by means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236)
Now, here is an interesting question which has not yet been asked in the Bar. They were expecting it as early as 2 years ago.
Q: Can a plaintiff appeal from the judgment and at the same time move for execution of the same? Can you do both without
being self-contradictory? Can you demand satisfaction of judgment and at the same time appeal said judgment?
A: PRIOR CASES say, you cannot do it because it is inconsistent. When you comply with the satisfaction of judgment, you are
already accepting the correctness of judgment. But when you are appealing it, you do not accept the same. That was the old ruling
which was MODIFIED in the case of
VITAL-GOSON vs. COURT OF APPEALS

212 SCRA 235 [1992] (en banc)
ISSUE: Whether or not a judgment creditor is estopped from appealing or seeking modification of a judgment
which has been executed at his instance.
HELD: It depends upon the nature of the judgment as being indivisible or not. This is the doctrine laid down by
this Court in a case decided as early as 1925, Verches v. Rios, where the judgment is INDIVISIBLE, acceptance of
full satisfaction of the judgment annihilates the right to further prosecute the appeal; and that even partial
execution by compulsory legal process at the instance of the prevailing party, places said party in estoppel to ask that
the judgment be amended.” Indivisible means either you accept it as correct or you appeal. But you can not have your
cake and eat it too.
“Where the judgment is DIVISIBLE, estoppel should not operate against the judgment creditor who
causes implementation of a part of the decision by writ of execution. This is the clear import of Verches .and the
precedents therein invoked. The principle is fully consistent not only with the opinion that acceptance of payment of
only the uncontroverted part of the claim should not preclude the plaintiff from prosecuting his appeal, to determine
whether he should not have been allowed more, but also with logic and common sense.” In other words, if a
judgment is divisible, there is no prohibition.
EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or more causes of action – I am satisfied with one cause but
I am not with the other. So, my appeal is only on the 2nd cause of action where the award should be higher. I am not appealing in
the first cause of action and the defendant did not also appeal. So I can move to execute that portion of judgment, as far as the first
cause of action is concerned and continue with my appeal on the second. This is a divisible judgment. This is allowed.
PROBLEM: Plaintiff sues for P1 million damages. The court gave an award of P500,000 only (one-half the damages sued for).
Defendant did not appeal because he is satisfied with the judgement. Meaning, he accepts the liability of up to P500,000,
“Judgment is good.” Plaintiff, however, is not satisfied, “It should be P1 million, so I will appeal.” He believes that even if he loses
the appeal, he is insured as to the P500,000.
Q: Can plaintiff move for the satisfaction of P500,000 and let the other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with respect to the first half. To my mind, this is a DIVISIBLE judgment since
defendant accepts it and even if plaintiff loses appeal, the former is still liable up to P500,000. So the plaintiff might as well claim it
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now for it is final insofar as the defendant is concerned while plaintiff’s appeal is with respect to the balance. This is a possibility
under the ruling in VITAL-GOSON.
Sec. 46. When principal bound by judgment against surety. When a judgment is rendered against a party
who stands as surety for another, the latter is also bound from the time that he has notice of the action or
proceeding, and an opportunity at the surety's request to join in the defense. (48a)
When there is a judgment against the surety, the principal debtor is also bound by the judgment from the time he has notice of
the action or proceeding and an opportunity at the surety’s request to join in the defense. The surety is only liable legally but the
real party liable is the debtor.
RES ADJUDICATA
And finally, the most important section in Rule 39 is Section 47 – effect of judgment or final order. This is what we call the
principle of res adjudicata.
Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court
of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will,
or the administration of the estate of a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of
the person; however, the probate of a will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
(b) 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 raised in relation thereto, conclusive between the parties and their
successors in interest by title subsequent to the commencement of the action or special proceeding,
litigating for the same thing and under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face to have
been so adjudged, or which was actually and necessarily included therein or necessary thereto. (49a)
We know what this is all about – when the matter is already decided or finish already, you cannot re-open that easily. The
direct provision of law which enunciates that principle is Section 47, which is composed of 3 portions: paragraphs [a], [b] and [c].
Now, paragraph [a] is the principle of res adjudicata as applied in judgment in rem (binding on the whole world) or at least
quasi in rem. Paragraphs [b] and [c] are the application of the same doctrine with respect to judgment in personam (binding only on
the parties).
RES ADJUDICATA and RES JUDICATA are the same. In the Philippines, that is influenced by Roman Law and Spanish Law
(Pua vs. Lapitan, 57 O.G. 4914) But the principle is known worldwide, although maybe known by another name. In Anglo-American
law, it is known as the doctrine of Estoppel By Judgment (Fajardo vs. Bayona, 98 Phil. 659). But it is the same. The concept is
similar. That is why in the 1994 case of
SALUD vs. COURT OF APPEALS

236 SCRA 384 [1994]
HELD: “The rules of res judicata are of common law origin and they initially evolved from court decisions. It is
now considered a principle of universal jurisprudence forming a part of the legal system of all civilized nations.”
Q: What is the FOUNDATION PRINCIPLE upon which the doctrine of res judicata rests?
A: It rests from the principle that parties ought not to be permitted to litigate the same issue more than once; that when a right
or fact has been judicially tried and determined by a court of competent jurisdiction, or where an opportunity for such trial had been
given, the judgment of the court shall be conclusive upon the parties and those in privity with them. Otherwise, without this doctrine,
litigation would become interminable, rights of parties would be involved in endless confusion, courts would be stripped of their
most efficient powers, and the most important function of government, that of ascertaining and enforcing rights, would go unfulfilled.
(Zambales Academy vs. Villanueva, L-19884, May 8, 1969; People vs. Macadaeg, 91 Phil. 410; Oberiano vs. Sobremesana, L-
4622, May 30, 1952; Peñalosa vs. Tuazon, 22 Phil. 303)
I think we agree with that. Imagine, if two persons litigated for years over the ownership of a parcel of land. Then after years of
litigation, all the way to the SC, defendant won. Final. After one generation, both plaintiff and defendant are dead but their children
would continue. Here comes the children of the plaintiff raising the same issue of ownership. So, there is no end if there is no res
judicata.
REQUISITES OF RES ADJUDICATA
What are the requisites of res adjudicata? How do we know, since there are 2 cases here? Does it mean that simply because
there is a case between us, there will be no more case between us in the future? NO.
Q: So what are the requisites of res adjudicata?

A: There is res judicata if the following REQUISITES are present: FJMI
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1.) The judgment or order invoked as res adjudicata must be final;
2.) The court rendering the same must have jurisdiction over the subject matter and of the parties;
3.) The judgment or order must be upon the merits; and
4.) There must be, between the two cases, identity of parties, identity of subject matter, and identity of cause of action.
So the elements are similar with litis pendentia. Actually, they are based on the same rule – splitting of the cause of action. The
only difference is, in litis pendentia, the first action is still pending. In res adjudicata, the first action has already been decided and
the decision has already become final.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL
When it says ‘final’, the previous judgment has been final and executory (Hubahib vs. Insular Drug, 64 Phil. 119) Meaning, it
can no longer be changed. This is because there is such a thing as final and appealable. A final and executory judgment is already
beyond the power of the court to alter while a final and appealable judgment is still subject to modification by the appellate court.
(Macapinlac vs. CA, 86 Phil. 359)
So where there is a judgment now that you received, and before it becomes executory, you filed another case, it is not res
judicata. It is litis pendentia because the first case is still pending.
EXAMPLE: Jessa files a case against Charles. Charles lost and then appealed. While his appeal is pending, Jessa filed the
same case against Charles. Charles filed a motion to dismiss the second case. The ground for the motion to dismiss should be Litis
Pendentia because while there is already a decision, the same is not yet final and executory. It is still on appeal. In such case, it is
improper to invoke the principle of res adjudicata because the first element is missing.
Q: Now, when did the first judgment become final? Is it before the second case is filed? Or is it after the second case filed?
A: Either one. It could have been final before the filing of the second action or after, provided when the defendant invoked it,
the first judgment is already final. (Galiancia vs. CA, 173 SCRA 42)
Second Requisite: THE COURT RENDERING THE SAME MUST HAVE JURISDICTION OVER THE SUBJECT MATTER
AND OF THE PARTIES
Meaning, the first judgment is valid because if the court never acquired jurisdiction over the subject matter and the parties and
rendered judgment, the judgment is void and cannot be invoked as res judicata. (Banco Español-Filipino vs. Palanca, 37 Phil. 921)
Q: May a voidable judgment be invoked as res adjudicata?

A: YES because such kind of judgment is binding upon the parties until annulled. (Reyes vs. Barretto-Datu, 94 Phil.
446)
Now, the classic example of the second element is the case which I mentioned to you when we were in Rule 17 – the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA

166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned
because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After a while
the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent. So, following
Section 3 of Rule 17, the dismissal is with prejudice – “it shall have the effect of an adjudication upon the merits,
unless the order provides otherwise.”
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the compliant.
Defendant moved to dismiss because when the first complaint was dismissed and the order of dismissal was silent
then the dismissal has the effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under Rule
39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the case
both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he
was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata. The
second element of res judicata is missing.
Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE MERITS
What do we mean by this? A judgment on the merits for the purpose of res judicata is one finally settling the issues raised in
the pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it is after trial when there is presentation of evidence.
Therefore, when a complaint is dismissed for lack of jurisdiction or improper venue, even if said dismissal becomes
final, the plaintiff can re-file the case because the dismissal upon improper venue or lack of jurisdiction is not upon the
merits. It never dealt with the correctness or validity of the cause of action. There should be trial, generally.
So, GENERALLY, a dismissal without a trial is not an adjudication upon the merits EXCEPT in Rule 17, Section 3
where the case was dismissed for failure of the plaintiff to appear during the presentation of his evidence in chief, or to
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prosecute his action for an unreasonable, period of time, or failed to comply with the rules or order of the court. There is
no trial there but according to Rule 17, Section 3, the dismissal shall have the effect of an adjudication upon the merits. This is the
exception even if there was no trial in the first case.
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES, IDENTITY OF PARTIES, IDENTITY OF SUBJECT
MATTER, AND IDENTITY OF CAUSE OF ACTION
I. IDENTITY OF PARTIES
Q: When there is identity of parties for the purpose of res judicata?

A: There is identity of parties for the purpose of res judicata:
1.) When the parties in the second action are the same as the parties in the first action; or
2.) When the parties in the second action are successors-in-interest of the parties in the first action, such as
heirs or purchasers who acquired title after the commencement of the first action.
EXAMPLE: The example I gave you, the quarrel between parents, then the children did the same. That is the same
parties. The children are the successors-in-interest of the original parties, although literally they are not the same
parties.
One good illustration of res adjudicata on identity of parties as applied in a labor case was the case of
DELFIN vs. INCIONG
192 SCRA 151 [1990]
NOTE: The doctrine of res adjudicata applies not only to the decisions of regular courts but can be
invoked even in administrative cases. It also applies to decisions of administrative bodies.
FACTS: In the case of DELFIN, a union filed a case of unfair labor practice (ULP) against the employer. Then
later on, the case was dismissed by the NLRC. When the case was dismissed, the employees filed another case
based on the same ULP. The employer invoked res adjudicata and the complainants said, “No, it is not the same
parties. In the first case, it was the union. Now it is us (employees).”
HELD: NO! When the union filed the first case, it was filing in behalf of the employees. This is what you call
representative party. In effect, it is the same party.
“While it is true that the complainants in the first charge was the union, in reality it had no material interest in the
outcome of the case. The real party who stands to be benefited or defeated by a case brought in the name of the
union are the union members themselves. Since the judgment therein had become final and executory, the
subsequent filing of another ULP charge against the employer for the same violations committed during its existence,
is barred by res judicata.”
“The bringing of the same action in the name of the individual members of the union will not take out the case
from the ambit of the principle of res judicata.” So, it is still the same parties.
II. IDENTITY OF SUBJECT MATTER
Q: When is there identity of subject matter?

A: There is identity of subject matter if in the second case, the same thing is involved or included in the first case.
(Agregado vs. Muñoz, 26 Phil. 546)
EXAMPLE: A judgment in an action for the recovery of a large tract of land shall be a bar for a subsequent action for the
recovery of a smaller parcel included in the large tract. (Rubiso vs. Rivera, 41 Phil. 39)
EXAMPLE: A judgment in an action for accounting of a certain funds would be a bar for a subsequent action for the partition of
the same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411)
EXAMPLE: A case for recovery of property was dismissed. The losing party file a second case for recovery of the value of the
property. In this case, there is res adjudicata. So, you can not deviate ‘no? Kahit konting retoke lang, it is the same.
III. IDENTITY OF CAUSES OF ACTION
Q: When is there identity of causes of action for the purpose of res judicata?
A: There is identity of causes of action for the purpose of res judicata when the two actions are based on the same
delict or wrong committed by the defendant, even if the remedies be different (Qiogue vs. Bautista, L-13159, Feb. 2, 1962).
You cannot change the remedy in order to escape from the principle of res adjudicata.
Sometimes, it is one of the hardest – same cause of action – because sometimes there are 2 causes of action which are
interrelated, even between the same parties. Now, if there are 2 interrelated causes of action, there is no res adjudicata.
Interrelated only, because the law says similar causes of action. That is hard to determine.
That is why the SC had to give some tests to determine whether the causes of action are the same or not. Among these tests
given by the Court:
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TESTS TO DETERMINE WHETHER OR NOT THE CAUSES OF ACTION ARE THE SAME:
1) SAME EVIDENCE Test as laid down in the case of
AQUILA ESTATE vs. BACOLOD-MURCIA MILLING CO.

144 SCRA 482
HELD: Res adjudicata can not be applied even though in the 2 cases there is identity of parties, subject matter,
and relief prayed for, the evidence adduced to sustain the cause of action in the first case is not sufficient to sustain
the second case. So, the evidence was sufficient to prove the first case while the same evidence is not sufficient to
prove the second case. Therefore, it must be different cause of action for how come the same evidence will not
suffice anymore. So, it must be a different one.
2. INCONSISTENCY Test given in the case of
VALENCIA vs. RTC

184 SCRA 80
HELD: One test of the identity of cause of action is whether or not the judgment sought in the subsequent case
will be inconsistent with the prior judgment. Meaning, you are asking for a decision which is in conflict with the original
decision.
Q: Suppose there is an inconsistency, is this a sign of res adjudicata or no res judicata?

A: Well, I think if there is an inconsistency, that is a sign of res adjudicata because you are trying to change what has already
been rendered. To my mind, that is how it should be interpreted because if the judgment I am seeking is inconsistent with what has
been decided, then I think that is violating the rule of res adjudicata – I am re-opening something which was already decided.
3.) And the test in the 1995 case of
GUEVARRA vs. BENITO

247 SCRA 570
HELD: The causes of action can not be the same if the cause of action in one case only arose after the
judgment in the other. The principle of res judicata extends only to the facts and conditions as they existed at the
time the judgment was rendered.
Those are the important principles to remember (read the cases in short).
RARE INSTANCES WHERE SC REFUSES TO ALLOW RES JUDICATA DESPITE ITS EXISTENCE
Another point, res adjudicata is a rule of law, rule of convenience, of practicality and when the evidence are present, the courts
shall not allow second litigation. We know that but I have to admit that there are some rare cases where despite the elements of res
adjudicata, the courts refused to allow it.
This what we call EQUITY CASES. But this is very rare. When there is a higher principle to be observed rather than the rule of
res adjudicata – there are higher values of society which would be subverted if we will stick to res adjudicata. A good example is
the case of
SUAREZ vs. COURT OF APPEALS

193 SCRA 183 [1991]
FACTS: This involves a custody case. A certain Rosemarie Manese file a petition for habeas corpus for the
recovery of her minor child from her former live-in partner or common-law husband, Renato Suarez. Later, Manese
filed a motion to dismiss the habeas corpus case for she intended to pursue another remedy – custody of minor under
Rule 99 of the Rules of Court in Special Proceedings.
Actually, as observed by the SC, her move was wrong because you can obtain custody of your child through
habeas corpus. She though she had the wrong remedy, so she changed it. Actually she was correct. The trouble is,
she withdrew it. In the trial for the dismissal of the habeas corpus, it was with prejudice so actually, it is on the merits
‘no?
Thereafter, she filed the custody case against Suarez. The latter moved to dismiss on the ground of res
adjudicata. All the evidence are admitted there. There was a decision on the merits.
HELD: “The principle of res judicata should be disregarded if its application would involve the sacrifice of justice
to technicality.” In other words, this is what we call EQUITY.
The application of the res adjudicata should be taken on a case to case basis; you cannot say you apply res
adjudicata through and through. It must be taken under the particular facts obtained. Meaning, there are certain facts
in that case which will warrant a deviation from the usual rule, to do “otherwise would amount to denial of justice
and/or bar to a vindication of a legitimate grievance.”
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“It is worth stating here that the controversy in the instant case is not just an ordinary suit between parties over a
trivial matter but a litigation initiated by the natural mother over the welfare and custody of her child, in which the State
has a paramount interest.” This is not a simple collection case.
“The fundamental policy of the State as embodied in the Constitution in promoting and protecting the welfare of
children shall not be disregarded by the courts by mere technicality in resolving disputes which involve the family and
the youth.”
So there is a collision here between the family view found in the Constitution and the technical principle of res adjudicata. If we
sustain the principle of res adjudicata then the mother can no longer recover her child. But if we disregard res judicata, the mother
will be given a chance to get back her child, which is higher in value than res judicata.
This principle observed in SUAREZ was actually repeated in the 1994 case of
SALUD vs. COURT OF APPEALS

233 SCRA 284 [1994]
HELD: “There should not be a mechanical and uncaring reliance on res judicata where more important societal
values deserve protection. The doctrine of res adjudicata is a rule of justice which cannot be rigidly applied when it
results to injustice.”
This is another pronouncement which leans on the equitable side of the situation rather than on the observance of the
technical rules of res adjudicata. You can disagree with the decision but the same can not be wrong. This is what you call infallible.
Infallible means no room for error. That is why Justice Jackson said commenting on the US SC: “We are not final because we are
infallible. But we are infallible because we are final.”
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF JUDGMENT
If you have read the questionnaire in Remedial Law last September (1997), one of the questions asked by the examiner is:
Distinguish the concept of BAR BY A FORMER JUDGMENT and the concept of CONCLUSIVENESS OF JUDGMENT.
The two concepts are found in Section 47. The concept of bar by a former judgment is in paragraph [b] and conclusiveness of
judgment is in paragraph [c]. These are two parts of the res adjudicata rule.
The two concepts were discussed by the SC in the case of SALUD: The concept of Bar By A Former Judgment is known in
traditional terminology as merger or bar; and in modern terminology, it is called CLAIM PRECLUSION; while Conclusiveness Of
Judgment is traditionally known as collateral estoppel and in modern terminology it is called ISSUE PRECLUSION.
Q: Distinguish BAR BY A FORMER JUDGMENT and CONCLUSIVENESS OF JUDGMENT.

1.) As to Effect: If you analyze paragraph [b], there are two judgments – in BAR BY A FORMER JUDGMENT, the first
judgment constitute an absolute bar to all matters directly adjudged as well as matters that might have been
adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first judgment is conclusive only on matters actually litigated and
adjudged in the first action under paragraph [c].
2.) As to the Requisites: In BAR BY A FORMER JUDGMENT, there must be identity of parties, subject matter, and
cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is identity of parties or subject matter, it is not necessary that
there is identity of causes of action.
Of course, for purposes of the bar exams, that kind of answer will suffice but mas maganda if there is illustration: Kung bar by
prior judgment – the first judgment is res adjudicata to the second or matters that have been adjudged and matters that could have
been adjudged in relation thereto.
EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim. I filed a case against you for recovery of land. Meron
ka pa lang claim sa akin for reimbursement for necessary expenses. It must be set-up in the main action otherwise it is barred
forever. But you did not set it up and then afterwards, you file a case against me for reimbursement for necessary expenses, I will
move to dismiss. Your claim is already barred because you should have raised it as a compulsory counterclaim in the first action.
The barring of the counterclaim is considered as the application of res adjudicata by applying the concept of bar by a former
judgment.
EXAMPLE of Conclusiveness of Judgment: The debtor borrows from the creditor P3 million payable in 3 installments
without any acceleration clause. When the first installment fell due the creditor sue the debtor and the debtor raised the defense of
forgery, “That the promissory note is forged and as an alternative defense assuming that the promissory note is valid, the first
installment was already extinguished by payment.” After trial, the court decided against the defendant. Tapos na. Now, the second
installment fell due. It is another cause of action. Now, here comes the plaintiff filing the case to collect the second installment.
Q: Can the debtor raise again, in the second case, the defense of FORGERY of the promissory note?
A: NO. Tapos na yan. We have already decided that the promissory note was genuine and that there was no forgery.
This is the same promissory note that we are talking about. So, in other words, the issue of forgery is already adjudged in
the first case and therefore res adjudicata in the second installment.
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Q: Can the debtor raise the defense of PAYMENT, that the second installment is already paid or is it also barred?
A: YES, because in the first case what was resolved was whether the first installment is paid. The judgment is already
conclusive on matters directly adjudged but not to matters which have not been adjudged. The issue on whether the
second or third installment have already been paid was never adjudged in the first case. That is the application. Take note
that there is no identity of cause of action.
Another example of Conclusiveness of Judgment was the ruling in the case
CARANDANG vs. VENTURANZA

133 SCRA 344 [1984]
FACTS: This involves a conflict between two brothers, B1 and B2. There is already bad blood between them
because according to B1, B2 appropriated all the properties of their parents. So there was this threat from B1 to sue
B2 to recover his share.
So B2 consulted his friend X. X suggested that B2 enters into a simulated sale with X. B2 sold his property to X.
As expected, B1 filed a case against both of them to annul or rescind the action. Unfortunately, B1 has never proved
that the sale was simulated. The case was dismissed.
Then later B1 died. After that, B2 said to X, “Isauli mo na sa akin ang mga properties ko.” X said, “What are you
talking about? I already bought it from you, akin na ito!” B2 filed a case against X. The defense of X is res adjudicata.
HELD: There is NO res adjudicata. In the first place, one of the elements of res adjudicata is identity of
parties. Of course, both of them are also parties of the first case but they were not adverse to each other.
They were co-defendants in the first case.
Res adjudicata is only applicable between adverse parties in the former suit and not between parties. Co-parties
for the judgment therein ordinarily settle claims as to their relative rights and liabilities as co-plaintiffs or co-defendants
per se.
But the second reason is, the cause of action is completely different and therefore the judgment in the
first case is conclusive only insofar as the right of B1 is concerned. It cannot be conclusive as to the rights
of B2 and X because it is a separate cause of action.
Another was the 1993 case of

VDA FISH BROKER vs. NLRC
228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of service incentive leave, COLA, 13th month pay,
holiday pay, is dismissed based on the finding that no employer-employee relationship existed between the
complainant and the respondent. The ruling became final.
Subsequently, the same complainants filed another case against the same respondent for reinstatement due to
illegal dismissal. (How can you file for reinstatement na wala man kayong ER-EE relationship in the first case???)
ISSUE: Is the finding of no ER-EE relationship in the first case res adjudicata to the second case for illegal
termination?
HELD: YES. “The issue of employer-employee relationship is crucial in the determination of the rights of
the parties in both cases. Res adjudicata applies even when the cause of action is not similar under the
concept of conclusiveness of judgment. The ruling in the first case that there is no Employer-Employee
relationship between the parties is conclusive in subsequent cases although the cause of action is not the same.”
“If were we to ignore the principle of res judicata, an absurd situation would arise where the same administrative
agency would have diametrically opposed conclusions based on apparently similar circumstances.” This is what will
happen - for the second case, there is ER-EE relationship. It is the same agency which said there is none in the first
case. Conflict!
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH RES JUDICATA:

A.) LAW OF THE CASE
B.) STARE DECISIS
Another question that can be asked here is, how to explain and distinguish 3 concepts which appear to be similar. These 3
concepts are all anchored on the same thing: there is a final judgement. The concept of res adjudicata, law of the case and s tare
decisis. That was also asked in the bar.
We already know RES ADJUDICATA – finality of judgment, or the issues decided in a case, once the decision has become
final and executory and cannot be litigated again by the same parties in a subsequent action involving the same subject matte r.
(Peñalosa vs. Tuazon, supra.)
Q: What about the LAW OF THE CASE?

A: LAW OF THE CASE means that legal conclusions announced on a first appeal, whether on the general law of the law as
applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to strict obedience and conformity
thereto, but they become and remain the law of the case in all after steps, whether in the lower court of in the appellate court on a
subsequent appeal. (Zarate vs. Dir. of Lands, 39 Phil. 747)
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EXAMPLE of law of the case: There is a case between us and then an issue is raised before the CA and there is a ruling, right
or wrong. That ruling will subsequently bind the parties in the same litigation. Once the case comes back, the future now of the
case will be governed by that ruling. Right or wrong, that principle will now be the controlling principle affecting the parties. The
principle will continue until the case is terminated.
TABACO vs. COURT OF APPEALS

239 SCRA 485 [1994]
ISSUE: Can a case be re-opened if the law of the case has been changed?
HELD: NO, because when the case was decided, it was the governing law at the time, even if it turns out to be
wrong.
“Under the law of the case concept, whatever is once irrevocably established as the controlling legal
principle or decision continues to be the law of the case between the same parties in the same case, whether
correct or not, so long as the facts on which such decision was predicated continue to be the facts of the
case before the court. Such stability and conclusiveness given to final judgments of courts of competent jurisdiction
are said to be grounded on reasons of public policy, judicial orderliness and economy as well as protection of the time
and interests of the litigants.”
A good EXAMPLE: File ako ng kaso – collection of an unpaid loan based on the provision of the Civil Code but the debtor said,
“There is no cause of action because the provision of the civil code is unconstitutional.” After trial the court said, “Yes, article so-so
of the Civil Code is unconstitutional. The debtor is not obliged to pay.” Tapos na. Final na ang decision because there was no
appeal. What will happen? We are bound. As far as this case is concerned, the Civil Code is unconstitutional. That is the law of the
case.
KILOSBAYAN vs. MORATO

246 SCRA 540 [1995]
HELD: The doctrine of the law of the case applies whenever the case before the court came for the second time
after a ruling of the appellate court (???).
Q: What you mean by STARE DECISIS?

A: Stare Decisis means that the decision of a court should stand as precedents for future guidance (Ballentine’s Law Dict., 2nd
Ed., 1228) Example is the decisions of the SC which stands as precedents for future cases. The purpose of this is to attain stability
and judicial order. That is why we are citing precedents.
ROSALES vs. COURT OF FIRST INSTANCE

154 SCRA 153 [1987]
HELD: “Precedents are helpful in deciding cases when they are substantially identical with previous litigations.
Argumentum a simili valet in lege. Earlier decisions are guideposts that can lead us in the right direction as we tread
the 'highways and byways of the law in the search for truth and justice. These pronouncements represent the wisdom
of the past. They are the voice of vanished judges talking to the future. Except where there is a need to reverse them
because of an emergent viewpoint or an altered situation, they urge us strongly that, indeed, the trodden path is best.”
‘Trodden Path’ – example is when you go on hiking like in Mt. Apo. If there is already a path or trail, you will not have a hard
time looking for your way up to the peak of Mt. Apo. There is already a way which will guide you to reach your destination.
But the doctrine of stare decisis admittedly does not mean that courts should be slave forever to precedents. A doctrine long
standing has also been reversed. The SC explained also why once in a while it abandons the doctrine of stare decisis:
PEOPLE vs. MUÑOZ

170 SCRA 107 [1989]
HELD: “If we have seen fit to take a second look at the doctrine on which we were all agreed before, it is not
because of a change in the composition of this body. It is virtually the same Court that is changing its mind after
reflecting on the question again in the light of new perspectives. The decisions of this Court are not petrified rules
grown rigid once pronounced but vital, growing things subject to change as all life is. While we are told that the
trodden path is best, this should not prevent us from opening a fresh trial or exploring the other side or testing a new
idea in a spirit of continuing inquiry.”
Q: Distinguish Res Adjudicata and Stare Decisis.

A: RES ADJUDICATA operates between two actions involving the same parties and the same cause(of action); while
STARE DECISIS refers to cases with different parties.
STARE DECISIS refers only to decisions of the SC (decisions of the CA are not a basis of stare decisis); while the
doctrine of RES ADJUDICATA refers to all courts: SC, CA, RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.
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A: LAW OF THE CASE refers only to one case which may or may not be invoked in subsequent cases, while STARE
DECISIS may refer to various cases which are usually invoked in subsequent cases.
Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a tribunal
or a foreign country, having jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is
conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a

JNCFM
1. want of jurisdiction,
2. want of notice to the party,
3. collusion,
4. fraud, or
5. clear mistake of law or fact. (50a)
Sec. 48 is actually a law on conflict of laws - effect of foreign judgment. If a judgment is rendered in U.S. and is being invoked
in the Philippines, should we honor it? Yes. So, is it conclusive? Yes. The law says, in case of judgment upon a specific thing, the
judgment or final order is conclusive effectively.
PROBLEM: Mortverine and Mistiqla were both in the U.S. and they quarreled about the ownership of a ring. They went to an
American court. After trial, the court ruled that Mortverine is the legitimate owner of the ring. The judgment became final.
Subsequently both of them came to the Philippines and Mistiqla filed a case against Mortverine to recover the same ring. Sabi ni
Mortverine, “Res adjudicata na ito eh, tapos na yan. Here is the decision in America. Therefore it is settled.”
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign judgment upon a SPECIFIC THING, the judgment is conclusive upon the
parties. Hindi puwedeng buksan. That’s already litigated abroad, merong nang decision. We will respect it.
Suppose the judgment is against a person. The law says it is presumptive evidence of a right as between the parties.
EXAMPLE: A and B were both Americans. They were married in the U.S. and obtained a divorce in the states. They came to
the Philippines. The issue is whether the marriage was validly terminated. According to one party, “Yes, meron man tayong divorce
ba.” Is the decree of divorce abroad involving these American couple allowed in the Philippines considering we have no divorce
here? That is their law. It is presumptive evidence of a right of the parties.
EXAMPLE: H and W are Philippine citizens. They went abroad and somehow able to get a divorce in an American court which
became final. They came back here. Will the Philippine court honor the divorce? Here, the judgment may be repelled by want of
jurisdiction of the American court, etc. The judgment is presumed to be valid unless you can attack by showing lack of jurisdiction.
What is the principle in private international law? A judgment of divorce rendered by an American court between 2 Filipinos is
null and void. Why? The American court never acquired jurisdiction over the status of the parties (because they are not U.S.
citizens). But judgment in personam is honored here except when there is want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.
Q: How do you enforce a foreign judgment?

A: The usual procedure, you file a case against the same defendant here and the cause of action is enforcement of a foreign
judgment. And then the Philippine court will render a judgment enforcing it and then you can execute.
The SC commented on the enforcement of a foreign judgment in the Philippines in the case of
PHILSEC vs. COURT OF APPEALS

June 19, 1997
HELD: “While this court has given the effect of res judicata to foreign judgments in several cases, it was after the
parties opposed to the judgment had been given ample opportunity to repel them on grounds allowed under the law.
It is not necessary for this purpose to initiate a separate action or proceeding for enforcement of the foreign judgment.
What is essential is that there is opportunity to challenge the foreign judgment, in order for the court to properly
determine its efficacy. This is because in this jurisdiction, with respect to actions in personam, as distinguished from
actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and,
as such, is subject to proof to the contrary.”
With that, we are now through with Rule 39. (Wheew!)
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APPEALS
Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL. The law on appeal starts from Rule 40 to Rule 56. Usually the appeal is from the trial court to the next higher court.
Under the judiciary law, appeals from the MTC should be to the RTC which is governed by Rule 40. And when the case is tried by
the RTC and you want to appeal, normally, the appeal should be to the CA under Rule 41.
We will stick to the basic rule on appeal found in the judiciary law, Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from final orders, resolutions, awards, judgments or
decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order,
resolution, award, judgment, or decision appealed from: Provided, however, That in habeas corpus
cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed
from.
No record on appeal shall be required to take an appeal. In lieu thereof, the entire original record
shall be transmitted with all the pages prominently numbered consecutively, together with an index of
the contents thereof.
This section shall not apply in appeals in special proceedings and in other cases wherein multiple
appeals are allowed under applicable provisions of the Rules of Court.
There are three (3) instances under Section 39:
Type of Case Period to appeal Requisites for appeal
A. Civil Actions in general 15 days Notice of appeal

B. Special Proceedings and Civil Actions where 30 days 1. Notice of Appeal
multiple appeal is allowed 2. Record on Appeal
C. Habeas Corpus 48 hours Notice of Appeal
So this is the general outline of the law on appeals under Section 39, BP 129.
[EDITOR’S NOTE: The 48-hour period to appeal in habeas corpus cases under Section 39 of BP 129 is now incorporated in
Rule 41, Section 3 as amended, which took effect last July 15, 2000 (A.M. No. 01-1-03-SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate jurisdiction of the RTC is found in Section 22, BP 129. That is
why Rule 40 is revolving around that provision:
BP 129, Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate jurisdiction
over all cases decided by MetTCs, MTCs and MCTCs in their respective territorial jurisdictions. Such
cases shall be decided on the basis of the entire record of the proceedings had in the court of origin and
such memoranda and/or briefs as may be submitted by the parties or required by the RTCs. The
decision of the RTCs in such cases shall be appealable by petition for review to the CA which may give it
due course only when the petition show prima facie that the lower court has committed an error of fact or
law that will warrant a reversal or modification of the decision or judgment sought to be reviewed.
Let us now go to Section 1 of Rule 40:
Section 1. Where to appeal. An appeal from a judgment or final order of a Municipal Trial Court may
be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains.
The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be
further referred to as the appellant and the adverse party as the appellee. (n)
So from the MTC, the appeal is to the RTC exercising jurisdiction over the area to which the former pertains. That is why under
the judiciary law, every RTC has a designated territorial area. So, if you want to appeal from the decision of the MTC of Davao City,
you appeal to the RTC of Davao. You do not make your appeal to the RTC of Tagum because it does not exercise jurisdiction ove r
Davao City.
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And take note under Section 1, it is now required that when you appeal from the MTC to the RTC, you should indicate in the
caption of the case who is the APPELLANT and the APPELLEE. This is also the procedure when you are appealing to the SC.
The appellant is the party appealing the case while the appellee is the adverse party. So for example, the original title of
the case in the MTC is: “JOBOY, plaintiff vs. BROSIA, defendant.” If Joboy will appeal the case, the title of the case now in the RTC
will be: “JOBOY, plaintiff-appellant vs. BROSIA, defendant-appellee.” Or, if Brosia will be the one appealing the case, the title now
will be: “JOBOY, plaintiff-appellee vs. BROSIA, defendant-appellant.”
The period to appeal is in Section 2:
Sec. 2. When to appeal. An appeal may be taken within fifteen (15) days after notice to the appellant of
the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on
appeal within thirty (30) days after notice of the judgment or final order.
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. (n)
In relation to certain jurisprudence, the 15-day period cannot be extended. (Lacsamana vs. IAC, 143 SCRA 643) It
cannot be extended but it can be interrupted by a timely motion for new trial or reconsideration. And no motion for
extension of time to file a motion for new trial or reconsideration shall be allowed. (Section 2)
Q: How about the 30-day period? Is the 30-day period extendible?

A. YES. It is extendible for record on appeal, on the condition that the Motion to Extend must be filed within the
original 30 days and provided further that the movant has no right to expect that his motion will be granted.
So the 15-day period can never be extended but the 30-day period is extendible based on jurisprudence. This is
because a notice of appeal is normally a one-paragraph document. You can do that in just 5 minutes. But a record on appeal is
makapal. That is why it is 30 days. Sometimes kulangin pa yung 30-day period. So you can extend it provided you file the motion
for extension during the original 30-day period.
Sec. 3. How to appeal. The appeal is taken by filing a notice of appeal with the court that rendered the
judgment or final order appealed from. The notice of appeal shall indicate 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.
A record on appeal shall be required only in

1. special proceedings and
2. in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where required, shall be served on the
adverse party. (n)
Q: How do you appeal?

A: Under Section 3, you file a Notice of Appeal to the court that rendered judgment, so MTC. And it “shall indicate 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.” For example:
Notice of Appeal
Defendant hereby serves notice that he is appealing to the RTC from the judgment rendered by the
MTC dated March 5, 1998 copy of which was received by him on March 15, 1998.
So it is very simple to make. And you must indicate exactly not only the date of the decision but also the date when you
received it because the running of the period to appeal does not run from the date of the decision but from the time you
received it. That is why the rule says, you “must state the material dates showing the timeliness of the appeal.” (Record on appeal
is discussed in Rule 41, Section 6.)
Of course, the adverse party should be furnished with a copy of the notice of appeal.
Sec. 4. Perfection of appeal; effect thereof. The perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41.
Q: When is the appeal deemed perfected?

A: See discussion under Section 9, Rule 41. From the moment the appeal is deemed perfected, the MTC loses jurisdiction
over the case. And by fiction of law, jurisdiction is automatically transferred to the RTC.
Sec. 5. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the judgment or final order appealed from the full
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amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted
to the appellate court together with the original record or the record on appeal, as the case may be. (n)
Within the period to appeal (normally within 15 days), the appellant must pay the docket fee. So that when the records are
transmitted, bayad na. Even before this rule came out, the payment of appellate docket fee is really required. The rule is the same.
Q: Suppose I will file my Notice of Appeal within 15 days but I will not pay the docket fee, should my appeal be dismissed? Is it
an additional requirement for appeal?
A: In the case of

253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee automatically cause the dismissal of the appeal in the MTC to the
RTC ?
HELD: The payment of appellate fee is found in Section 8 of Rule 141. But the SC observed that the only
requirement is Notice of Appeal. There is no mention of appellate fee. The payment of appellate fee is not a requisite
to the perfection of an appeal although Rule 141 does not specify when said payment shall be made. It does not
automatically result in the dismissal of the appeal unless it affects the jurisdiction. The dismissal being discretionary
on the part of the appellate court, such dismissal should be exercised wisely.
This ruling is still applicable. Although Section 5 prescribes that within the period to take appeal you must pay the
docket fee. If you do not pay it, it may not cause ipso facto the dismissal of your appeal. But the clerk of court may refuse
to transmit the record to the RTC until you pay. So docket fee is not a requirement to perfect an appeal although it is an
obligation also.
Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the appeal, the clerk of
court or the branch clerk of court of the lower court shall transmit the original record or the record on
appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper
Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall be
furnished the parties. (n)
What is the requirement to perfect an appeal? It is notice of appeal only or record on appeal also for special
proceedings.
Section 5 of this rule now states that when the party takes an appeal, it is the obligation of the appellant to pay the appellate
docket fee which is imposed by Rule 141 so that the clerk of the MTC will elevate the appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (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 adverse party.
Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his
memorandum.
Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.
(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 Regional Trial Court 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.
(n)
What happens if the case reaches the RTC? Section 7 answers it. The clerk court shall notify the parties. What is important
here is paragraph [b], a radical provision:
(b) Within fifteen (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 adverse party. Within fifteen (15) days from receipt of the appellant’s
memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum
shall be a ground for dismissal of the appeal.
The procedure under the OLD RULES is found on Section 22 of the Interim Rules. When the case is appealed to the RTC, the
case will be decided by the RTC based on the record on appeal together with a memorandum as the court may require the parties.
In other words, the court may or may not require the parties to file a memorandum.
NOW, the present rule says, within 15 days from notice, it is your obligation to file a memorandum. If the appellant fails to file a
memorandum in the RTC, his appeal will be dismissed. The filing of an appeal memorandum in the RTC is mandatory because you
must point out to the RTC kung saan nagkamali. You help the RTC judge look for the error.
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Q: Suppose the appellant has filed his memorandum and it is the appellee who failed to file his memorandum. What is the
effect of such failure?
A: Under paragraph [c], the case shall be submitted for decision without appellee’s memorandum. And it does not
necessarily mean that the appellee will lose the case by not filing his memorandum because for all you know the decision
of the lower court is very clear, whether he files a memorandum or not, he will still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction.
If an appeal is taken from an order of the lower court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or reverse it, as the case may be.
In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was
originally filed with it.
In case of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice. (n)
The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan of P50,000 before the MTC. But upon motion to dismiss
alleging that MTC has no jurisdiction, the court dismissed the complaint without trial. That is disposing of the case without trial.
Now, RTC said, “MTC has jurisdiction.”
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is for P500,000 before the MTC. It is clear that the MTC has
no jurisdiction. Ka Noli moved to dismiss the case and it was dismissed. But Tomas appealed to the RTC believing that the
dismissal was wrong. Of course the order of the MTC is correct. It should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes jurisdiction. The RTC which has jurisdiction, shall try the
case on the merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for P500,000 before the MTC. Ka Noli file a motion to dismiss on the ground of
lack of jurisdiction. But the motion to dismiss of Ka Noli was denied and the court tried the case. So, the trial is void. The judgment
rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC which tried a case even though it has no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the RTC will assumes jurisdiction over the case. The
RTC will convert the appellate jurisdiction into an original jurisdiction instead of dismissing an appeal. It will treat it as if it
has been filed for the first time in the RTC and not as an appealed case. The purpose here is to avoid double payment of
docket fees.
Sec. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to appeals provided for
herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule.
(n)
Rule 41 provisions may also be used in appeals from MTC to RTC. It is more comprehensive. It refers to appeal from RTC to
CA on cases decided by the RTC pursuant to its original jurisdiction. This is also applicable to Rule 40 insofar as they are not
inconsistent.
Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS
Majority of the important rules are found here in Rule 41.
Section 1. Subject of appeal. 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 these Rules to be appealable.

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
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(e) 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;
(f) An order of execution;
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65. (n)
Q: What orders or judgment are subject to appeal ?

A: Only FINAL judgments or orders can be appealed as distinguished from interlocutory judgments or orders (paragraph
[c])which are not appealable.
FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2) possible meanings in Civil Procedure:
[1] The judgment is final in the sense that it is already executory and that happens if there is no appeal. And that is for
purposes of applying Rule 39 on execution.
[2] The judgment is final in the sense that it is not merely interlocutory and this is for the purpose of applying the law on appeal
under Rule 41. In other words, a final order or judgment (for purposes of appeal) is one which is not merely interlocutory in
the sense that it completely disposes of the case or a particular matter therein where there is nothing more for the court
to do after its rendition. (Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: What is the definition of a final judgment or for purpose of appeal?

A: A judgment or order is final if it disposes of the pending action so that nothing more can be done in the trial court with
respect to its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962; Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: On the other hand, what is an interlocutory judgment or order?

A: An interlocutory order is something which does not completely dispose of the action and there is still something for the court
to do after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs. Fabrica, 80 Phil. 762) Actually, the law does not prohibit
a party from appealing an interlocutory judgment or order, only you cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
Q: What is the test for determining whether a judgment or order is final or interlocutory?
A: The test for the determination of whether a judgment or order is final or interlocutory is this: Does it leave something to be
done in the trial court with respect to the merits of the case? If it does, it is interlocutory, hence, you cannot appeal yet; if it does not,
it is final and therefore you can appeal. (Reyes vs. De Leon, L-3720, June 24, 1952)
So you must know the meanings of the word ‘final’ in civil procedure to avoid confusion. A good example is Section 20 of Rule
3 where the word ‘final’ was first mentioned:
Rule 3, Sec. 20. Action on contractual money claims. - When the action is for recovery of money arising
from contract, express or implied, and the defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in these Rules for prosecuting claims against the
estate of a deceased person. (21a)
The word final here in Section 20 refers to the second meaning that the judgment is final in the sense that it is not merely
interlocutory
BAR QUESTION: Plaintiff vs. Defendant. Defendant file a motion to dismiss under Rule 16. The court granted the motion and
consequently ordered the dismissal of the complaint of the plaintiff. Can the plaintiff appeal from the order dismissing his
complaint?
A: We will apply the test: Is there anything more for the court to do after issuing the order of dismissal? Wala na! [Awanen!]
Ano pa ba ang gagawin eh na-dismiss na nga eh! Therefore, the order of dismissal is a final order – it has completely disposed of
the case – hence, the plaintiff can appeal.
PROBLEM: Let’s modify the problem: Plaintiff vs. Defendant. Defendant file a motion to dismiss under Rule 16. The court
denied the motion to dismiss. Can the defendant appeal from the order of the court denying his motion to dismiss?
A: Again, we will apply the test: Is there anything more for the court to do after denying the motion to dismiss of the defendant?
Yes because after the court denies such motion, the defendant will now file his answer, then there will be pre-trial, trial, judgment.
Meaning, after denying the motion to dismiss, may trabaho pa ako. Therefore, the order denying the motion to dismiss is
interlocutory, hence the defendant cannot appeal.
Q: So how do you appeal from an interlocutory order?

A: The procedure if there is an order which is against you but it is not appealable, you have to wait. The case is to be
tried and then you have to wait for the final judgment to be rendered and if you are dissatisfied with the judgment, that is
the time you appeal from the said judgment together with the interlocutory orders issued in the course of the proceeding.
(Mapua vs. Suburban Theaters, Inc., 81 Phil. 311) So there should only be one appeal form that case. That’s why, as a general
rule, the law on Civil Procedure prohibits more that one appeal in one civil action.
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The reasons why interlocutory orders are not appealable are to avoid multiple appeals in one civil case since the order is
interlocutory and the court still continues to try the case in the course of the proceeding, the court will realize its error and the court
may change its order so it will be given an opportunity to corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)
Take note of the new rule saying that a judgment or order is final if it disposes of the case or of a PARTICULAR MATTER. So,
it is not necessarily the whole case.
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against B, X filed a motion to intervene and it was denied. Can
X appeal the denial? Now, it would seem that the order is interlocutory because the court, after denying the motion to intervene, still
has something to do since the case between A and B will continue. But according to the SC, YES, X can appeal because the
order denying the motion to intervene is final.
But is it not true that the court has something to do after denying such motion? Yes but what the SC is trying saying is that, as
far as X’s right is concerned, the court has nothing to do anymore. Marami pa akong trabaho dito (case between A and B), pero
kay X wala na. That is why the order denying the motion to intervene is a final order and is appealable. Kaya nga the test that there
is nothing more for the court to do is very confusing. In other words, you divide the case into parts.
DAY vs. RTC OF ZAMBOANGA CITY

191 SCRA 640
HELD: “An order which decides an issue or issues in a complaint is final and appealable, although the other
issue or issues have not been resolved, if the latter issues are distinct and separate from the others.”
REPUBLIC vs. TACLOBAN CITY ICE PLANT

258 SCRA 145 [1996]
HELD: “A court order is final in character if it puts an end to the particular matter resolved or settles definitely the
matter therein disposed of, such that no further questions can come before the court except the execution of the
order. Such an order or judgment may validly refer to the entire controversy or to some definite and separate branch
thereof.”
So the opening paragraph of Section 1 is in accordance with the DAY and TACLOBAN cases. In other words, either the
whole case is disposed of or a particular matter therein has been disposed of.
Q: If I cannot appeal because Section 1 of Rule 41 prohibits an appeal, is there a way of hastening the issue before the
appellate court in order to avoid the waste of time and effort and money of entering into a trial which is null and void because of lack
of jurisdiction?
A: The answer is the last paragraph of Section 1:
In all the above instances where the judgment or final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65. (n)
So if appeal is not available, the correct remedy is an appropriate special civil action under Rule 65. There are three civil
actions there: Certiorari, Prohibition, Mandamus.
The present Rule 41 tells us exactly what orders cannot be appealed:
So when a motion for new trial or reconsideration is denied, there is no appeal from that order. Your remedy is you
appeal from the judgment, not from the order denying your motion for new trial or reconsideration. That is found on Rule
37, Section 9:
Section 9. Remedy against order denying a motion for new trial or reconsideration.- An order denying a
motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment
or final order.
So the correct remedy is in Rule 37 – you appeal from the judgment, not from the order denying the motion for new trial or
reconsideration.
Paragraph [b] has changed some decided cases in the past. Before, an order granting a petition for relief is interlocutory but an
order denying a petition for relief is final. NOW, wala na yan! Whether it is an order granting or denying a petition for relief, you
cannot appeal.
So what is remedy for such order? Go with special civil action under Rule 65 as provided in the last paragraph of Section 1.
Give an example of an order denying a motion other than a petition for relief: motion for new trial. So it is not appealable.
Suppose I am declared in default, can I appeal from a DEFAULT JUDGMENT ? The 1964 rules says, yes. You notice that
such provision is lost. There is no more direct provision on that. But still, it is appealable. The provision in the old rules is not
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necessary. There is nothing in paragraphs [a] to [h] prohibiting an appeal from a default judgment. So it falls under the
general rule.
Q: How about the order to LIFT the order of default? Suppose you file a motion to set aside the judgment of default and motion
is denied, can you appeal?
A: NO, because the law says, an order denying any similar motion seeking relief from judgment cannot be appealed.
As a matter of fact, the 1995 case of MANILA ELECTRIC COMPANY vs. CAMPANA FOOD PRODUCTS (246 SCRA 77), there is
no such remedy as a motion to set aside an order of default but there is no provision in the rules to set aside a judgment of default.
The correct remedy is to appeal from the judgment of default not to set aside. And that is clear. The default judgment is
appealable.
So, if an appeal is dismissed, you cannot appeal from the order dismissing it. What is the remedy? The 1964 rules provides for
the remedy of mandamus. That is a direct provision because if the appeal is on time , the duty of the court to grant due course to
the appeal is ministerial. There is no more such provision in the present rules because it is already provided in the last paragraph.
Another possible remedy where an appeal is allowed aside from the mandamus is if I lost my right to appeal because of fraud,
mistake accident and inexcusable negligence, the other possible remedy is a petition for relief from judgment denying my appeal
and that is found in Rule 38, Section 2:
Rule 38, Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by
any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a petition in such court and in the same case praying that
the appeal be given due course. (1a)
So, aside from the remedy under Rule 65, the other possible remedy is a petition for relief from the order denying the appeal.
PROBLEM: So there is a judgement by consent (cognovit judgment) and the motion to set aside such judgment is denied. The
order of denial is not appealable. So again, there is judgement by confession or compromise and then you file a motion to set aside
the judgement of compromise on the ground of fraud, mistake or duress or any other ground. Motion denied!
Q: Can you appeal?
A: NO. (paragraph [e])
Q: So what is my remedy?
A: You file a separate case for annulment for such judgment (Rule 47). In the case of
DOMINGO vs. COURT OF APPEALS

255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court of Appeals
pursuant to Section 9, par. 2, of the Judiciary Law.
“A compromise may however be disturbed and set aside for vices of consent or forgery. Hence, where an
aggrieved party alleges mistake, fraud, violence, intimidation, undue influence, or falsity in the execution of
the compromise embodied in a judgment, an action to annul it should be brought before the Court of
Appeals, in accordance with Section 9(2) of Batas Pambansa Bilang 129, which gives that court (CA)
exclusive original jurisdiction over actions for annulment of judgments of regional trial courts.”
So you cannot appeal from an order of execution because if we will allow the losing party to appeal from an order of execution,
then there will be no end to litigation. Kaya nga execution, eh – it means tapos na ang kaso. That case is finished, decided, final.
But suppose the order of execution contains portions which are not found in the judgment, meaning, the order of execution is
changing the judgment which should not be done, then obviously, the correct remedy is certiorari under Rule 65 because of grave
abuse of discretion.
allows an appeal therefrom;
The best example of a judgment of final order where there are separate claims is found in Rule 36. There could be more than
one judgment in one civil case and there can be more than one decision – judgment on the main action, on the counterclaim, etc.
(c.f. Sections 4 and 5, Rule 36)
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Q: Everytime a judgment is issued, can you appeal already form the first judgment when there will be a second judgment in
that civil action? Can you appeal from all these separate judgment?
A: No, unless the court allows an appeal therefrom. Generally, you have to wait for all the judgments to be rendered
before you can appeal because, normally, there can be no appeal from every judgment rendered. A good example of this is
in the case of
PROVINCE OF PANGASINAN vs. COURT OF APPEALS

220 SCRA 726
FACTS: This was a partial summary judgment under Rule 35. Is it appealable? One party claims that a partial
summary judgment is appealable because of Rule 36, where the court allows an appeal therefrom. But according to
the Supreme Court:
HELD: A partial summary judgment is not covered by Rule 36. It is governed by Rule 35 and there is no
appeal because it is merely interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated on motion. If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings and the evidence before it and by interrogating
counsel shall ascertain what material facts exist without substantial controversy and what are actually
and in good faith controverted. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are just. The facts so specified shall
be deemed established, and the trial shall be conducted on the controverted facts accordingly.
Q: When can there be a partial summary judgment?

A: When some portions of a claim are substantially controverted and the rest are not substantially controverted. So the court
is authorized to render a partial summary judgment on the claim where there is no genuine issue we continue trying the case with
respect to the claim where there is a genuine issue. So there will be two judgments. A summary judgment for one claim and an
ordinary judgment for the other claim. So nauna yung partial summary judgment.
Q: Can you appeal from there immediately?

A: NO, you have to wait for the other judgment to come out. You cannot appeal from that partial summary judgment
while the main case is pending, unless the court allows appeal therefrom.
If an action is dismissed without prejudice, it cannot be appealed because, as it is without prejudice, you can re-file the case.
But supposed the dismissal without prejudice is arbitrary, and I don’t want to re-file because it is too costly and I really want to
question the court dismissing my case without prejudice, I want to challenge the order. Now, because appeal is not appealable,
your remedy is Rule 65 on certiorari.
Q: Give examples of dismissal of cases without prejudice.

A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h], [i]):
Rule 16, Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to
dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or
claim.
Rule 16, Section 1. Grounds. Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned,
or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute
of frauds;
Another new provision is Section 2. But, actually, the principles are not new. How do you appeal from the RTC to the CA? (or
to a higher court) Take note that Section 2 tells us that there are 3 possible ways:
1) Ordinary Appeal (in cases decided by the RTC pursuant to its original jurisdiction)
2) Petition For Review (in cases decided by the RTC pursuant to its appellate jurisdiction)
3) Appeal By Certiorari (appeal from RTC direct to the SC on pure questions of law)
Sec. 2. Modes of appeal.

(a) Ordinary appeal.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court
in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party.
No record on appeal shall be required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be
filed and served in like manner.
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Ordinary Appeal is the mode of appeal from RTC to CA in cases decided by the RTC pursuant to its original
jurisdiction.
Just like in Rule 40, you file a notice of appeal with the RTC furnishing the adverse/losing party. No record on appeal shall be
required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require.
(b) Petition for review.- The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule
42.
Actually, this was already touched in Judiciary Law. How do you appeal to the CA from the RTC in cases decided by the RTC
pursuant to its appellate jurisdiction? – not by ordinary appeal but by petition for review.
ORDINARY APPEAL (par. A) PETITION FOR REVIEW (par. B)
The case was decided by the RTC pursuant to its The case was decided by the RTC pursuant
original jurisdiction. The case was originally filed in the to its appellate jurisdiction (governed by Rule
RTC. 42)
EXAMPLE: You filed an action for recovery of money amounting to P1 million. Obviously the jurisdiction is in the RTC. Now,
natalo ka and you want to go to the CA. What is your mode of appeal? Ordinary Appeal because the case was decided by the RTC
pursuant to its original jurisdiction.
EXAMPLE: In paragraph B, the case is recovery of sum of money amounting to P50,000. Saan i-file yan? MTC man yan ba.
Now, you lose, where will you appeal and what is the mode of appeal? RTC by Ordinary appeal. Suppose, talo ka pa rin sa RTC
and you want to go to CA. This time, the mode of appeal is not by ordinary appeal but by petition for review because the case now
being appealed has been decided by the RTC pursuant to its appellate jurisdiction.
(c) Appeal by certiorari.- In all cases where only questions of law are raised or involved, the appeal
shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
This goes back to the jurisdiction of the SC. The SC has exclusive, appellate jurisdiction in certain cases — constitutionality of
a law, treaty is in issue, jurisdiction of the court is in issue, and when only questions of law are being raised.
So the case is in the RTC and you lost. You would like to appeal on pure question of law. Now, do not go to the CA for
it has no jurisdiction. You by-pass CA and go directly to the SC on appeal by certiorari in accordance with Rule 45.
What is the period to appeal? Section 3:
Sec. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a
notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.
However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the
judgment or final order appealed from.
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.
The period to appeal is 15 days. And when a record on appeal is required, the period to appeal is doubled – 30 days.
Section 3 is already amended. It now specifically provides the period to appeal in cases of habeas corpus, which is 48 hours.
This is because the SC made an error in one of the latest cases involving Rufus Rodriguez as Immigration Commissioner, where
the SC ruled that the period to appeal in habeas corpus cases is 15 days since the 48-hour period disappeared in the 1997 Rules.
So many got confused now.
So when I had a talk with Justice Panganiban last year during the celebration of the 100 years of SC here in Davao, I opened
this issue to him. Sabi ko, “Mali man yung ruling nyo ba. Under the judiciary law, it is 48-hours!” Two months after the
conversation, Section 3 was amended. [ehem!]
Alright, the period to appeal shall be interrupted by timely motion for new trial or motion for new consideration provided that the
motion for new trial is not a pro forma motion (Rule 37, Section 2).
LABITAD vs. COURT OF APPEALS

246 SCRA 434 [1995]
FACTS: You receive a judgment on January 31. You filed a motion for reconsideration on February 10. So,
interrupted and then on February 20, you receive the order denying the motion for reconsideration. When is the last
day to appeal?
HELD: The last day is February 26. The filing of a motion for new trial or reconsideration is not counted in the 15-
day period. Upon the filing in February 10, it is already interrupted. So, you did not consume 10 days. You consumed
only 9 days.
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“The period to appeal is suspended if a motion for reconsideration or one for a new trial is filed, which, if denied,
continues to run upon receipt of the order denying the same as if no interruption has occurred. The time during which
a motion for reconsideration or one for new trial has been pending shall be counted from the date the motion is duly
filed to the date when the movant is duly notified of the denial thereof.”
“The period during which the motion is pending with the trial court includes the day the same is filed because the
motion shall have been already placed under the court's consideration during the remaining hours of the day. The
very date the motion for reconsideration has been filed should be excluded from the appeal period.”
So how do you reconcile this pronouncement with the rule that the first day is excluded and the last day is included? The
answer is found in Rule 22, Section 2:
Rule 22, Sec. 2. Effect of interruption.- Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the day after notice of the cessation
of the cause thereof.
RUBIO vs. MTCC BRANCH 4 OF CAGAYAN DE ORO CITY

252 SCRA 172
FACTS: The period to file a motion for new trial or reconsideration is within the period to appeal which is 15 days,
kaya walang extension. Now this is what happened. The court issued an interlocutory order. After two months, one of
the parties filed a motion for reconsideration and, of course, the other party said, no more, you should file the motion
within 15 days. You cannot file beyond the 15-day period. Is that correct?
HELD: NO. That is wrong because an interlocutory order cannot be appealed hence, the 15-day period does not
apply. You can file your motion for reconsideration anytime for as long as the court still has jurisdiction over the case.
The 15-day period only applies when the order is final. But when the order is interlocutory, you can file it anytime
because there is no definite period for the court to change it. For as long as the court has jurisdiction over the case, it
has the power to change that wrong order.
“The period subject to interruption by a motion for reconsideration is the period to appeal. An interlocutory order
is not appealable if there is accordingly no period to suspend or interrupt.”
Sec. 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full
amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be
transmitted to the appellate court together with the original record or the record on appeal. (n)
Under the law, within the period for taking an appeal, the appellant shall only pay to the clerk of court of the RTC which
rendered the judgment or final order the full amount of the appellate court docket fee and all other lawful fees and the proof of
payment shall be transmitted to the CA together with the original record on appeal.
Q: How does this amend the Old law ?

A: Under the OLD Law, when you appeal from the RTC to the CA , you just file a notice of appeal. You do not pay anything,
you do not pay the appellate docket fee. So the records will be transmitted upon order of the clerk of court.
Pagdating sa CA, later on, the clerk of court there will communicate to the appellant na the records are there already,
magbayad ka ng docket fee within so many days. So, mamaya mo na bayaran, hintayin mo munang mapunta doon at hintayin mo
ang notisya.
NOW, you do not wait. Pag - file mo ng notice of appeal, you PAY IMMEDIATELY. When you appeal, bayaran mo na
ang CA docket fee sa RTC clerk and then pag-transmit, sabay na! That is the change.
If we will notice, the counterpart is Section 5 Rule 40 – yung appeal from the MTC to the RTC:
RULE 40, Section 5. Appellate court and other lawful fees. - Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full
amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to
the appellate court together with the original record or the record on appeal, as the case may be. (n)
Q: Suppose the person appealing from the MTC to the RTC failed to pay the appeal fee under Rule 40, can the appeal be
dismissed ?
A: No, because it is not one of the requisites. That was the ruling in SANTOS vs. CA. That can be collected from you
later but that is not a requisite. The appeal cannot be dismissed.
We will ask the same question under Section 4 Rule 41. BUT this time, you are appealing from the RTC to the CA and this
contains an identical provision that when you are appealing from the RTC to the CA, you already pay there with the clerk of court of
the RTC the docket fee. Bayaran mo na, siya na ang bahalang mag-forward. Here’s the problem:
Q: You failed to pay the docket fee within 15 days. So, when the case was transmitted to the CA, hindi kasali yung fee no.
Now, can your appeal be dismissed on the ground of failure to pay the docket fee or not in accordance with the ruling in SANTOS
(by analogy, although in this case, the appeal is from the MTC to the RTC. Pero the same, hindi ka rin magbayad ng docket fee.) Is
the ruling in SANTOS also applicable to Rule 41 ?
A: NO, the ruling in SANTOS is not applicable. Your appeal will be dismissed.
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Q: What provision of the Rules authorizes such dismissal? Is there any direct provision of the Rules of Court which authorizes
the dismissal of the appeal by non-payment of the appeal docket fee?
A: YES. Rule 50 Section 1 [c];
RULE 50, Section 1 – An appeal may be dismissed by the Court of Appeals, on its own motion or on
that of the appellee. on the following grounds:
xxxx
(c) Failure of the appellant to pay the docket and other lawful fees as provided in Section 4 of Rule 41
;
xxxx
I believe that it is dismissible because of that. So, to my mind, the SANTOS vs. CA ruling which governs Rule 40 and
which for me is valid, is NOT APPLICABLE to Rule 41 because there is a direct provision in Rule 50 that an appeal can be
dismissed for non-payment of appeal docket fee. That is the difference between these two situations.
NOTICE OF APPEAL
Now, let us go back to Section 5 of Rule 41;
Sec. 5. Notice of appeal. The notice of appeal shall indicate the parties to the appeal, specify the
judgment or final order or part thereof appealed from, specify the court to which the appeal is being
taken, and state the material dates showing the timeliness of the appeal. (4a)
Ano ba ang nakalagay sa notice of appeal? It’s very clear there that you indicate the parties to the appeal, specify the
judgment and state the material date showing the timeliness of the appeal.
Do you know how to do it? It’s very simple. The defendant merely says; Defendant hereby serves notice that he is appealing to
the CA on questions of fact or on questions of fact and law the judgment of the Honorable Court (RTC) dated December 20, 1997,
copy of which was received by me on January 5, 1998.” So it is simple that only 15 days is required to file the notice. When the law
says the period to file an appeal is non-extendible, that is fair. I do not need 15 days to prepare the notice of appeal. You can do it
only in two minutes. [sobra pa sa quicky!!]
So you must state the date when you received because the computation of the 15-day period is from the receipt of the
judgment and NOT from the date of the judgment. This is the so-called the MATERAL DATA RULE – material dates showing
timeliness of appeal. The date received and the date of decision are not the same. Both dates must be included in the notice of
appeal.
Now, kung sabihin mo na I am appealing from the judgment of the court dated December 20, 1997, and hindi mo sinabi kung
kailan mo natanggap, the presumption is you also received the copy of the judgment on December 20, 1997. And then you are
appealing today, it will be dismissed because you did not state the material dates.
And of course, there is one SC decision which said that you do not only specify the final judgment or order, but you
also specify as much as possible the interlocutory orders from where you are appealing because interlocutory orders can
only be appealed at this time. So, isabay mo na rin, i-one time ba!
In the case of
HEIRS OF MAXIMO RIGOSO vs. COURT OF APPEALS

211 SCRA 348
FACTS: Plaintiff filed an action against defendant for partition of property. While the action was pending,
defendant died. Partition is an action which survives. Defendant’s lawyer failed to inform the court about plaintiff’s
death (it is the lawyer’s duty which he did not do). So with that, there was no proper substitution. Later, judgment was
rendered against the deceased defendant. But after the decision came out, the lawyer of the defendant filed a notice
of appeal in accordance with Rule 41.
ISSUE #1: Was the appeal properly made?

HELD: NO. Upon the death of the defendant, the lawyer’s authority to represent him already expired.
There was an automatic expiration of the lawyer-client relationship. The notice of appeal which the lawyer
filed in behalf of the deceased was an unauthorized pleading, therefore not valid.
ISSUE #2: Is the judgment binding to the defendant’s heirs (remember, they were not substituted)?
HELD: YES. The validity of the judgment was not affected by the defendant’s demise for the action
survived (partition, eh). The decision is binding and enforceable against the successor-in-interest of the
deceased litigant by title subsequent to the commencement of the action pursuant to Section 47 [b] of Rule
39—Rule on Res Judicata.
Now, in our outline in appeal, the general rule is when you appeal, you only file a notice of appeal and you pay the docket. The
important requirement there is notice of appeal but, we said in some cases, aside from notice of appeal, there is a second
requirement which is the RECORD ON APPEAL.
This time, the period to appeal is not only 15 but 30 days and a record on appeal is only required in special proceedings or in
civil cases where multiple appeals are allowed. Never mind special proceedings, saka na ‘yun. It sounds strange because what
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we’ve studied so far, multiple appeals are not allowed in civil cases, there should only be one appeal. Kaya nga interlocutory orders
are not appealable, precisely to avoid order on appeal in a civil case. We will explain this later.
RECORD ON APPEAL
Sec. 6. Record on appeal; form and contents thereof. The full names of all the parties to the proceedings
shall be stated in the caption of the record on appeal and it shall include the judgment or final order from
which the appeal is taken and, 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, together with such data as will show that the appeal was perfected
on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all
the evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify
the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or
offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. 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. Every
record on appeal exceeding twenty (20) pages must contain a subject index. (6a)
A record on appeal is simply a reproduction of all the pleadings filed by the parties, all the motions filed by the parties, all the
orders issued by the court and the final judgment rendered by the court arranged in chronological order.
For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on appeal. Normally, it starts with this phrase—
“Be it remembered the following proceedings took place in the court below:
Par. 1. On January 5, 1998, plaintiff filed a complaint against defendant as follows: -- (so kopyahin mo ‘yung
complaint. Practically it is mechanical work, eh.)
Par. 2. On January 25, 1998, defendant filed an answer – (kopyahin mo ang answer)
Par. 3. On March 5, 1998, the court rendered judgment – (kopyahin mo na naman.)”
How long? Gaano kakapal yan? Depende. For example, the case lasted for more than two years. So practically, the record on
appeal may amount to hundreds of pages. That is why the period to appeal is increased from 15 to 30 if the law requires a rec ord
on appeal because of the possibility that you may not be able to complete everything within 15 days. Sometimes the 30-day period
can be extended.
Q: Do you have to include there every motion, every order of the case?
A: No, the law says you reproduce in chronological order copies of only such pleadings, motions, petitions, and all interlocutory
orders as are related to the appealed judgment or final order for the proper understanding of the issues involved. This is to
allow the appellate court to review the order appealed from.
But there are some motions na hindi na kailangan. For example, the case will be set for trial next week. Sabi ng defendant,
“Motion to postpone, I am not ready because I am suffering from diarrhea.” So the trial was postponed. Kailangan pa bang ilagay
ang motion na yan? That is not necessary to understand the issue. Piliin mo lang ang importante.
Now, bakit kailangan ‘yang record on appeal? Bakit sa ordinary appeal, hindi man kailangan? Because in Ordinary Civil
Actions, when the appeal is perfected, the clerk of court of the RTC transmits the entire record to the CA. So andoon na lahat yan.
But in special proceedings or in civil cases where multiple appeals are allowed, when an order or judgment is rendered, the case
continues pa. So, the records are not yet elevated. So, how can the CA understand what happened without the records? That is
called the record on appeal.
Q: Give an example of a civil action where multiple appeals are allowed.

A: Section 4 of Rule 36, where several judgments will be rendered in one case:
RULE 36, Sec. 4. Several judgments. - In an action against several defendants, the court may, when
several judgment is proper, render judgment against one or more of them, leaving the action to proceed
against the others. (4)
And to be more specific, that rule was applied by the SC in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA

180 SCRA 576
FACTS: Municipality of Binan filed expropriation cases against several landowners because it would like to
expropriate their land for public use. All of them were named as co-defendants in one complaint. Landowner A filed a
motion for separate trial (Rule 31). The court granted it. The court rendered a decision expropriating the land of A.
Nauna siya. As for the other landowners, the case continued.
ISSUE #1: Can A appeal already from the decision rendered against him or must he wait for the decision to be
rendered against the other landowners?
HELD: YES, A can now appeal because the order was already final against A. There is something more for the
court to do but only with respect to the other defendants. But as far as A is concerned, there is nothing more for the
court to do.
So when the judgment is already rendered against the other landowners, they can now also appeal. So there
could be two or more final judgments and two or more appeals.
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ISSUE #2: Suppose the case was tried against all of them (sabay ba) and there was one decision against them—
so sabay-sabay sila mag-appeal. Is record on appeal required?
HELD: NO, only notice of appeal because there is only one decision.
Q: Why is it that in ordinary civil cases, normally a record on appeal is not required?
A: Ordinarily, when the case is over and you say that you are appealing, the entire record of the case will be elevated to the
CA. But in the case of BIÑAN, there is judgment against landowner A and he wants to appeal, the record cannot be brought to the
CA because the case will still be tried with respect to landowners B, C and D. So for the CA to know what happened, a record on
appeal is needed.
ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. COURT OF APPEALS

258 SCRA 186 [1996]
HELD: Multiple appeals are allowed in:S

1.) Special proceedings;
2.) Actions for recovery of property with accounting;
3.) Actions for partition of property with accounting;
4.) Special civil actions of eminent domain (expropriation);
5.) Special civil actions for foreclosure of mortgage.
“The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to
proceed in the event that a separate and distinct case is resolved by the court and held to be final.”
The enumeration cited in ROMAN CATHOLIC CASE is taken from the ruling of the SC in the cases of MIRANDA vs. CA (71
SCRA 295) and DE GUZMAN vs. CA (74 SCRA 222). In these cases, when you file only a notice of appeal without the record on
appeal, it will not suffice. So it will be dismissed.
Q: What if the party filed a record on appeal without a notice of appeal? Should the appeal be dismissed?
A: NO, the appeal will not be dismissed because the filing of the record on appeal is harder to comply with than the
filing of a notice of appeal. The filing of the record on appeal is more expressive of the desire of the party to appeal.
(Peralta vs. Solon, 77 Phil. 610)
(The following discussions under Section 6 was taken from the 4th year review transcription) Now, let us try to tie this up with
what may be appealed and what may not be appealed, let’s go back to section 1 [g] of Rule 41:
Section 1. Subject of appeal. - 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 these Rules to be appealable.
xxxxx
allows an appeal therefrom.
xxxxx
Take note that as a GENERAL RULE: a judgment for or against one or more of several parties or in separate claims,
counterclaims, cross-claims, etc., while the main case is pending, cannot be appealed because that will result to multiple
appeals, unless the court allows an appeal therefrom, in which case, multiple appeals would now be possible.
Q: Cite examples of civil actions where, by direct provision of the Rules, the law mentions that the judgment is already final and
appealable despite the fact that the case still goes on with respect to the other issues.
A: The case of MUNICIPALITY OF BIÑAN vs. GARCIA which is now expressly provided for in Rule 67, Section 4, (on
Expropriation):
Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary — Upon the filing of
the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the
right to take or enter upon the possession of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed value of the property for purposes of
taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money,
unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of
the Republic of the Philippines payable on demand to the authorized government depositary. x x x x x x
Did you notice that an Order of Expropriation MAY BE APPEALED? When there is an order of expropriation - the court says,
“Alright, the property is declared expropriated.” Tapos na ba ang case? NOT YET because there is still a Part 2 which the
determination of just compensation. So, technically, it does not yet really dispose of the case BUT by express provision of the law,
the order is already appealable. That is an instance where multiple appeals may arise in one civil case.
Another example is Rule 69 on Partition:
RULE 69, Sec. 2. Order for partition, and partition by agreement thereunder. - 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 parties
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in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the
parties, and 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. (2a)
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)
A final order decreeing partition is appealable. But the case will go on because if the first order is that there is a
co-ownership, then there should be a partition. Ang sunod is how to partition. As a matter of fact, the court may even hire
commissioners as to how to partition but in the meantime, the order to partition is already appealable although it did not co mpletely
disposed of the civil action.
Sec. 7. Approval of record on appeal. Upon the filing of the record on appeal for approval and if no
objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may
approve it as presented or upon its own motion or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted matters which are deemed essential to the determination of
the issue of law or fact involved in the appeal. 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 ten (10) days from receipt thereof, shall redraft the record by including
therein, in their proper chronological sequence, such additional matters as the court may have directed
him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the
appellee, in like manner as the original draft. (7a)
What you have to remember here is that in appeals, where a record on appeal is required, the law requires an approval. The
record on appeal has to be approved by the court. In ordinary cases where you only file a notice of appeal, approval is not required.
A record on appeal has to be approved because the other party is given the right to object your record on appeal.
The possible grounds for objections are – necessary pleadings were not produced like kulang-kulang ang record on appeal
[kulang-kulang din siguro yung nag-file]; or, you did not reproduce the pleading properly; to pester the other party and just to block
the approval, like i-reklamo kahit wrong spelling lang. [peste talaga!]
Sec. 8. Joint record on appeal. Where both parties are appellants, they may file a joint record on appeal
within the time fixed by section 3 of this Rule, or that fixed by the court. (8a)
Q: Is it possible that both sides will appeal?

A: Yes, when both are not satisfied.
Suppose both plaintiff and defendant will want to appeal and a record on appeal is required, it would be tedious. Para walang
gulo at para makatipid, the plaintiff and the defendant will file a joint record on appeal, tapos hati tayo sa gastos.
WHEN APPEAL IS DEEMED PERFECTED
Let us now go to Section 9 of Rule 41 which is one of the most important provisions – when is appeal deemed perfected. Now,
if you are asked this question: HOW DO YOU PERFECT AN APPEAL? This question is not the same as WHEN IS THE APPEAL
DEEMED PERFECTED?
Q: How do you perfect an appeal?

A: By:
1.) Filing a NOTICE OF APPEAL, generally within 15 days; or by
2.) Filing A NOTICE OF APPEAL and RECORD ON APPEAL WITHIN 30 DAYS.
Those are the steps taken to perfect the BUT the appeal is NOT YET PERFECTED. It is perfected according to Section 9, and
it is important to determine the exact date when the appeal is considered as perfected because of the doctrine that from the
moment the appeal is perfected, the RTC automatically loses jurisdiction of the case. And by fiction of law, the jurisdiction
is automatically transferred to the CA, although the records as still with the RTC. Therefore it is important to determine
the exact date.
For example, in notice of appeal, is it perfected on the very day that the appellant will file a notice of appeal that if he files it,
after two days perfected na?
All of these are answered by Section 9 and I noticed that Section 9 has improved on the language of the Interim Rules. Under
the Interim Rules, they are actually the same, the question when is the appeal deemed perfected is also answered by the Interim
Rules but the language of the law there is more convoluted. Now, it is more clearer:
Sec. 9. Perfection of appeal; effect thereof.
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.
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.
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.
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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.
In either case, prior to the transmittal of the original record or the record on appeal, the court may
execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.
(9a)
WHEN ONLY NOTICE OF APPEAL IS REQUIRED
Q: When only a notice of appeal is required, when is an appeal deemed perfected?

A: First and third paragraph: “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. x x x 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.”
This was taken in the case of DELGADO vs IAC (147 SCRA 258). Let’s compose a problem based on that case:
PROBLEM: I received a copy of the decision on March 31 so I have 15 days to appeal i.e. up to April 15. My opponent
received the decision on April 10. So ang opponent ko naman ang bilang niya is from April 10 to April 25. Iba ang 15 days niya, iba
din sa akin.
Q: Since I received the decision on March 31, I filed my notice of appeal on April 5, is the appeal perfected?
A: Yes, as far as I am concerned.
Q: How about the other side?

A: Not yet, because as of April 5, he has not yet received a copy of the decision. He will start computing from April 10. So as
of now, it is already perfected only by 50%.
Q: Suppose by April 25 which is the last day of 15-day period of my opponent, he did not file anything. Nag-expire na. What will
happen now?
A: Then as of April 25, the appeal is now fully perfected (100%) because as far as I am concerned, I have already filed a notice
of appeal. As far as he is concerned, his 15-day period to appeal has lapsed. Therefore, the case is now ripe for elevation. This is
what the third paragraph means, “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.” You have to look at it from the viewpoint
of both parties.
That is the time for the clerk of court to elevate the records. It is from that moment that the court has lost 100% jurisdiction over
the case from the viewpoint of both parties.
Up to now, despite this provision, I’m still receiving these kind of orders from the courts. Nakalagay doon: “A notice of appeal
having been filed by the defendant on this date, the appeal is now deemed perfected and let the record now be elevated to the CA.”
My Golly! This is WROOOONG! The appeal is perfected only as far as the defendant is concerned why decree it as perfected?
Tiningnan mo lang yung isang side eh. Paano kung ‘yung plaintiff mag-file pa ng motion for execution pending appeal?
So, do not elevate the record until the 15-day period has expired on BOTH SIDES. This is the correct interpretation of the
Rules. We will now go to some interesting cases:
UNIVERSAL FAR EAST CORP. vs. COURT OF APPEALS

131 SCRA 642
FACTS: On March 31, both Epi and Hilde received a copy of the decision. Epi won, Hilde lost. From the
viewpoint of both, April 15 is the last day to appeal. On April 5, Hilde filed a notice of appeal. So the appeal is
perfected from the viewpoint of Hilde. On April 13, Epi file a motion to execute pending appeal. Was the motion filed
on time? Yes, because Epi can file the motion between March 31 and April 15. On April 25, the court granted Epi’s
motion.
This is now the argument of Hilde: “[My Golly!] The order of execution by Epi is void because the court has
already lost jurisdiction over the case as of April 25 because From the viewpoint of both parties, the last day is April
15, after April 15 the period within which Epi can file a motion to execute has expired.” From the viewpoint of Hilde, he
already filed a notice of appeal on April 5. So, from the viewpoint of both, the court already lost jurisdiction.
According to Epi: “But I filed my motion on April 13, the court has not yet lost jurisdiction.” “Ah Yes,” sabi naman
ni Hilde, “but the court acted on your motion on April 25, which is after April 15.”
HELD: Epi is correct. The important point is the date of filing. Thus, even if the court acts beyond the 15-day
period, the order is still valid. The important thing is the motion to execute pending appeal was filed within the 15-day
period.
“It may be argued that the trial court should dispose of the motion for execution within the reglementary fifteen-
day period. Such a rule would be difficult, if not impossible, to follow. It would not be pragmatic and expedient and
could cause injustice.”
“The motion for execution has to be set for hearing. The judgment debtor has to be heard. The good reasons for
execution pending appeal have to be scrutinized. These things cannot be done within the short period of fifteen days,
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or in this case, two days. The trial court may be confronted with other matters more pressing that would demand its
immediate attention.”
So in this case, the court has not yet lost jurisdiction the act on the motion for execution pending appeal even if it is beyond 15
days, provided the motion was filed within 15 days.
WHEN RECORD OF APPEAL IS REQUIRED
Q: How about an appeal where a record of appeal is required? When is the appeal deemed perfected?
A: Second paragraph of Section 9: “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.” So it is not upon the filing of the record of
appeal, but upon the APPROVAL. Because as we said, under Section 7, a record on appeal has to be approved while a
notice of appeal need not be approved.
As to the fourth paragraph: “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.” The
principle is the same. But definitely an appeal is not perfected upon the filing of the record on appeal but upon the approval.
The last point to remember in Section 9. GENERAL RULE: once an appeal is deemed perfected from the viewpoint of both
sides, the trial court loses jurisdiction over the case. The jurisdiction is automatically transferred to the Court of Appeals.
Q: Are there EXCEPTIONS to the rule? Are there things that the trial court can do even if it has no more jurisdiction? What
things or actions can the trial court do?
A: Last paragraph of Section 9: “In either case, 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 which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2
of Rule 39, and allow withdrawal of the appeal.”
Lets us outline the last paragraph: Once an appeal is deemed perfected under Section 9, the RTC loses jurisdiction over the
case and can no longer act in that case.
Q: What things or what actions can the RTC do even if it has technically lost jurisdiction over the case? Sometimes they call
this as the residual jurisdiction, a.k.a. “dukot” jurisdiction.
A: For as long as the original record or the record on appeal is not yet transmitted (because it takes some time for
the records to be transmitted) the trial court, despite the fact that it has already lost jurisdiction, can do the following acts:
1.) to issue orders for the protection and preservation of the rights of the parties which do not involve in any
matter litigated in the appeal;
2.) to approve compromises between the parties;
3.) to permit appeals to indigent litigants;
4.) to order executions pending appeal in accordance with Section 2 of Rule 39; and
5.) to allow the withdrawal of the appeal.
6.) The court can order the dismissal of an appeal under Section 13, Rule 41.
Q: Can the parties settle the case amicably despite the fact that there is already an appeal?
A: Yes, compromise is welcome anytime.
Q: Now who will approve the compromise?

A: Technically, the court has no jurisdiction. But for as long as the records are still there, the trial court can approve the
compromise. Now, suppose the records are already transmitted to the CA? Then you better submit your compromise agreement
before the CA.
Sections 10, 11, and 12 are purely administrative provisions.
Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days after
perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of
court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and
to make a certification of its correctness;
(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.
If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or
transcripts not included in the records being transmitted to the appellate court, the reasons for their non-
transmittal, and the steps taken or that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the
appellate court. (10a)
Sec. 11. Transcript. Upon the perfection of the appeal, the clerk shall immediately direct the
stenographers concerned to attach to the record of the case five (5) copies of the transcripts of the
testimonial evidence referred to in the record on appeal. The stenographers concerned shall transcribe
such testimonial evidence and shall prepare and affix to their transcripts an index containing the names
of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits and the
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pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same in the
order in which the witnesses testified at the trial, and shall cause the pages to be numbered
consecutively. (12a)
Sec. 12. Transmittal. The clerk of the trial court shall transmit to the appellate court the original record
or the approved record on appeal within thirty (30) days from the perfection of the appeal, together with
the proof of payment of the appellate court docket and other lawful fees, a certified true copy of the
minutes of the proceedings, the order of approval, the certificate of correctness, the original
documentary evidence referred to therein, and the original and three (3) copies of the transcripts. Copies
of the transcripts and certified true copies of the documentary evidence shall remain in the lower court
for the examination of the parties. (11a)
Sec. 13. 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 having been
taken out of time. (14a)
Q: May the RTC dismiss the appeal?

A: Yes, for as long as the record of the case or the record of appeal has not yet been transmitted to the appellate
court, the court may motu propio, even without any motion, or on motion of the appellee, the trial court is empowered to
dismiss the appeal on the ground of having been taken out of time.
Q: Can the trial court dismiss the appeal on the ground that the appeal is dilatory?
A: NO. The trial court has no power to say that the appeal is dilatory. Such question can only be passed upon by the
appellate court. Otherwise, trial courts can easily forestall review or reversal of their decisions no matter how erroneous
such decisions may be. (Dasalla vs. Caluag, L-18765. July 31, 1963; GSIS vs. Cloribel, L-22236, June 22, 1965; Republic vs.
Rodriguez, L-26056, May 29, 1969) The only ground for the trial court to dismiss appeal is for having been taken out of time. That’s
all.
Don’t confuse that with Rule 39.
Q: Can the prevailing party file a motion for execution pending appeal, on the ground that the appeal is dilatory? Any appeal
which is frivolous is intended as dilatory.
A: Well, it’s not the appeal that is being questioned but whether there is a ground for execution pending appeal. Ang
jurisprudence niyan magulo eh: NO, the trial court cannot do that. Only the CA can determine whether the appeal is dilatory. But
there are cases where the SC said YES because that can be a good reason.
Pero dito (Rule 41), iba ang tanong. The court is not being asked to grant an execution pending appeal but being
asked to dismiss an appeal. Ah, ito talaga hindi pwede. NEVER, because of Section 13, Rule 41 – there is only one ground,
filed out of time. Yaaan!
Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
Q: What are the modes of appeal from RTC to the CA?

A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42).
Rule 41 refers to an ordinary appeal from the RTC to the CA – yung notice of appeal. Here, the RTC rendered a decision
pursuant to its ORIGINAL JURISDICTION.
‘Eto namang Rule 42 (Petition for review) is the mode of appeal from the RTC to the CA in cases decided by the RTC
pursuant to its APPELLATE JURISDICTION. So, the case here actually originated in the MTC, then it was appealed to the RTC
under Rule 40. And now, from the RTC, you want to go to the CA. Hence, the mode of appeal is not (Rule 41) Notice of Appeal but
RULE 42 – Petition for Review.
For the first time, there is now a rule governing petitions for review from the RTC to the CA. Prior to July 1, 1997, there was
none. Although there were guidelines then – in jurisprudence, decided cases and SC circulars.
Section 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional
Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with
the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and
other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and
the adverse party with a copy of the petition.
The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after
judgment. 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 Court of Appeals may
grant an additional period of fifteen (15) days only within which to file the petition for review.
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No further extension shall be granted except for the most compelling reason and in no case to
exceed fifteen (15) days. (n)15 – extension of another 15 – extension of another 15 most compelling
reasons
Under Section 1, a petition for review under Rule 42 must be VERIFIED.
Q: Where will you file your petition for review?

A: You file it directly with the CA. Do not file it with the trial court.
In Rule 41, where the appeal is deemed perfected by simply filing a notice of appeal, you file your notice of appeal with the
RTC. Do not file it with the CA. But in Rule 42, where the appeal is by petition for review, you file your petition directly with the
CA. Do not file it with the RTC.
Not only that. Of course, you have to pay the docket and lawful fees plus P500 for costs. And you must furnish the RTC
and the adverse party with a copy of the petition. That is a new requirement.
Q: What is the period to file a petition for review ?

A: The period to file a petition for review is 15 days from receipt of the RTC judgment or from the order denying the
motion for reconsideration.
Q: What is the difference in period to file between Rule 41 and Rule 42 ?

A: In Rule 41, if your motion for reconsideration is denied, you can still appeal within the remaining balance of the 15-day
period amended by neypes vs CA. In Rule 42, the 15-day period starts all over again because the law says “or of the denial.” So,
another fresh 15 days. This because it is more difficult to prepare a petition for review. This is more time-consuming than a simple
notice of appeal. We’ll go to examples:
PROBLEM: Let’s go back to RULE 41: You receive a copy of the RTC decision on March 31. You file your motion for
reconsideration on April 10 – the 10th day. After two weeks, you received order of the court denying the MFR.
Q: How many more days are left for you to file a notice of appeal?
A: Six (6) days. Ang binilang mo, 1-9 days lang. The 10th day is interrupted na. That’s true.
PROBLEM: We will go to the same problem (applying Rule 42): The case was decided by the MTC, appealed to the RTC. And
then in the RTC, you lost again. You receive a copy of the decision on March 31. On April 10, you file a motion for reconsideration.
And then on April 20, you receive the order denying the MFR.
Q: How many days more are left for you to file your petition for review?
A: Kung sabihin mo 6 days from April 20 or April 26, that’s FALSE! The answer is 15 days all over again. Look at the
law: “The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of
the denial of petitioner’s motion for new trial or reconsideration.” Meaning, you count another 15 days from the denial.
Umpisa na naman!
So the filing a motion for new trial or reconsideration in Rule 42 does not only interrupt the running of the period but
it commences to run all over again. Unlike in Rule 41, in ordinary appeal, where the filing of the motion for reconsideration or
new trial merely interrupts the running of the period to appeal. And it commences to run again from the time you are notified that
your motion is denied. See the difference?
Actually, if you are not serious in your study of appeal, you will not see these distinctions. You will just assume that the
principles under Rule 41 and Rule 42 are the same.
Q: Under Section 1, is the 15-day period to file petition for review extendible?
A: Under Rule 41, the 15-day period to file notice of appeal is not extendible – no exceptions. But in Rule 42, the 15-day
period to file petition for review is EXTENDIBLE according to the last sentence of Section 1, provided you pay your docket and
other lawful fees, the CA will grant additional 15 days within which to file a petition for review.
Q: Where will you file your motion for extension of time to file petition for review?
A: You file your motion for extension to the CA. The CA itself will grant the extension.
Q: How many more days can the CA grant?

A: The CA may grant another 15 days and no further extension can be granted except for the most compelling
reasons. So, original extension is 15 days, and a possible extension of 15 days = total 30 days.
These are technical points. And how many appealed cases have been dismissed simply because these finer provisions were
not been observed by lawyers? I would say 60% of all appeals are dismissed. Even in Davao, majority of petitions are dismissed
because nakulangan ng piso sa docket fee, karami. I presume throughout the country, the pattern is the same because the rules on
appeal are very technical and very strict. That’s why there are lawyers in Manila, even in Davao, who do not want to handle
appealed cases. They only handle cases in the trial court. Pag-akyat na, nasa CA na, petition for certiorari, pasa na sa iba.
But there are also who have mastered the rules on appeal. For the purpose of specialization, trial phase and appeal phase. For
purposes of the bar, you have to know all the fields in laws. Once you pass the bar, diyan na kayo mag-isip kung ano ang pipiliin
ninyo—civil, criminal, labor, etc. But for purposes of the bar, you cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law.
Pwede ba yan? You cannot do that. Kaya nga sabi nila, the people who know more about the law are those who have just taken
the bar.
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Sec. 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy
intended for the court being indicated as such by the petitioner, and shall
(a) state the full names of the parties to the case, without impleading the lower courts or judges
thereof either as petitioners or respondents;
(b) indicate the specific material dates showing that it was filed on time;
(c) set forth concisely a statement of the matters involved, the issues raised, the specification of
errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or
arguments relied upon for the allowance of the appeal;
(d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final
orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the
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.
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom. (n)
Take note of Section 2. Do not implead the lower court or the judge because nasanay na tayo na pati ‘yung judge naging
defendant or respondent na. We only do that in Certiorari under Rule 65 in Special Civil Actions, but not on appeal. This is the
influence of Justice Feria because he has penned many cases which has included the judge as defendant or respondent. So, he
said that in the case of MWSS vs. CA [Aug. 25, 1986], hence we can see his influence, siningit talaga niya iyan sa kaso na yon.
Now, as to the form [last paragraph], there has to be a Certification of Non-Forum Shopping, failure to comply with such
would mean the dismissal of the case.
ORTIZ vs. COURT OF APPEALS

299 SCRA 708 [1998]
FACTS: The certification was not signed by the Ortizes but by their lawyer who has personal knowledge of the
fact and contended that it should be accepted as substantial compliance with the rules.
HELD: The certification was not proper. Strict observance of the rule is required. In this case, no explanation was
given.
“Regrettably, We find that substantial compliance will not suffice in a matter involving strict compliance. The
attestation contained in the certification on non-forum shopping requires personal knowledge by the party
who executed the same. To merit the Court’s consideration, Ortizes here must show reasonable cause for failure to
personally sign the certification. The Ortizes must convince the court that the outright dismissal of the petition would
defeat the administration of justice. However, the Ortizes did not give any explanation to warrant their exemption from
the strict application of the rule. Utter disregard of the rules cannot justly be rationalized by harking on the policy of
liberal construction.”
Q: Under paragraph [c], what issues can you raise in the petition for review?
A: Errors of fact, errors of law, or both – mixed errors of fact or law.
Somebody asked this QUESTION: hindi ba kapag error of law dapat sa SC yan? Hindi na dadaan sa CA? How do you
reconcile this with the Constitution? Actually, when the law says decisions of the RTC appealable directly to the SC, it was decided
pursuant to its original jurisdiction. But if it is decided pursuant to its appellate jurisdiction, the appeal should be to the CA
even on pure questions of law without prejudice of going to the SC later on.
Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of
the foregoing requirements regarding the
A. payment of the docket and other lawful fees,

B. the deposit for costs,
C. proof of service of the petition, and
D. the contents of and the documents which should accompany the petition
shall be sufficient ground for the dismissal thereof.
Section 3. If you fail to comply with the requirements, tapos ang petition mo, dismiss!
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Sec. 4. Action on the petition. The Court of Appeals may require the respondent to file a comment on
the petition, not a motion to dismiss, within ten (10) days from notice,
or dismiss the petition if it finds the same to be
A. patently without merit,

B. prosecuted manifestly for delay, or
C. that the questions raised therein are too unsubstantial to require consideration. (n)
Sec. 5. Contents of comment. The comment of the respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions of the record referred to therein together
with other supporting papers and shall
(a) state whether or not he accepts the statement of matters involved in the petition;
(b) point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of
matters involved but without repetition; and
(c) state the reasons why the petition should not be given due course.
A copy thereof shall be served on the petitioner. (n)
Sec. 6. Due course. If upon the filing of the comment or such other pleadings as the court may allow
or require, or after the expiration of the period for the filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or modification of the appealed decision, it may
accordingly give due course to the petition. (n)
Q: When you file a petition for review from the RTC to the CA, is the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may not give due course to the petition unlike in ordinary
appeal. Yan ang kaibahan ng ordinary appeal and petition for review.
In ordinary appeal under Rule 41, when you file notice of appeal and you pay your docket fee, your appeal is automatically
entertained. At least it will be heard by the CA. But in Rule 42, it is not the same. When you go there, whether your petition for
review will be given due course or not even if you have paid the docket fee. Normally, the CA will required you to comment and
then chances are after another month and after reading your petition and your comment, the CA will refuse to give due course to
your petition, “Your petition is hereby dismissed!” So, you must convince the CA na may merit baah!
Q: What happens when the petition for review is given due course?
A: The parties will be required to submit their respective memoranda.
Take note that the RTC is also given the power to issue orders for the protection of the parties – the same as in Section 8,
paragraph [b].
Sec. 7. Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk
of court of the Regional Trial Court to elevate the original record of the case including the oral and
documentary evidence within fifteen (15) days from notice. (n)
Q: Now, when is an appeal by petition for review deemed perfected?

A: Section 8 [a]. Similar to Rule 41. The same principle:
Sec. 8. Perfection of appeal; effect thereof.
(a) Upon the timely filing of a petition for review and the payment of the corresponding docket and
other lawful fees, the appeal is deemed perfected as to the petitioner.
The Regional Trial 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.
However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may
execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.
(9a, R41)
(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the
judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise. (n)
Q: Does the RTC have the power to act despite the fact that the petition for review is already before the CA? Suppose I lost in
the MTC, and I also lost on appeal in the RTC. I file a petition for review. What happens to the decision? Can the decision be
enforced?
333
A: NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be dismissed or to be
entertained and denied later. Under paragraph [b], the appeal shall stay the judgment or final order UNLESS the CA, the
law or these rules should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on Summary Procedure, any
part thereafter appealed to the CA will not stop the implementation of the RTC decision.
Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary Procedure, and appealed to
the RTC and decided by the RTC, the decision becomes immediately executory. Even if we file a petition for review, it is
executory. The only way to stop the RTC from enforcing that judgment is to get a TRO or a writ of preliminary injunction from the
CA. That is the rule.
I have a similar case now on that issue. The case originated from the MTC for ejectment. The defendant lost, akyat ngayon sa
RTC, affirmed. And then akyat na naman ang defendant sa CA on petition for review (although right now, it has not yet been given
due course) with a prayer for TRO. But the CA said that there is no compelling reason to issue one. In the meantime, I filed a
motion for execution. The defendant opposed on the ground that a judgment cannot be executed daw because of a pending
petition for review. But this is under the Summary Rules – ejectment. This is an exception, so that will not apply.
Sec. 9. Submission for decision. If the petition is given due course, the Court of Appeals may set the
case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days
from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court itself. (n)
Rule 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Let us now go to Rule 43 which governs Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of
Appeals. Take note that under Section 9 of BP 129, the CA has the exclusive appellate jurisdiction to review decisions of all RTC
and Quasi-Judicial Bodies, and Rule 43 is the governing rule on appeals from quasi-judicial bodies.
So, before this, appeal to the CA of Tax cases is supposed to be to the SC. Now it is reverted to the CA, and also quasi-judicial
agencies. What was the prior law? It is Revised Administrative Circular No. 1-95, which was promulgated on January 1, 1995. Now
it is Rule 43 – the circular was actually quoted here verbatim. So, you can no longer go to the SC, even on pure questions of law,
ha! Decisions of quasi-judicial agencies must pass first to the CA even on pure questions of law.
Now what are these quasi-judicial bodies? They are enumerated in Section 1:
Section 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax
Appeals (en banc decision of CTA rule 45 to SC) and from awards, judgments, final orders or resolutions
of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these
agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and
Exchange Commission, Office of the President, Land Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board, National Telecommunications Commission,
Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law. (n)
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So, very specific! The latest addition there are decisions of voluntary arbitrators. Prior to that, it can be brought by certiorari to
the SC, but because of a decided case it is now be brought to the CA.
One case under Rule 43 which I want to discuss with you is the case of
LEPANTO CERAMICS vs. COURT OF APPEALS

237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of Investments (BOI). Now, as provided in the original Omnibus
Investment Code of 1981 during the Marcos era, decisions of the BOI are appealable directly to the SC. But years
later it was nullified by the Judiciary Law because all decisions of all quasi-judicial bodies are appealed to the CA.
Four years later the Constitution took effect. In July 1987 during the term of Cory Aquino, she promulgated E.O.
No. 226, the so-called Omnibus Investment Code of 1987 where provisions from the old code were merely lifted. And
among those included is the provision on appeals from the BOI where you go directly to the SC.
The position of Lepanto is, the new law (E.O. No. 226) has modified BP 129 because the old law was modified by
BP 129. And since this is a new law, binalik na naman ang appeal sa SC. So na modify ang BP 129.
HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O. No. 226, the New Constitution has taken
effect. And under the 1987 Constitution, you cannot increase the appellate jurisdiction of the SC without its
consent and concurrence. In effect, the new law (E.O. No. 226) increased the work of the SC without its
knowledge and consent therefore the SC did not agree. The SC rejected the provision that decisions of the
BOI are appealable directly to the SC.
In the case of FABIAN vs. DESIERTO [December 16, 1998], a provision under RA 6670, which provides that decisions of the
Office of the Ombudsman in administrative disciplinary cases, was declared unconstitutional because the appellate jurisdiction of
the SC was increased without its advice and consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before Revised Administrative Code No. 1-95. As I have told
you before, rulings of different constitutional commissions, CSC, COA, COMELEC should be direct to the SC. That is why the case
of MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned because the new procedure is that decisions of the CSC are
now appealable to the CA.
Sec. 2. Cases not covered. This Rule shall not apply to judgments or final orders issued under the
Labor Code of the Philippines. (n)
Section 2 refers to decisions of NLRC and the Secretary of Labor. Their decisions can be brought directly to the SC by
way of petition for Certiorari under Rule 65, not by appeal (Rule 43).
- Decisions of NLRC appeal to CA under rule 65

-
Sec. 3. Where to appeal. An appeal under this Rule may be taken to the Court of Appeals within the
period and in the manner herein provided, whether the appeal involves
a. questions of fact,
b. of law, or
c. mixed questions of fact and law. (n)
Sec. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from
a. notice of the award, judgment, final order or resolution, or

b. from the date of its last publication, if publication is required by law for its effectivity, or
c. of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance
with the governing law of the court or agency a quo.
Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the
full amount of the dockebit fee before the expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within which to file the petition for review. No
further extension shall be granted except for the most compelling reason and in no case to exceed
fifteen (15) days. (n)
Sec. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7)
legible copies with the Court of Appeals, 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 Court of Appeals shall be
indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of
docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a
verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from
notice of the denial. (n)
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Sec. 6. Contents of the petition. The petition for review shall
(a) state the full names of the parties to the case, without impleading the court or agencies either as
petitioners or respondents;
(b) contain a concise statement of the facts and issues involved and the grounds relied upon for the
review;
(c) be accompanied by a clearly legible duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together with certified true copies of such material
portions of the record referred to therein and other supporting papers; and
(d) contain a sworn certification against forum shopping as provided in the last paragraph of section
2, Rule 42.
The petition shall state the specific material dates showing that it was filed within the period fixed
herein. (2a)
Sec. 7. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of
the foregoing requirements regarding the
a. payment of the docket and other lawful fees,

b. the deposit for costs,
c. proof of service of the petition,
d. and the contents of and the documents which should accompany the petition
shall be sufficient ground for the dismissal thereof. (n)
Sec. 8. Action on the petition. The Court of Appeals may require the respondent to file a comment on
the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds
the same to be
a. patently without merit,

b. prosecuted manifestly for delay, or
c. that the questions raised therein are too unsubstantial to require consideration. (6a)
Sec. 9. Contents of comment. The comment shall be
a. filed within ten (10) days from notice

b. in seven (7) legible copies and
c. accompanied by clearly legible certified true copies of such material portions of the record
referred to therein
d. together with other supporting papers.
The comment shall
(a) point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and
(b) state the reasons why the petition should be denied or dismissed.
A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of
Appeals. (9a)
Sec. 10. Due course. If upon the filing of the comment or such other pleadings or documents as may
be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof,
and on the basis of the petition or the records the Court of Appeals 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, it may give due course to the petition;
otherwise, it shall dismiss the same.
The findings of fact of the court or agency concerned, when supported by substantial evidence, shall
be binding on the Court of Appeals. (n)
Sec. 11. Transmittal of record. Within fifteen (15) days from notice that the petition has been given due
course, the Court of Appeals may require the court or agency concerned to transmit the original or a
legible certified true copy of the entire record of the proceeding under review.
The record to be transmitted may be abridged by agreement of all parties to the proceeding.
The Court of Appeals may require or permit subsequent correction of or addition to the record. (8a)
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Sec. 12. Effect of appeal. The appeal shall not stay the award, judgment, final order or resolution
sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may
deem just. (10a)
- different in rule 42, except in cases in summary hearing the filing of a petition for review will stay the
judgment, final order or resolution
Sec. 13. Submission for decision. If the petition is given due course, the Court of Appeals may set the
case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days
from notice.
The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum
required by these Rules or by the Court of Appeals. (n)
-oOo-
PROCEDURE IN THE COURT OF APPEALS
Rule 44
ORDINARY APPEALED CASES
We will now go to Rule 44 which is Procedure in the Court of Appeals in Ordinary Appealed Cases. This is just the
continuation of Rule 41. When a case is appealed to the CA under Rule 41, this is ordinary appeal (decisions of RTC pursuant to
its original jurisdiction), so what will happen here?
Take note that the procedure in the CA is not only found in the Rules of Court. The Internal Rules of the CA is found in its so
called Revised Internal Rules of the Court of Appeals (RIRCA).
So it is best that you go over it. For purposes of the BAR, hindi na kailangan yan! There are some provisions kasi na wala sa
Rules of Court. I have a copy of that eh, leather-bound! It just so happen that we have an alumna who is the head of the Records
Division of the CA.
Anyway, take note that under the present rules when the RTC clerk transmits the records to the CA, nandoon na ang docket
fee. Now, once original record is there, next is you will receive a notice from the clerk of court that all the records are there, all
the documentary evidence. And you are now given 45 days to file an appellant’s brief under Section 7 which has to be
answered by the appellee under Section 8. And the appellant is given the option to file an appellant’s reply brief under
Section 9. As to the contents of the appellant’s brief and appellee’s brief, you have Sections 13 and 14.
Section 1. Title of cases. In all cases appealed to the Court of Appeals under Rule 41, the title of the
case shall remain as it was in the court of origin, but the party appealing the case shall be further
referred to as the appellant and the adverse party as the appellee. (1a, R46)
Sec. 2. Counsel and guardians. The counsel and guardians ad litem of the parties in the court of
origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals.
When others appear or are appointed, notice thereof shall be served immediately on the adverse party
and filed with the court. (2a, R46)
Sec. 3. Order of transmittal of record. If the original record or the record on appeal is not transmitted
to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a
motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal.
(3a, R46)
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Sec. 4. Docketing of case. Upon receiving the original record or the record on appeal and the
accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of
the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and
notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall
file with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with
the proof of service of two (2) copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in the approved record on appeal shall be a
ground for dismissal of the appeal. (n)
Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of court
of the Court of Appeals shall so inform said court and recommend to it measures necessary to complete
the record. It shall be the duty of said court to take appropriate action towards the completion of the
record within the shortest possible time. (n)
Sec. 6. Dispensing with complete record. Where the completion of the record could not be
accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult
causes, the court, on its own motion or on motion of any of the parties, may declare that the record and
its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the reasons for such declaration. (n)
Sec. 7. Appellant’s brief. It shall be the duty of the appellant to file with the court, within forty-five (45)
days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to
the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellee. (10a, R46)
Sec. 8. Appellee’s brief. Within forty-five (45) days from receipt of the appellant’s brief, the appellee
shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon the appellant. (11a, R46)
Sec. 9. Appellant’s reply brief. Within twenty (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. (12, R46)
Sec. 10. Time for filing memoranda in special cases. (CPMQH)
A. In certiorari,
B. prohibition,
C. mandamus,
D. quo warranto and
E. habeas corpus cases,
the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of
thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and
documentary, is already attached to the record. (13a, R46)
The failure of the appellant to file his memorandum within the period therefor may be a ground for
dismissal of the appeal. (n)
Sec. 11. Several appellants or appellees or several counsel for each party. Where there are several
appellants or appellees, each counsel representing one or more but not all of them shall be served with
only one copy of the briefs.
When several counsel represent one appellant or appellee, copies of the brief may be served upon
any of them. (14a, R46)
Sec. 12. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed,
except
A. for good and sufficient cause, and

B. only if the motion for extension is filed before the expiration of the time sought to be
extended. (15, R46)
Sec. 13. Contents of appellant’s brief. The appellant’s brief shall contain, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and
a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where
they are cited;
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(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and
concisely stated without repetition and numbered consecutively;
(c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the
action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the
judgment and any other matters necessary to an understanding of the nature of the controversy, with
page references to the record;
(d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the
facts admitted by both parties and of those in controversy, together with the substance of the proof
relating thereto in sufficient detail to make it clearly intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or law to be submitted to the court for its
judgment;
(f) Under the heading "Argument," the appellant’s arguments on each assignment of error with page
references to the record. The authorities relied upon shall be cited by the page of the report at which the
case begins and the page of the report on which the citation is found;
(g) Under the heading "Relief," a specification of the order or judgment which the appellant seeks;
and
(h) In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a
copy of the judgment or final order appealed from. (16a, R46)
Sec. 14. Contents of appellee’s brief. The appellee’s brief shall contain, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page references, and
a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where
they are cited;
(b) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of
facts in the appellant’s brief, or under the heading "Counter-Statement of Facts," he shall point out such
insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references
to the pages of the record in support thereof, but without repetition of matters in the appellant’s
statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his arguments in the case on each
assignment of error with page references to the record.
The authorities relied on shall be cited by the page of the report at which the case begins and the
page of the report on which the citation is found. (17a, R46)
This is like a thesis or writing a book – Appellant’s and appellee’s brief.
Q: What is a brief? What is its purpose?

A: The word “BRIEF” is derived from the Latin word “BREVIS” [AND BRUTTHEAD] and the French word “BREFIE”, and
literally means a short or condensed statement.
Its purpose is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts
and law of the case, to assist the court to arrive at a just and fair conclusion. It should be prepared as to minimize the labor of the
court in the examination of the record upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil. 67; Casilan vs. Chavez, L-17334,
Feb. 28, 1962)
So you summarize the case, facts, issues, arguments, discussions, citations of laws. So its like a debate no?
Alright. The best brief writers I noticed are those in the Solicitor General’s office. Just imagine, the Solicitor General defends all
the cases of the government. When a criminal case is appealed by the accused to the CA or CA, automatically the Solicitor General
takes over. In the lower court, it is the fiscals ‘no?
So, the Solicitor General defends the case he had never tried. So they just based it on records. They condensed decisions
kahit na gaano ang kapal, reducing it to 15 pages or less. Its really an ability to do it. The shorter the better. People there in the
Solicitor General’s office are really good writers and researchers because that is the law office of the Republic of the Philippines.
Lahat dyan magagaling, isa lang ang hindi marunong. SINO? Ang Solicitor General ninyo! He is only a political appointee. (F.
Chavez? Or Galvez?)
Q: Is the 45-day period to file brief extendible?

A: YES, that is section 12. The worst violator here is the Solicitor General – extension 30 days, 2nd extension 30 days! Ganyan
sila! Sometimes it takes them 18 months to prepare a brief. Sabagay, marami din kasi silang trabaho ‘no?
Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration of the time sought to be extended. (Section 12) BUT
sometimes the SC can be liberal about extension. One case is
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MOSKOWSKY vs. COURT OF APPEALS
230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days counted from August 3, 1991. So after the 45
days plus 90 days pa from August 3, 1991. Said 90-day period ended on November 1, 1991. On November 4, 1991,
or 3 days after the extended period, instead of filing a brief, appellant filed another motion for a 20-day extension.
ISSUE #1: Was the motion for extension filed on time based on Section 12?
HELD: YES. “Said ninety-day period would end on November 1, 1991. November 1 is a regular holiday. Then
President Aquino declared November 2, 1991 as a special holiday. The next day, November 3, 1991 turned out to be
a Sunday. The next business day was, therefore, November 4, 1991 - a Monday.”
“The abovementioned motion was, therefore, filed on time, i.e., the motion for the extension sought was filed
before the expiration of the time sought to be extended.”
ISSUE #2: When do you compute the 20-day extension being asked for? Is it on November 1, the expiration of
the period? Or on November 4, the day of the filing of the motion?
HELD: “The appellant specifically manifested that they will need another extension from today (November 4)
within which to file appellant’s brief, and ‘today’ is November 4. So, the period commences to run on November 4.” So
very liberal no?
Take note of Section 15 – what questions may an appellant raise on appeal:
Sec. 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for
new trial in the court below, he may include in his assignment of errors any question of law or fact that
has been raised in the court below and which is within the issues framed by the parties. (18, R46)
So the appellant cannot raise before the CA on appeal any question of law or fact that has not been raised in the lower
court and not within the issues framed by the parties. He cannot, for the first time on appeal, say something which was not
raised in the trial court. Another thing is, he cannot change his theory on appeal, either theory on the cause of action or
theory on the defense.
Now, sometimes it is easy to detect whether there is change of theory. The only possible exception maybe is when you raise
for the first time on appeal something which you never raised as in lack of jurisdiction unless estoppel will set in as in th e case of
TIJAM vs. SIBONGHANOY. Illustrating this point is the case of
RIVERA vs. COURT OF APPEALS

176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their house and lot to Rivera. Later, they filed a complaint against Rivera
declaring the sale as null and void on the ground that the sale is a mortgage. The court dismissed the complaint. So
the ruling of the trial court was that the sale was valid. But on the CA, Martinez spouses prayed that they maybe
allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to redeem the property. Now, Rivera appealed to
the CA, contending that Martinez change the theory of their case because in the original complaint the latter prayed
for the annulment of the sale, and in the CA they prayed that they be allowed to redeem the property.
ISSUE: Was there a change of theory of the Martinez spouses?
HELD: There was NO CHANGE of theory. There was no surprise against Rivera or to the CA. The real purpose
of the Martinez spouses in asking for the nullity of the contract is to enable them to recover the property from Rivera.
“Prescinding from those allegations and from the prayer all clearly set out in the complaint, it is fair to conclude
that the real purpose in asking for the nullity of the contract of sale is to enable the Martinez spouses to recover or
redeem the property they deeded in favor of Rivera. It would be absurd to pray for the nullity of an agreement and
stop there. There would be a vacuum and the law, like nature, abhors a vacuum.”
“In the CA, they persisted in their claim to entitlement of the right to recover, redeem, or repurchase. This
agreement can not be construed as change of theory; it is persistence, plain and simple. It does not leave any
interstice in the entire theory of the case. Consistency in the position of the private respondents runs throughout the
presentation of their claim.”
So akala mo may change of theory, yun pala wala! Why are they annulling? To recover their property. In other words
there was no change of theory.
Q: Is the appellee required to make assignment of errors?

A: The APPELLEE is not required to make assignment of errors, except when his purpose is to seek affirmation of the
judgment on other grounds or reasons not stated in the decision. (Saenz vs. Mitchell, 60 Phil. 69; Gorospe vs. Peñaflorida,
101 Phil. 886; Dy vs. Kuison, L-16654, Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it enough for him to make assignment of errors?
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A: In such a case, the appellee must appeal; an assignment of error is not enough. (Oquiñena vs. Canda, 87 Phiil. 120;
Gorospe vs. Peñaflorida, supra; Dy vs. Kuison, supra)
GENERAL RULE: If you are the winning party, you may appeal the decision if you think you are entitled for more. So,
you must appeal. You cannot just state of errors in the appellee’s brief.
EXCEPTION: You may state assignment of errors to support the decision – to support, not to change, the decision. If
you want to change the decision, you appeal (general rule).
-oOo-
RULE 45 check net for codal
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in
the same action or proceeding at any time during its pendency.
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Sec. 2. Time for filing; extension.
The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or
of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. 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 Supreme Court may for justifiable reasons grant an extension of thirty (30) days
only within which to file the petition.
Sec. 3. Docket and other lawful fees; proof of service of petition.
Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of
court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. 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. 4. Contents of petition.
The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by
the petitioner, and shall
(a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the
lower courts or judges thereof either as petitioners or respondents;
(b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was
received;
(c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of
the petition;
(d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or
resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such
material portions of the record as would support the petition; and
(e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42.
Sec. 5. Dismissal or denial of petition.
The failure of the petitioner to comply with any of the foregoing requirements
1. regarding the payment of the docket and other lawful fees,

2. deposit for costs,
3. proof of service of the petition, and
4. the contents of and the documents which should accompany the petition
shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is
1. without merit, or
2. is prosecuted manifestly for delay, or
3. that the questions raised therein are too unsubstantial to require consideration.
Sec. 6. Review discretionary.
A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and
important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the
character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore determined by the
Supreme Court, or has decided it in a way probably not in accord with law or with the applicable
decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings,
or so far sanctioned such departure by a lower court, as to call for an exercise of the power of
supervision.
Sec. 7. Pleadings and documents that may be required; sanctions.
For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or
where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such
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pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as
it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such
pleadings and documents or non-compliance with the conditions therefor.
Sec. 8. Due course; elevation of records.
If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or
specified parts thereof within fifteen (15) days from notice.
Sec. 9. Rule applicable to both civil and criminal cases.
The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases
where the penalty imposed is death, reclusion perpetua or life imprisonment.
Rule 45
- Only appeal to the CA

- Petition for review by certiorari or appeal by certiorari
- The decision that are appealable to the SC by certiorari
o CA
o RTC on pure questions of law
o Sandiganbayan
o CTA if it is a decision en banc
- Appeal by certiorari
o Should be a question of law not a question of fact
o Since the SC is not a trier of facts
- Question of law
o Is a question of what law is applicable to a certain set of facts
o The facts of the case is not disputed and the issue is what law should be applied or how the law should be
interpreted
o If the parties of the case have no more dispute as to facts then it is a question of law, conclusion made by the trial
court will be considered as a questions of law
- Question of fact
o Question in a case which requires the calibration of the evidences to determine which one is telling the truth
- Factual findings of the lower court are conclusive to the appellate court
o EXC
 Ramos vs pepsi cola
 SC can entertain factual question intertwined with a question of law
o Glaring error in the appreciation of facts
o Grounded entirely on speculation, surmises or conjectures
o Court have grave abuse of discretion of the apprehension of facts
o Findings of facts are conflictive
o The CA went beyond the issues of the case
o CA manifestly overlooked relevant facts
o When the findings of facts of the CA is contrary to the lower court p. 597
- 18 copies should be given to the SC
o Full name and address of the parties
o Brief and concise statement of the matters involves
o Statement of facts
o Basis or grounds or arguments relied upon in support of your petition for certiorari
o Material dates
 Date you received the decision the date you filed the petition
 The date when you file your motion and the date your motion was denied
- Need not implead the lower court as respondent
- When you file an appeal to the SC you must attached the decision of the CA either duplicate original or certified true copy
of the decision in the original copy of the petition
- Other order or other annexes may only be a Xerox copy no need to attached the duplicate original copy
- Certificate of non forum shopping should be attached, failure of which is a ground for dismissal
o EXC
 Certification of non forum shopping was sent on the next day after the petition was filed
- Appeal by certiorari is not a matter of right
- May dismiss the petition
o Patently without merit
o Prosecuted manifestly for delay
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o The question is too unsubstantial for consideration
- If petition is given due course
o memorandum
- 45 vs 65
o 45
 Mode of appeal
 Question or issue raised is question of law, WON the CA has committed an error of law in deciding the
case
 Appeal the judgment that completely and finally disposes of the case
 15 days to appeal from receipt of judgment or denial of MR MNT, extension of 30 days is given
 Req of extension
o Should file a motion for estensiuon of time within the 15 day period
o Pay the docket fee and other lawful fees and the deposit for cost of 500
 Appeal by certiorari you cannot enforce the judgment of the lower court, stays the execution of the
judgment
 No need to file an MR first
 Exercise of appellate jurisdiction of SC
 Only mode of appeal to the SC
o 65
 Original action
 Issue is WON the judge committed grave abuse of discretion or lack or excess of jurisdiction
 Judgment or order that is being reviewed is not final, merely interlocutory
 60 days
 Petition for certiorari does not stay the judgment you are questioning not unless there is a TRO
 It is a requirement that you must first file an MR, give the court below a chande to rectify their mistake
 Original action of SC, exercise of the supervisory power of the SC and correct the error of the RTC
 Can be filed in the CA
Rule 46
ORIGINAL CASES
Q: What is the difference between Rule 46 and Rule 44?

A: Rule 44 deals with appealed cases. Rule 46 deals with original cases. Remember that the CA is both an original and
appellate court.
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Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129,
1. Certiorari,
2. prohibition,
3. mandamus,
4. quo warranto,
5. annulment of judgment of the RTC.
The Annulment of Judgment of the RTC, which belongs to the exclusive original jurisdiction of the CA, is governed by
Rule 47.
Now, all the rest of the sections here are almost the same: how many copies, docket fees, certification of non-forum shopping,
etc…
Section 1. Title of cases. In all cases originally filed in the Court of Appeals, the party instituting the
action shall be called the petitioner and the opposing party the respondent. (1a)
Rule 44 on appeal to the CA, the caption of the case is the same as the caption in the RTC (e.g. in the RTC, “RED HOT vs.
LIMP BIZKIT”). You just add the word ‘appellant’ and ‘appellee.’ BUT in Rule 46 in original cases, the parties are now called
‘petitioner’ and ‘respondent.’
Sec. 2. To what actions applicable. This Rule shall apply to original actions for certiorari, prohibition,
mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47,
for certiorari, prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. (n)
Therefore, the provisions of Rules 65, 66 and 47 which apply to this original action should be read with Rule 46.
Just read Section 3. Take note of the second paragraph which was inserted in 1998 by SC Circular 39-98).
Sec. 3. Contents and filing of petition; effect of non-compliance with requirements.
The petition shall contain the
A. full names and actual addresses of all the petitioners and respondents,
B. a concise statement of the matters involved,
C. the factual background of the case, and
D. the grounds relied upon for the relief prayed for.
In actions filed under Rule 65, the petition shall further indicate the material dates showing when
notice of the judgment or final order or resolution subject thereof was received, when a motion for new
trial or reconsideration, if any, was filed and when notice of the denial thereof was received. (Cir. No. 39-
98)
It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the
respondent with the original copy intended for the court indicated as such by the petitioner, and shall be
accompanied by a clearly legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and
other documents relevant or pertinent thereto. The certification shall be accomplished by the proper
clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal,
agency or office involved or by his duly authorized representative. The other requisite number of copies
of the petition shall be accompanied by clearly legible plain copies of all documents attached to the
original.
The petitioner shall also submit together with the petition a sworn certification that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and
deposit the amount of P500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient
ground for the dismissal of the petition. (n)
Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over
the person of the respondent by the
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A. service on him of its order or
B. resolution indicating its initial action on the petition or
C. by his voluntary submission to such jurisdiction. (n)
When you file an original action before the CA like certiorari, normally under Section 3 you already furnish the adverse party
with a copy of your petition. Then the CA will now issue a resolution, like for example, “Defendant/Respondent, you are given so
many days to comment.”
That is how the CA acquires jurisdiction over your person – by serving you a copy of the order indicating its initial action.
So there is no more summons because you were already furnished a copy earlier.
Sec. 5. Action by the court. The court may dismiss the petition outright with specific reasons for such
dismissal or require the respondent to file a comment on the same within ten (10) days from notice. Only
pleadings required by the court shall be allowed. All other pleadings and papers may be filed only with
leave of court. (n)
Sec. 6. Determination of factual issues. Whenever necessary to resolve factual issues, the court itself
may conduct hearings thereon or delegate the reception of the evidence on such issues to any of its
members or to an appropriate court, agency or office. (n)
Sec. 7. Effect of failure to file comment. When no comment is filed by any of the respondents, the case
may be decided on the basis of the record, without prejudice to any disciplinary action which the court
may take against the disobedient party. (n)
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Rule 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Rule 47 is an entirely new rule which governs the remedy of annulment of judgments or final orders or resolutions. We
already met this remedy in judiciary law. The CA has original exclusive jurisdiction to annul final judgments and resolutions
of the RTC. (Section 9, BP 129) So it is an entirely original action for annulment of judgment of the RTC.
Now, that should not be confused with certiorari, prohibition and mandamus which fall under the original concurrent jurisdiction
of the CA. Rule 47 or annulment of judgment of the RTC falls within the exclusive original jurisdiction of the CA.
Take note that in an appeal, the judgment appealed from is valid. But in annulment under Rule 47, the judgment is being
asked to be declared void.
Under the prior law there was no direct rule governing that remedy. The only guideline for annulment of judgments of the RTC
are decided cases. Now for the first time the 1997 Rules have a definite rule on how to enforce this remedy.
So let’s read Section 1 because this is a remedy which has been existing without definite guidelines on how to do it.
Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments or
final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault
of the petitioner. (n)
Well of course the remedy of new trial under Rule 37 must be availed of before the judgment or order becomes final and
executory. Also, the remedy of appeal must also be availed before the judgment or order becomes final and executory.
In petition for relief under Rule 38, although the judgment or order is already final and executory, it must be done still within 60
days and 6 months.
Q: Suppose all the abovementioned remedies have lapsed, is there a remedy left?
A: Section I says YES. There is annulment of judgment but only on limited grounds.
Now what are the grounds for annulment of judgment? Section 2:
Sec. 2. Grounds for annulment. The annulment may be based only on the grounds of
A. extrinsic fraud and
B. lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a
motion for new trial or petition for relief. (n)
Q: What are the grounds for annulment of judgment under Section 2?

A: The grounds recognized by law for annulment of judgment are the only two (2):
1.) The judgment was secured through extrinsic fraud; or

Extrinsic fraud should not be a valid ground if availed of, or could have been availed of, in a motion
for new trial or petition for relief.
2.) The judgment is void for lack of jurisdiction.
First Ground: EXTRINSIC FRAUD
Q: How do we describe the remedy of annulment of judgment?

A: Annulment of judgment is described briefly as a remedy against a judgment which is already final and executory
when the remedy of appeal and new trial is already lost.
Petition for relief under Rule 38 is a remedy against a final and executory judgment kaya lang merong deadline – 6 months and
60 days. So after these periods lapse, wala na.
Sa petition for relief, apat yon eh: Fraud, accident, mistake and excusable negligence. In annulment of judgment, wala na
yung accident, mistake and excusable negligence. But yung EXTRINSIC FRAUD natira pa. That is the only one which can be left
behind under Rule 47.
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Q: Now what is meant by extrinsic fraud ?
A: We already discussed this. Fraud, to be a ground for nullity of a judgment, must be extrinsic – that fraud done by the
adverse party which prevented a party from having a trial or from presenting his case fully.
Therefore, intrinsic fraud is not a ground for new trial. It is not a ground for petition for relief. And it is not a ground for
annulment.
INTRINSIC FRAUD is that fraud which was an issue in the litigation such as perjury, false testimony, concealment of
evidentiary facts, but did not prevent you from presenting your case. That is not a ground for annulment of judgment. So take note
of that principle.
COSMIC LUMBER CORP. vs. COURT OF APPEALS

256 SCRA 168 [1996]
FACTS: Cosmic Lumber owns a piece of land occupied by some squatters. Now, Cosmic Lumber executed a
board resolution for a special power of attorney authorizing an attorney-in-fact to initiate, institute and file in any court
action for the ejectment of the squatters from its property. Then the agent by virtue of the power of attorney, filed a
case to recover a portion of this property from its occupants before the RTC.
While the case was going on, the agent (the attorney-in- fact) entered into a compromise agreement with the
squatters. In the compromise agreement, the attorney-in-fact sold the property or land to the squatter for only
P26,000. And the compromise agreement was approved by the court and it became final and executory.
Now it was several years later that the Cosmic Lumber heard about it. The Cosmic Lumber filed an action to
annul the judgment before the CA on the ground of extrinsic fraud.
The CA: The case will be dismissed because that is not one of the grounds for annulment of judgment because
the alleged nullity of the compromise judgment, because petitioner’s attorney-in-fact was not authorized to sell the
property. That does not amount to extrinsic fraud. That was fraud by your own representative, it is not fraud by the
other party. The one who exercised fraud was your own attorney-in-fact, not the squatter. So kaya nga that is not a
ground. The CA dismissed the action. So Cosmic Lumber went to the SC.
HELD: “The petition to annul the decision of the trial court in civil case before the CA was proper.
Emanating as it did from a void compromise agreement, the trial court had no jurisdiction to render a
judgment based thereon.” So there is another ground – lack of jurisdiction.
“The highly reprehensible conduct of attorney-in-fact in the civil case constituted an extrinsic or collateral fraud by
reason of which the judgment rendered thereon should have been struck down. Not all the legal semantics in the
world can becloud the unassailable fact that petitioner was deceived and betrayed by its attorney-in-fact. The latter
deliberately concealed from petitioner, her principal, that a compromise agreement had been forged with the end
result that a portion of petitioner’s property was sold literally for a song, for P26,000. Thus completely kept unaware of
its agent’s artifice, petitioner was not accorded even a fighting chance to repudiate the settlement so much so that the
judgment based thereon became final and executory.”
“For sure, the CA restricted the concept of fraudulent acts within too narrow limits. Fraud may assume different
shapes and be committed in as many different ways and here lies the danger of attempting to define fraud. For man in
his ingenuity and fertile imagination will always contrive new schemes to fool the unwary.”
So fraud by your attorney-in-fact is also considered as a ground for annulment.
Second Ground: JUDGMENT IS VOID
If we follow jurisprudence, there is a third ground which is implied: LACK OF DUE PROCESS. When there is lack of due
process there is also lack of jurisdiction.
Q: How do you attack a judgment which is void?

A: It depends:
a.) when the judgment is null and void on its very face, the judgment may be attacked:
1.) DIRECTLY; or
2.) COLLATERALLY;
b.) when the nullity is not apparent on the face of the judgment, the judgment can be attacked only be DIRECTLY
attacked.
Q: What is a COLLATERAL ATTACK?

A: Meaning, there is no need for me to file a case but I can invoke its nullity anytime because a judgment which is void
on its very face can be attacked at anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a judgment. I will oppose the execution on the ground that
the judgment is void. That is collateral attack. I’m just saying that the judgment cannot be enforced because it is null and void.
But I never filed a direct action to declare its nullity. That can be done if the judgment is void on its very face.
Q: What is a DIRECT ATTACK?

348
A: By direct attack means you must file an action to declare its nullity. So there must be a case for its annulment.
Again, when the judgment is null and void on its face, (1) you may file a direct action to annul it under Rule 47. Or, (2)
it can also be attacked collaterally, a direct attack is not necessary. A collateral attack will suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the decision, obviously the RTC has no jurisdiction. Therefore, I
can attack it directly by filing a case for its annulment under Rule 47. OR, I will not file a case under Rule 47 but I will attack it
collaterally. Meaning, bayaan ko lang. I will raise that issue during execution. If you move for execution, I can oppose, “You cannot
execute because the RTC has no jurisdiction over the case. Therefore the judgment is void.” So it is not necessary to file a case to
declare the decision as null and void. That is collateral attack.
But if the judgment is not void on its face but the nullity is intrinsic or nakatago – not obvious ba – the rule is, you
must file a direct action for its annulment which must be done before the action is barred by laches or estoppel. So it is
necessary to file a case for annulment of judgment under Rule 47.
Well of course, certiorari under Rule 65 is also a ground for attacking a judgement but the trouble is you are limited to
3 grounds: Lack of jurisdiction, excess of jurisdiction and grave abuse of discretion. Walang extrinsic fraud. That is
governed by Rule 65 and not by Rule 47.
And under Rule 65, you can avail of certiorari only within 60 days. But if you want annulment, it could be longer under Rule
47. That is under section 3. That could be a big difference.
Moreover, what do you attack in certiorari? Normally, interlocutory orders eh. But a final judgment can be attacked by
annulment under Rule 47.
Now, those remedies were summarized in the case of
BAYOG vs. NATINO

258 SCRA 378 [1996]
HELD: It is a settled rule that a final and executory judgment may be set aside in three (3) ways. To wit:
1. By petition for relief from judgment under Rule 38;

2. When the judgment is void for want of jurisdiction, by direct attack, by certiorari, annulment of
judgment or by collateral attack; and
3. When the judgment was obtained by fraud and Rule 38 cannot be applied anymore.
So those are the summary of the remedies.
ISLAMIC DAVAO COUNSEL vs. COURT OF APPEALS

178 SCRA 178
ISSUE #1: Can a person, who is not a party to the judgment, file an action for annulment of judgment?
HELD: A person who is not a part of the judgment may sue for its annulment PROVIDED that he can
prove
[1] that the judgment was obtained through fraud and collusion and
[2] that he would be adversely affected thereby.
ISSUE #2: Suppose the judgment had already been fully executed and implemented, can you still file a case for
annulment of judgment?
HELD: YES. We will also annul the execution. If there is no execution yet, the proper remedy normally is you
file an action for annulment and ask for the issuance of a writ of preliminary injunction so that it will not be enforced.
Pero kung na-enforced na pwede pa man din ba.
SUMMARY: Possible remedies of defendant declared in DEFAULT:
1.) Rule 9, Section 3 [b] – Motion to lift Order of Default, there is still no judgment; ground: FAME;
2.) Rule 37 – Motion for new trial, judgment not yet final; Ground: FAME;
3.) Rule 38 – Petition for relief within 60 days and 6 months, judgment is already final; ground: FAME;
4.) Rule 41 – Appeal within 15 days; ground: Default judgment is contrary to law or evidence;
5.) Rule 47 – Annulment of judgment; Ground: Extrinsic Fraud;
6.) Rule 65 – Certiorari; ground: Lack or excess of jurisdiction or grave abuse of discretion
Q: What is the period to file an action for annulment on the ground of extrinsic fraud?
A: Section 3:
Sec. 3. Period for filing action. If based on extrinsic fraud, the action must be filed within four (4) years
from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. (n)
349
This is based on decided cases. If your ground is extrinsic fraud, the action is filed within four (4) years from its
discovery. Now, if it is based on lack of jurisdiction, before it is barred by laches or estoppel. That is very elastic – laches or
estoppel.
Although if you look at the strict law based on Article 1144 of the New Civil Code, the prescriptive period really is 10 years
for any action on judgment. That is the strict law but it could be barred earlier by laches or estoppel.
Now as to the contents of the petition, we have Section 4:
Sec. 4. Filing and contents of petition.
The action shall be commenced by filing a verified petition alleging therein with particularity
a. the facts and the law relied upon for annulment,

b. as well as those supporting the petitioner’s good and substantial cause of action or defense,
as the case may be.
The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies
corresponding to the number of respondents. A certified true copy of the judgment or final order or
resolution shall be attached to the original copy of the petition intended for the court and indicated as
such by the petitioner.
The petitioner shall also submit together with the petition affidavits of witnesses or documents
supporting the cause of action or defense and a sworn certification that he has not theretofore
commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he
must state the status of the same, and if he should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days therefrom.(n)
Take note that yung mga affidavits of your witnesses or documents supporting your cause of action must be attached
already. You correlate this with Rule 37, Section 2 on new trial and Rule 38, Section 3 on petition for relief.
What does Rule 37, Section 2 and Rule 38, Section 3 say about motion for new trial or petition for relief? There is also an
AFFIDAVIT OF MERITS showing the nature of the fraud, accident and the meritorious cause of action or defense. So more or less
that principle also applies in Rule 47.
Sec. 5. Action by the court. Should the court find no substantial merit in the petition, the same may be
dismissed outright with specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same shall be given due course and summons
shall be served on the respondent. (n)
Under Section 5, the court may dismiss outright the petition if there is no merit or no substantial merit. If there is, then
the same shall be given due course and summons shall be served on the respondent.
Take note there will be SUMMONS here. Unlike in Rule 46, walang summons yon. But here, there will be summons by the
CA. That is the difference between Rule 47 and Rule 46.
Sec. 6. 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
Regional Trial Court. (n)
Q: What happens if the judgment is annulled? Can the plaintiff re-file the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final
order or resolution and render the same null and void, without prejudice to the original action being
refiled in the proper court.
However, where the judgment or final order or resolution is set aside on the ground of extrinsic
fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had
been granted therein. (n)
So if the judgment is set aside on the ground of extrinsic fraud, the action can be re-filed. The court may, on motion,
order the trial court to try the case as if a timely motions for the trial had been granted therein. That is similar to Rule 38,
Section 6. Remember when the court grants a petition for relief, the case will be tried all over again as if a timely motion for new
trial has been filed.
Q: What happens if by the time you re-file the case the prescriptive period has already lapsed?
350
A: As a general rule, while the action for annulment is pending, the prescriptive period for filing is interrupted. That is
Section 8:
Sec. 8. Suspension of prescriptive period. The prescriptive period for the refiling of the aforesaid
original action shall be deemed suspended from the filing of such original action until the finality of the
judgment of annulment.
EXC: However, the prescriptive period shall not be suspended where the extrinsic fraud is
attributable to the plaintiff in the original action. (n)
Q: What happens if a judgment is annulled and it was earlier executed?

A: Section 9:
Sec. 9. Relief available. The judgment of annulment may include the
A. award of damages,
B. attorney’s fees and
C. other relief.
If the questioned judgment or final order or resolution had already been executed, the court may
issue such orders of restitution or other relief as justice and equity may warrant under the
circumstances. (n)
Under Section 9, the court may issue order of restitution or other reliefs as justice and equity may warrant. That is
similar to Rule 39, Section 5 – in case of execution pending appeal and the appealed judgment is reversed, the court will
now order mutual restitution pursuant to Rule 39, Section 5.
Sec. 10. Annulment of judgments or final orders of Municipal Trial Courts. An action to annul a judgment
or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over
the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall
be applicable thereto. (n)
I have always maintained this view. As I said, if we will look at the judiciary law, it only mentions annulment of judgments of
Regional Trial Courts which should be filed in the CA (exclusive original).
And the QUESTION is asked: “Meron bang action for annulment of judgments of MTC?” Yaann!
Answer: YES. Kung merong annulment of judgment of the RTC, by implication, meron din ang MTC. You cannot file it
in the CA. You file it in the RTC.
Annulment of judgment of the MTC will fall under the rule on jurisdiction of the RTC – any action which does not belong to the
jurisdiction of any other courts (Section 19 [6], BP 129) or, an action the subject matter of which is incapable of pecuniary
estimation (Section 19 [1], BP 129) That would be the authority.
Now it’s very clear, meron talaga. It is now stated categorically there is an action for annulment of judgment also of the MTC. It
must be filed in the RTC having jurisdiction over the MTC. The grounds are identical as those found in the previous section. So this
is an entirely new section.
-oOo-
351
Rule 48
PRELIMINARY CONFERENCE
Preliminary Conference is like a pre-trial in the CA. Iba lang ang tawag but it is really a pre-trial because there are cases
which fall under the original jurisdiction of the CA, like annulment of judgment of the RTC. Its purpose is the same as in Rule 18 on
pre-trial.
Section 1. Preliminary conference. At any time during the pendency of a case, the court may call the
parties and their counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement, except when the case is not allowed by law
to be compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of
witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its
appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered
evidence; and
(d) To take up such other matters which may aid the court in the prompt disposition of the case. (n)
Sec. 2. Record of the conference. The proceedings at such conference shall be recorded and, upon the
conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations
and admissions made, and the issues defined. (n)
Sec. 3. Binding effect of the results of the conference. Subject to such modifications which may be made
to prevent manifest injustice, the resolution in the preceding section shall control the subsequent
proceedings in the case unless, within five (5) days from notice thereof, any party shall satisfactorily
show valid cause why the same should not be followed. (n)
Rule 49
ORAL ARGUMENTS
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own instance or upon motion of a party, the court may hear the
parties in oral argument on the merits of a case, or on any material incident in connection therewith. (n)
The oral argument shall be limited to such matters as the court may specify in its order or resolution.
(1a, R48)
Sec. 2. Conduct of oral argument. Unless authorized by the court, only one counsel may argue for a
party. The duration allowed for each party, the sequence of the argumentation, and all other related
matters shall be as directed by the court. (n)
Sec. 3. No hearing or oral argument for motions. Motions shall not be set for hearing and, unless the
court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse
party may file objections to the motion within five (5) days from service, upon the expiration of which
such motion shall be deemed submitted for resolution. (2a, R49)
352
How are cases decided in the CA? Normally, you file your petition; submit argument in writing; then you wait for the decision.
But sometimes, the CA is provoked by legal issues. So the CA would decide to listen to oral arguments of the parties, especially
when the case is controversial.
Under Section 3, one difference between motions filed in the RTC and in the CA is that:
a.) in the RTC, there must be notice of hearing (Rule 15) attached to the motion, otherwise it will be denied;
b.) in the CA, there is no need for notice of hearing to be attached to the motion.
Rule 50
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under Section 1, an appeal may be dismissed by the CA on its own
(motu propio) or upon motion of the appellee. And there are nine (9) grounds for dismissal of appeal under Section 1:
Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its
own motion or on that of the appellee, on the following grounds:
(a) Failure of the record on appeal to show on its face that the appeal was taken within the period
fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these
Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of Rule
40 and section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in
section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the
record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or completion of the record
within the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with
orders, circulars, or directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable. (1a; En Banc Resolution, Feb.
17, 1998)
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW ON ITS FACE THAT THE APPEAL WAS TAKEN
WITHIN THE PERIOD FIXED BY THESE RULES;
So this only applies in cases where a record on appeal is required. Failure to show on its face that the appeal was perfected
on time – meaning, the appeal might have been perfected on time but by reading the record on appeals, you will not see it.
Normally, that happens when the party did not state the exact date when he received the decision. He may just state the date
of the decision without stating the date of receipt. With that, the court will presume that you received it on the date of the decision.
It might be beyond the period to appeal. So on its face, there is no showing whether the appeal was within the 30 day period or
not.
The first ground is called the MATERIAL DATA RULE – that the record on appeal must show on its face that the appeal was
taken on time.
In the 1973 case of BERKENKOTTER VS. CA, this ground was supposed to be abolished already where the SC said that from
now on, We will no longer follow the material data rule. Meaning this is abandoned.
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the SC has already refused to apply this ground. So when
they drafted the Rules, dapat tinanggal na yon. Bakit nandito na naman? They might have forgotten that it has been abandoned
by jurisprudence, unless the intention is to return it.
353
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE RECORD ON APPEAL WITHIN THE PERIOD
PRESCRIBED BY THESE RULES;
Take note that under paragraph [a], the appeal was filed on time but the record on appeal does not show that it was filed on
time.
But here in paragraph [b], the appeal is really out of time. Take note that you can raise this ground in the trial court. The trial
court is also authorized to dismiss an appeal on this ground (Rule 41, Section 13). But assuming that you failed to raise it in the
trial court, you can raise it in the CA.
Q: Are you under estoppel for not raising it earlier in the RTC? Meaning, why did you not bring it out earlier, bakit hinintay pa
sa CA?
A: There is no estoppel here because actually this is a jurisdictional challenge. When the notice of appeal is filed out of time or
beyond 15 days, actually the judgment of the RTC has already become final and executory. So you are now challenging the
jurisdiction of the CA. Meaning, you are trying to say that the CA has no jurisdiction to review on appeal a judgment of the RTC
which has already been final and executory.
Q: Does the CA have the power to review and reverse an RTC judgment which is already final and executory?
A: No more. The judgment which is already final cannot be changed by the CA. Meaning, the CA has no jurisdiction to
entertain the appeal in that case. So in effect, it is a jurisdictional challenge which can be raised even in the CA even if not raised
earlier in the RTC.
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN
SECTION 5 OF RULE 40 AND SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal from the MTC to the RTC. Section 4 of Rule 41 refers to filing of
docket fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee ?

A: Within the 15-day period, you already pay it in the RTC clerk of court. Unlike before you pay it with the CA later. That is why
as I said, failure to pay the docket fee in the RTC is a ground for dismissal of the appeal because of this.
Q: But how about failure to pay the appeal fee in the MTC prior to transmittal to the RTC? Is it a ground for dismissal by the
CA?
A: To my mind NO because why will the CA dismiss it when the appeal is in the RTC? Bakit ang CA mag-dismiss, wala man
ang kaso sa kanila? The CA has nothing to do with the appeal. It is supposed to be in the RTC, bakit ang CA ang mag-dismiss? In
other words, there is something wrong with this amendment. (referring to “Section 5 of Rule 40”)
But if the appeal is from the RTC to the CA, you must you must pay the docket fees because it is a specific ground for
dismissal for the dismissal under Rule 50.
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR ADDITIONS IN THE APPROVED RECORD ON
APPEAL AS PROVIDED IN SECTION 4 OF RULE 44;
That’s only when there is a record on appeal. When the record on appeal is approved, you have to reproduce it and you are
not allowed to make any alteration, revision or addition.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE THE REQUIRED NUMBER OF COPIES OF HIS BRIEF
OR MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES;
Failure of the appellant to serve and file the required number of copies of his brief. So, failure to file the appellant’s brief is a
ground for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief, what will happen ?
A: You do not dismiss the appeal but the case will be submitted for decision without appellee’s brief. The CA will make a
resolution that the case was submitted without the appellee’s brief.
Q: Does it mean to say that talo na ‘yung appellee?

A: NO. There are many cases I’ve seen where the appellee did not file any brief – Talo man gihapon ang appellant because
anyway the appellant’s brief has no merit. But normally in cases na delikado, you better file an appellee’s brief. You owe that to
your client. Just imagine, lahat ng arguments dun hindi sagutin. That’s very dangerous!
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS IN THE APPELLANT’S BRIEF, OR OF PAGE
REFERENCES TO THE RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D) AND (F) OF RULE 44;
354
Well, you may file an appellant’s brief, eh wala namang page references, wala namang assignment of errors. My God! What
kind of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief without telling the CA kung anong mali and then you expect the
CA to look for the errors. My golly! Do not expect the CA to do that. Meron dapat citations – e.g. “See Exhibit ‘A’”, “See transcript…”
Merong reference ba! like kung anong page yan.
Now if you file a brief without footnotes, without citing the law, without citing the transcript, without citing the exhibit, that would
be dismissed. That’s what happened in the 1995 case of
DEL ROSARIO vs. COURT OF APPEALS

241 SCRA 553 [1995]
FACTS: The CA dismissed the case simply because the appellant’s brief was sloppily written – no reference to
exhibit, no reference to page, no reference to anything. It was dismissed! The appellant went to the SC pleading
liberality.
HELD: “Petitioner’s plea for liberality in applying these rules in preparing Appellant’s Brief does not deserve any
sympathy. Long ingrained in our jurisprudence is the rule that the right to appeal is a statutory right and a party who
seeks to avail of the right must faithfully comply with the rules. Deviations from the rules cannot be tolerated. The
rationale for this strict attitude is not difficult to appreciate. These rules are designed to facilitate the orderly disposition
of appealed cases. In an age where courts are bedeviled by clogged dockets, these rules need to be followed by
appellants with greater fidelity. Their observance cannot be left to the whims and caprices of appellants.”
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE NECESSARY STEPS FOR THE CORRECTION OR
COMPLETION OF THE RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
Sometimes yung record mo kulang-kulang ba. And the party may be directed to work for the completion. If you fail to complete
the record, your appeal will be dismissed.
Please connect this with two previous provisions talking about completion of the record in an appealed case. I’m referring to
Rule 41, Section 10 and Rule 44, Sections 5 to 6 because these provisions talk also of completion of record. (please refer to your
codals)
Rule 41, Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days
after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the
clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and
to make a certification of its correctness;
(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.
If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or
transcripts not included in the records being transmitted to the appellate court, the reasons for their non-
transmittal, and the steps taken or that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the
appellate court.
Rule 44, Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk
of court of the Court of Appeals shall so inform said court and recommend to it measures necessary to
complete the record. It shall be the duty of said court to take appropriate action towards the completion
of the record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record. Where the completion of the record could not be
accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult
causes, the court, on its own motion or on motion of any of the parties, may declare that the record and
its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the reasons for such declaration.
Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE PRELIMINARY CONFERENCE UNDER RULE 48 OR
TO COMPLY WITH ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT WITHOUT JUSTIFIABLE CAUSE; AND
That’s a new ground – failure to appear on the preliminary conference; failure to comply with orders, circulars, directives of the
court without justifiable cause. That is very broad. That’s a new one not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT APPEALED FROM IS NOT APPEALABLE.
The fact that the judgment or order appealed from is not appealable. Interlocutory!
355
Q: What are the judgments or orders which are not appealable?
A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.

xxxxxx
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration; - ameneded but principle remains
(c) An interlocutory order;
xxxxxx
So, if you appeal on any one of them, the other party can file a motion to dismiss on the ground that it is not appealable.
Now, there is one ground for dismissal under the old rule na nawala naman. Yun bang “failure to prosecute the appeal”, when
the records are not elevated to the CA the appeal can be dismissed. Meaning, you have to follow up the clerk of court. Nawala yun
eh. That ground seems to have been abandoned. I think the attitude there is let us not punish the appellant for the fault of the clerk
of court.
Q: Is a default judgment appealable?

A: YES. It is appealable because it is a final judgment and not merely interlocutory. Although under the ‘64 Rules, there
is a direct provision that a default judgment is appealable. Now, that provision has disappeared. But even if it is not mentioned now,
default judgment is now covered by Rule 41 on final judgments.
Sec. 2. Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by
petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court
but shall be dismissed outright. (3a)
Meaning, you must appeal to the right court and you must use the proper mode of appeal. This incorporates in the
Rules the resolutions of the SC in the 1990 En Banc Resolution in MORILLO vs. CONSUL (not found in the SCRA) and also
incorporates the provisions of Circular 2-90 dated March 9. 1990.
Prior to this under the 1964 Rules, the rule is if there is wrong appeal like pure questions of law to the CA, the CA should not
dismiss the appeal but elevate it to the SC. That rule has long been abandoned. It was abandoned in the case of MORILLO and in
Circular 2-90. Now, it is here. Kung question of law you better appeal to the SC. If you appeal to the CA, the CA will dismiss it.
MORILLO vs. CONSUL
HELD: “There is no longer any justification for allowing transfers of erroneous appeals from one court to the
other, much less for tolerating continued ignorance of the law on appeals.”
Take note that this refers to appeal under Rule 41 from RTC. This does not apply when the appeal to the CA is from a
quasi-judicial body. Appeal from a quasi-judicial body on a pure question of law should be to the CA, never to the SC. You
compare this with Rule 42, Section 2:
Rule 42, Section 2. Form and contents.- The petition shall be filed in seven (7) legible copies, with the
original copy intended for the court being indicated as such by the petitioner, and shall:
xxx
(c) set forth concisely a statement of the matters involved, the issues raised, the specification of
errors of fact or law, or both, allegedly committed by the RTC and the reasons or arguments relied upon
for the allowance of the appeal.
xxx
“Errors of fact or law, or both.” This refers to Petition for Review from the RTC to the CA.
Q: What happens if an appeal is already taken to the CA?

A: It shall be dismissed outright. Under the ’64 Rules, the CA will pass it on to the SC. But the liberal policy has now been
changed.
Aaron [Cruz] asked a question (during the 1998 Review Class)

356
Dean’s ANSWER: Yes, there is a decided case. In the meantime, you also lost the right to correct the error. Lumampas na eh!.
Kaya it would be dismissed. Hindi naman sinasabi na the appellant will be directed to appeal properly. In other words, it will be
dismissed. Meaning, that is the end. That is the penalty for erroneous appeal. Kaya nga according to MORILLO which became the
basis of this, there is no longer any justification for allowing transfers of erroneous appeals from one court to the other,
much less for tolerating continued ignorance of the law on appeals. Kaya nga before, very lenient pag mali under the 1964
Rules. But now in Section 2 of Rule 50, wala na – i-dismiss na.
WITHDRAWAL OF APPEAL
Sec. 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of
the appellee’s brief.
Thereafter, the withdrawal may be allowed in the discretion of the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?

A: YES, prior to the transmittal of the original record or the record on appeal, the court may allow withdrawal of the appeal.
(Section 9, Rule 41)
Q: Where will you file the motion to withdraw?

A: In the RTC if the records are still in the RTC. If the records of appeal is already in the CA, you file the motion to the CA at
anytime before the filing of the appellee’s brief you can withdraw it as a matter of right. When there is already an appellee’s brief, it
can be allowed in the discretion of the Court (Section 3). That is similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by
filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment.
Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication
upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based
on or including the same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in the lower court?
A: YES, as a matter of right for as long as there is still no answer filed. But when the defendant has filed an answer, dismissal
of the complaint is already discretionary upon the court. So it is the same!
-oOo-
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Rule 51
JUDGMENT
You already know that the Court of Appeals operates by division. There are 69 justices there. Every division is composed of 3.
The 3 must be unanimous. In case there is no unanimity, there should be a special division of 5 to hear the case all over again and
the majority rules. Although from what I gathered sa CA, this is a farce . Actually, they do not discuss it, they will just give it to the
ponente. Tapos sabihin mo ‘concur.’ Bihira lang talaga ang naga-participate unless siguro malakas ka sa isang justice and then
mag-dissent para magkaroon ng division of 5. That is not really the intention of the of the law.
Let’s go back to what we were saying before under Rule 36. Every decision or resolution of a court shall clearly and distinctly
state the facts and the law on which it is based. If a decision does not state its basis, it is a SIN PERJUICIO judgment. That is not a
valid judgment. The requirement applies to all courts whether MTC, RTC, or CA. This is emphasized again in Section 5:
Sec. 5. Form of decision. - Every decision or final resolution of the court in appealed cases shall
The CA must state its findings and conclusions or according to Section 5 it may simply adopt the findings and conclusions set
forth in the decision or order appealed from. If the CA is going to affirm the judgment of the RTC, it may simply copy or adopt the
findings and conclusions of the RTC. It is called a “MEMORANDUM DECISION”.
If you will look at Section 5, it states that the provision is taken from Section 40, BP 129. It is taken from the Judiciary Law.
Is this provision not an invitation to laziness on the part of the CA justices? If the CA will affirm the judgment of the RTC, the
work is easier because it may simply adopt on its own the findings of the RTC. If the CA would reverse the decision, the job would
be more difficult, because it would write an entirely new decision to rebut or dispute the findings of the RTC. This is why when this
provision came out in the Judiciary Law, there was a sort of fear that this might be the cause of laziness.
The SC, well aware of that danger, clarifies in one case that memorandum decisions are not allowed in all cases. The CA is
only allowed to render a memorandum decision in simple cases especially when the appeal is dilatory and there is nothing wrong in
the appealed decision. But if the case is complicated or complex, even if CA would affirm the decision, it cannot simply copy the
work of the RTC. It should write its own decision. The limitation or guidelines was issued by the SC precisely to avoid the danger of
laziness on the part of CA justices. The SC said in the case of
FRANCISCO vs. PERMSKUL

173 SCRA 324
HELD: “The Court finds it necessary to emphasize that the memorandum decision should be sparingly used lest
it become an addictive excuse for judicial sloth. It is an additional condition for its validity that this kind of decision may
be resorted to only in cases where the facts are in the main accepted by both parties or easily determinable by the
judge and there are no doctrinal complications involved that will require an extended discussion of the laws involved.
The memorandum decision may be employed in simple litigations only, such as ordinary collection cases, where the
appeal is obviously groundless and deserves no more than the time needed to dismiss it.”
Q: When is a case deemed submitted for judgment?

A: Section 1 of Rule 51:
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Sec. 1. When case deemed submitted for judgment. - A case shall be deemed submitted for judgment:
A. In Ordinary appeals. –
1) Where no hearing on the merits of the main case is held,
a. upon the filing of the last pleading, brief, or memorandum required by the
Rules or by the court itself, or
b. the expiration of the period for its filing.
2) Where such a hearing is held,
a. upon its termination or

b. upon the filing of the last pleading or memorandum as may be required or
permitted to be filed by the court, or
c. the expiration of the period for its filing.
B. In original actions and petitions for review. -
1) Where no comment is filed,

a. upon the expiration of the period to comment.
2) Where no hearing is held,

a. upon the filing of the last pleading required or permitted to be filed by the court,
or
b. the expiration of the period for its filing.
3) Where a hearing on the merits of the main case is held,

a. upon its termination or
b. upon the filing of the last pleading or memorandum as may be required or
permitted to be filed by the court, or
c. the expiration of the period for its filing. (n)
Sec. 2. By whom rendered. - The judgment shall be rendered by the members of the court who
participated in the deliberation on the merits of the case before its assignment to a member for the
writing of the decision. (n)
Sec. 3. Quorum and voting in the court. - The participation of all three Justices of a division shall be
necessary at the deliberation and the unanimous vote of the three Justices shall be required for the
pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote,
the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the
division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who
shall designate two Justices chosen by raffle from among all the other members of the court to sit
temporarily with them, forming a special division of five Justices. The participation of all the five
members of the special division shall be necessary for the deliberation required in section 2 of this Rule
and the concurrence of a majority of such division shall be required for the pronouncement of a
judgment or final resolution. (2a)
Sec. 4. Disposition of a case. - The Court of Appeals, in the exercise of its appellate jurisdiction, may
affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further
proceedings to be had. (3a)
Sec. 5. Form of decision. - Every decision or final resolution of the court in appealed cases shall
Sec. 6. Harmless error. - No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect which does not affect the
substantial rights of the parties. (5a)
Sec. 7. Judgment where there are several parties. - In all action or proceedings, an appealed judgment
may be affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter be
proceeded with, so far as necessary, as if separate actions had been begun and prosecuted; and
execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such
cases, as the court shall deem proper. (6)
Let’s go to Section 7.
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Q: When there are 2 or more plaintiffs or 2 or more defendants in the cases appealed, is it possible that the CA will render
decision for one plaintiff but against the other plaintiffs, or in favor of one defendant and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs will lose especially when the facts are not identical. This is also
true in cases of 2 or more defendants when each one interposes separate defenses. The defense of one may be true, others may
be false. It is possible that one defendant will win and other defendants will lose.
Q: Suppose there are 2 defendants in a case. All of them lost. Defendant A appealed. Defendant B did not appeal. On appeal,
defendant A won. Will the appeal of A benefit B who did not appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the appealing defendant. The judgment becomes final to those
who did not appeal even if it is wrong.
EXCEPTION : When the LIABILITY of the 2 parties are so INTERTWINED that it would be absurd that one of them will win and
the other will lose. Thus, the appeal by the appealing party benefits his co-party who did not appeal. This principle was laid down in
some cases. Among them is the case of
UNIVERSAL MOTORS CORP. vs. COURT OF APPEALS

205 SCRA 428 [1992]
HELD: “It is erroneous to rule that the decision of the trial court could be reversed as to the appealing private
respondent and continue in force against the other private respondents. The latter could not remain bound after the
former had been released; although the other private respondents had not joined in the appeal, the decision rendered
by the respondent court inured to their benefit. When the obligation of the other solidary debtors is so dependent on
that of their co-solidary debtor, the release of the one who appealed, provided it be not on grounds personal to such
appealing private respondent, operates as well as to the others who did not appeal. It is for this reason, that a
decision or judgment in favor of the private respondent who appealed can be invoked as res judicata by the other
private respondents.” So, their liabilities are so intertwined.
EXAMPLE : Mayakin Skywalker and Darth Mort borrowed money from Qui Gon Jet. They bound themselves jointly and
severally to pay the loan. There is only one promissory note, one loan and both Mayakin and Darth Mort signed. Their common
defense is payment. But the trial court ruled in favor of the plaintiff (Qui Gon Jet) and ordered Mayakin and Darth Mort to pay.
Mayakin appealed but Darth Mort did not. On appeal, CA decided in favor of Mayakin saying, “Wala nang utang si Mayakin ba dahil
bayad na!” How about Darth Mort? Darth Mort is also released.
This principle is reiterated in the case of
CAYABA vs. COURT OF APPEALS

219 SCRA 571 [1993]
HELD: “A reversal of a judgment on appeal is binding on the parties to the suit but does not inure to the benefit of
parties who did not join in the appeal (as a general rule). The recognized exception is when their rights and
liabilities and those of the parties appealing are so interwoven and dependent so as to be inseparable, in
which case a reversal as to one operates as a reversal to all.”
The rule is so similar in Criminal Procedure. When the appeal of one accused benefits his co-accused who did not appeal
especially when the defense of such appealing accused is applicable to him.
Sec. 8. Questions that may be decided. - No error which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or the proceedings therein will be considered unless
stated in the assignment of errors, or closely related to or dependent on an assigned error and properly
argued in the brief, save as the court may pass upon plain errors and clerical errors. (7a)
Q: Can the CA decide an issue which was not raised by the parties? Can the CA correct the error which was never assigned
by the other party?
A: GENERAL RULE : Only errors which are stated in the appellant’s brief should be considered. If the error is not assigned,
that cannot be corrected. This is just an extension of the rule that objections and defenses not pleaded are deemed waived.
EXCEPTION : The following matters can be corrected or the court can take cognizance even if the parties did not raise them:
1.) Jurisdiction over the subject matter of the case;

2.) Plain errors;
3.) Clerical Errors.
4.) Errors which are not assigned but closely related to or dependent on an assigned error.
The fourth exception is taken from decided cases. According to the SC, even if you will not mention a mistake committed by
the trial court if such mistake is related to the mistake mentioned, it can be corrected. In the case of
ABEJARON vs. COURT OF APPEALS

208 SCRA 899 [1992]
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HELD: An unassigned error closely related to the error properly assigned, or upon which the determination of the
question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding
the failure to assign it as error.
While an assignment of error which is required by law or rule of court has been held essential to appellate review,
and only those assigned will be considered, there are a number of cases which appear to accord to the appellate
court a broad discretionary power to waive this lack of proper assignment of errors and consider errors not assigned.
The same principle was reiterated in the 1995 case of
CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE PRESIDENT

241 SCRA 165
HELD: “While the rule is that no error which does not affect jurisdiction will be considered unless stated in the
assignment or errors, the trend in modern-day procedure is to accord the courts broad discretionary power such that
the appellate court may consider matters bearing on the issues submitted for resolution which the parties failed to
raise or which the lower court ignored.”
Let us look at the second exception – plain errors.
What is a plain error ? Because a plain error can be corrected by the appellate court even if not asked by the parties, plain
man? If you will ask me, any plain error is yung talagang obvious mistake – one which is apparent to the eye.
Now, suppose the trial court made an error in applying a law or in interpreting a law. But it was not attacked by the losing party
and it was not corrected on appeal. Is it a plain error? It would seem no and yet that is what happened in the 1993 case of SANTOS
vs. CA (221 SCRA 42).
But before we discuss the case of Santos, we have to know the basics. There are two principles here to remember.
The appellant is the one who appeals and it is he who will file the appellant’s brief and then he will make the assignment of
errors. The appellee will refute the appellant’s assignment of errors which were committed by the trial court.
Q: Can the appellee impute errors or make assignment of errors?

A: The general rule is NO. If you are an appellee, you are not appealing and thus you are accepting the decision. So if you
think the decision is in your favor pero mali pa rin, you must also appeal.
So an appellee is not allowed to assign errors committed by the trial court except if the purpose of the assignment of errors is
to sustain the decision on another ground. Because sometimes you agree with the decision but you do not agree with the reason.
The decision is correct but this should be the reason. Because actually, you are defending the decision on another ground.
Meaning the court made a mistake in arriving at the decision but the decision is correct. Yan, puwede yan. But if you want the
decision to be changed, then you must also appeal.
Now, let us go to the case of SANTOS which involves the law on lease, particularly the interpretation and the application of
Article 1678 Civil Code. Under the law on lease, suppose I will rent to you my land and you built a building there and there is no
agreement as to who will own the building after the termination of the lease. Suppose there is no stipulation, who will own the
building?
According to the Civil Code, the owner of the land has the option to acquire the building by paying one half of its value. Pero, if
I do not want to appropriate the building, then you have the right to remove the building provided you will not damage the land. So
the option to pay you belongs to the owner of the land. The lessee cannot compel the owner of the land to pay.
Let us go now to the case of Santos. This is a very queer case.

221 SCRA 42
FACTS: Artemio Santos et al are lessees of a piece of land. They have not paid the rentals for 28 years. The
lessor filed a case of unlawful detainer against all of them before the Metropolitan Trial Court of Pasig. The trial court
rendered judgment against Santos et al. So they were ordered ejected.
Now, these people were not satisfied. They still appealed to the RTC. The RTC affirmed the judgment that they
should be ejected but modified it by ordering the lessor to reimburse the lessees for the latter’s improvements on the
leased property. So, affirmed, but bayaran mo iyong mga bahay ng mga tao. (DEAN I: To my mind, that portion of the
decision is wrong. You cannot order the lessor to reimburse.)
But despite that, Santos et al were not satisfied. They still appealed to the CA. The lessor did not appeal so
obviously, the lessor is willing to pay. Although he has no obligation to pay the improvements, pero sige na lang para
matapos na! He did not appeal.
Now, the CA affirmed again the ejectment. So tatlo na. There were three courts where the occupants lost. But the
CA deleted the portion of the RTC decision ordering reimbursement of the improvements. It was really wrong. Walang
reimbursement diyan.
So this time, Santos et al appealed to the SC. And they say that the portion of the decision deleting our right to
reimbursements is wrong because the owner of the land is not questioning it, he is not appealing so why should the
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CA delete it? So, meaning payag iyong owner. Therefore that portion of the decision of the CA where we are no
longer entitled to reimbursement is erroneous. The CA has no power to delete that portion of the RTC decision
because there was no appeal from the landowner.
ISSUE: Is the decision of the CA correct?
HELD: YES. The CA is correct. “It is true that the rule is well-settled that a party cannot impugn the correctness
of a Judgment not appealed from by him, and while he may make counter-assignment of errors, he can do so only to
sustain the judgment on other grounds but not to seek modification or reversal thereof for in such a case he must
appeal. A party who does not appeal from the decision may not obtain any affirmative relief from the appellate court
other than what he has obtained from the lower court, if any, whose decision is brought up on appeal. However, the
Rules of Court and jurisprudence authorize a tribunal to consider errors, although unassigned, if they involve
(1) errors affecting the lower court's Jurisdiction over the subject matter,
(2) plain errors not specified, and
(3) clerical errors.”

“Under Article 1678, it is the lessor who has the option to pay for one-half of the value of the improvements which
the lessee has made in good faith. The lessee cannot compel the lessor to appropriate and reimburse.” Therefore, the
decision of the RTC ordering the lessor is actually erroneous.
“Hence, the award of reimbursement for improvements by the trial court in favor of petitioners amounts to a plain
error which may be rectified on appeal although not specified in the appellee’s brief.”
But the trouble is, the landowner did not appeal. If we follow the ruling, then lahat ng mali ng trial court ay plain error na. That is
what the SC said. Bakit man naging plain error ito when actually it will not qualify as plain error ? If we will follow that line of
reasoning, every mistake committed by a trial court can be corrected being a plain error.
To my mind, merong equity ito, eh. Analyze the case. You are occupants for 28 years and you did not pay. Ayaw mo lumayas,
bayaran ka pa? There is something wrong there already. I think that is the factor eh.
So the SC said that it is too unfair for the landowner still to be required to pay. Imagine they stayed there for 28 years, hindi pa
nagbayad. I think those are the factors. So in other words, equity bah! So the Court has to look for a reason to justify. Ang nakita is
plain error – when you do not know how to apply the law, then it is plain error. But actually, that should be an assigned error. It is a
very interesting case.
Sec. 9. Promulgation and notice of judgment. - After the judgment of final resolution and dissenting or
separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the
clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served
upon the parties or their counsel. (n)
Sec. 10. Entry of judgments and final resolutions. - If no appeal or motion for new trial or reconsideration
is filed within the time provided in these Rules, the judgment or final resolution shall forthwith be entered
by the clerk in the book of entries of judgments. The date when the judgment or final resolution becomes
executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by the clerk, with a certificate that such judgment or final
resolution has become final and executory. (2a, R36)
Sec. 11. Execution of judgment. - Except where the judgment or final order or resolution, or a portion
thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the
proper court after its entry.
In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified
true copy of the entry of judgment or final resolution and addressed to any appropriate officer for its
enforcement.
In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at
a time that it is in possession of the original record or the record on appeal, the resolution granting such
motion shall be transmitted to the lower court from which the case originated, together with a certified
true copy of the judgment or final order to be executed, with a directive for such court of origin to issue
the proper writ for its enforcement. (n)
Q: Now, how do you execute a judgment of the CA?

A: Under Section 11, it depends if it is an original action or an appealed case.
For an appealed case, in case of execution pending appeal, take note that if the records of the case are already elevated to
the CA, motion for execution pending appeal should already be filed there. And if the CA grants the motion to execute pending
appeal, it will follow the third paragraph there. It will issue the order and direct the RTC to enforce the judgment.
Now, you should correlate this with Rule 39 Sections 1 and 2:
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Rule 39, Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter of
right, on motion , upon a judgment or order that disposed of the action or proceeding upon the expiration
of the period-to appeal therefrom if no appeal has been duly perfected.
in the court or origin, on motion of the judgment obligee, submitting therewith certified true copies of the
the court of origin to issue the writ of execution.
Section 2. Discretionary execution.
A. Execution of a judgment or final order pending appeal.- On motion of the prevailing party with notice
to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of
either the original record or the record on appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order execution of a judgment or final order even before the
expiration of the period to appeal.
appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing.
B. Execution of several, separate or partial judgments.- A several, separate or partial judgment may be
-oOo-
Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a motion for reconsideration of a judgment or final resolution
within fifteen (15) days from notice thereof, with proof of service on the adverse party. (n)
Q: Can a party file a motion for reconsideration of a CA decision?

A: YES. That is very obvious. (Section 1)
Sec. 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment of
final resolution by the same party shall be entertained. (n)
Q: Can you file more than one motion for reconsideration?

A: NO. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. (Section
2) There is no such thing as second motion for reconsideration.
Section 2 of Rule 52 is also in accord with Section 11 of the Judiciary law. Section 11 of the Judiciary law governs how may
times you can file a motion for reconsideration in the CA.
BP 129, Section 11. Quorum -
“xxxx A motion for reconsideration of its decision or final resolution shall be resolved by the Court
within ninety (90) days from the time it is submitted for resolution and no second motion for
reconsideration from the same party shall be entertained.”
Under par. (3), the CA has 90 days from the time it is submitted for the resolution to rule on a motion for reconsideration.
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion for reconsideration shall be resolved
within ninety (90) days from the date when the court declares it submitted for resolution. (n)
The CA is given only 90 days to resolve a motion for reconsideration.
Sec. 4. Stay of execution. - The pendency of a motion for reconsideration filed on time and by the
proper party shall stay the execution of the judgment or final resolution sought to be reconsidered
unless the court, for good reasons, shall otherwise direct. (n)
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Q: What happens when a judgment of the CA is the object of a motion for reconsideration? What happens to the execution?
A: Stayed – it is not yet final unless the court for good reasons shall otherwise direct like when there is a good ground to
execute pending appeal.
Rule 53
NEW TRIAL
Q: What is the ground for new trial in CA?

A: The ground for new trial is newly discovered evidence. (Section 1)
Sec. 1. Period for filing; ground. - At any time after the appeal from the lower court has been perfected
and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial
on the ground of newly discovered evidence which could not have been discovered prior to the trial in
the court below by the exercise of due diligence and which is of such a character as would probably
change the result. The motion shall be accompanied by affidavits showing the facts constituting the
grounds therefor and the newly discovered evidence. (1a)
The ground is newly discovered evidence similar to the second ground for new trial in the RTC (FAME). Fraud,
accident, mistake – hindi kasali. Only newly discovered evidence is the ground under Rule 53.
Q: Suppose the case is before the SC, can a party file a motion for new trial on the ground of newly discovered evidence
before the SC under Rule 53 in a civil case?
A: NO. The SC said in the case of
NAVARRA vs. COURT OF APPEALS

204 SCRA 850
HELD: The Rules of Court allows only two (2) occasions where a party may file a motion for new trial on
the ground of newly discovered evidence. That motion may be filed only with the trial court under Rule 37 or
with the CA under Rule 53 BUT NEVER with the SC.
“Time and again, We have stressed that the SC is not a trier of facts. It is not a function of the SC to analyze or
weigh all over again the evidence already considered in the proceedings below. Its jurisdiction is limited to reviewing
only errors of law that may have been committed by the lower courts.”
If there would be a motion for new trial with the SC and it would be granted, you are converting the SC into a trial court.
Sec. 2. Hearing and order. - The Court of Appeals shall consider the new evidence together with that
adduced at the trial below, and may grant or refuse a new trial, or may make such order, with notice to
both parties, as to the taking of further testimony, either orally in court, or by depositions, or render such
other judgment as ought to be rendered upon such terms as it may deem just. (2a)
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion for new trial shall be resolved within
ninety (90) days from the date when the court declares it submitted for resolution. (n)
Sec. 4. Procedure in new trial. - Unless the court otherwise directs, the procedure in the new trial
shall be the same as that granted by a Regional Trial Court. (3a)
Q: If the motion for new trial is granted, can the CA conduct the new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly section 9, the CA can receive evidence and act as a trial
court. That is why it is a powerful court.
BP 129, Section 9, last paragraph:
“The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues raised in cases falling within its original and
appellate jurisdiction, including the power to grant and conduct new trials or further proceedings.”
Rule 54
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions. - All the cases of the Court of Appeals shall be
allotted among the different divisions thereof for hearing and decision. The Court of Appeals, sitting en
banc, shall make proper orders or rules to govern the allotment of cases among the different divisions,
the constitution of such divisions, the regular rotation of Justices among then the filing of vacancies
occurring therein, and other matters relating to the business of the court; and such rules shall continue
in force until repealed or altered by it or by the Supreme Court.
Section 2. Quorum of the court. –
A majority of the actual members of the court shall constitute a quorum for its sessions en banc.
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Three members shall constitute a quorum for the sessions of a division.
The affirmative votes of the majority of the members present shall be necessary to pass a resolution
of the court en banc.
The affirmative votes of three members of a division shall be necessary for the pronouncement of a
judgment or final resolution, which shall be reached in consultation before the writing of the opinion by
any member of the division.
Rule 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
The decisions of the CA must be published. Kung wala sa Philippine Reports, nasa Court of Appeals Reports. They call that
CARA (Court of Appeals Reports Annotated).
Section 1. Publication. - The judgments and final resolutions of the court shall be published in the Official
Gazette and in the Reports officially authorized by the court in the language in which they have been originally
written, together with the syllabi therefore prepared by the reporter in consultation with the writers thereof.
Memoranda of all other judgments and final resolutions not so published shall be made by the reporter and
published in the Official Gazette and the authorized reports.
Section 2. Preparation of opinions for publication. - The reporter shall prepare and publish with each reported
judgment and final resolution a concise synopsis of the facts necessary for a clear understanding of the case, the
names of counsel, the material and controverted points involved, the authorities cited therein, and a syllabus
which shall be confined to points of law.
Section 3. General make-up of volumes. - The published decisions and final resolutions of the Supreme Court
shall be called "Philippine Reports," while those of the Court of Appeals shall known as the "Court of Appeals
Reports." Each volume thereof shall contain a table of the cases reported and the cases cited in the opinions,
with a complete alphabetical index of the subject matters of the volume. It shall consist of not less than seven
hundred pages printed upon good paper, well bound and numbered consecutively in the order of the volumes
published.
Powers and Functions of the Supreme Court:

1.) Adjudication
2.) Discipline
3.) Rule-Making
Ordinary
Civil
Action Special
Adjudication Criminal
Special Proceeding
Judges/court employees
Discipline Lawyers (disbarment)
Rules of Court
Rule-Making Others: Circulars/

Directives
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Rule 56
PROCEDURE IN THE SUPREME COURT
This is an entirely new provision. In the SC, there are 2 types of cases – ORIGINAL and APPEALED. The SC has both the
original and appellate jurisdiction.
What are the original cases cognizable by the SC?
A.) ORIGINAL CASES
SECTION 1. Original cases cognizable. –
a. Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus,
b. disciplinary proceedings against members of the judiciary and attorneys, and
c. cases affecting ambassadors, other public ministers and consuls may be
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filed originally in the Supreme Court. (n)
You know them no? – Certiorari, prohibition, mandamus, quo warranto, habeas corpus, cases affecting ambassadors
other public ministers and consuls – nasa Constitution din yan. This is only a repetition of Article VIII, Section 5 (1) of the
Constitution. Aside from that, the Rules of Court give the SC authority to hear disciplinary proceedings against members of the
judiciary, disbarment or removal of judges. SC man yan ba! And they are governed specially for disbarment by Rule 139-B of the
Rules of Court.
SEC. 2. Rules applicable. – The procedure in original cases for certiorari, prohibition, mandamus, quo
warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution,
laws, and Rules 46,48, 49, 51, 52 and this Rule, subject to the following provisions:
a.) All references in said Rules to the Court of Appeals shall be understood to also apply to the
Supreme Court;
b.) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the
Court of Appeals shall not be applicable; and
c.) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on
all adverse parties.
The proceedings for disciplinary action against members of the judiciary shall be governed by the
laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended. (n)
a.) All references in said Rules to the Court of Appeals

shall be understood to also apply to the Supreme Court
Actually, kulang ito eh. These proceedings are actually governed more by Rule 65 and 66. But they are also covered by Rule
46, 48, 49, 51 and 52 (CA) and it also applies to SC.
b.) The portions of said Rules dealing strictly with and specifically intended for
appealed cases in the Court of Appeals shall not be applicable; and
This is more of legal and judicial ethics.
Q: When you file a petition before the SC for certiorari, prohibition or mandamus, how many copies?
A: First filing – 18 copies minimum. Why? Because you do not know whether it will be considered as an en banc case
or a division case. The SC operates in 2 ways. It decides cases either en banc or by division. 18 copies is required
because 15 na ang justices, only three (3) for the clerk.
Q: How about subsequent pleadings? How many copies?

A: Depende.
Kung en banc, all subsequent pleadings, still 18 copies.
Kapag division case, 9 na lang. Now, there are three divisions in the SC – the first, second and third divisions. And
every division is composed of five (5) members.
The SC meets en banc twice a week – Tuesday and Thursday – unless they have changed it. It is called an en banc
session. Cases are raffled for assignment by division. Monday and Wednesday, hiwa-hiwalay sila – the 5 justices who belong to
the same division meet together and discuss cases which are raffled to that division. Friday is a NO SESSION but a working day.
That is when they study, prepare their decisions and resolutions. That is why we can also predict when will the result of the Bar be
released because that is an en banc session. Only the SC en banc can order the release of the results of the Bar Exam. They have
to pass a resolution.
B. APPEALED CASES
SEC. 3. Mode of appeal. – An appeal to the Supreme Court may be taken only by a petition for review
on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life
imprisonment. (n)
There is only one way of appeal to the SC. The only mode of appeal recognized is Petition for Review by Certiorari under Rule
45, except in criminal cases when the penalty imposed by the RTC is death penalty, reclusion perpatua or life imprisonment where
only ordinary appeal (under Rule 41) is required. Outside of that, the only mode of appeal to the SC is Petition for Review by
Certiorari.
Please connect this with Rule 45, Section 9:
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Rule 45, Sec. 9. Rule applicable to both civil and criminal cases.- The mode of appeal prescribed in this
rule shall be applicable to both civil and criminal cases except in criminal cases where the penalty
imposed is death, reclusion; perpetua or life imprisonment.
Rule 56, Sec. 4. Procedure.- The appeal shall be governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules 45, 48, sections l,2, and 5 to 11 of Rule 51, 52 and
this rule.
Q: What are the grounds for dismissal of an appeal before the SC?
A: Section 5:
Section 5. Grounds for dismissal of appeal.- The appeal may be dismissed motu propio or on motion of
the respondent on the following grounds:
a. Failure to take the appeal within the reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
d. Failure to comply with the requirements regarding [proof of service and contents of and the
documents which should accompany the petition;
e. Failure to comply with any circular, directive or order of the Supreme Court without justifiable
cause;
f. Error in the choice of mode of appeal; and

g. The fact that the case is not appealable to the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The grounds are identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of petition. The failure of the petitioner to comply with any of the
foregoing requirement regarding the payment of the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is
without merit, or is prosecuted manifestly for delay or that the questions raised therein are too
unsubstantial to require consideration.
Sec. 6. Disposition of improper appeal – Except as provided in section 3, Rule 122 regarding appeals in
criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal
taken to the Supreme Court by notice of appeal; shall be dismissed.
An appeal by certiorari taken to the Supreme court from the Regional Trial Court submitting issues
of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of
the Supreme Court on whether or not the issues of fact are involved shall be final.
This is already discussed in Rule 50, Section 2. A wrong appeal is a ground for a dismissal of such appeal.
Q: If the appeal is on pure question of law (it should be before the SC) and by mistake the party appealed to the CA, what will
happen?
A: The appeal will be dismissed under Rule 50. The CA will not endorse the case to the SC.
Q: Suppose you will appeal by certiorari to the SC under Rule 45. Tapos, halo pala – hindi naman pala question of law lahat –
may kasamang question of fact. What will happen now in the appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss the appeal. It may refer the matter to the CA – baliktad noh?
So it is not the same as Rule 50, Section 2.
Section 7. Procedure if opinion is divided. Where the court en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation
no decision is reached,
the original action commenced in the court shall be

- dismissed;
in appealed cases,
- the judgment or order appealed from shall stand affirmed; and
on all incidental matters,

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- the petition or motion shall be denied.
What happens if the justices of the SC are equally divided?
For instance, there were 4 in attendance in a division dahil absent ang isa – the result is 2:2. So, we will deliberate
again, but still 2:2. If that is so, the decision appealed from is considered affirmed. In other words, the ruling in the lower
court is considered correct.
The counterpart of this rule in Criminal Procedure is Rule 125, Section 3. If after deliberation, the justices are even, they will
deliberate again but still even. The decision must be acquittal. Since you cannot break the tie, it must be in favor of the accused.
EN BANC CASES
Now, before we leave this topic, of course we know very well that when you appeal to the SC, there are two possibilities –
either it will be heard by a division (there are 3 divisions there) or your case might be decided by the entire SC en banc.
Q: What cases are heard by the SC en banc?

A: There was a circular in 1993 issued by the SC enumerating en banc cases:
1.) Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive
order, presidential decree, proclamation, order, instruction, ordinance or regulations in question. For example,
the recent Oil Deregulation Law;
2.) Criminal cases in which the appealed decision imposes death penalty; Criminal cases where a change of venue
is required to avoid miscarriage of justice where SC has to make an order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba! Only for death penalty.
3.) Cases raising novel questions of law;
There is a point of law where there is no decided case yet. Meaning, such legal issue is raised for the first
time.
4.) Cases affecting ambassadors, other public ministers or consuls;
5.) Cases involving decisions, resolutions, orders of the COMELEC, COA, or the Office of the OMBUDSMAN,
SANDIGANBAYAN in administrative disciplinary cases;
6.) Cases in which the penalty involved is a dismissal of the judge, officer or employee of the judiciary, disbarment
of a lawyer or even suspension of any of them for a period of more than one (1) year of fine exceeding P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge or disbarment, en banc yan. And sometimes, you
cannot even identify who is the ponente. Ang tawag diyan per curiae. The ponente is not identified.
7.) Cases where a doctrine or principle of law laid down by the Court en banc or division may be modified or
reversed;
A decision by a division can only be reversed by the SC en banc. The same is true in a decision previously
decided en banc. Only SC en banc can change its mind and reverse its previous ruling.
8.) Cases assigned in a division which in the opinion of at least three (3) members thereof, merit the attention of the
Court en banc and are acceptable to the majority of the actual members of the court en banc;
Meaning, it is a division case but at least three members of the division are of the view that it should be
elevated to the SC en banc. And the majority of the entire court also agree.
Example: A case is assigned to a division. After deliberating, majority of the 5 hold that the case is so important
that referral to the entire membership is proper. Then when it is referred en banc, majority accepts it, then it is to be
decided en banc.
Specific Example: The case of PEOPLE vs. LUCAS in Criminal Law. ISSUE: Is the penalty of reclusion perpetua
divisible or indivisible? The original ruling there by a division is that it is a divisible penalty. But upon motion for
reconsideration by the Solicitor General, the first division realized that maraming implications ito. So at least 3 or 4
voted na itapon natin to the SC en banc and then the entire voted.
BAR QUESTION : A lost in an appealed decision. He filed a motion for reconsideration. He is insisting that his
motion be resolved by the entire membership of the SC. Can he insist that his motion for reconsideration be heard by
the entire membership of the SC en banc when he lost in a division?
A: NO, because the SC en banc is not a separate court from one of its divisions. You cannot say that a
decision by a division can be appealed to the SC en banc because it is the same court. The best that can
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happen to you is you convince the members of the same division to refer the matter to the entire court en
banc and try to convince the majority of the court en banc to accept it. That is the correct move.
9.) All other cases as the court en banc, by the majority of its actual members, may deem of sufficient importance to
merit its attention.
These cases are those involving the welfare of the nation like Lotto case, EVAT, Manila Hotel case. This is also
the ground invoked by Imelda Marcos where she tries to convince the court en banc to hear her motion for
reconsideration.
-oOo-
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PROVISIONAL REMEDIES
We are going to review the concept of Provisional Remedies from Rule 57 to Rule 61. First of all, the word provisional is
suggestive. It is something temporary. Provisional Remedies are remedies which are temporary and is defined by the Supreme
Court as remedies which parties litigants may resort for the preservation of protection of their rights and interests and for no other
purpose, during the pendency of the litigation. So, just to preserve the rights while the case is pending.
Q: What are the known Provisional Remedies?

A: There are five (5).
[1] Rule 57- Preliminary Attachment;
[2] Rule 58- Preliminary Injunction;
[3] Rule 59- Receivership;
[4] Rule 60- Replevin; (used to be known as Delivery of Personal Property) and
[5] Rule 61- Support Pendente Lite
BASIC PRINCIPLES ABOUT PROVISIONAL REMEDIES
FIRST: A provisional remedy is not a civil action.
It is just incidental or attached to an action. There is no such thing as an action for attachment. You cannot file a case for
attachment. You can file a case to collect a sum of money coupled with a petition or application for preliminary attachment. So,
it must be attached. It is not a remedy by itself but a remedy attached to a main action.
That is why the Supreme Court said in one case, "it is an ancillary remedy, it is not sought for its own sake but rather to
enable the other party to seek relief from the main action."
SECOND: If you have a good cause of action, it does not follow that you can have a ground for a provisional remedy that
you can attach immediately.
For example, I will sue a debtor who has not paid me and I believe he has no defense. So, I believe that my chance of losing is
zero. I am a sure winner, and even my lawyer agrees that the other party has no defense.
Q: Can I attach his properties?
A: No. In order to attach, let us say preliminary attachment, let us find out whether we have the grounds. If none, we will just file a
case.
Thus, it does not follow that everytime you file a case for collection, you always file for attachment. As a matter of fact, under
Section 20, the plaintiff may win the case but he is held liable for damages for attaching without a ground- illegal attachment.
THIRD: If the provisional remedy is granted, it does not mean that you are already the winner. You still have to win the
main case.
Q: So, what happens if it turns out that you have no cause of action, the main action is dismissed?
A: You are not just a loser, you can also be held liable for damages. For how in the world were you able to get the right to attach
when you have no cause of action in the first place? In other words, even if your application for provisional remedies is granted, it
is not a guaranty that you will win the case. You still have to prove the existence of a valid cause of action.
RULE 57
PRELIMINARY ATTACHMENT
Section 1. Grounds upon which attachment may issue.- At the commencement of the action or at any
time before entry of judgment, a plaintiff or any proper party may have the property of the adverse
party attached as security for the satisfaction of any judgment that may be recovered in the following
cases:
In an action for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines with intent to defraud his creditors;
In an action for money or property embezzled or fraudulently misapplied or converted to his own use by
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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;
In an action to recover 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 applicant or an authorized person;
In an action against a party who has been guilty of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in the performance thereof;
In an action against a party who has removed or disposed of his property, or is about to do so, with
intent to defraud his creditors; or
In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication. (1a)
PRELIMINARY ATTACHMENT – a remedy by which the property of the defendant is taken into the custody of law either at the
commencement of action or at anytime before the entry of judgment as security.
Q: What are the changes under the new rule?

A: The new rule states "At the commencement of the action or at any time before entry of judgment". The old rule's language is "at
any time during the progress of the same".
Meaning, while the case is going on. Actually, this is the same, but now it is clearer, "before entry of judgment, a plaintiff or any
proper party may have the property of the adverse party attached".
"A plaintiff or any proper party."

Q: Who is this proper party?
A: The plaintiff, the defendant can attach in the counterclaim. The cross-claimant, 3rd-party defendant, they are also plaintiffs
within the meaning of the law.
TYPES OF ATTACHMENT:
[1] Preliminary Attachment (under rule 57);
[2] Final Attachment/ Levy in Execution
[3] Garnishment.
Preliminary Attachment contemplates Rule 57. You attach the property while the case is going on, before judgment, or at the
commencement, as security for the satisfaction of any judgment that you may recover.
Final attachment is an attachment issued to enforce a judgment or to satisfy a judgment, which has become final and executory.
Meaning, we will attach the property of the defendant to be sold at a public auction for the purpose of satisfying a
judgment.The other name for final attachment is levy on execution governed by Rule 39.
Garnishment is actually a variation of either attachment or execution. It is a species/type of attachment or execution for reaching
credits belonging to a judgment debtor owing to him by a third person, stranger to the litigation. This is similar to sequestration.
Example of garnishment: when you garnish the bank account of a depositor. You attach it. It is a credit since the bank is a debtor
of the depositor.
The concept of garnishment is explained clearly by the Supreme Court in the case of Perla Compana de Seguros v. Ramolete,
203 SCRA 487. According to the SC, "Garnishment has been defined as a species of attachment for reaching any property
or credits pertaining or payable to a judgment debtor. In legal contemplation, it is a forced novation by the substitution of
creditors; the judgment debtor, who is the original creditor of the garnishee is, through the service of the writ of
garnishment, substituted by the judgment creditor who thereby becomes the creditor of the garnishee." So, I owe you,
you owe him, so by garnishment it is not with you that I am indebted with, it is with him already. In effect, there is a change of
creditor.
Garnishment has also been described as a warning to a person having in his possession, property or credits of the judgment
debtor, not to pay the money or deliver the property to the latter but rather to appear and answer the plaintiff's suits.
Q: How does the court acquire jurisdiction over the person of the garnishee? Do you have to serve him with summons?
A: The SC said (in the Perla Compania case) NO. It is not necessary that summons be served upon him. The Rules of Court
themselves does not require that the garnishee be served with summons or impleaded in the case to make him liable. The trial
court actually acquired jurisdiction over the garnishee when it was served with the writ of garnishment, which is the equivalent of
summons. The garnishee becomes a “virtual party” to or a “forced intervenor” in the case and the trial court thereby acquires
jurisdiction to bind him to compliance with all orders and processes of the trial court with a view to the complete satisfaction of the
judgment of the court. That is the concept of garnishment.
Q: How do you distinguish a normal preliminary attachment from garnishment, although as I have said, garnishment could also be
a variation of preliminary attachment or execution ?
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GARNISHMENT PRELIMINARY ATTACHMENT
Normally directed to intangible properties (e.g. Refers to tangibles (e.g. a car or a house).
credits, collectibles, bank accounts).
Involves three (3) parties, namely: the Involves only two (2) parties, the creditor and the
creditor, debtor and garnishee. debtor.
In garnishment by preliminary attachment, In attachment, which is even preliminary, there is

there is no actual seizure of property but in seizure of property and it will be placed under
garnishment by final attachment there is custodia legis. There is actual seizure.
already a seizure. In other words, if I will
garnish your account in the bank, the money
would still be there. Nobody can withdraw
from it. The sheriff cannot get the money. It is
in the bank.
Q: What is the nature of attachment proceedings?

A: In rem or at least quasi in rem.(Ching Liu & Co. vs. Mercado, 67 Phil. 409). Even if the action is in personam, once there is an
attachment, it is now converted into quasi in rem because a lien is acquired over a specific property of the defendant.(Banco
Español vs. Palanca, 37 Phil. 921)
Q: What is the duration of the attachment?

A: It is indefinite. It continues until the case is terminated, until the account is fully paid (assuming plaintiff wins), or until such
time that the court will order it terminated or dissolved in accordance with certain grounds under the law.(Chunaco vs. Alano,
Jan. 23, 1952)
Q: What are the GROUNDS FOR ATTACHMENT?
a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause
of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors.
So, the defendant is about to run away, with intent to defraud his creditors. Now, what is the change?
The old law says "in an action for recovery of money". Now, "for a specified amount of money or damages". This supports the
ruling of the Supreme Court that for a ground for attachment to exist, the damages must be liquidated. So, if the damages are
unliquidated, there can be no attachment.
That is why the law is clearer now. In moral and exemplary damages, there could be no preliminary attachment. Liquidated or
actual, ok.
Q: What is the reason why in moral and exemplary damages there could be no attachment?
A: Because the amount can’t be determined.
"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." What is the old law? Cause of action arising from contract “only as
compared to the new law, which includes all the five sources of obligation. That is why there is a need to compare this new rule
with the old rule.
b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public
officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
The main action here was based on the act of malversation or estafa.
Q: Suppose you file a criminal case but not able to reserve the civil action, can you file a preliminary attachment?
A: YES. Under Rule 127, Section 2 – “At the commencement of a criminal action xxx when the civil action for the recovery of civil
liability arising from the offense charged is not expressly waived or the right to institute such civil action separately is not reserved,
the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be
recovered from the accused xxx”.
c) In an action to recover 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
applicant or an authorized person;
The prior law speaks of personal property. Now, the word personal is removed. “Property“ (may refer to real or personal)
unjustly or fraudulently taken xxx to prevent its being found or taken by applicant or an authorized person." That is
inserted because the authorized person may be the sheriff or an attorney-in-fact.
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d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon
which the action is brought, or in the performance thereof;
The old rule does not contain "in the performance thereof." Before, it is "guilty of fraud in contracting the debt." Meaning, the
defendant exercised fraud from the very start of the obligation, in contracting. So, it is fraud in contracting the debt under the old
rule. It is not fraud in the performance of an obligation.
Now, it is the same. Whether it is fraud in contracting the debt or in the performance of an obligation, both are grounds for
attachment. Whether it’s dolo causante or dolo incidente. The law is broader.
Q: What does “in the performance thereof” mean?

A: Meaning, the person was in good faith when he borrowed it but in the performance of the obligation, he contracted fraud. Ayaw
na nyang magbayad!
e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud
his creditors; or
Example: You file a case against B. Si B, dahan-dahan, he sold his assets. In this case, you can attach.
f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be
served by publication.
The party does not reside and is not found in the Philippines, or on whom summons may be served by publication. You connect
this with summons. You cannot sue by publication when the action is in personam. So, you need to convert your action to in rem
or quasi in rem.
Q: How do you convert an action in personam to action in rem or quasi- in rem?

A: You attach the property. After attaching it, you now apply service of summons by publication under Rule 14. That is exactly the
situation contemplated in the case of Magdalena Estate and all those modes of summons by publication.
Q: Are the grounds for attachment strictly construed?

A: Yes. The SC said they are. The grounds enumerated are exclusive. In other words, what is not enumerated is not included.
So, in case of doubt, the doubt is resolved in favor of the attached debtor.
To borrow the language of the Supreme Court in the case of
SIEVERT vs. COURT OF APPEALS

December 22, 1988
HELD: "the requirements of the rule in the issuance of preliminary attachment must be strictly and faithfully complied with in view
of the nature of this provisional remedy which exposes the debtor to humiliation and annoyance."
ABOITIZ vs. COTABATO BUS LINE CO.(CBLC)

June 17, 1981
FACTS: Defendant Cotabato Bus Line Company (CLBC) was on the verge of bankruptcy. The creditor Aboitiz Marketing was
afraid since CLBC has many debts. Thus, they (Aboitiz) filed a case for preliminary attachment. Ground: the defendant is already
in the verge of insolvency. It was granted by the lower court.
ISSUE: W/N the attachment was valid.
HELD: It was not a ground for preliminary attachment. You cannot find it in the Rules. So, attachment was illegal. Even if he is
on the verge of insolvency but he is not running away from his creditors, you cannot attach. You cite another ground.
Section 2. Issuance and contents of order.- An order of attachment may be issued either ex parte or
upon motion with notice and hearing by the court in which the action is pending, or by the Court of
Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the
property in the Philippines of the party against whom it is issued, not exempt from execution, as may
be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as
hereinafter provided in the amount equal to that fixed in the order, which may be the amount sufficient
to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant,
exclusive of costs. Several writs may be issued at the same time to the sheriffs of the court of
different judicial regions. (2a)
Q: How is an order of attachment issued?

A: 1. ex parte
2. upon motion with notice and hearing.
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Q: Can a writ of preliminary attachment be issued ex parte on the application of the plaintiff without the defendant required to be
heard? Meaning, upon the filing of the complaint, you ask for attachment. Is this allowed?
A: YES.
1.) According to Filinvest v. Relova, 117 SCRA 420, the Supreme Court said: “Nothing in the Rules makes notice and hearing
indispensable and mandatory requisites for the issuance of a writ of attachment. A writ of attachment may be issued ex parte”.
There are only two (2) requirements under the law, in Sections 2 and 3. The Affidavit and Bond. There is no third requirement of a
hearing.
The Relova Doctrine is now enshrined in section 2. So, it is now for the court to determine whether to issue immediately or not
yet. But it can issue ex parte based on Sec. 2.
2.) Another reason why it is sometimes necessary to attach without an hearing is because of the urgency of the situation specially if
your ground is that the defendant is departing from the country, or he is disposing of his assets. If a hearing will be conducted, it
will give the defendant more time to conceal or dispose of his assets.
Also, in the case of
CUARTERO vs. CA
212 SCRA 260
The SC said: No notice to the adverse party or hearing of the application for preliminary attachment is required in
as much as the time that the hearing will take, will be enough to enable the defendant to abscond or dispose of
his property before a writ of attachment is issued. In such a case, a hearing would render nugatory the purpose of the
provisional remedies.
Q: Which court can issue an order of attachment?

A: 1. Court where the action is pending,
2. Court of Appeals,
3. Supreme Court.
The CA and the SC can issue the writ anywhere in the Philippines.
Section 3. Affidavit and bond required.- An order of attachment shall be granted only when it appears by
the affidavit of the applicant, or some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no
sufficient security for the claim sought to be enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of which he is entitled to recover, is as much as
the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond
required by the next succeeding section, must be duly filed with the court before the order issues. (3a)
There are TWO REQUIREMENTS: AFFIDAVIT + BOND.
The affidavit requirement. There must be a sworn/verified application and there must be an attachment bond to answer for the
damages that the defendant may suffer.
Q: What are the allegations in the affidavit?

A: Section 3.
1. That a sufficient cause of action exists.
2. That the case is one of those mentioned in Section 1.
3. That there is no other sufficient security for the claim sought to be enforced.
This is an important allegation. Therefore, if an account is secured by a mortgage, you cannot attach. You already have a
security.
BAR Q: What are the instances where the creditor, plaintiff, can still apply for a writ of preliminary attachment despite the fact that
there is a mortgage to secure the debt?
A: There are two (2) :
1) When the mortgage creditor abandons the mortgage and brings an ordinary action to collect the principal loan or he simply
applies for collection of sum of money. He is now an unsecured creditor and there is a ground for attachment. The creditor
can now apply for attachment and he is not limited to attaching only the mortgage property, any property. So, that is all he has
to do.
2) Even if the creditor will not abandon the mortgage, if he will foreclose the mortgage and in the action for foreclosure, there is
a showing that the possible proceeds of the mortgage property are not sufficient to pay the entire debt and in the
meantime the debtor is also trying to dispose of his assets.
4. That the amount due to the applicant, or the value of the property is as much as the sum for which the order is granted.
Q: Are these grounds for attachment, the affidavit, a strict requirement ?

375
A: Yes, the SC said in the case of Jardine (Manila) v, CA, 171 SCRA 639, that the authority to issue an attachment must be
strictly construed. Failure to allege in the affidavit the requisites required in the issuance of the writ of attachment renders the writ
fatally defective.
The affidavit is the foundation of the writ and if none be filed, or if filed but fails to set out some facts required by law to be stated
therein, there is no jurisdiction and the proceedings are null and void.
Another illustration is in the case of
TING vs. VILLARIN
August 17, 1989
FACTS: There was a writ of attachment. The allegation of the plaintiff says, "defendants are guilty of fraud in
contracting the obligation, more specifically illustrated by their violation if the Trust Receipt Agreement."
HELD: There is no ground for attachment because to say that there is fraud is not enough. You must recite how
the fraud as committed. It cannot be issued on a general averment such as one ceremoniously quoting a
pertinent rule. The need for a recitation of factual circumstances to support the application becomes more
compelling considering that the ground relied upon is fraud. Fraud cannot be presumed. In civil procedure, fraud
must be made with particularity.
Section 4. Condition of applicant's bond.- The party applying for the order must thereafter give a bond
executed to the adverse party in the amount fixed by the court in its order granting the issuance of the
writ, conditioned that the latter 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. (4a)
Let us go to Section 5. How to attach property, the procedure.
Section 5. Manner of attaching property.- The sheriff enforcing the writ shall without delay and with all
reasonable diligence attach, to await judgment and execution in the action, 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, unless the former 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. No levy on attachment pursuant to the writ issued under section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the
order and writ of attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons shall not apply where the summons
could not be served personally or by substituted service despite diligent efforts, or the defendant is a
resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi in rem. (5a)
Take note of the last sentence of the first paragraph of Section 5. "xxx No levy on attachment pursuant to the writ issued under
section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of
attachment on the defendant within the Philippines."
Q: Did you notice that (underlined provisions)?

A: That is the Davao Light Doctrine. DLPC v. CA, 204 SCRA. The leading case on attachment. It is now incorporated in the Rules
of Court.
The attachment can be issued ex parte without even acquiring jurisdiction. The order of the writ of attachment can be issued even
before the court has acquired jurisdiction, but to enforce it (the writ), summons must be served ahead or simultaneously.
Otherwise, the writ of attachment will not be valid. That is the ruling in Sievert and DLPC.
As stated in the case of Cuartero, the grounds for attachment involve 3 stages:
1. The court issues order granting application.
2. The writ of attachment is issued pursuant to the order granting the writ.
3. The writ is implemented.
For the first two stages, it is not necessary that jurisdiction over the person of the defendant must be obtained.
However, once implementation commences (third stage), it is required that the court must have acquired jurisdiction over the
person of the defendant, for without such jurisdiction, the court has no power or authority to act in any manner against the
defendant. The order issued by the court will not bind the defendant.
376
So, there must be a prior or contemporaneous service of summons, BUT as explained by the SC in the 1994 case of
Zachry Company Int'l. v. CA

232 SCRA 329
The writ of attachment even if contemporaneously served to the defendant with summons, does not bind the
latter if the service of summons is not valid.
HELD: The validity then of the order granting the application for a writ of preliminary attachment on 21 March 1990 and of the
issuance of the writ of preliminary attachment on 26 March 1990 is beyond dispute. However, the enforcement of the preliminary
attachment on 27 March 1990, although simultaneous with the service of the summons and a copy of the complaint, did not bind
Zachry because the service of the summons was not validly made. When a foreign corporation has designated a person to receive
service of summons pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person
is inefficacious. The valid service of summons and a copy of the amended complaint was only made upon it on 24 April 1990, and
it was only then that the trial court acquired jurisdiction over Zachry's person. Accordingly, the levy on attachment made by the
sheriff on 27 April 1990 was invalid. However, the writ of preliminary attachment may be validly served anew.
So, it also requires that the service of summons be valid.
Now, let us go to the last paragraph of section 5, which is also new:
"The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be
served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi
in rem."
Q: Which will come first, the attachment or service of summons?

A: Under the Davao Light Doctrine, service of summons comes first. Because first of all, jurisdiction over the person of defendant
must be acquired before attachment. You must bind the person first.
Two (2) years ago (1996), when this provision in the new rule was not yet in existence, one student who is now a lawyer, asked
me how to reconcile this provision with provision on resident defendant on summons by publication because according to the SC,
if the action is in personam you convert in first to in rem after which you proceed with summons by publication.
Q: How do you reconcile this, where in this section, summons must come first before publication. In the case of Magdalena
Estate, attachment first before summons by publication, which is confirmed by section 1 [f] of Rule 57, one of the grounds for
attachment. I cannot serve summons by publication without attaching first. That is paragraph [f] of section 1, which is the exact
opposite of the Davao Light Ruling.
A: Obviously, that is the exception to the Davao Light Doctrine. That exception is now provided under Section 5, last paragraph
as read:
"The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be
served personally or by substituted service despite diligent efforts," so, that is by publication only. "Or the
defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi in rem."
In this provision, the purpose of summons by publication is not to acquire jurisdiction over the person but only for the purpose of
due process and that exception is now incorporated in the Rules. That is not covered by the DLPC case.
Take Note: The GENERAL RULE is Service of Summons first before Attachment (Davao Light case)
Exception: Section 5, last paragraph. There must first be an attachment before service of summons.
Section 6. Sheriff's return.- After enforcing the writ, the sheriff must likewise without delay make a return
thereon to the court from which the writ is sued, with a full statement of his proceedings under the writ
and a complete inventory of the property attached, together with any counter-bond given by the party
against whom attachment is issued, and serve copies thereof on the applicant. (6a)
Sheriff makes a report after the implementation of the writ.
Section 7. Attachment of real and personal property; recording thereof.- Real and personal property
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shall be attached by the sheriff executing the writ in the following manner:
(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 the attachment is issued
and held by any other person, or standing in the records of the registry of deeds in the name of any
other person, 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.
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 record.
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 identification of the land or interest to be affected shall be
included in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after
issuing the corresponding receipt therefor;
(c) Stocks or shares, or an interest in stock 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;
(d) 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;
(e) 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, 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. 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.
If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be
filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the
custodian of such property. (7a)
Q: With respect to the manner of serving the writ of attachment, how do you do it?
A: It depends on what you are going to attach.
If it is real property, i.e. parcel of land, refer to paragraph [a].
If it is a refrigerator, capable of manual delivery, refer to paragraph [b]. This is also the manner of execution. How to levy on
execution has the same procedure.
If it is shares of stocks, refer to paragraph [c].
There is one recent case regarding section 7[c]. The 1995 case of Phil. Export and Import Corp. v. CA, 251 SCRA 257, which
is also related to Corporation Code.
Q: When you attach shares of stock under Section 7, is it necessary to record or annotate it in the corporation's stock and
transfer book? Suppose there is no annotation, is there a valid attachment?
A: The Court said: It is not necessary. Both the Rules of Court and the Corporation Code does not require annotation in the
corporation's stock and transfer book for the attachment of shares of stock to be valid and binding on the corporation and third
parties. Attachment of shares of stock is not included in the term "transfer" as provided in Section 63 of the Corporation Code.
There is no transfer. You are just acquiring a lien. The debtor is still the owner. There is no need for said annotation.
On Section 7(d)- 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
378
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.
This is what we call GARNISHMENT. The new rule includes bank deposits, financial interest, royalties, commissions. In the case
of
DE LA VICTORIA vs. BURGOS

245 SCRA 374 (1995)
Q: Can you garnish the funds of the government?

A: No, it is prohibited.
FACTS: In this case, what was garnished was the salary check of an assistant prosecutor. Maybe he does not
want to pay his debt. Since his salary is taken from the DOJ, they have checks which will be given to the
prosecutor to distribute. In this case, the check was in the hands of the City Prosecutor. It was garnished. “Do
not give it to the assistant prosecutor because he has a debt”.
ISSUE: Was there a valid attachment?
HELD: No. In as much as the said check was not yet delivered to the payee (prosecutor), it did not belong to
him and it still had the character of public funds. And as a necessary consequence, the check cannot be
garnished.
The rationale behind this doctrine is the obvious consideration of public policy. Public funds cannot be
garnished. It is only after the check has been given to the payee that you can garnish it.
Q: Can I attach your share in the estate of the deceased although no specific property yet?
A: Yes. Under Section 7(e).You just serve the executor or administrator a copy of the writ and notice .The same shall also be filed
in the office of the Clerk of Court where the estate is being settled.
Q: Can property which is already attached be attached all over again?

A: Yes. Last paragraph of section 7. "If the property sought to be attached is in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such
property."
So, a property attached may be attached again but you must inform the court which already attached it.
Q: What is the amendment under the new Rules?

A: "xxx filed with the proper court or quasi-judicial agency xxx". Thus, it may be attached not only by the court but also
by NLRC, etc. You can attach it but you must inform them of the attachment of the property already attached.
Section 8. Effect of attachment of debts, credits and all other similar personal property.- All persons
having in their possession or under their control any credits or other similar personal property
belonging to the party against whom attachment is issued, or owing any debts to him, at the time of
service upon them of the copy of the writ of attachment and notice as provided in the last preceding
section, shall be liable to the applicant for the amount of such credits, debts or other similar personal
property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such
personal property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the attachment. (8a)
Section 9. Effect of attachment of interest in property belonging to the estate of a decedent.- The
attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a
decedent shall not impair the powers of the executor, administrator, or other personal representative of
the decedent over such property for the purpose of administration. Such personal representative,
however, shall report the attachment to the court when any petition for distribution is filed, and in the
order made upon such petition, distribution may be awarded to such heir, legatee, or devotee, but the
property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of
such heir, legatee, or devisee, or any person claiming under him.
Section 10. Examination of party whose property is attached and persons indebted to him or controlling
his property; delivery of property to sheriff.- Any person owing debts to the party whose property is
attached or having in his possession or under his control any credit or other personal property
belonging to such party may be required to attend before the court in which the action is pending, or
before a commissioner appointed by the court, and be examined on oath respecting the same. The party
whose property is attached may also be required to attend for the purpose of giving information
respecting his property, and may be examined on oath. The court may, after such examination, order
personal property capable of manual delivery belonging to him, in the possession of the person so
required to attend before the court, to the delivered to the clerk of the court or sheriff on such terms as
may be just, having reference to any lien thereon or claim against the same, to await the judgment in
the action. (10a)
379
You can be required to appear before the court for further questioning. So, the rules under Rule 39, Sections 36 & 37 with respect
to the examination of judgment obligor is available also in preliminary attachment.
Section 11. When attached property may be sold after levy on attachment and before entry of
judgment.- 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 property attached is perishable, or that the interests of all
the parties to the action will be subserved by the sale thereof, the court may order such property to be
sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in
court to abide the judgment in the action. (11a)
Normally, in Preliminary Attachment, property is not sold. It is just a security.

Exception: Section 11.
1. If it is perishable. E.g. rice
2. If the interest of the parties to the action will be subserved by the sale thereof.
E.g. A piece of land. Somebody wants to buy it five times higher than the assessed value. Makakabenefit ang parties!
Q: What are the remedies of a defendant whose property has been attached? Is there a way of helping him?
A: Yes. Look at Sections 12 and 13.
Section 12. Discharge of attachment upon giving counter-bond.- After a writ of attachment has been
enforced, the party whose property haw been attached, or the person appearing on his befalf, may
move for the discharge of the attachment wholly or in part on the security given. The court shall, after
due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or
files a counter-bond executed tot he attaching party with the clerk of the court where the application is
made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But
if the attachment is sought to be discharged with respect to a particular property, the counter- bond shall
be equal to the value of that property as determined by the court. In either case, the cash deposit or
the counter- bond shall secure the payment of any judgment that the attaching party may recover in the
action. A notice of the deposit shall forthwith be served on the attaching party. Upon the discharge of
an attachment in accordance with the provisions of this section, the property attached, or the proceeds
of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to
the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the
property so released. Should such counter-bond for any reason be found to be or become insufficient,
and the party furnishing the same fail to file an additional counter- bond, the attaching party may apply
for a new order of attachment.
Section 13. Discharge of attachment on other grounds.- The party whose property has been ordered
attached may file a motion with the court in which the action is pending, before or after levy or even after
the release of the attached property, for an order to set aside or discharge the attachment on the
ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient.
If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on
affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by
counter-affidavits or other evidence in addition to that on which the attachment was made. After due
notice and hearing, the court shall order the setting aside or the corresponding discharge of the
attachment of it appears that it was improperly or irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and the defect is not cured forthwith. (13a)
REMEDIES:
First remedy is for the defendant to put up a counter-bond to dissolve the attachment. So, the counterbond will take the place of
the attached property. Or, a cash deposit equal to the claim of the plaintiff.
Second remedy is Section 13. The defendant will file a motion to discharge the attachment.
Grounds:
1. that it was improperly or irregularly issued.
2. that it was improperly or irregularly enforced.
3. that the bond of the plaintiff is insufficient.
Q: What is the amendment?

A: The phrase, or enforced. Before, it was improperly or irregularly issued. Now, it is with "or enforced, or that the bond is
insufficient." That is another ground to move to discharge an attachment.
Let us go to Section 12.
Q: Is there such a thing as partial discharge ?

For example, I will attach five (5) parcels of land. The defendant will say, because somebody wants to buy one of them, "I am
moving to discharge only one of them and I will put up a counterbond equal to the value of one only." In effect, he is asking for a
partial discharge based on a partial counterbond. Is this allowed ?
380
A: Yes, it is now allowed in the new law, which is not found in the old law. Look at section 12, 3rd sentence, starting with the word
"but": "But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the
value of that property as determined by the court."
So, it is allowed. Like an installment, partial discharge by the partial counter-bond. Before, it was all or nothing.
Q: When a defendant puts up a counter-bond under section 12, is the attachment earlier made automatically discharged?
A: No, according to the case of Belisle Finance vs. State Investment House, (151 SCRA 360) it is only after hearing and the
judge has ordered the discharged of the attachment can it be valid. There must be an order, mere filing would not suffice.
Q: Can a person file a counter-bond and at the same time move to discharge? Meaning, I will file a counter-bond to discharge
under section12 and then I will move to discharge under section 13. Can you do that, avail of the two (2) sections?
A: Well, if you will follow the ruling in the case of
CALDERON vs. IAC

155 SCRA 531
The answer is YES. The Court said: Well, the defendant would like to question the legality of the attachment
but he is in a hurry, because there would be a hearing, which would delay him. So, what should he do? He can file
a counter-bond without waiving his right to hearing or he will file a counter-bond with respect to only one property
and continue the hearing under Section 13 with respect to the other property. You do not waive Section 13 because
you applied Section 12.
BUT there was this contrary ruling in the case of
MINDANAO SAVINGS AND LOAN ASSOCIATION vs. CA

172 SCRA 480
HELD: Objection to the impropriety or irregularity of writ of attachment may no longer be invoked once a counter-bond is filed. By
filing a counter-bond under Section 12, he may not file another motion under Section 13 to quash the writ for impropriety or
irregularity. Why? The writ had already been quashed by filing a counter-bond, hence, another motion to quash would be pointless.
That is also logical.
But it would seem that there is something wrong about the case especially where there is only a partial counter-bond under Section
13.
Let us read the first sentence of Section 13. "The party whose property has been ordered attached may file a motion with
the court in which the action is pending, before or after levy or even after the release of the attached property, for an
order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or
enforced, or that the bond is insufficient."
Did you notice that phrase? (underlined one)

That is not present under the old law. You can file a motion to the court to discharge attachment before or after levy or even after
they released the attached property.
So, why will I file a motion to discharge it when it is already released? Obviously, it must have been released by virtue of a counter-
bond. In other words, this amendment seems to support the CALDERON DOCTRINE that you can avail of the discharge under
Section 13 and have the property discharged without waiving your right to question the validity/correctness of attachment. These
are the phrases found in the new law not found in the old law.
Q: Who has the burden of proof? Is it the burden of the defendant to prove that the attachment is improper or irregular, or is it the
burden on the part of the plaintiff to show that the attachment is proper?
A: Based on decided cases, it is the plaintiff who has the burden to prove the regularity on the challenge made by the defendant. In
the case of FILINVEST where the attachment was on the ground of fraud - that the defendant committed fraud in contracting the
obligation. It is not the duty of the defendant to prove the lack of fraud. It should be the plaintiff who will prove the regularity
because fraud is not presumed.
Same message in the case of

BENITEZ VS. IAC
154 SCRA 41
HELD: For the purpose of securing the attachment, the affidavit of the plaintiff is sufficient, but for purposes of
determining whether the allegations therein are true or not, there must be a hearing.
The denial of the writ of preliminary attachment under Section 13 without conducting a hearing and requiring
substantiation of the allegation of fraud and the allegation is tantamount to grave abuse of discretion on the part
of the judge.
Meaning, affidavit supporting the application for issuance of preliminary attachment may be sufficient to justify the issuance of
the preliminary attachment writ. But it cannot be considered as proof of the allegation therein.
So, these are merely conclusions of law, not statement of facts.
381
A writ of attachment may be discharged without filing a cash bond or counter-bond pursuant to section 13. However, there
is also a limitation which is laid down in the case of MINDANAO SAVINGS and also in the case of CUARTERO vs. CA, and the
situation is something like this:
Suppose, I am the defendant and I will move to discharge the attachment because it was improperly issued. Why? Because the
plaintiff has no cause of action against me. Meaning, if he has no cause of action, then the case is dismissible. and if the case is
dismissible, then there is no basis for a writ of preliminary attachment.
Q: Should the court act on that kind of motion?

A: The SC said: You cannot! Kasi, yung ground mo na " there is no cause of action" is now going to the merits of the case if you
will require the plaintiff to prove his cause of action. It is no longer a hearing on a motion to discharge an attachment but is
already a trial on the main action.
The SC said in MINDANAO SAVINGS and in CUARTERO : “An attachment may not be resolved by showing of its irregular of
improper issuance which is upon a ground which at the same time the adverse cause of action in the main case. Since an
anomalous situation will arise when the issues in the main case will be ventilated and resolved in a mere hearing of a motion.”
OLIB VS. PASTORAL

188 SCRA 692
Suppose,the main action has already been decided by the court and appealed to the CA. Tapos merong nang
attachment. At the same time, the defendant would like to discharge the attachment either under Sections 13 or 12.
Q: Where should the defendant file the motion to discharge the writ, RTC or CA?
SC: It is the CA and no longer the RTC where the main action is appealed. The attachment which may have
been issued as an incident of the action is also considered appealed and so removed from the jurisdiction of the
RTC.
In the case of:
CHEMICAL EXPORT AND IMPORT VS. IAC
FACTS: Plaintiff filed a case against defendant. And the plaintiff secured a preliminary attachment. So the
defendant's property is attached. So, the case is pending while there was an attachment. While the case is
pending, they entered into compromise agreement and therefore there was judgment based on the compromise
agreement.
ISSUE: Is the attachment lien over the property of the defendant dissolved or vacated because of the
compromise agreement?
HELD: It is not deemed vacated. An attachment lien continues until the debt is paid or until judgment is satisfied
or the attachment is discharged or vacated in the same manner provided by law. The parties to the compromise
agreement would not be deprived of the protection provided by the attachment lien especially in an instance
where one remedy is bases on the obligation of the contract or agreement.
If we were to rule otherwise, you would in effect create a back door by which debtors can easily escape its
creditors. Consequently, we would be faced with an anomalous situation where a debtor in order to have time in
order to dispose of his property would enter into a compromise agreement in which he has no intention of honoring
in the first place -- the purpose of provisional remedy or attachment would does be lost. It would become by analogy
a toothless tiger.
So, let us wait for the judgment to be satisfied until attachment is discharged.
Q: Is there partial discharge of attachment, where I will move to discharge not the entire property but only a certain portion?
A: That is allowed under Section 13 which is not found under the Old Law.
This is found in the second sentence, " If the attachment is excessive, the discharge shall be limited to the excess."
Example, my obligation is one million and the attachment is 1.5 million. So, I can ask for partial discharge of P500, 000. Before,
under the Old Law it is not allowed. But now, it is allowed.
Section 14. Proceedings where property claimed by third person - If the property attached is claimed
by any person other than the party against whom attachment had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of
such right or title, and serves such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep
the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall
file a bond approved by the court to indemnify the third-party claimant in a sum not less than the
value of the property levied upon. In case of disagreement as to such value, the same shall be decided
by the court issuing the writ of attachment. 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
382
date of filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property to any such third-
party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property or prevent the attaching party from claiming
damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or
separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required ,and in case the sheriff is sued for
damages as a result of the attachment, he shall be represented by the Solicitor General, and if held
liable therefor, the actual damage adjudged by the court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose.
Section 14 is almost a word for word reproduction of Rule 39, Section 16 which is Terceria or third party claim. In Rule 39, the
property levied belongs to a third person who is not the defendant of the case, so the remedy is TERCERIA.
Ito naman (Section 14), the property attached by way of preliminary writ of attachment does not belong to the defendant. So, you
can file a third-party claim.
Q: Can the 3rd-party question the attachment in the same case? Can he file his objection, ask for the discharge of the attached
property in the same case where he is not a party ?
A: YES, that is allowed!
That is a ground for intervention, remember?
Q: What is the fourth ground for intervention?

A: That the intervenor is so situated that he is adversely affected by the property in the custody of the court. So, it is a ground for
intervention that the property attached is not owned by the defendant.
Q: Suppose there is already a writ of execution under Rule 39-- there is already a decision and writ of execution and your property
is erroneously levied in the same situation, can you question the unlawful levy under the same case?
A: As a general rule, NO! Because there could be no intervention---since there is already a judgment. The remedy is a separate
action.
In the former example, intervention is proper because there is yet no judgment. But in the latter--- there is a judgment already.
Kung meron nang judgment, wala nang intervention.
REMEDIES OF THIRD PERSONS:
1. File an independent action under Section 14

2. File a 3rd-party claim.
3. File a motion for intervention.
Section 15.Satisfaction of judgment out of property attached; return of the sheriff. - If judgment be
recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be
satisfied out of the property attached, if it be sufficient for that purpose in the following manner:
(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 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 collection from all the persons having in their possessions credits belonging to the judgment
obligor, or owing debts to the latter at the time of the attachment of such credits debts, the amount
of such credits and debts as determined by the court in the action stated in the judgment, and
paying the proceeds of such collection over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the court of his proceeding under this section and
furnish the parties with copies thereof.
Well, there is no problem if a property is attached and when the defendant loses, wala ng problemang maghanap pa ng
property to levy because under Section 15, the judgment can be satisfied out of the property attached. So, it is more of a
security.
Section 16. Balance due collected upon an execution; excess delivered to judgment obligor. - If
after realizing upon all the property attached, including the proceeds of any debts or credits collected,
and applying the proceeds to the satisfaction of the judgment, less the expenses of proceeding upon
the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon
ordinary execution. Whenever the judgment shall have been paid, the sheriff upon reasonable demand,
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must return to the judgment obligor the attached property remaining in his hands, and any proceeds of
the sale of property attached not applied to the judgment.
Section 17. Recovery upon the counter-bond. - When the judgment has become executory, the surety
or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment
of the judgment shall become charged counter-bond and bound to pay the judgment obligee upon
demand the amount due under the judgment, which amount may be recovered from such surety or
sureties after notice and summary hearing in the same action.
Now, suppose the property is released from attachment because of the counter bond under section 17 the plaintiff will have to
enforce the judgment against the sureties of the counter bond. Did you notice that under section 17, it starts with a phrase: "
When the judgment has become executory, the surety or sureties will be held liable for the counter bond."
Q: Suppose, the judgment is not yet final and executory and there is no execution pending appeal under Rule 39, Section 2. Is the
surety of the counter-bond liable for the judgment in an execution pending appeal ?
A: Under the present Rule, NO MORE! It can be applied to execution pending appeal. This is the reversal of the case PHILIPPINE
BRITISH ASSURANCE CORPORATION vs. IAC, 15O SCRA 530. In this case, the SC said: A counter bond can be liable for any
judgment whether final or executory or execution pending appeal because Section 17 does not distinguish hat kind of judgment.
But now, iba na ang ruling---dahil ang wording ngayon "when the judgment has become executory".
So, the ruling in PHIL. BRITISH ASSURANCE is deemed abandoned.
Section 18. Disposition of money deposited. -Where the party against whom attachment had been
issued has deposited money instead of giving counter-bond, it shall be applied under the direction of
the court to the satisfaction of any judgment rendered in favor of the attaching party, and after
satisfying the judgment , the balance shall be refunded to the depositor or his assignee. If the judgment
is in favor of the party against whom attachment was issued, the whole sum deposited must be
refunded to him or his assignee.
Section 19. Disposition of attached property where judgment is for party against whom attachment
was issued. - If judgment be rendered against the attaching party, all the proceeds of sales and money
collected or received by the sheriff, under the order of attachment, and all property attached remaining
in any such officer's hands, shall be delivered to the party against whom attachment was issued, and
the order of attachment discharged.
Under this Section (19), when the judgment for the defendant-- so nanalo ang defendant, what happened to the attached property?
Well, of course, it will be ordered released.
Q: Is the release automatic or must there be an order of release ?

A: There must be an order for the release. This was taken from the case of OLIB vs. PASTORAL. The order of attachment is
not deemed dissolved upon the rendition of judgment upon the defendant. The order of attachment is deemed discharged when
the judgment becomes final and executory and which is not deemed on appeal.
Section 20. Claim for damages on account of improper, irregular or excessive attachment. - An
application for damages on account of improper, irregular or excessive attachment must be filed before
the trial or before appeal is perfected or before the judgment becomes executory, to
the attaching party and his surety or sureties, setting forth the facts showing his right to damages and
the amount thereof. Such damages may be awarded only after proper hearing and shall be included in
the judgment on the same case.
If the judgment of the appellate court be favorable to the party against whom the attachment was
issued, he must claim damages sustained during of the appeal by filing an application in the appellate
court to the party in whose favor the attachment was issued or his surety or sureties, before the
judgment of the appellate court becomes executory. The appellate court may allow the application to be
heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the attachment was issued from
recovering in the same action the damages awarded to him from any property of the attaching party not
exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy
the award.
Q: Is it possible for the plaintiff to win the case and for the defendant to win the case for the counterclaim? Can the plaintiff win the
case but still liable for unlawful attachment? A: YES! With more reason if the plaintiff lost the case for he will now answer for all
the damages suffered by the defendant while the attachment was going on. That is why there could be an application for improper,
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irregular or excessive attachment.
Take note that under the new case--- the attachment was improper, irregular or excessive.
Now, do not confuse Section 20 with Section 17. Section 17 is recovery upon the counter bond---here the defendant lost the case.
In Section 20, it is the claim for damages against the attachment but also claimed by the defendant.
Q: When are you going to file your claim for damages?

A: Before the trial or before the appeal is perfected or before the judgment becomes final and executory. Ibig sabihin niyan, you
must file your claim for damages in the same case. Notify the surety.
Q: Can you file another case for damages?

A: NO, it is prohibited. It must be claimed and resolved in the same action.
Q: How do you file a claim for damages where the attachment was filed before trial?
A: Simple, by way of counterclaim by the defendant in his answer.
Q: Is the attachment bond posted by the surety liable when actually according to the surety the plaintiff stops paying his premium
years ago?
A: Yes, a bond is not deemed extinguished by reason alone of such non-payment. Otherwise, the party can diminish his liability by
simply not paying the bond.
CALDERON vs. IAC

155 SCRA 531
FACTS: The defendant posted a counter-bond and then later on the defendant is running against the attachment bond. I put a
counter bond but I'm still holding you liable for the attachment bond. Sabi ng Surety Company, “NO MORE! The attachment bond
was deemed automatically dissolved when you posted your counter bond---so walang attachment bond--- so ano pa ang liability
namin?”
HELD: You are wrong again. What is dissolved is the attachment and not the bond. The bond continues to be liable until the end of
the case. What is dissolved or discharged is the writ of attachment not the attachment bond. It could be used to be held liable. The
liability of the surety in proper or regular attachment subsists despite the counter bond posted by the defendant.
Now, this last paragraph of Section 20 is not found in the Old Law---
Q: If the attachment bond is not enough---can you hold the plaintiff liable for his personal property?
A: Yes. That is allowed and it is to be recovered in the same action. There is no need of filing another case against him. If the
attachment bond is not sufficient, you can run against the property of the attached property not exempt from execution and you
recover them in the same action.
ATTACHMENT
Attachment, as contemplated under Section 1 of Rule 57 of the Revised Rules of Court, is a provisional, auxiliary remedy available
at the commencement or during the progress of an action whereby the property, rights, credits or effects of a defendant are taken
into the custody of the court for the satisfaction of the demands of the plaintiff. It imports the taking of property into the custody of
an officer of the law by virtue of a mandatory precept issued by the authority in the name of the State.
AUXILLIARY REMEDY
 Being provisional in character, attachment depends for its existence and effectivity upon the pendency of a
principal action in court.
 It does not affect the decision on the merits; the right to recover judgment on the alleged indebtedness and the
right to attach the property of the debtor are entirely separate and distinct, and the judgment in the main action
neither changes the nature nor determines the validity of the attachment.
 As an aid to a principal action, attachment secures the payment of any judgment the plaintiff may obtain.
 In effect, attachment is an involuntary dispossession of the defendant in advance of the trial, wherein the property
thus taken is conserved for eventual execution after judgment has been rendered, unless the defendant shall
have given other security to release it. It is an anticipated execution to take and hold the property subject to a
judgment in the action.
TWO FOLD NATURE OF ATTACHMENT

A. AS A SUIT
Viewed from its aspect as a suit, attachment is a proceeding usually an adjunct to the main suit, the object of which is to
hold property to abide the order of the court for the payment of a judgment in the event the debt shall be established.
B. AS A WRIT
385
In its aspect as a writ, attachment as issued by the court either at the commencement of an action or during its progress,
is an order commanding the sheriff or other proper officer to take custody of the property, rights, credits or effects of the
defendant to satisfy the demands of the plaintiff.
The writ of attachment is substantially a writ of execution, except that it emanates at the beginning, instead of the
termination, of a suit. Its object is to seize and hold property subject to the claim sued on and to satisfy them.
PURPOSE AND FUNCTION OF ATTACHMENT
 It seizes upon property of an alleged debtor in advance of final judgment and holds it subject to appropriation
thus prevents the loss or dissipation of the property by fraud or otherwise.
 It subjects to the payment of a creditor’s claim property of the debtor in those cases where personal service
cannot be obtained upon the debtor.
KINDS OF ATTACHMENT; OBJECT OR PURPOSE OF
REMEDY
Five species of attachment are recognized; this is in so far as it

relates to the taking of the property of the defendant as a
security for the satisfaction of the judgment that the plaintiff
may obtain from the court or the satisfaction of the plaintiff’s
demand. They are:
 Preliminary attachment. It is a writ issued by a court at

the commencement of the action or during its progress,
commanding the sheriff or other officer to take custody of the
property, rights, credits or effects of the defendant to satisfy the
demands of the plaintiff.
 Garnishment. It is a writ issued by the court whereby
the plaintiff subjects to his claim the defendant’s personal
property in the hands of third person called the garnishee, as
well as money owed by the third party to the defendant.
Garnishment proceedings are usually directed on personal
property.
 Levy on, or writ of execution. It is a writ issued by the court after final judgment by which the property of the defendant is
taken into the custody of the court for the satisfaction of the judgment that the plaintiff obtains in a particular proceeding.
 Warrant of seizure. It is an order issued by the court either at the commencement of an action or during its progress,
commanding the sheriff to take possession of the personal property, subject of the action, alleged to be wrongfully
detained by the defendant.
 Warrant of distraint and levy. This is a writ issued by quasi-

judicial bodies like the Social Security Commission, against a firm for
its failure to remit the premiums of its employees covered under the
Social Security System; or by the Bureau of Internal Revenue for
failure of a property owner to pay his taxes.
PARTIES ENTITLED TO ATTACHMENT

The right to process of attachment under Section 1 of Rule 57 is
made available to the plaintiff or any other party who, ordinarily are
creditors alone. As a rule, however, when proper statutory grounds
exist for the issuance of an attachment, any creditor is held entitled to
the remedy, regardless of whether he is an original creditor whose
claim arises out of the transaction between himself and the debtor or
has succeeded by assignment or otherwise to the claim of a third
person against the debtor.
“Any other party” The term plaintiff or “any other plaintiff” in

whose favor an attachment is granted under the rule,
includes also the defendant whenever he asserts a
counterclaim against the plaintiff, whether or not such
counterclaim arises out of the same transaction which is the
386
subject matter of plaintiff’s original claim. Also contemplated in “any other party” is a defendant in interpleader when
he asserts a counterclaim against the plaintiff; in this case, he may attach the funds in dispute.
METHODS TO PROCURE WRIT OF ATTACHMENT

 The writ may be prayed for in the complaint itself providing that allegations warranting its issuance are made therein.
 It may be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in the original complaint
GROUNDS FOR ATTACHMENT

Under the Revised Rules of Court, attachment, being a purely
statutory remedy, is available only where one or more of the
grounds enumerated in the statute exist at the time the writ was
sue out, and if the writ is issued without statutory authority, no
valid lien is created, even though the proceedings are sufficient in
form and substance and the levy properly made.
The rule is that before the extraordinary remedy is resorted to,

the party obtaining it should have proof upon which to base his
action, and the court ought to be well satisfied from the testimony
of the existence of the grounds charged. Consequently, the
attachment must stand or fall according to the facts existing at
the date of its issuance, and cannot be based on a subsequent
event. So that events subsequent to the issuance of the writ
cannot cure the defect where the necessary grounds did not exist
at the time of its issuance.
387
Section 1 of Rule 57 specifically enumerates the statutory grounds for
the issuance of the writ of preliminary attachment, involving the
following cases:
(1) In an action for the recovery of money or damages on

a cause of action arising from contracts, express or implied,
against a party who is about to depart from the Philippines with
intention to defraud his creditors
(2) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public
officer, or an officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a
willful violation of duty
(3) In an action to recover possession of personal
property unjustly detained, 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
officer
(4) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in concealing or disposing of the property for the taking, detention
or conversion of which the action is brought.
(5) In an action against a party who resides out of the Philippines, or on whom summons may be
served by publication.
Existing
Criminal/
Civil Case Filing of Applicant’s Affidavit in Filing of Bond in Court
(Grounds for Court
Attachment)
dismissal
approval
Accept decision and refund
bond
ISSUANCE OF ORDER
OF ATTACHMENT
SHERIFF’S
FILING OF
COPY OF THE
ATTACHMENT
ORDER, SHERIFF’S EXECUTION OF
REGISTRATIO
DESCRIPTION ORDER OF ATTACHMENT
N IN THE DAY
OF PROPERTY,
BOOK
AND NOTICE TO
THE REGISTER
OF DEEDS
REGISTER OF
DEEDS WILL Surrender COURT SHALL ENTER
SENDS NOTICE compliance certificate & AN ORDER FOR THE
REQUESTING OWNER TO
OWNER
annotate
THE SURRENDER HIS
PRODUCTION REGISTER OF CERTIFICATE AT THE
OF DUPLICATE refusal DEEDS WILL TIME AND PLACE
TITLE REPORT INDICATED THEREIN
AND MAY ENFORCE
THE ORDER BY
SUITABLE PROCESS
ATTACHMENT - ACTION TO RECOVER MONEY OR DAMAGES

As a general rule, statutes provide that attachment as a remedy is confined to actions for recovery of a sum of money or damages,
or for a claim payable in property having a certain money value.
388
The claim for money may arise from a contract express or
implied. It is essential that a contractual relation must exist
between the plaintiff and the defendant to entitle the latter to the
writ, or else that the contract made for his benefit. Action for
damages may arise from fraudulent transfers, infringement of
trade mark or trade name, personal injuries, breach of contracts.
In these cases, the plaintiff is entitled to the issuance of a writ of
preliminary attachment.
ATTACHMENT AS A LIEN
 The creditor obtains a charge against such property,
commonly called a lien by the levy of an attachment on the
property of the defendant.
 Not a fixed lien on property but only a right to obtain
payment out of the property attached in preference to others,
which is inchoate or contingent until the creditor has obtained
final judgment in the attachment suit.
 Not an interest in property, and is not of the same
binding force as a judgment lien.
 It is an actual and substantial security constituting a
cloud on the legal title.
 Although it arise by operation of law, it is as if created by virtue of a voluntary act of the debtor and to stand upon as high
equitable grounds as a mortgage lien.
CREDITOR’S ACQUISITION OF A LIEN BY VIRTUE OF AN ATTACHMENT

 Not only sufficient that a writ of attachment has been regularly issued by a competent authority, or even placed in the
hands of an officer.
 There must be an actual and valid levy on the property of the debtor.
 Until such valid levy has been made, the attachment creditor has no rights in his debtor’s property.
 Such levy creates a lien, which nothing thereafter can destroy but its dissolution.
THE RIGHT ACQUIRED BY AN ATTACHMENT OF PROPERTY IS SUFFICIENT:

 To justify the attaching creditor in filing a bill in equity to clear the property from adverse claims,
 or to preserve the lien of the attachment when necessary papers have been lost and cannot be supplied,
 Or in applying for an injunction against the sale of the property under an execution issued on a subsequent judgment.
An attachment previously recorded is superior and preferred to a subsequent one.
ENTRY OF ATTACHMENT IN DAY BOOK: SUFFICIENCY.

In involuntary registration, such as an attachment, levy upon execution, lis pendens and the like, entry thereof in the day book is
sufficient motive to all persons of such adverse claim.
EXCEPTION TO BAD FAITH RULE DUE TO PREVIOUS KNOWLEDGE

Where the purchaser at a public auction sale had knowledge, prior to or at the time of the levy, of a previous lien or encumbrance
object of a third party claim, he does not come under the protection of the law. In such case, his knowledge is equivalent to
registration and taints his purchase with bad faith. But if knowledge of any lien or encumbrance upon the property is acquired after
the levy, the purchaser cannot be said to have acted in bad faith in making the purchase and, therefore, such lien or encumbrance
cannot affect his title.
DISCHARGE OF ATTACHMENT
Filing of Motion to Discharge

(no cause of action)
hearing
Court Approval 389 Denial of Motion to Discharge
Order of discharge of Attachment

MOTION TO DISCHARGE ATTACHMENT
ORDER OF DISCHARGE
390
RULE 58
PRELIMINARY INJUNCTION
Section 1. Preliminary injunction defined; classes. - A preliminary injunction is 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. It may also require the performance of a particular act
or acts, in which case it shall be known as preliminary mandatory injunction.
PRELIMINARY INJUNCTION – is 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 or to require the performance of a particular
act or acts.
- is sometimes called strong arm of equity.
Q: What are the changes there?

A: The word " final order" was not found in the 1964 Rules. And then, the new Rule says, you can issue a writ of preliminary
injunction not only against a party but even to a court or agency.
TYPES OF INJUNCTION:
1. PRELIMINARY INJUNCTION
2. FINAL INJUNCTION
2 TYPES OF PRELIMINARY INJUNCTION:
1. PREVENTIVE PRELIMINARY INJUNCTION

2. MANDATORY PRELIMINARY INJUNCTION
Q: What is a preventive preliminary injunction?

A: A preventive preliminary injunction is one which requires a person to refrain from doing a particular act or acts.
[The Ten Commandments is a preventive injunction. Huh! (“,)]
Q: What is a mandatory preliminary injunction?

A: A mandatory preliminary injunction is one which requires a person to perform a particular act or acts.
Q: What is a FINAL INJUNCTION?

A: A final injunction is one which is included in the judgment as the relief or part of the relief granted as the result of the case. Final
injunction is the one mentioned section 9 of this Rule --- tapos na ang kaso.
Section 9: When final injunction granted. - If after the trial of the action it appears that the applicant is entitled to
have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually
restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the
preliminary mandatory injunction.
That is not a provisional remedy. That is the main relief. So, the preliminary injunction becomes now total and permanent.
So, if I want to permanently stop you from doing an act I will have to file a case for injunction, which is a main action for injunction.
And if I want to pray, while the case is going on that you should be also prevented from doing the same act---I have to apply for a
writ of preliminary injunction. Kaya sa civil, it is worded this way: Civil case for injunction with writ of preliminary injunction. The
injunction is the final injunction and the writ is the provisional one. So the former is the main relief while the latter is the temporary
relief.
Purpose of preliminary injunction: To maintain the status quo between the parties in relation to the subject matter. So, to
maintain the status quo.
STATUS QUO is the last peaceable and uncontested status of the parties which preceded the pending case from the controversy.
391
Because status quo may be preceded like, the squatters entering your land, so nasa loob na sila. So you ask for preliminary
injunction--- so status quo. Sabi ng mga squatters, “status quo--- we will remain in the land!”
Of course, that is not the purpose. The purpose is to bring you out because the status quo is the last peaceable, uncontested status
of the parties which proceeded the pending action or prior to the case.
Even in the labor case, magulo iyan eh, yong last peaceable and uncontested status. An example of injunction in Labor case,
iyong assumption of jurisdiction by the Secretary of Labor. In which the Secretary of Labor assumes jurisdiction in cases of
national interest.
Ano iyon ? When there is a threatened strike --- injunction! And if there is already a strike, strike is lifted and the employee must
have to go back to work and the management will accept those employees under the terms and conditions before the strike.
Section 2. Who may grant preliminary injunction. - A preliminary injunction may be granted by the court
where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals
or in the Supreme Court, it may be issued by said court or any member thereof.
Q: Who may grant a preliminary injunction?

A: 1. The court where the case is pending.
2. CA.
3. SC.
EXPORT PROCESSING ZONE AUTHORITY (EPZA) vs. CHR

April 14, 1992
FACTS: When ordered to stop, the occupants of the export processing zone authority in the EPZA land where
the occupants filed a case in the CHR (Commission on Human Rights), the CHR issued a writ of injunction or
restraining order against the supposed violators of human rights to compel them to cease and desist from
continuing the acts complained of, and the authority of the CHR to issue an injunction was challenged. Does it have
an authority?
And the CHR said, yes---because under the Constitution the principal function of the CHR is not merely limited in
having investigation. It is mandated among others to provide appropriate legal measures for the protection of the
human rights of all persons within the Philippines as well Filipino abroad. And to provide for preventive measures
and legal aid services to the under privileged whose human rights have been violated.
ISSUE: Does the CHR have the power to issue a writ of injunction?
HELD: The CHR is wrong because as earlier ruled in the case of CARIO VS. CHR, the CHR is not a court of
justice and it is not even a quasi-judicial body. The Constitutional provisions cited may not be construed to
compel jurisdiction of the CHR to issue restraining order or injunction because if that was the intention the
Constitution would have especially said so.
Jurisdiction is conferred only by the Constitution and by the law and is never derived by implication.
Q: What is the meaning of the term preventive measures or legal measures which the CHR is allowed to provide
under the Constitution?
A: Evidently, that phrase refers to extra judicial and judicial remedies including a preliminary writ of injunction
which the CHR has to seek from the proper courts on behalf of the victims of human right violations. So, the
CHR not being a court of justice has no jurisdiction to issue the writ because under Section 2 of Rule 58, "A writ
of preliminary injunction may only be issued by a judge or justices of CA or SC."
Section 3. Grounds for issuance of preliminary injunction.-A preliminary injunction may be granted when
it is established:
a) That the applicant is entitled to the relief demanded, and the whole part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts either for a limited period or perpetually;
b) That the commission, continuance, or non-performance of the act or acts complained of during
the litigation would probably work in justice to the applicant; or
c) That a party, court, agency, or a person is doing, threatening, or is attempting to do, or is procuring
or suffering to be done, some act or acts probably in violation of the rights of the applicant
respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
(3a)
This Section has some minor changes.
Q: Ano ang changes ?

A: They added the word: non-performance. That is why they emphasized the essence of mandatory, eh! So, f there is preliminary
392
preventive, there is also, preliminary mandatory.
Q: What is the area of enforceability of a writ of injunction?

A: Go back to the Interim Rules, Section 3-A. If the writ of preliminary injunction is issued by the SC and CA, there is no problem.
That is enforceable throughout the country.
Q: What about an injunction issued by the RTC?

A: It cannot be enforced outside the region where such RTC is located.
Well, there is ONE EXCEPTION. That is in the case of EMBASSY FARMS, INC vs. CA, 188 SCRA 492 reiterating the earlier case
of DAGUPAN ELECTRIC CORP. vs. PAO, 95 SCRA 693.
And here is the best example:
A corporation has extensive agricultural operation for example in Mindanao. But the head office is in Makati. The management of
the company in Makati arrives at a decision regarding certain operations of their business in Mindanao. and the aggrieved par ty
files a case in the RTC of Makati and sought the issuance of a writ of preliminary injunction against the corporation.
And the Makati court issued a writ of injunction where the act sought to be enjoined is not in Makati but in Mindanao.
Q: Is the issuance of the writ of injunction of the Makati court proper?

A: And the court said, YES! While it is true that the act to be restrained is going to be done in Mindanao but all the instruction and
decision and decision are coming from Makati. So, the Makati court can enjoin. That is the exception to the Rule that the RTC
injunction is only enforceable within the region.
Note:
GENERAL RULE: No court can issue a writ of preliminary injunction to interfere with the judgments, processes of a co-
equal court. So, the RTC cannot enjoin another RTC. Also, the RTC cannot enjoin acts/proceedings in connection with a case
pending before a co-equal quasi-judicial body. Like for example: the RTC cannot enjoin the Labor arbiter. The RTC cannot
enjoin the SEC. Because these are co-equal bodies.
So, for example in case of judgment against you in Manila and the Sheriff is now claiming your property and you want to quest ion
the act of the Sheriff because your property was levied. You file your case in Davao to stop the execution. If there is any
irregularity, you better go back and seek relief from the court which issued the execution.
EXCEPTION:
That situation that no court can interfere in the process of a co-equal court should not be conferred with the situation which is
contemplated in the case of Manila Herald vs.IAC 133 SCRA 141.
Mind you, all the cases asked in the Bar were taken from the exception and not from the general rule.
Manila Herald vs.IAC
133 SCRA 141.
FACTS: A filed a case against B in Davao. B lost the case. So, a writ of execution was issued by the court to the sheriff. The
sheriff levied certain properties of B. Now, here comes C. According to C, the property levied were not owned by B but by him (C)
--- 3rd person, di ba ?
And under the Rule, nothing will prevent him from filing a separate action to raise the question of ownership. So C filed a case
before another court to annul the levy made by the sheriff on his property and to stop him from continuing with the auction sale.
Now, according to A, the court has no jurisdiction to issue the injunction because it will be an interference with the process of the
court to render judgment.
Q: Can the court validly issue the injunction?

A: Of course many remembered the general rule thatthe court cannot for it will be an interference.
That is wrong. Remember, in those cases with interference there is no 3rd person involved. Ito meron. It is not B the defendant
questioning the levy, it was C, who is not a party, asking to stop the levy.
So, the SC said: The 3rd party can file a separate case.
Q: Is that not an interference?

A: No! It is not an interference because in the judgment ordering the issuance of the writ of execution issued by the court in favor
of A, the Sheriff is commanded to levy on the properties of B and not ordered to levy on the properties of C. So, if the sheriff will
levy on the property of C [or X or W] --- that is not part of the writ. So, C can question that and he is not interfering.
One thing important about injunction is that there are two requisites:
TWO REQUISITES IN INJUNCTION:
1. The plaintiff must clearly show the existence of a right sought to be protected.
2. And the injunction is directed against the violation of the said right.
So there must be a right sought to be protected. If there is no right which ought to be protected, there could be no injunction.
An example is the case of
SARENO V. DICTADO
393
160 SCRA 759
FACTS: Sareno was elected as mayor, he was proclaimed as the winner. Five days later, the losing candidate
filed an election protest before the RTC.
Judge Dictado issued a writ of preliminary injunction to stop Sareno from assuming office pending resolution of
the case (election protest).
HELD: Judge Dictado committed grave abuse of discretion and acted in excess of jurisdiction. The reason is that
the pendency of the election protest is not a sufficient basis to enjoin Sareno from assuming office as required by law.
The efficiency of public administration should not be impaired until and unless the election protest is decided
against Sareno. During the pendency of the case, he has the lawful right to assume and perform the duties of a
mayor. The claim of the losing candidate to the contested office is a contingent right which could only ripen into an
actual right when judgment is rendered to this effect. His alleged right has not been clearly established against
Sareno whose right is actually existing. An injunction is not proper to protect contingent or future rights nor is it a
remedy to enforce an abstract right.
Distinguish the case of Sareno from:
YU v. COURT OF APPEALS
217 SCRA 328
FACTS: Yu is the exclusive distributor of a certain product here in the Philippines. He discovered that another
businessman is selling the same product within the country. He filed a case against the other businessman and
sought an injunction against the latter from selling said product.
HELD: Injunction is an appropriate remedy to prevent the wrongful interference with contracts by strangers where
other remedies are not sufficient and the resulting injury is irreparable. The right to an exclusive distributorship and
to raise profits resulting from such performance are proprietary rights which may be protected.
Instances where the issuance of injunction was held to be proper:
1) In petitions for certiorari or prohibition and mandamus.
2) In an action to annul a judgment or enjoin its enforcement.
Instances where injunction is inappropriate:
1) Injunction is inappropriate in enjoining an act which is already consummated.
2) A criminal prosecution cannot be enjoined or restrained.
You cannot prevent the fiscal from conducting criminal investigation and the court cannot prevent him from conducting an
investigation. The remedy is to go to his superior or if you believe that there is no case, the remedy is to go to trial. But the
general rule: The criminal prosecution cannot be enjoined. But there are exceptions :
BROCKA vs ENRILE
December 10, 1990 (192 SCRA 183)
HELD: The primary issue here is the legality of enjoining the criminal prosecution of a case, since the two other issues raised
by Brocka, et al. are matters of defense against the sedition charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final.
There are however exceptions, among which are:
a. To afford adequate protection to the constitutional rights of the accused "
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions "
c. When there is a pre-judicial question which is sub judice
d. When the acts of the officer are without or in excess of authority
e. Where the prosecution is under an invalid law, ordinance or regulation
f. When double jeopardy is clearly apparent "
g. Where the court has no jurisdiction over the offense
h. Where it is a case of persecution rather than prosecution
i. Where the charges are manifestly false and motivated by the lust for vengeance, and
j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.
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In the petition before us, Brocka, et al. have cited the circumstances to show that the criminal proceedings had become a
case of persecution, having been undertaken by state officials in bad faith.
ALLADO vs DIOKNO
May 5, 1994 (232 SCRA 192)
FACTS: Two lawyers, assistants of Salonga were charged of murder for the alleged kidnapping of a German. Salonga asked
to stop the criminal prosecution.
HELD: The facts of this case are fatefully distressing as they showcase the seeming immensity of government power which
when unchecked becomes tyrannical and oppressive. The case before us, if uncurbed, can be illustrative of a dismal trend.
Needless injury of the sort inflicted by government agents is not reflective of responsible government. Judges and law enforcers are
not, by reason of their high and prestigious office, relieved of the common obligation to avoid deliberately inflicting unnecessary
injury.
Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the dictates of
government. They would have been illegally arrested and detained without bail. Then we would not have the opportunity to rectify
the injustice. Fortunately, the victims of injustice are lawyers who are vigilant of their rights, who fight for their liberty and freedom
not otherwise available to those who cover in fear and subjection.
3) A mandatory injunction cannot be issued to compel one spouse to cohabit with the other.
So, you cannot compel the wife. You are hereby enjoined to cohabit your husband. Hindi yun puwede.
Although she is obliged under the law to live with his husband but no amount of court order can force the wife to
return to her husband kung ayaw niya. Although there are other sanctions but not injunctions.
Let us go to MANDATORY INJUNCTION. This is rarer than a preventive preliminary injunction. The guidelines for its issuance are
also strict.
PURPOSE: is to re-establish and maintain a pre-existing right rather than to create a

new relationship between them.
If there is already an existing relationship which was arbitrarily interrupted by you, I can file for mandatory injunction.
Q: When may a court issue a preliminary mandatory injunction?

A: 1. In cases of extreme urgency.
2. Where the right is very clear. PROSPERITY CREDIT RESOURCES, INC. vs CA, January 15,1999. The right of the
complainant must be clear and unmistakable because, unlike an ordinary preliminary injunction, the writ of preliminary
mandatory injunction requires the performance of a particular act or and thus tends to do more than maintain the status
quo.
3. Where consideration of relative inconvenience bears strongly in complainant's favor.
4. Where there is a willful and unlawful invasion of plaintiffs’ right against his protest and remonstrance, the injury being a
continuing one.
5. Articles 539 and 1674 of the Civil Code which expressly direct the issuance of mandatory injunction. Example: A
possessor deprived of his possession by forcible entry may, within so many days, file a complaint in the proper court and
ask for a writ of mandatory injunction to restore him in his possession. And also, in different cases where the defendant
appealed, the lessor can ask the appellate court to issue a mandatory injunction if the appeal is frivolous or dilatory.
Those are the instances when the law expressly grants the remedy.
6. Where the effect of mandatory injunction is rather to re-establish and maintain a pre-existing continuing relation between
the parties recently and arbitrarily interrupted by the defendant.
The example asked in the Bar many times, MERALCO VS. CA, where the electric power of the defendant was disconnected by
Meralco, Then he filed a case questioning the act of Meralco, and he has evidence to show that he has paying his bills. Something
happened somewhere. If he will wait for the time of judgment to be rendered, that would take years. While the case is going on,
he can file for a mandatory injunction to reconnect.
Another example was the case of LEVI VS. VALENCIA, where Levi was the owner of a broadcasting company. The government
raided his radio station and got his transmitter and cut down the power of his transmitter. He questioned all these acts and in the
meantime, he filed for mandatory injunction to allow him to continue broadcasting because he has contracts with advertisers to
comply with .
The SC said, when the petitioner was not able to continue broadcasting due to seizure of his radio transmitter, this affects his
contractual relations with third persons. The court is justified to issuing a mandatory injunction.
SEC. 4. Verified application and bond for preliminary injunction or temporary restraining order. - A
preliminary injunction or temporary restraining order may be granted only when:
a.) The application in the action or proceeding is verified and shows 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
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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.
c.) When an application for a writ of preliminary injunction or a temporary restraining order is
included is a complaint or any initiatory pleading, the case, if filed in an multiple-sala court, shall be
raffled only after notice to and in the presence of the adverse party of the person to be enjoined. In
any event, such notice shall be preceded, or contemporaneously accompanied, by the service of
summons, together with a copy of the complainant or initiatory pleading and the applicants 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 non-resident thereof, the requirement of prior contemporaneous service of summons shall
not apply.
d.) The application of 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. 5. Preliminary injunction not granted without notice; exception. - No preliminary injunction shall
be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear
from the facts shown by affidavits or by the verified application that great or irreparable injury would
result to the applicantbefore the matter can be heard on notice, the court to which the application for
preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only
for a period of Twenty (20) days from service on the party or person sought to be enjoined, except as
herein provided. Within the twenty day period, the court must order said party or person to show
cause, at a specified time and place, why the injunction should not be granted, determine within the
same period whether or not the preliminary injunction shall be granted, and accordingly issue the
corresponding order.
However, and subject to provisions of the preceding sections, if the matter is of extreme urgency and
the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple sala
court or the presiding judge of a single sala court may issue ex parte a temporary restraining order
effective only for seventy two (72) hours from issuance but he shall immediately comply with the
provisions of the next preceding sections as to service of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy two (72) hours, the judge before whom the case is
pending shall conduct a summary hearing to determine whether the temporary restraining order shall
be extended until the application for preliminary injunction can be heard. In no case shall the total
period of effectivity of the temporary restraining order exceed twenty (20) days, including the original
seventy two (72) hours provided herein.
In the event that the application for preliminary injunction is denied or not resolved within said period,
the temporary restraining order is deemed automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of any judicial declaration to that effect and no court
shall have authority to extend or renew the same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof the temporary restraining order shall be
effective for sixty (60) day from service on the party or person sought to be enjoined. A restraining order
issued by the Supreme Court or a member thereof shall be effective until further orders.
Sections 4 and 5 were taken from existing SC circulars particularly AC 20-95. The trouble is specially section 4, the committee
who drafted the new rules inserted so many rules here that it becomes so hard to understand. Actually, it has become vague.
Let us proceed with the basics. Some of which we have already learned.
Q: What are the requirements for the issuance of the writ of preliminary injunction?
A: Letters a and b of Section 4.
1. A verified application stating the facts showing the existence of a right sought to be protected. Example: A local
businessman entered into a contract with a foreign supplier of items. He became the exclusive distributor. However,
another businessman is selling the same product. Does he have right to enjoin that another businessman? Yes. Because
he has a right sought to be protected.
2. Bond.
Q: Can a writ of Preliminary Injunction be issued ex parte - without hearing ?
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A: NO. Section 5 is very clear. No preliminary injunction to be granted without hearing and further notice to parties sought to be
enjoined.
So, the Filinvest ruling, Cuartero, Davao light ruling are not applicable.
There must be a hearing, presentation of evidence. Of course, in the presentation of evidence since you are only asking for an
injunction, the evidence should only be a sample, because if you will present your entire evidence you are no longer asking for
an injunction but a decision.
That was explained by the SC in the 1993 case of
SYNDICATED MEDIA ACCESS CORP. vs CA

219 SCRA 784
HELD: While the evidence to be submitted in the hearing for the motion for preliminary injunction need not be
conclusive or complete, the evidence needed may only be a sampling and intended merely to give the court
an idea of justification for preliminary injunction pending the decision of the case on the merits, still such
evidence must stand on admissible grounds an not one which is merely hearsay.
The analogy is the same in case of petition for bail in criminal procedure.
Q: What happens if great or irreparable injury would result to the applicant before the matter can be heard,
meaning, before the preliminary injunction can be acted upon. Is there a remedy temporarily?
A: YES. You ask for a temporary restraining order. That is the provisional remedy of the provisional remedy.
And the grounds for injunction are found in Section 3. The ground for a temporary restraining order is that great
or irreparable injury would result to the plaintiff before the matter can be heard.
So, the temporary restraining order may be issued ex parte but it has only a duration of 20 days. As stated by
the SC and emphasized in the 3rd paragraph of section 5, the effectivity of the TRO is unextendible without the need
of judicial declaration to that effect and no court shall have the authority to extend the same on the same grounds.
There is no such thing as an extended TRO. This was taken from judicial declarations.
There seems to be AN EXCEPTION. One of them is cited in the case of

FEDERATION OF LAND REFORM FARMERS OF THE PHILS. vs. CA
246 SCRA 175 (1994).
HELD: Ordinarily, the efficacy of the TRO is non-extendible, and the courts have no discretion to extend the
same considering the mandatory tenor of the rule. However, there is no reason to prevent the court from extending
the 20-day period when the parties themselves ask for some extension for the maintenance of the status quo.
Because of AC 20-95 which has been incorporated in sections 4 & 5, the SC created a second type of TRO, the so
called 72-hour TRO. Because when you file a case, it has not yet been raffled. So under Circular 20-95, the
executive judge in a multi-sala court can issue ex parte a temporary restraining order but only good for 72
hours or three days. And then within 24 hours, the other party must be notified. There must be a special raffling
within 24 hours. and then the judge must conduct a summary hearing based on the arguments only, in order to
determine whether the temporary restraining order should be extended beyond 72 hours.
Two kinds of temporary restraining order:

1. Issued by an executive judge valid only for 72 hours.
2. After summary hearing, the judge will now extend and the extension should not be more than 20 days. The 72 hours is
already included in the 20 days. So in effect, the extension is only for 17 days, and the total life of the TRO is 20 days.
1. Distinguish a writ a preliminary injunction from a temporary restraining order.
One requires a hearing, the other may issued ex parte. Generally, preliminary injunction is indefinite until dissolved. Normally, a
preliminary injunction requires a bond, a temporary restraining can be issued w/out a bond.
But there is second question.
2. Distinguish a TRO issued by an executive judge from a TRO issued by an ordinary judge.
The former is good for 72 hrs. and the latter for 20 days including the first 72 hrs. The former is issued before raffling and the latter
after raffling. The former is ex-parte and the latter is after summary hearing. For the 72-hr TRO, the ground is extreme urgency.
And the ground for the 20-day TRO is that grave and irreparable injury would result before the matter can be heard.
So 20 days if issued by the MTC or RTC.
Q: How about a TRO issued by the CA?

A: You have the last paragraph, it is now effective for 60 days from service to the parties. The case of Delbros Hotel Corp. is
abrogated because under the said case the lifetime of the temporary restraining order issued by the CA is only 20 days. So from
20 to 60 days.
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Q: How about a TRO issued by the SC ?
A: This time it is indefinite. It shall effective until the case is decided. Actually, The SC can give a deadline. Sometimes after further
orders, sometimes they can limit it.
Q: Is there a necessity of a bond?

A: A bond is required for only a preliminary injunction and as a rule there is no bond for a TRO. You look at par. a, "and the
amount fix by court....." so the bond can now be imposed for a TRO when actually it is only for injunction as a rule.
Maybe what is intended by the law, 72 hrs. then you ask for an extension up to another 7 days, so 10 days. Then after 10 days,
extension again. That is allowed because it is up to 20 days. Then you give a bond for the second extension. The court is now
empower to fix a bond for the TRO. But definitely in injunction there is a bond. But you look at the opening clause of par. b
"unless excepted by the court." that means to say there are instances when the court may exempt the petitioner form putting up
a bond in injunction when under the rule there is none. That is a radical change.
Take note: Generally. An injunction requires a bond unless exempted by the court.
Under par. c of section 4, the last part has incorporated a portion of the Davao Light ruling. A TRO must be served prior or
contemporaneously with the summons. You can not serve the TRO ahead. It must be served prior to the summons or at least
contemporaneously.
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. - The
application for injunction or restraining order may be denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied ,or, if granted, may be dissolved on other grounds
upon affidavits of the party or person enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or, if granted, may be dissolved if it appears hearing that although
the applicant is entitled to the injunction or restraining order, the issuance or the 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 denial or dissolution of the injunction and restraining order. If it appears that the extent of the
preliminary injunction or restraining order granted too great, it may be modified.
Q: What are the grounds for the dissolution of a writ of preliminary injunction or objection to its issuance?
A: That is under Sec. 6.
1. When the insufficiency of the application is shown by the application itself. The petition has no basis.
2. Upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits.
3. Putting up a counter-bond.
Sec. 7. Service of copies of bonds; effect of disapproval of same. – The party filing a bond in accordance
with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may
except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant’s bond is found
to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in
amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be
dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is
not filed forthwith, the injunction shall be granted or restored, as the case may be.
Sec. 8. Judgment to include damages against party and sureties.- At the trial, the amount of damages
to be awarded to either party , upon the bond of the adverse party, shall be claimed , ascertained and
awarded under the same procedure prescribed in Section 20 of Rule 57.
Q: Can you claim for damages against an injunction bond?

A: YES. The same procedure for recovery of damages against the attachment bond in Section 20, Rule 57.
Before we leave this topic, you must remember that there are SOME SPECIAL LAWS WHICH PROHIBIT THE ISSUANCE OF A
WRIT OF PRELIMINARY INJUNCTION OR TEMPORARY RESTRAINING ORDER.
Q: What are these?

A: They are the following:
1. B.P. 227, which prohibits the issuance of injunctions or TROs in labor cases;
2. P.D. 605, prohibiting courts from issuing injunctions and TRO’s against projects for the exploitation or development of
natural resources;
3. P.D. 385, prohibiting injunction against government financing institutions, against mandatory foreclosures or against
CARL;
4. R.A. 7181 as inserted by R.A. 7061, you cannot issue an injunction against the Asset Privatization Trust;
5. P.D. 1818, prohibiting injunction against public infrastructure projects and public utilities; Under this law in relation to SC
circulars, no injunction also against NAPOCOR.
398
MALAGA vs. PINASTIUS, JR.
213 SCRA 516
Q: What is the extent of the applicability of P.D. 1818?
Actually, what is prohibited is that the court cannot interfere in injunction in controversies involving facts for the
exercise of discretion in technical cases. Example, we will not award because the plan is substandard. Only one
bidder and he losses. He complains and wants to question the award of the committee on technical matters.
The SC said the Court cannot rule on that. What do we know of technical matters like engineering? So the court
cannot substitute its own decision on technical matters like engineering or on infrastructure projects. That is
prohibited. But if I will ask the court to issue an injunction to stop an infrastructure project because from the very
start including the award has been tainted with corruption, that is allowed because it refers to legal matters.
So the SC said, “The prohibition pertains to the issuance of injunction against administrative acts or technical
cases. To allow the court to judge on technical matters would disturb the smooth functioning of the administrative
machinery. However, on issues definitely outside of this dimension and involving questions of law, the court
could not be prevented by the decree for exercising their power to restrain or prohibit administrative acts. P.D.
1818 was not intended to screen from judicial scrutiny irregularities committed by administrative agencies.”
Section 9. When final injunction granted. – If after the trial of the action it appears that the applicant is
entitled to have the act or acts complained of permanently enjoined, the court shall grant a final
injunction perpetually restraining the party or person enjoined from the commission or continuance of
the act or acts or confirming the preliminary mandatory injunction.
RULE 59
RECEIVERSHIP
Sec. 1. Appointment of receiver.- Upon a verified application, one or more receivers of the property subject of the action
or proceeding may be appointed by the court where the action is pending, or, By the Court of Appeals or by the
Supreme Court, or a member thereof, in the following cases:
a.) When it appears from the verified application, and such other proof 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 by appointed to administer and preserve it;
b.) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property in is 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 writ of 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 the receiver is the most convenient and feasible
means of preserving, administering, or disposing of the property in litigation.
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 court of origin and the receiver appointed to be subject to the control of said court.
RECEIVER - an indifferent person, neutral between the parties, appointed by the court to receive and preserve the property in
litigation pendente lite when it is not seem reasonable to the court that either party will hold it.
Q: Who among the parties does the receiver represent?

A: Neither the plaintiff nor the defendant. He is an AGENT OF THE COURT.
Example: The ownership of a piece of land is in controversy. To be fair for both parties claiming the land, especially when both of
them are in possession of it, the court will manage it. The court will appoint a receiver and the income will be deposited. So it is the
same as an administrator.
Q: Who appoints the receiver?

A: 1. Court where the case is pending.
2. By the CA, or a member thereof.
3. By the SC, or a member thereof.
399
Under the new rules the application for receivership is now verified.
Q: What are grounds for receivership?

A: We have a,b,c,d of section 1.
a) When it appears from the verified application, and such other proof 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 by appointed to administer and preserve it;
BAR Q: A filed a case against B to collect unpaid loan. B, the defendant has no other property left except a piece of land. Meaning
of A wins, that land is the only property the he can levy. And to preserve the property A, the plaintiff filed an application to place the
property under receivership. Is the petition proper?
ANSWER: The SC said NO, because receivership is only proper when the property to be placed under receivership is the subject
of the litigation. In this case, the subject of litigation is not the property but money. I am collecting a loan which is different from
recovery of possession or ownership of land.
QUESTION: Suppose the defendant is trying to destroy the property or run away with it or dispose it?
ANSWER: You better get an attachment and not a receivership. That is the tricky part.
b.) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property in is 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;
This applies or granted by law to a mortgagee.
Under the law on mortgage, if the mortgagor cannot pay, mortgagee can foreclose. And if the property is in danger of being wasted
or dissipated or materially injured, mortgagee can ask for receivership.
Or the parties have stipulated in their agreement that while foreclosure proceeding is going on, they can place the property under
receivership. In Bank Mortgage Contracts, meron nito.
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 writ of 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;
Generally, you file a Provisional Remedy while the case is going on. Except under par. c.
Receivership is not only available while the case is pending. It is available even after judgment to:
1. preserve the property during the pendency of an appeal.
QUESTION: Where will you file you petition for receivership? Before the CA or the trial court?
ANSWER: The last par. of sec. 1, appellate court may allow the filing of the receivership in the trial court that decided it although
the trial court has already lost jurisdiction because of the appeal.
QUESTION: Is this supported by Rule 41?

ANSWER: YES. Rule 41, Section 9, last paragraph. Once the appeal is perfected, the trial court losses jurisdiction over the case
except to issue orders for the preservation and protection of the rights of the parties while on appeal. This is part of the Residual
Powers of the RTC.
2. dispose of it according to the judgment.

3. to aid execution when the writ of execution has been returned unsatisfied or the judgment obligor refuses to apply
his property in satisfaction of the judgment.
QUESTION: Is this provision or ground supported by the rules on execution? Is there a provision in the rules of court ?
ANSWER: YES, in remedies in aid of execution. Rule 39 sec. 41. In the execution stage, you can appoint a receiver to preserve
the property which is to be levied.
4. carry the judgment into effect.
d.) Whenever in other cases it appears that the appointment of the receiver is the most convenient and feasible
means of preserving, administering, or disposing of the property in litigation.
It’s the broadest. Anything under the sun can fall on this ground.
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Sec. 2. Bond on appointment on receiver.- Before issuing the order appointing a receiver, the court shall require the
applicant to file a bond executed to the party against whom the application is presented, in an amount to fixed by the
court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of
such receiver in case the applicant shall have procured such appointment without sufficient cause, and the court may,
in its discretion, at any time after the appointment require an additional bond as further security for such damages.
REQUISITES FOR RECEIVERSHIP:

1. Verified application. (under Section 1).
2. Bond (under this section – 2).
Sect. 3. Denial of application or discharge of receiver. – The application may be denied, or the receiver discharged, when
the adverse party files a bond executed to the applicant, in an amount to be fixed by the court, to the effect that such
party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the
application as ground for such appointment. The receiver may also be discharged if it is shown that his appointment was
obtained without sufficient cause.
Sect. 4. Oath and bond of receiver.- Before entering upon 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 in the action or proceeding and obey the orders of the court.
Do not confuse the bond here with the bond in Section 2.

Section 2 – Bond is posted by the party. Section 4 – Bond is posted by the receiver.
Sect. 5. Service of copies of bonds; effect of disapproval of the same. – The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy thereof on each interested party, who may except to its sufficiency or
of the surety or sureties thereon. If either the applicant’s or the receiver’s bond is found to be insufficient in amount, or if
the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be. If the
bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be
appointed or re-appointed, as the case may be.
Sec. 6. General powers of receiver.- Subject to the control of the court in which the action or proceeding is pending, a
receiver shall have the power to bring and defend in such capacity, actions in his own name: to take and keep
possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund,
property, estate, person, or corporation of which he is a receiver; to compound for and compromise the same; to make
transfers; to pay outstanding debts; to dived the money and other property that shall remain among the persons
legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize.
However, funds in the hands of a receiver may be invested only by order of the court upon which consent of all parties
to the action.
No action may be filed by or against a receiver without leave of the court which appointed him.
What are the powers of the receiver? Just read the provision. It is like the power of the manager.
The last paragraph is new. The one who files an action for receivership must secure the permission of the court.
Sec. 7. Liability for refusal or neglect to deliver property to receiver.- A person who refuses or neglects, upon
reasonable demand, to deliver to the receiver all the property, money, books, deeds, notes, bills, documents and
papers within his power or control, subject of or involved in the action or proceeding , or in case of disagreement, as
determined and ordered by the court, may be punished for contempt and shall be liable to the receiver for the
money or the value of the property and other things so refused or neglected to be surrendered , together with all
damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or
neglect.
If you refuse or neglect to deliver the property to the receiver, you will be liable for contempt of court.
Sec. 8. Termination of receivership; compensation of receiver.-Whenever the court, motu propio or on motion of either
party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties
and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession
to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as
such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to
be taxed as costs against the defeated party or apportioned as justice requires.
QUESTION: When do you terminate a receivership?

ANSWER: When the grounds enumerated under section 1 no longer exists.
Sect. 9. Judgment to include recovery against sureties.- The amount, if any, to be awarded to any party upon any bond
filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same
procedure prescribed in Section 20 of Rule 57.
QUESTION: How do you claim for damages?

ANSWER: Follow Rule 57, Sect. 20. Take note: No separate action to claim for damages
401
R U L E 60
REPLEVIN
Under the previous rule, it is entitled "delivery of personal property". But its popular term is replevin.
Q: What is the main action here?

A: The main action is the recovery of possession of personal property.
At the commencement of the main action at any time before answer, the plaintiff may pray for an order, for the delivery of the
property to him, meaning, he will ask for the issuance of a writ of seizure or writ of replevin. So, replevin is a term that could be
used to describe the main action or to describe a provisional remedy.
This was stated by the SC in the recent case of
BA Finance Corp. vs. CA
253 S 102
(July 05, 1996)
According to Justice Vitug, replevin as understood is both a form of principal remedy and a provisional
remedy. It may refer either to the action itself, that is to regain the possession of personal property or to
the provisional remedy to disallow the plaintiff to retain the thing during the pendency of the action.
The action is possessory nature, being to determine who has the right to possession. Replevin is usually described as
a mixed action, being partly in rem and personam. In rem in so far as the recovery of specific personal property is
concerned and in personam as regard to damages involved because damages are also sought in the pleadings.
Section 1. Application - A party praying for the recovery of possession of personal property may, at the
commencement of the action or at any time before answer, apply for an order for the delivery of such
property to him, in the manner hereinafter provided.
Q: When do you seek this provisional remedy?

A: Under section 1, at the commencement of the action or at anytime before answer.
So very limited. It is shorter. If you look at the old Rules, it provides for “at the commencement of the action and at anytime before
JUDGMENT and in the new rules, it's anytime before answer.
Again, the main action is recovery of personal property.

Example: Somebody borrowed your personal property. Ayaw isauli. The procedure is to file a case to recover possession of the
personal property and in the meantime that the case is going on, you can apply for a provisional remedy of replevin.
Section 2. Affidavit and bond.-The applicant must show by his own affidavit or that of some other
person who personally knows the facts:
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.
The applicant must also give a bond, executed to the adverse party in double the value of the property
as stated in the affidavit aforementioned, for the return of the property to the adverse party if such
return be adjudged, and for the payment to the adverse party of such sum as he may recover from the
applicant in the action.
Q: What are the ESSENTIAL REQUISITES OF REPLEVIN ?
1.) SWORN AFFIDAVIT executed by the applicant or some other persons who personally knows the fact alleging the
essential allegations as stated in Section 2, a to d.
402
Q: What does “entitled to the property” mean under letter a?
A: The applicant here is not the owner but he is entitled to the property.
Example: A sold a car to B on installment basis. B, now the owner mortgaged the car to C. B failed to pay A. So, A became an
unpaid seller and one of his remedies is to file a foreclosure proceeding. How can A get the possession of the property? File a
provisional remedy of replevin. A in this case is no longer the owner of the property but he is entitled to the property.
There is a slight change in par. c compared to the previous Rule. In par. c, the affiant/applicant must allege under oath 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.
The addition is: “otherwise placed under custodia legis”.
And the last allegation is that the affidavit must allege the actual market value of the property. They added the word "market
value". Before it is only value.
Q: Can the court take cognizance of a replevin suit considering that the object was the recovery of lumber seized and forfeited
by law enforcement agents of the DENR pursuant to P.D. 705?
A: Answer is in the case of Dy vs. CA
DY vs CA
March 9, 1999 (304 SCRA 331)
FACTS: Two trucks with Plate Nos. KAK-542 and KBL-214 and loaded with lumber approached the
checkpoint. They were flagged down by the operatives. Forester Resurreccion Maxilom of the DENR
issued a temporary seizure order and a seizure receipt for the two vehicles and their cargo consisting of
several pieces of lumber . On October 20, 1993, more than two months after the lumber had been
forfeited, petitioner, claiming to be the owner of the lumber, filed a suit for replevin in the Regional Trial
Court of Butuan City (Branch 5) for its recovery. The next day, October 21, 1993, the trial court issued a
preliminary writ of replevin.
HELD: The appeal is without merit. The rule is that a party must exhaust all administrative remedies
before he can resort to the courts. In a long line of cases, we have consistently held that before a party
may be allowed to seek the intervention of the court, it is a pre-condition that he should have availed
himself of all the means afforded by the administrative processes. Hence, if a remedy within the
administrative machinery can still be resorted to by giving the administrative officer concerned
every opportunity to decide on a matter that comes within his jurisdiction then such remedy
should be exhausted first before a court's judicial power can be sought. The premature invocation of
a court's intervention is fatal to one's cause of action. Accordingly, absent any finding of waiver or
estoppel, the case is susceptible of dismissal for lack of cause of action.
2) The applicant must post a REPLEVIN BOND double the value of the property.
That is to guarantee the return to the adverse party in case the return is adjudged and for damages caused by the unlawful
replevin. What is the basis of the jurisdiction of the court.
Q: Does the MTC have jurisdiction to entertain replevin case ?

A: Yes. If the value of the property is P100,000.00 and below and in Metro Manila, P200,000.00.
Take note: The basis of the jurisdiction is the value of the property and NOT the value of the bond.
Section 3. Order.- 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.
The order is issued without hearing. It is based only on the allegation in the pleading because of the time element.
Section 4. Duty of the sheriff.- Upon receiving such order, the sheriff must serve a copy thereof on the
adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the
property or any part thereof be concealed in a building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take
the property into his possession. After the sheriff has taken possession of the property as herein
provided, he must keep it in a secure place and shall be responsible for its delivery to the property
entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.
403
Q: What happens after the court issues the writ if replevin ?
A: Section 4. The sheriff has to take possession of the property from the defendant and it will in the sheriff for 5 days.
Section 5. Return of property.- If the adverse party objects to the sufficiency of the applicant's bond, or
of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does
not so object, he may, at any time before the delivery of the property to the applicant, require the return
thereof, by filing with the court where the action is pending a bond executed to the applicant, in double
the value of the property as stated in the applicant's affidavit for the delivery thereof to the applicant, if
such delivery be adjudged, and for 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.
Section 6. Disposition of property by sheriff.- If within five(5) days after the taking of the property by the
sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties
thereon; or if the adverse party so objects and the court affirms its approval of the applicant's bond or
approves a new bond, or if the adverse party requires the return of the property but his bond is
objected to and found insufficient and he does not forthwith file an approved bond, the property shall
be delivered to the applicant. If for any reason the property is not delivered to the applicant, the
sheriff must return it to the adverse party.
Under Section 5, there are two options or alternatives for the defendant:
1. Put up a counter-bond which is double the value of the property. If he does so, he has the right to demand the return of the
property to him.
2. Object to the sufficiency of the replevin bond.
Purpose of the counter-bond: The counter-bond is to answer for damages that the plaintiff may suffer if it turns out that all along
the plaintiff is entitled the possession of property. And also if after the case is won by the plaintiff and defendant is ordered to retain
the property, by that time, the property is already dilapidated and depreciated. Therefore, the plaintiff is no longer willing to accept
it and therefore has to hold the counter-bond liable for the value of the property. Also within the five-day period, either the defendant
will put up a counter-bond or object to the sufficiency of the replevin bond.
According to jurisprudence, if the defendant questions the sufficiency of the bond, then he can no longer require the
return of the property by putting the counter-bond. The authority there is the ruling in the case of
La Tondena Distillers Inc. vs. CA

209 S 553
The SC explained: If the defendant in the replevin action wishes to have the property taken be restored to
him, he should within 5 days from such taking:
1.) post a counter-bond double the value of the property taken,
2.) serve the plaintiff a copy thereof:
Both requirements as long as compliance therewith within the 5-day period mentioned being mandatory.
Alternatively the defendant may object to the sufficiency of the plaintiff bonds but if he objects to the
sufficiency of the bond, he cannot require the return of the property by putting up a counter-bond.
Q: What is the reason why the property has to stay with the sheriff for 5 days?
A: Because during the 5-day period, the defendant has to think which of the two options/ alternatives he will choose.
Q: Suppose the defendant will not use any of the options?

A: The sheriff will deliver the property to the defendant.
Q: Can the defendant file a motion to dissolve the writ of replevin on the ground that the plaintiff has no right to file a case,
meaning, he is not entitled to the possession?
A: As explained by the SC in La Tondena Distillers case, that is not a ground. It should be resolved in the main action.
Difference between Replevin and Attachment under Rule 57 or Injunction under Rule 58:
Replevin Attachment & Injunction
404
Title or right to the property cannot be You can question the title or right of the plaintiff
questioned in the motion to discharge the to attach the property.
writ of replevin. It must be threshed out
during the trial.
The court said in La Tondena, “in other words the law does not allow the defendant to file a motion to discharge or destroy the writ
of seizure or delivery on the grounds of insufficiency of the complaint or on the grounds relied upon therefore and thereby put
at issue the matter of title or right of possession over the specific chattel subject of the replevin. The policy apparently being that
said matter should be ventilated and determined only at the trial on the merits. Therefore, the defendant cannot file a motion to
dissolve the writ of replevin on the ground that the plaintiff has no right”.
In the case of
Aravest Industrial Philippines vs. CA

216 S 602
HELD: The requirement in Section 5 & 6 that there must be a counter- bond assumes that the replevin bond
validly filed. So, if there is a void replevin bond, there is no obligation for the defendant to put up a counter-
bond. " The requirement of posting a counter-bond to acquire re-possession of the chattel subject of the writ
of replevin presupposes a valid writ of replevin." The assumption is that the writ of replevin is valid.
Take note: If the defendant puts up a counter-bond, he is saying that the writ of replevin filed by the plaintiff is valid.
Section 7. Proceedings where property claimed by third person.- If the property taken is claimed by any
person other than the party against whom the writ of replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds
therefor, and serves such affidavit upon the sheriff while the latter has possession of the property
and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under
replevin or deliver it to the applicant 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 section 2 hereof. In case of disagreement as to such value,
the court shall determine the same. 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 one hundred twenty (120) days
from the date of filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third
party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or
any third person from vindicating his claim to the property, or prevent the applicant from claiming
damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages
as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to
be appropriated for the purpose.
Q: Suppose the property seized is claimed by a third person. What is the remedy of the third person ?
A: The same remedy of TERCERIA, third-party claim or, there is nothing there preventing him to file a correct action to litigate
his claim.
So, third party claim is a remedy applicable in execution, preliminary attachment and replevin. Section 7 of Rule 60 should be
read also with Section 16 of Rule 39 and Section 14 of Rule 57 on third party claim on preliminary attachment.
Section 8. Return of papers.-The sheriff must file the order, with his proceedings indorsed thereon, with
the court within ten (10) days after taking the property mentioned therein.
The sheriff must make a report to the court as to what happened to the property ordered to be seized by the court.
Section 9. Judgment - After trial of the issues, the court shall determine who has the right of
possession to and the value of the property and shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or for its value is case delivery cannot be made, and
also for such damages as either party may prove, with costs.
405
Q: What is the nature of the judgment in a replevin action ?
A: The judgment is ALWAYS IN THE ALTERNATIVE, either the defendant will be ordered to return the chattel to the plaintiff or
alternatively to pay for the value.
Q: Why ?
A: According to the SC, the reason is to afford the plaintiff a measure of relief. If the property cannot be returned in substantially
the same condition, the right to reject the property can be exercised not only after judgment but also in seeking delivery of the
property pendente lite. The personal property is useless. So, it will also answer for damages.
Section 10. Judgment to include recovery against sureties.-The amount, if any, to be awarded to any
party upon any bond filed in accordance with the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.
It should be recovered in the very same case and not in a separate action.
R U L E 61
SUPPORT PENDENTE LITE
The last provisional remedy is support pendente lite or otherwise known as alimony pendente lite, allowance or support during the
pendency of the main action.
Q: What is the main action?

A: Action for Support.
We know that support is something urgent. The plaintiff needs support during the pendency of the action. What is the use of
winning the case after several years when at that time you already starved to death? If you cannot wait, you can ask for support
while the case is going on. But you have to prove your right.
SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time prior to the
judgment or final order, a verified application for support pendente lite may be filed by any party stating the
grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or
other authentic documents in support thereof.
Q: What is the amendment in Section 1?

A: The law now requires the application for support pendente lite to be verified under oath.
Your application must be accompanied by affidavit, depositions or other authentic documents such as if the father abandons the
child, the child can prove his status by attaching his birth certificate to his application, the marriage contract plus the allegation that
the plaintiff is not in a position to support himself and the defendant is very much capable. So, financial condition of the parties must
be alleged.
Q: What happens after filing that?

A: The court must give a copy of the application for support and all supporting documents to the adverse party.
SECTION 2. Comment.- A copy of the application and all supporting documents shall be served upon
the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by
the court upon his motion. The comment shall be verified and shall be accompanied by affidavits,
depositions or other authentic documents in support thereof.
The defendant is given five (5) days to answer the support pendente lite. Do not confuse this with the answer to the complaint
which is 15 days. The answer to the application for support is 5 days because it is urgent.
Another innovation introduced by the law is the comment of the defendant must also be verified.
The comment it must be proved in the same manner as provided for evidence in motion. So it’s possible to be affidavits,
depositions, authentic documents. Pwede man ang oral testimony.
SECTION 3. Hearing.- After the comment is filed, or after the expiration of the period for its filing, the
applications shall be set for hearing not more than three (3) days thereafter. The facts in issue shall
be proved in the same manner as is provided for evidence on motions.
406
After the comment, 3 days thereafter, the court is obliged to hear the motion.
SECTION 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such
orders as justice and equity may require, having due regard to the probable outcome of the case and
such other circumstances as may aid in the proper resolution of the question involved. If the
application is granted, the court shall fix the amount of money to be provisionally paid or such other
forms of support as should be provided, taking into account the necessities of the applicant and the
resources or means of the adverse party, and the terms of payment or mode for providing the support.
If the application is denied, the principal case shall be tried and decided as early as possible.
Under section 4, the court will now determine temporarily, provisionally, whether there is a right to support or not. The
hearing of the evidence will come later.
If you are the plaintiff you should not present all your evidence otherwise it will delay your application. Mga simple lang muna. If the
application is granted, the court shall fix the amount of money to be provisionally paid or such other form of support as may be
provided, that is added by the law based on the needs of the recipient and the resources of the obligor.
Like for example, kung gusto mong mamalengke, ikaw ang mamalengke. I know of somebody against whom support pendente
lite was filed. He doesn't want to support his children because of his wife will not give it to the children. So, we asked the court that
instead of money, it is in kind. So, he goes to the market or grocery to buy things for his children. That is allowed.
SECTION 5. Enforcement of order.- If the adverse party fails to comply with an order granting support
pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him,
without prejudice to his liability for contempt.
When the person ordered to give support pendente lite refuses or fails to do so, any third person who
furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ
of execution to enforce his right of reimbursement against the person ordered to provide such support.
Q: How do you enforce an order for support pendente lite ?

A: Section 5, 1st paragraph. The remedy to enforce an order granting support pendente lite, is an order of execution against him:
1.) for the unpaid monthly support/ the collection of missed support and,
2.) a possible liability for contempt, that is if the defendant is capable of giving and he refuses.
Take note that the court can issue motu propio or on motion.
The execution is an exception to the general rule in Section 1 of Rule 39, where interlocutory orders cannot be the subject of
execution, to wit:
Section 1. Execution upon judgments or final orders. 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.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court
or origin, on motion of the judgment obligee, submitting therewith 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.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of
origin to issue the writ of execution.
General rule: interlocutory order cannot be executed because it is not final.

Exception: order for support pendente lite.
Q: Suppose there is a judgment for support, not an order, and then the defendant refuses to give support, can the defendant be
adjudged liable for contempt ?
A: NO. What is enforceable by contempt is refusal to comply with the order pendente lite, not judgment for support. It would
seem that the only remedy there is execution.
The second part of section 5 is a new provision. Suppose the person ordered to support refuses to give (pilitin mo muna siya),
and the child is in a hurry, naawa ang kapit-bahay, so he gave the support to the child. Now, he will be the one to execute the
judgment, so he can regain what he has given. This is not found in the old law. Parang solutio indebiti.
SECTION 6. Support in criminal cases.- In criminal actions where the civil liability includes support for
the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved
or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child
born to the offended party allegedly because of the crime. The application therefor may be filed
successively by the offended party, her parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency, in accordance with the procedure established under
this Rule.
Section 6 is also entirely new. Correlate this with article 345 of the RPC.
407
Q: What are the civil liabilities in rape, seduction, abduction, or acts of lasciviousness, in case the accused in found guilty?
A: Under Article 345 of the RPC, to support the offspring.
Take note: Support pendente lite can be availed in a criminal case where there is no reservation of the civil action.
Q: Who can file the application for support ?

A: The offended party, the parents. It depends on the order of preference under Article 345 of the RPC.
SECTION 7. Restitution.- When the judgment or final order of the court finds that the person who has
been providing support pendente lite is not liable therefor, it shall order the recipient thereof to
return to the former the amounts already paid with legal interest from the dates of actual payment,
without prejudice to the right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give the support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement thereof in a separate action form the
person legally obliged to give such support.
Q: Suppose the defendant who was ordered to give support turned out after the trial to be not liable? What is his
remedy/remedies?
A: The law says he can:
1) order the recipient to return to him the amount actually paid with legal interest from the date of actual payment. The recipient
can file now an action against his original father- the one really obliged to give support.
2.) But it is also possible according to Section 7 that the first defendant will be the one to file a separate action against the real
defendant. This provision is not found in the old law.
Rule 62
INTERPLEADER
The first Special Civil Action (SCA) is known as the SCA for interpleader. What is this all about? The essence of interpleader is
found in Section 1:
Section 1. When interpleader proper.— Whenever conflicting claims upon the same subject matter
are or may be made against a person who claims no interest whatever in the subject matter, or an
interest which in whole or in part is not disputed by the claimants, he may bring an action against the
conflicting claimants to compel them to interplead and litigate their several claims among themselves.
(1a, R63)
Let’s go to a problem:
Pao is leasing a building owned by Jet the lessor. Now, Jet died (tsk! tsk! tsk!). So Pao does not know to whom
should he pay the monthly rentals for the following month because he only knew the lessor. The following month, Judy
came to Pao and said, “From now on, you pay the rentals to me because I am the widow of Jet. I am now the owner of this
building.” The following day, another woman in the name of Maying came to Pao and said, “I am the wife of Jet so from
now on you pay the rentals to me.” Pao: “Paano yun? Kahapon nandiyan si Judy. Siya daw ang widow!” Maying: “No!
Anong ‘widow’? Ako ang widow!!” So Pao contacted Judy, “Kahapon according to you ikaw ang widow. But there is
another woman came here claiming that she is the widow!” Judy: “No! Don’t believe her! I am the widow!”
Naloko na! Sino bang nagasabi ng totoo?! (Sino ba talaga ang black widow in Titser Jet sa kanilang dalawa? Parehong
maputi eh?) I will pay but I don’t know to whom should I pay my rentals! I might pay to the wrong person. I want to be sure
kung sino talaga.
Q: What should I do?

A: You file a SCA against Judy and Maying under Rule 62 and compel them to prove in court who is the real person entitled to
be paid.
Q: Define Interpleader.
A: Interpleader is a special civil action whereby a person who has property in his possession or an obligation to render, wholly
or partially, without claiming any right therein, or an interest which in whole or in part is not disputed by the claimants, comes to
court and asks that the person who consider themselves entitled to demand compliance with the obligation be required to litigate
among themselves in order to determine finally who is entitled to the same. (Alvarez vs. Commonwealth, 65 Phil. 302)
408
So that is the correct procedure. Like in Section 1 when “conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter.” So kayo lang dalawa ang mag-aaway dito. I may bring an
action against the two of you to compel you to intervene and litigate your claims among yourselves.
Actually, under American law, the lessee is called the “stakeholder”, S-T-A-K-E, - hindi yong STEAK na kinakain, - defined as a
person entrusted with the custody of property or money that is subject of litigation on contention between rival claimants in which
the holder has no right or property interest.
Another problem:
Rucel deposited his goods to Leo in a contract of deposit and the depositary issued a negotiable warehouse receipt.
Later on, Rayda came to Leo claiming that she (Rayda) is now the holder of the warehouse receipt because it has been
indorsed to her. According to Rucel, “No! Wala! Wala! Because I never indorsed it and the signature there is falsified; that
the document was stolen from me and therefore Rayda is not the owner!” According to Rayda, “No! The receipt has been
validly indorsed!”
Naloko na! I do not know who is telling the truth. If you are the warehouseman and you want to be sure who is really
entitled to the goods in your custody, what will you do?
Answer: File an action for Interpleader under Rule 62. That is how this SCA works. Very simple!
As a matter of fact I (Dean I.) remember, I only filed this type of case once in behalf of two persons claiming the same bank
deposit. The deposit was opened by B1 in his name but the following day B2 told the bank, “Actually, I asked B1 to open the
deposit in my name. Ba’t nyo nilagay sa pangalan niya? Akin yan!” But according to B1, “No! that is my money!”
Now, can you prevent B1 from withdrawing? But actually, the bank is also in danger because there is also a warning from B2;
the bank might make a mistake; and you cannot indefinitely prevent B1 from withdrawing. Why don’t you ask B2 to file a case with
injunction to prevent B1 from withdrawing? The trouble is if B2 will not bother to file any case. So bank ngayon ang mag-reklamo.
What will you do? Simple. The only choice is Interpleader. With that, the court will not allow B1 to withdraw until the case is decided
and they will only follow whatever the court says.
Sige, we will submit the recommendation to my the office. And then in the afternoon there was an answer. According to our
head office your recommendation was forwarded to the legal department of the head office and the opinion is: “it is not
interpleader.” Ganun? Ano dapat? What is the correct remedy? Wala mang sinabi. But I asked them, “If I’m wrong, ano ang dapat?”
Office: “Okey. We will answer by tomorrow.” Dean I.: “No! tama na ‘tong interpleader. There is no other remedy.” (Naks!!)
Sec. 2. Order. — Upon the filing of the complaint, the court shall issue an order 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. (2a, R63)
Ayun! Parang similar to cross-claims. Only the action that I will initiate is interpleader. The court will order the subject
matter to be delivered before the court. So if we are the depositary, safe na tayo because they will just follow court
orders.
Sec. 3. Summons. — Summons shall be served upon the conflicting claimants, together with a copy
of the complaint and order. (3, R63)
Sec. 4. Motion to dismiss. — Within the time for filing an answer, each claimant may file a motion to
dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds
specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant
may file his answer within the remaining period, but which shall not be less than five (5) days in any
event, reckoned from notice of denial. (n)
Sec. 5. Answer and other pleadings. — Each claimant shall file his answer setting forth his claim
within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each of the
other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant
fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter
render judgment barring him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and
responsive pleadings thereto, as provided by these Rules. (4a, R63)
Sec. 6. Determination. — After the pleadings of the conflicting claimants have been filed, and pre-trial
has been conducted in accordance with the Rules, the court shall proceed to determine their respective
rights and adjudicate their several claims. (5a, R63)
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens — The docket and other
lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall
order otherwise. (6a, R63)
409
For example ako ang bangko no? I have to spend money for filing fees and other adjudication expenses. Later on, whoever
wins, the court will allow you to deduct such expenses from the deposit.
That takes care of the Interpleader. It is not that really complicated.
Rule 63
DECLARATORY RELIEF (DR) AND SIMILAR REMEDIES
Section 1. Who may file petition — Any person interested under a deed, will, contract or other written
instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration of
his rights or duties, thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this
Rule. (1a, R64)
If you have a legal problem: is my position correct or is the position of the other party correct?-- Because you are already
quarreling with something. For example meron kayong contract. Let us say the contract will take effect next year pa. Then sabi ni
Mr. Pito, “You see Mr. Pascua under this contract, you will deliver this to me next year starting January 2001.” Sabi ni Mr. Pascua,
“No. Mali ang interpretation mo! Hindi ako ma-liable!.” Mr. Pito:“No! Ma-liable ka!” Mr. Pascua:“No! Hindi!”
In other words, sino talaga ang talo sa kanilang dalawa? Now, let us wait for next year to come and then January, Mr. Pito:“Ok,
you comply with this obligation.” Mr. Pascua: “I already told you hindi ganyan ang ibig sabihin.” Mr. Pito: “Ah! There is breach of
contract!” Mr. Pascua: “No! Walang breach!”
So how do we know whether there is a breach or no breach? Of course, Mr. Pito will file a case for specific performance or
damages. Let the court decide. But that is not Special Civil Action (SCA). That is ordinary civil action (OCA) because may violation
na eh! But let’s forget that. So what is the remedy?
As I said, the contract will take effect next year pa. But sa ngayon pa lang nag-away na kayo on what is exactly the contract
means. Now suppose Mr. Pito does not want to wait for next year. He wants to know right now who is right. Huwag nang hintayin
na magkaso-kaso. There should be now a case where we will know who is right under the contract.
Is there a way of doing this? Yes. You use Rule 63. You file a SCA for Declaratory Relief (DR). You file a case because you
are interested under the contract and you may file before breach or violation because if there is already a breach or violation, the
correct civil action is OCA for specific performance or damages.
Then you file the case (DR) in the appropriate RTC. So it falls within the jurisdiction of RTC to determine any question of
construction or validity arising, and for a declaration of his rights or duties, thereunder.
So you anticipate a risk of a possible quarrel or controversy and I will not wait for it. I only get a ruling now before the contract
takes effect.
So in effect, it is an exception to the rule that you learned in civil law that generally, courts cannot act unless there is a case.
Courts cannot give advisory opinions. Bawal man yan bah! You cannot ask the court for an opinion as to what is all that means.
Kailangan may kaso! But the trouble is, hindi ka magkaso. We will wait for next year to determine who is right. No, no need. You
can file an action now to determine what the contract will mean. So that is Declaratory Relief.
Now, the other possibility is when there is no deed, will, contract or other written instrument involved and your rights
are affected by a statute, executive order, ordinance, or any other governmental regulation.
For example, the Sanggunian of Davao will pass an ordinance imposing a certain tax on certain businessmen which
will start on 2001. So the ordinance is passed now and you will pay starting next year. The trouble is, I believe that I
am not covered. I believe that the ordinance is illegal. So what are my options?
Option 1: when the ordinance will be enforced next year, the city will sue me for violation thereof. And depensa ko, the
ordinance is not valid. Eh kung mali pala ako? I am liable.
410
Option 2: why wait for the ordinance to take effect and test it in the court? Can I not get a ruling on whether the ordinance is
valid or not, even before it takes effect? Yes, you can. You file an action for declaratory relief. So the you will now file a case
against the city and hopefully before the end of the year, the court will give a decision: the ordinance is valid, you are bound; or the
ordinance is not valid, it cannot be enforced. So ganyan ang mangyayari. You do not assume the risk of violation of the ordinance.
Now, an action for declaratory relief is only proper when the following requisites are present:
1. there must be a justiciable controversy;

2. the controversy must be between persons whose interests are adverse;
3. the person seeking declaratory relief must have a legal interest in the controversy; and
4. the issue involved must be ripe for judicial determination.
Let’s go to the third requisite: the person seeking declaratory relief must have a legal interest in the controversy. Otherwise, if
you have no legal interest, the case will be dismissed because you are not the real party. As what happened in the case of
TADEO VS. PROVINCIAL FISCAL OF PANGASINAN

January 31, 1962
FACTS: A contract prepared by a lawyer in behalf of 2 people then after signing of the contract, he notarized the
same. After that, nagkaroon ng issue: Is the contract valid or not? The lawyer became interested, “Uy! This is a very
nice question!” So he filed an action for DR.
HELD: NO! You cannot file. You are not a party in the contract. You have no legal interest.
“The appellant not being one of the contracting parties to the deed of sale but took part only as notary public
before whom they acknowledge the execution thereof is not entitled to file an action for declaratory judgment.”
The ruling in Tadeo was emphasized by the SC in the case of
ATLAS CONSOLIDATED MINING VS. CA,

182 SCRA 166
HELD: A person who is not a party to a contract cannot file a petition for declaratory relief and seek a
judicial interpretation of such contract.
Q: Alright. How do you distinguish SCA for DR from OCA?

1. in OCA, there is already a breach. In DR, you file the case before any possible breach;
2. in OCA, the defendant is alleged to have violated plaintiff’s right. In DR all that is required is an impending violation of
plaintiff’s right; and
3. in OCA, suppose the plaintiff will win, there will be a writ of execution to enforce the order. In DR, the judgment stands
by itself. No executory process follows because there is still no breach. So if I will file a case now for DR and the court
decided that the contract is valid, what is there to execute? There is nothing. Just follow it. It will just guide you in the
future.
Q: Ano bang subject matter in an action for DR. based on section 1? Ano bang pinag-aawayan dyan?
A: The following:
1. Deed;
2. Will;
3. Contract;
4. Other written instrument;
5. Statute;
6. Executive order or regulation;
7. Ordinance; and
8. Other government regulation.
And the SC has ruled already that this enumeration is exclusive. You cannot file an action for DR to determine the validity or
interpretation of something which is not among those mentioned in Section 1.
Illustation:
This really happened. There was a man born in the Philippines. But since he was a child there was doubts about his
citizenship. Some people say, “Ah! You are a Filipino. Under the Constitition you are a Filipino citizen.” Because ang sabi niya,
“ang plano ko someday after college I will take up law pero sabi nila hindi daw ako pinoy.” “Nooo! Don’t believe them. You are
qualified to take the bar.” Pero sabi naman ng iba, “No you are not a Filipino.” I also tend to by lands. “Don’t worry. Filipino ka.”
“No, you are not. You cannot buy lands.”
“So ano ba talaga ang status ko? Am I Filipino or am I an alien?” So ang ginawa niya, file siya ng action for DR. These are
the facts; this is my background; tatay ko; nanay ko. Ano ba? Am I a Filipino or not? I want a declaration on what is my legal
citizenship.
411
And the SC said: case dismissed (with matching smile ni Dean), Because there is no mention of citizenship in Section 1. It
is not among the subject matter in Section 1 and the rule is: enumeration is exclusive.
Let’s us go to Section 1, second paragraph:
An action for the reformation of an instrument, to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under Article 1607, of the Civil Code, may be brought under this
Rule.
These civil actions here are not really actions for DR but they are similar, somehow related and these actions can be filed
under Rule 63. So Rule 63 also applies to the following actions because they are similar to DR:
1. an action for the reformation of an instrument;
2. to quiet title to real property or remove clouds therefrom; and
3. to consolidate ownership under Article 1607, New Civil Code.
Article 1607 of the New Civil Code is a provision on the Law on Sales:
Art. 1607. 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 article 1616 shall not be recorded in the Registry of Property without a
judicial order, after the vendor has been duly heard. (n)
Q: I will sell to you a land with right to repurchase within one (1) year. Supposed I did not repurchase the land within 1
year, are you automatic the absolute owner? Or is there something first for you to do?
A: You are not automatic the absolute owner. You have to file a petition for consolidation of your ownership and get a
court order. The seller will be summoned. The seller will oppose the consolidation: “Hindi man talaga sale yon ba!
Mortgage lang! Thus, you cannot consolidate.” Yan! So that is the remedy under the Civil Code which can be
governed by Rule 63.
Sec. 2. Parties — All persons who have or claim any interest which would be affected by the
declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules,
prejudice the rights of persons not parties to the action. (2a, R64)
Sec. 3. Notice on Solicitor General — In any action which involves the validity of a statute, executive
order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the
party assailing the same and shall be entitled to be heard upon such question. (3a, R64)
In case a law or statute is questioned under Rule 63, the Solicitor General is entitled to notice and he can come in. Why? He is
the lawyer of the Republic. It is his duty to defend all official acts of the government like laws or governmental regulations.
Section 3 is similar to Rule 3 Section 22:
SEC. 22. Notice to the Solicitor General. – In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may
require the appearance of the Solicitor General who may be heard in person or through a representative
duly designated by him. (23a)
Q: What is the difference between Rule 3 and Rule 63 with regards to the appearance of the Solicitor General?
A: Simple. In Rule 63, the statute is challenged in an action for DR before any breach or violation thereof. Obviously in Rule 3,
if there is already a breach or violation, the validity of the law is questioned in a ordinary civil action, but just the same the Solicitor
General must be informed. Pareho din.
Q: Suppose what is being questioned is the interpretation or validity of a city or municipal ordinance, who will be notified?
A: Section 4
Sec. 4. Local government ordinances — In any action involving the validity of a local government
ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be
similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the
Solicitor General shall also be notified and entitled to be heard. (4a, R64)
The one that should be notified is the office of the City Legal Officer. Kung sa probinsiya, the municipal attorney if there is one.
Kung wala, the provincial fiscal is the provincial attorney.
Sec. 5. Court action discretionary — Except in actions falling under the second paragraph of section
1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights
and to construe instruments in any case where a decision would not terminate the uncertainty or
412
controversy which gave rise to the action, or in any case where the declaration or construction is not
necessary and proper under the circumstances. (5a, R64)
Take note that it is discretionary upon the court whether or not to entertain an action for DR because generally, courts should
not hear cases when there is still no breach. That’s the rule eh, Rule 63 is the exception.
The court may refuse to grant a DR under the following conditions:
1. when it would not terminate the uncertainty or controversy which gives rise to the action;
2. when the declaration or construction is not necessary and proper under the circumstances.
Sec. 6. Conversion into ordinary action — If before the final termination of the case, a breach or
violation of an instrument or a statute, executive order or regulation, ordinance, or any other
governmental regulation should take place, the action may thereupon be converted into an ordinary
action, and the parties shall be allowed to file such pleadings as may be necessary or proper. (6a, R64)
Q: The action for DR is filed before the breach of the contract, deed, etc. and while the case is going on, the contract or the
ordinance took effect. So na-overtake-an. Anong mangyari sa kaso?
A: Under Section 6, convert the case into an ordinary civil action.
Can you still remember the case of TEODORO vs. VILLASOR in civil procedure on motion to dismiss on the ground of litis
pendencia?
TEODORO VS. VILLASOR
FACTS: There was a lease contract between the lessor and the lessee and they were already quarreling.
According to the lessor, “Mr. Lessee, our contract will expire at the end of year. And I am telling you now that hanap
ka na ng malilipatan because I will not going to renew the contract anymore.” Lessee: “Nooo! The contract will not
going to expire this year, next year pa!”
So, we don’t know yet if whether the contract will expire this year or next year pa. So, inunahan ni lessee ang
lessor. He filed immediately an action for DR. The case dragged on and the year ended. So file na si lessor ng
Unlawful Detainer on the ground that the lease contract has expired.
So dalawa na ang kaso. May litis pendencia na. One of them must be dismissed. The lessor filed a motion to
dismiss on the ground of litis pendencia. The lessee complained, “Why will you dismiss my case eh mas nauna ako
sa yo?!” In litis pendencia, the prior case will prevail based on the priority-in-time rule. But there are other criterion
such as appropriate-court rule: which court can appropriate decide the case.
ISSUE: Now, which of the two cases shall prevail?
HELD: What is more proper here is the action for unlawful detainer. Ang i-dismiss, yung DR! Eh, nauna ito (DR)?!
Pagna-overtake-an na ng breach, forget it! Wala na! We will now concentrate in the ordinary civil action.
Q: Can a defendant in an action for a DR file a counterclaim? Are counterclaims allowed under Rule 63?
A: YES. In the case of
VISAYAN PACKING CORP. vs.. REPARATION COMMISSION

155 SCRA 542
HELD: There is nothing under Rule 63 which prohibits the filing of a counterclaim in a SCA for declaratory relief. SCA
is basically a civil action and the grounds for Ordinary Civil Actions also apply to SCA unless there is an inconsistency. But
where there is no conflict, it should be allowed.
Rule 66
QUO WARRANTO
What is the meaning of Quo Warranto? That is Latin eh! What is the translation of the term Quo Warranto? Actually, literally
that is ‘by what warrant’. By what warrant, what does it mean?
Let us go back to basic law. Warrant…Warrant of Arrest, Search Warrant as understood in Criminal Procedure. If you are a
policeman and you have a warrant of arrest and you arrest a person, can you be held liable for arbitrary detention or unlawful
arrest? Of course not! Because I have a warrant of arrest. If you have a search warrant, can you be questioned for searching a
house or seizing object? Of course not. I have a search warrant.
What is the significance of the word warrant? You are authorized to search or you are authorized to arrest. That is the
essence of the word warrant. Therefore, warrant is synonymous with authority. You are backed up by a court authority. Why? For
example you are occupying a public office illegally, you are not authorized to hold such office but you are holding it as if you are
appointed. Can you be questioned? Yes, because there is usurpation. What is the nature of the action to question your act of
usurpation? Quo Warranto…by what authority!
413
Section 1. Action by Government against individuals — An action for the usurpation of a public
office, position or franchise may be commenced by a verified petition brought in the name of the
Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or
franchise;
(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground
for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act. (1a)
The petition must be verified and brought in the name of the Republic of the Philippines as the plaintiff, as the general rul e.
Bakit anong pakialam ng gobyerno? Public Office ito. The government is interested to see to it that all those performing public
officers are validly there. That they are not impostors or usurpers.
How about corporation? Well you cannot act as a corporation without the consent or authority of the State. That is why you
have to incorporate and get authority of the State. Therefore if you act as a corporation without the consent or authority of the
State, you are acting without a valid franchise. That is why government is interested. That is why plaintiff is the Republic of the
Philippines. And therefore, if it is the Republic of the Philippines who is interested. Generally, it is the Solicitor General or
prosecutor (provincial fiscal) will file the case against you.
Q: Define Quo Warranto.

A: Quo Warranto is a demand made by the State upon some individual or association to show by what right they exercise
some franchise or privilege appertaining to the State which according to the constitution and laws of the land, they cannot legally
exercise by virtue of grant or authority of the State. (44 Am. Jur. 88-89)
Sec. 2. When Solicitor General or public prosecutor must commence action — The Solicitor General
or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case specified in the preceding section can be
established by proof, must commence such action. (3a)
Solicitor General…or public prosecutor when directed by the President of the Philippines must commence the action. When
President orders the Solicitor General to solve the issue because there is a possible usurpation here, ‘File the case’, it is now
mandatory for the Solicitor General to file the case.
Or for example, somebody brings to the attention of Solicitor General or public prosecutor na there seems to be usurpation
here and the Solicitor General/fiscal believes that there is usurpation, then under Section 2 he can also file the action or when upon
complaint or otherwise, he has good reasons to believe that any case specified in the preceding section can be established by
proof must commence such action.
Sec. 3. When Solicitor General or public prosecutor may commence action with permission of court
— The Solicitor General or a public prosecutor may, with the permission of the court in which the action
is to be commenced, bring such an action at the request and upon the relation of another person; but in
such case the officer bringing it may first require an indemnity for the expenses and costs of the action
in an amount approved by and to be deposited in the court by the person at whose request and upon
whose relation the same is brought. (4a)
Sec. 4. When hearing had on application for permission to commence action — Upon application for
permission to commence such action in accordance with the next preceding section, the court shall
direct that notice be given to the respondent so that he may be heard in opposition thereto; and if
permission is granted, the court shall issue an order to that effect, copies of which shall be served on all
interested parties, and the petition shall then be filed within the period ordered by the court. (5a)
Did you notice the caption in Section 2 and Section 3.? In Section 2, When Solicitor General or public prosecutor must
commence action. In Section 3, When Solicitor General or public prosecutor may commence action with permission of court. Yung
isa must, yung is naman may.
With that, we will notice that there are two types of Quo Warranto:
(1) Compulsory Quo Warranto under Section 2.; and

(2) Discretionary Quo Warranto under Section 3.
The best example of compulsory quo warranto is when the President of the Philippines directs the Solicitor General to file the
case, then he must comply with the order of the President but that is very rare.
In most cases, Quo Warranto is in Section 3. Like for example when there are 2 people claiming that they are appointed to the
same position. That can happen. Example, Pao and Jet claim that they have the right to a public office. Of course Pao is the one
occupying. Sabi ni Jet, “hindi man siya dapat…dapat ako man!” What should Jet do under Section 3? You go to the Solicitor
General or to the fiscal and you say, “I am supposed to be the one…” (SolGen: Kinsa ka? Si Keanu? Hawa diha uy!)
Now, it is a public office. So I think that this is the concern of the State of who should be really occupying whether Pao or Jet.
Now what will the Solicitor General or the fiscal do? He may commence the action. He is allowed. But, he may or he may not.
That is why it is discretionary.
414
Now, if he may, under Section 4, he will have to file a petition in court asking for permission to file the case in behalf of Jet. And
Pao will be notified. Pagsinabi ng court na you are authorized to file, then the Solicitor General will file. The Solicitor General will
take the cudgels for Jet. But under Section 3, the Solicitor General may ask Jet to deposit some money for expenses.
Sec. 5. When an individual may commence such an action — A person claiming to be entitled to a
public office or position usurped or unlawfully held or exercised by another may bring an action therefor
in his own name. (6)
Example: I am the one claiming to be entitled to a public office, for example, the position of a City Treasurer. Dapat ako man
dyan , di man siya. What are your options.?
Option one will be, you go to the fiscal or Solicitor General under Section 2. Ang problema dito baka he may not want, sabi
niya, “I am not sure eh! Parang ikaw pero I am not convinced. 50-50 (isa gatos tanan!)”
Or (second option), as in most cases, the person who claims that he is entitled to the public office, will not bother to go to the
Solicitor General. He will just get his own lawyer and file it. Now, it is allowed. You become, under Section 5, a person claiming to
be entitled to a public office or position usurped who may bring an action therefore in his own name.
If you are going to get your own lawyer and file the case, you cannot use the Republic of the Philippines as plaintiff. Pangalan:
Angeles vs. Pascua. If Solicitor General will file, then he will institute the case in the name of the Republic of the Philippines.
So another classification of Quo Warranto:

(1) Quo Warranto in the name of the Philippines; or
(2) Quo Warranto in the name of a private individual.
Sec. 6. Parties and contents of petition against usurpation — When the action is against a person for
usurping a public office, position or franchise, the petition shall set forth the name of the person who
claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is
unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or
franchise may be made parties, and their respective rights to such public office, position or franchise
determined, in the same action. (7a)
Q: When the plaintiff, the private individual, files a quo warranto action for usurpation, normally, what are the essential
allegations based on the complaint?
A: There are two:
(1) He must allege that he is entitled to the position;
(2) The defendant is unlawfully in the possession thereof;
Q: Is there a difference, procedurally, when the Solicitor General files the Quo Warranto under Sections 2 and 3, and when the
private individual files the Quo Warranto under Sections 5 and 6?
A: The SC said: YES. And how do we distinguish?
In the action commenced by the private individual, it is necessary for the petitioner or plaintiff to prove his right to the
office in dispute. If he fails to prove this, it is unnecessary for the court to pass on the right of the defendant in office.
(Acosta vs. Flor, 5 Phil. 18)
On the other hand, in an action commenced by the Solicitor General, it is not necessary that there be a person
claiming to be entitled to the office alleged to have been usurped, thus, the duty of the court is to pass upon the right of the
defendant only. (Acosta vs. Flor, 5 Phil. 18)
Let us try to illustrate: If you file an action for quo warranto against the one who occupied, the burden of proof na sa iyo, eh.
You have to prove that you are entitled to the position. Suppose, you cannot prove it, the court will no longer require the defendant
to prove his right because he is occupying it. The presumption is, he is entitled.
Now, if the Solicitor General files, he is questioning immediately the defendant’s authority. Hindi kailangan that somebody is
claiming. And therefore, if you are not entitled, you are out but nobody will take your place. Just wait for another appoin tment.
Therefore, the court can pass immediately on the right of the defendant, if it is the Solicitor General filing it. That is the difference.
And that distinction has been applied by the SC in several cases. I have to cite a few:
TARROSA vs. SINGSON

May 25, 1994
FACTS: Singson, the respondent herein referred to is the former Governor of Banko Sentral Ng Pilipinas (BSP).
Now, this petitioner, Jesus Amado Tarrosa is a taxpayer and he filed a petition for prohibition questioning the
appointment of Singson as Governor of BSP because according to Taroza, the appointment of Singson has not been
confirmed by the Commission on Appointments in Congress and therefore, the petition seeks to enjoin from the
performance of his functions as such official until his appointment is confirmed by the Commission on Appointments.
HELD: Actually , it is not prohibition but it is quo warranto, sabi ng SC because he is claiming that Singson has no
authority to occupy the position, therefore, Singson is guilty of usurpation. And who is filing the case? Taroza, the
private individual.
Now, is Tarrosa claiming that he would be Governor of Central Bank? Di Man! He is questioning the
appointment of Singson but he is not claiming that he is! Sabi ng SC:Ahh, di pwede…because when quo warranto is
filed by private individual, the petitioner must be the one claiming the position. But he is not! Dismiss. The Court
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said: The instant petition is under the quo warranto proceeding as it seeks to oust Singson and allege that the latter is
unlawfully holding or exercising the powers of the Governor of Banko Sentral. Such a special civil action can only be
commenced by the Solicitor General or by the person claiming to be entitled to a public office or position unlawfully
held or exercised by another. So, it’s either the Solicitor General or person claiming to be entitled. (Naputol na ang
side A )
Another case during the time of President Marcos when he was first elected as president under the 1935 Constitution: He was
elected in 1965. His first term expired in 1969 but was re-elected. So 1969 plus 4 – his term must have expired by 1973. However
in 1972, he declared Martial Law and he continued beyond 1973. That is why, after 1973 a group of taxpayers - Civil Liberties
Union - something like that, filed a direct action before the Supreme Court questioning the authority of Marcos to hold office beyond
1973. How did the SC disposed of the case?
Sabi ng SC : So, you are accusing Marcos of usurpation because he has already overstaying in the presidency. Quo Warranto
ito eh! Sino ang nag-file ng petition? Kayo. Sino sa inyo ang nagsabi na you are entitled to the presidency? Wala man ba! Sabi
nila, we are not claiming to be president. What we are questioning is, he is a usurper.
Well, kung ganyan, dapat Solicitor General ang mag-file at hindi kayo. Since you are the one who filed, you must prove that
you are entitled to be president. Is anyone of you entitled? Wala…alright, the case is dismissed! That’s what happened based on
this principle. The only one who can file it if there is no claimant is the then Solicitor General Estelito Mendoza.
Sec. 7. Venue — An action under the preceding six sections can be brought only in the Supreme
Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area
where the respondent or any of the respondents resides, but when the Solicitor General commences the
action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the
Supreme Court. (8a)
Q: On what courts can you obtain a quo warranto action

A: The following:
1. Supreme Court;
2. Court of Appeals;
3. Regional Trial Court exercising jurisdiction over the territorial where the respondent resides;
4. Sandiganbayan under RA 8249 in cases which are relevant to its jurisdiction.
These 3 here have concurrent jurisdiction but when the Solicitor General is the one filing, there is no need for him to go to the
RTC of the place where the case is filed… directly to the SC or CA na yan!
Q: Does the MTC have jurisdiction to entertain a complaint for quo warranto?
A: In the case of
REGATCHO vs. CLETO
December 21, 1983
HELD: A petition for quo warranto for the disqualification of an elected barangay captain must be filed with the
MTC. So, mga barangay elections lang because under the Barangay Law, election protests regarding baranggay
elections should be filed in the MTC. That is the only instance that a quo warranto be filed with the MTC.
Sec. 8. Period for pleadings and proceedings may be reduced; action given precedence — The court
may reduce the period provided by these Rules 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. (9a)
Sec. 9. Judgment where usurpation found — When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be
rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or
relator, as the case may be, recover his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of all the parties to the action as justice
requires. (10a)
Very simple, when there is usurpation, the court will render judgment ousting the occupant from the public office concerned.
Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers;
damages— If judgment be rendered in favor of the person averred in the complaint to be entitled to the
public office he may, after taking the oath of office and executing any official bond required by law, take
upon himself the execution of the office, and may immediately thereafter demand of the respondent all
the books and papers in the respondent’s custody or control appertaining to the office to which the
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. The person
adjudged entitled to the office may also bring action against the respondent to recover the damages
sustained by such person by reason of the usurpation. (15a)
If the defendant is ousted from office by the judgment in quo warranto, he is supposed to turn over the office to the rightful
occupant, together with the books and papers which are in his possession and if he fails to do it, it is contemptuous according to
Section 10. You can be punished for contempt and damages will also be recovered by another action after usurpation is confirmed.
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Sec. 11. Limitations— Nothing contained in this Rule shall be construed to authorize an action
against a public officer or employee for his ouster from office unless the same be commenced within one
(1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose;
nor to authorize an action for damages in accordance with the provisions of the next preceding section
unless the same be commenced within one (1) year after the entry of the judgment establishing the
petitioner’s right to the office in question. (16a)
One important point to remember is: An action for quo warranto can be filed against the alleged usurper not later than one (1)
year from the date of usurpation. That is a condition precedent more than a prescriptive period. So after 1 year, wala na.
Q: Bakit one year?

A: SC explains: the reason for the limitation of 1 year is that it is not proper that the title to a public office be subjected to a
continued uncertainty and the people’s interest requires that such right be determined as speedily as practicable. (Cuyo vs. City
Mayor, O.G. 573, January 18, 1960) Meaning, if there is usurpation that should be questioned immediately and assuming that is
filed an action for quo warranto on time.
You have also one (1) year. to file an action for damages against the usurper because Section 10 also says that the action for
damages must be filed within 1 year after the entry of judgment establishing the petitioner’s right to the office in question.
Sec. 12. Judgment for costs — In an action brought in accordance with the provisions of this Rule,
the court may render judgment for costs against either the petitioner, the relator, or the respondent, or
the person or persons claiming to be a corporation, or may apportion the costs, as justice requires. (17a)
This relator is the person mentioned in Sec. 3, the person who will request the Solicitor General to file the case.
Before we leave Rule 66, we will now compare quo warranto from other known remedies similar to quo warranto because if we
don’t know how to detect the distinction, you may get confused with the type of action filed.
Let’s go back to mandamus. Rule 65, Section. 3. Do you know the second possible ground for mandamus? When the
respondent has unlawfully excluded another from the enjoyment of an office...parang quo warranto yun. And therefore, the two
remedies can be confused with each other. And problems in the BAR will be ask where the answer would depend whether you can
distinguish one from the other.
CASE #1: For example, you are appointed as City Treasurer and while you are claiming the office, Mr. Peloton is there also
claiming he is the rightful duly appointed Treasurer. Dalawa na kayo. You believe that Mr. Peloton is a usurper and believe that he
is not entitled. What kind of a case you will file against him? That is a clear case of quo warranto. There is usurpation.
CASE #2: On the other hand, let’s try another problem slightly different from the first problem. A city treasurer retired.
Because he retired, the Assistant Treasurer became the acting until the successor or the new appointee will come in. Now, you are
appointed by the President as the new Treasurer. So you go there and you are claiming that you are now the appointee and the
acting there will say, “di ako maniwala, I do not believe in your appointment. I refuse to relinquish.” Sabi naman ng isa: “I am the
one appointed! You are supposed to vacate the office because you are only acting.” Assistant Treasurer: “Ah, I don’t believe you,
your papers are defective.” Ano man ang gawin mo? Ayaw niyang umalis. Would you file an action for quo warranto? The
answer is NO. You will file an action for mandamus to compel him to give up the position.
What is the difference between the first and the second? In the first, if we will notice, the person that you are driving out is also
claiming the right to the position. So, there is the essence of usurpation but in the second example, the acting treasurer is not really
claiming a permanent right in the office. So he’s not actually a usurper, but definitely he is excluded from the enjoyment of office in
which he is entitled. The correct remedy is mandamus to compel him to vacate the position because you are now the new
appointee.
Q: So again, how do you distinguish special civil action of quo warranto from the special civil action of mandamus:
1. Quo Warranto is the remedy to the office and to oust the holder from its enjoyment. On the other hand, mandamus
tries to clear duties. It is not a remedy to disputed titles;
2. when there is usurpation or intrusion to an office, Quo Warranto is the proper remedy but where the defendant without
claiming any right from office excludes the petition therefrom, the remedy is Mandamus. (Lota vs. CA, June 30, 1961)
Another thing that we have to remember is that there is quo warranto under the Rules of Court. Meron ding quo warranto
under the Election Code. Under the election code, it is only 10 days eh. Within 10 days from the time the public official is
proclaimed.
Q: There are two possible actions that you can file against him: election protest and the other one is quo warranto. Therefore
the question is: Insofar as elective positions are concerned, what is the difference between a quo warranto and election protest?
1. When somebody is proclaimed and you would like to file an action for quo warranto, what will be your grounds against a
proclaimed or elected candidate? Ineligibility for the position, or disloyalty to the government. But the most common is
ineligibility. For example, you are proclaimed elected yun pala di ka Filipino citizen. Just like in the case of Gov. Frivaldo
because it turned out that he is not a Filipino citizen. So he is ousted, quo warranto yan eh, he is not qualified pala to run.
That is the ground for quo warranto.
How about election protest? What is the ground? The dispute refers to the counting of votes, conduct of election,
misappreciation of ballots, vote buying, terrorism. You are questioning the manner or irregularities in the conduct of the
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election. In quo warranto, you are not questioning the conduct of the election but you are not qualified to run in the first
place. And both election protest and quo warranto must be filed within 10 days from the date of the promulgation.
(Gregorio vs. De Jesus, 65 Phil. 332)
2. In quo warranto, if for example, the elected candidate turned out to be ineligible, you will be declared as ousted or
disqualified. Who will take the place? The second placer? No, the second placer doesn’t take the place of the ineligible
winner because the second placer was not elected by the people. Sino ang mag- takeover…yung nag-file? No…di ka
man din elected. So, sino? Yung Vice-Mayor will now become the Mayor.
On the other hand, in election protest, the person who filed the protest is the protestant and the one who was elected
is the protestee. So, if the protestant wins in the protest, the protestee is ousted and the protestant takes over. (Luison vs.
Garcia, 55 O.G. 10252)
Q: Now, the third point. How do you distinguish a quo warranto as to an elective office form quo warranto as to an appointive
office?
1. In elective position, What is the issue? The issue is ineligibility of the candidate elected. While in appointive office,
the issue is the legality of appointment.
2. Second, we said in quo warranto that if the candidate-elect is found to be ineligible the court cannot place the
candidate occupying the second place in the office because the elective offices are deternined by prerogative votes.
On the other hand, when it comes to quo warranto as to an appointive office, the court can determine who was legally
appointed and can declare who is entitled to occupy the office. The person who filed could be and he will be declared
as the one rightfully entitled to occupy the office.
3. Where filed? Generally, courts in case of appointive office, or Civil Service Commission. Kung elective, well, it could
be in the proper electoral tribunal or COMELEC or RTC. When it comes to municipal officials - RTC. That is the
proper court.
4. When filed? In appointive - one (1) year. In elective – ten (10) days from the date of promulgation.
Rule 67
EXPROPRIATION
Section 1. The complaint — The right of eminent domain shall be exercised by the filing of a verified
complaint which shall state with certainty the right and purpose of expropriation, describe the real or
personal property sought to be expropriated, and 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. 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. (1a)
An action for expropriation is an exercise of the State of its one of the inherent powers: right of eminent domain.
Q: So how do you define expropriation?

A: It is the power of the sovereign state to take or authorize the taking of any property within its jurisdiction for public use
without the owner’s consent. (18 Am. Jur. 631) If the owner consents, there is no need of filing the case.
The normal cause of eminent domain is that the government will take your property because it is for public use and the owner
ayaw ibenta. Or, he is willing to sell but ang kanyang selling price masyadong mataas and the government does not agree with that
price. So the government has to file an action for expropriation.
Normally, it is a real action because what is involved is a real property. The venue is the place where the property is located or
situated.
Q: Now, what are the limitations in the exercise of eminent domain?

A: The following are the limitations:
1. Exercised only by the State or its entities authorized by law.

Actually, the inherent power belongs to the national government. Not to the local government.
Q: Does the City of Davao has the power of eminent domain?
A: Yes, because of its charter.
Q: How about other cities?
A: Yes if their charter allows it. Provinces under the local Government Code but it is a delegated power. They
derive their power from the law. Whereas, the Republic has the inherent power.
The power of eminent domain will be exercised only by the state or by such entities as may be deemed expressly
authorized by law.
2. Just compensation must be paid to the property owner. You cannot just confiscate it kung walang bayad.
3. In the exercise of the power, due process of law must be observed.

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Q: What do you mean by that?
A: You must file a complaint in court, the other party is given the right to file his answer, to oppose, in determining
what is the price. You will be given the right to present evidence. Basta due process will be observed.
4. Only as much property will be taken as necessary for the legitimate purpose of expropriation.
For example, the government needs a strip of land to construct a road traversing your property, kalsada ba.
Maybe two lanes, and your property has an area of 20 hectares.
Q: Should the government expropriate the entire 20 hectares?

A: No. That is too much. We only expropriate yung kailangan mo lang. Not the entire property. That is another
limitation. You only expropriate so much as necessary for the purpose of the public use intended.
Q: What kind of property to be expropriated?

A: While we heard the word expropriation and eminent domain what comes into your mind automatically is lupa eh, land. That
is correct. But actually there is nothing in the law which says that expropriation is limited to real property. You look at Sec. 1.
Section 1 says : the right of eminent domain shall be exercised by the filing of verified complaint which states with certainty the right
and purpose of expropriation, described the real or personal property sought to be expropriated.
Q: Can you file for expropriation personal property?

A: Yes.
Q: So what kind of property can be expropriated?

A: Any kind of property, real, personal, tangible, intangible except, money. Di pwede i-expropriate ang kwarta! Because if the
government will expropriate money, the government will also pay you with money. Anong klaseng sytema yun? Nagsaulian lang
kayo: I will expropriate your bank deposit of P10 million and then you will determine just compensation… P10 million din! So yan,
hindi pwede i-expropriate. Every property is subject to expropriation except money. Alright.
Q: And the next is you file the complaint, anong nakalagay sa complaint mo?
A: The basic allegations are there in Section 1. The complaint must state in certainty the right and purpose of expropriation
kung para saan yan. And take note ha, the complaint must be verified. It must describe the real or personal property sought to be
expropriated.
Q: Who should be joined as defendants?

A: All persons owning or claiming to own or interest on the property sought to condemned showing the separate interest of
each defendant. So, if the property is under co-ownership. All the co-owners will be deemed as defendants. And to be safe, if you
have an interest in the property.
Q: Are we referring only to the may-ari? To the registered owner?

A: No. The SC said, all persons having an interest in the property would refer to the mortgagee, bacause if the property is
going to be expropriated. Kawawa yung mortgagee. Mawawala na yung mortgage; a lessee, because if it is going to be
expropriated, the lease will be terminated automatically. The government will take-over. This should be included, if there is
payment of just compensation, babayaran rin sila for the disturbance of their right. The lessee has to be paid for whatever the
damage or indemnity he is entitled That is in the recent case of:
DE KNECHT VS. CA
290 SCRA 223, May 20, 1998
ISSUE: Who are those persons having a lawful interest in the property to be condemned or expropriated?
HELD: “The defendants in an expropriation case are not limited to the owners of the property condemned. They
include all other persons owning, occupying or claiming to own the property. When a parcel of land is taken by
eminent domain, the owner of the fee is not necessarily the only person who is entitled to compensation. In the
American jurisdiction, the term "owner" when employed in statutes relating to eminent domain to designate the
persons who are to be made parties to the proceeding, refers, as is the rule in respect of those entitled to
compensation, to all those who have lawful interest in the property to be condemned, including a mortgagee, a lessee
and a vendee in possession under an executory contract. Every person having an estate or interest at law or in equity
in the land taken is entitled to share in the award. If a person claiming an interest in the land sought to be condemned
is not made a party, he is given the right to intervene and lay claim to the compensation.”
Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary — Upon the
filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall
have the right to take or enter upon the possession of the real property involved if he deposits with the
authorized government depositary an amount equivalent to the assessed value of the property for
purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government
bank of the Republic of the Philippines payable on demand to the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court.
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After such deposit is made the court shall order the sheriff or other proper officer to forthwith place
the plaintiff in possession of the property involved and promptly submit a report thereof to the court with
service of copies to the parties. (2a)
For example, the government needs a portion of your land for the purpose of opening a street. What will the government do?
The government files an expropriation case against you. Of course, you can file your answer if you oppose. There will be trial,
decision. We will wait for the decision to become final. If you lose, you can appeal. Then we will wait for the decision of the CA. So
while we are going to these stages, when will the final judgment come? Maybe 2 years pa. Matagal pa.
Q: Now, am I trying to say since there is still no judgment or if there is a judgment we have to wait for its finality, the
government cannot proceed with the project?
A: Hinde. Under Section 2, if the government deposits with the depositary bank, normally the LandBank, an amount equivalent
to the assessed value of the property (usually seen in the tax declaration), the government can file a motion to take over the
property immediately while the case is still pending.
So you cannot paralyze a government project by resisting this. They can take over. That is the only condition – the deposit.
The money which the plaintiff deposits is also known as Preliminary Deposit. That is not really determinative of awardship of the
value. Parang kwan lang yan e, estimate ba. Assessed value man lang. Hindi man market value.
Q: What is the purpose of preliminary deposit:

A: There are two (2) possible purposes:
1. If the government wins the case and the amount of just compensation is now fixed by the court, the deposit is parang
down payment na no? So the government will just raise the money to fill the balance. Yung deposit, nakareserba na
sa iyo yun e. In short, it is an advance deposit for just compensation; and
2. If the government lose the case and it has already explored your land, according to the SC: you are entitled to claim
for damages for the damage sustained by your property because of the entry of the government and that the money
deposited is already an advance deposit by the government to answer for the damages. (Republic vs. Baylosis, Sept.
30, 1960)
Sec. 3. Defenses and objections. — If a defendant has no objection or defense to the action or the
taking of his property, he may file and serve a notice of appearance and a manifestation to that effect,
specifically designating or identifying the property in which he claims to be interested, within the time
stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.
(first paragraph)
So you are summoned. Suppose wala kang objection; wala kang defense? Well, you can file a notice of appearance and just
manifest: “I am not objecting to the right of the government to expropriate my property.”
Section 3 second paragraph - If a defendant has any objection to the filing of or the allegations in the
complaint, or any objection or defense to the taking of his property, he shall serve his answer within the
time stated in the summons. The answer shall specifically designate or identify the property in which he
claims to have an interest, state the nature and extent of the interest claimed, and adduce all his
objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party
complaint shall be alleged or allowed in the answer or any subsequent pleading.
Now, if you resist, you file an answer outlining your objections or defenses to the taking of your property. And the new rule is:
no counterclaims are allowed; no cross-claims are allowed; no third-party claims shall be alleged in the answer or any subsequent
pleadings. Ayan! So it is only complaint and answer.
Section 3 last paragraph - A defendant waives all defenses and objections not so alleged but the
court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10)
days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a
defendant has previously appeared or answered, he may present evidence as to the amount of the
compensation to be paid for his property, and he may share in the distribution of the award. (n)
OK. Just like in Ordinary Civil Actions, defenses and objections not alleged in the answer are waived. Although in the interest
of justice, the court may allow to amend your answer within 10 days from filing thereof.
But whether you file an answer or you do not file an answer, you can participate in determining on how much just
compensation you are entitled. That is another story eh. Maybe you have no defense to the expropriation but you may dispute the
amount that they appropriate for you.
Sec. 4. Order of expropriation — If the objections to and the defenses against the right of the plaintiff
to expropriate the property are overruled, or when no party appears to defend as required by this Rule,
the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the
property sought to be expropriated, 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 taking of the property or the filing of
the complaint, whichever came first.
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.
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After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the
proceeding except on such terms as the court deems just and equitable. (4a)
Q: What happens if the defendant will not file an answer? Parang default no? Or what happens if he files an answer but his
objections and defenses are overruled?
A: The court will issue what is known as Order of Expropriation declaring that the plaintiff has a lawful right to take the property
sought to be expropriated, for the public use or purpose described in the complaint. And from that moment, your property is
deemed automatically expropriated. And that is the end of Part 1 of the case. And now, you will enter Part 2.
Q: Ano man yang Part 2?

A: We will now determine how much you are entitled. Yan na ang Second Part - payment of just compensation.
Q: But suppose you are declared in default, are you still entitled to prove that you are entitled to this amount as just
compensation?
A: Ah Yes, because you are only declared in default sa first part lang. But you are not declared in default in the part 2.
Huwag mong sabihing if you are in default because you did not file an answer, your property will be expropriated and you will
not get anything? There is something wrong there! Babayaran ka pa rin! Even if you will not file an answer, babayaran ka. And if
you say “ito ang dapat!”, meron kang personality. You only have no personality in Part 1.
Q: When you receive the order of expropriation (Part 1), can you appeal from the order? Is the order of expropriation final or
interlocutory? Because if you look at it, parang interlocutory eh because after issuance of such order, there will still be hearing for
just compensation. And the general rule is, an interlocutory order cannot be appealed until everything is finished.
A: But look at the law. Second paragraph, “A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby.” So the order of expropriation is a final order. You can appeal.
And when you appeal, what will happen to the case? Tuloy! for the purpose of determining how much you are going to receive.
And after hearing the court will say, “you are entitled to receive so much for your property.” But you are not satisfied. Appeal na pud
ka. Pwede ba yan? Answer: Yes. You can appeal for the first order, you can also appeal for the second order.
So, how many appeals do you have? There are two. This is a perfect example of a civil action wherein multiple appeals are
allowed. Remember?
Second paragraph is not present in the 1964 Rules but it is recognized as an instance were there could be a second appeal as
explained in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA (1989)

180 SCRA 576
HELD: There are two (2) stages in every action for expropriation:
1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its
exercise in the context and facts involving the suit. It ends with the order of dismissal or order of expropriation.
Either one is a final order.
If it is a dismissal order, it finally disposes of the action and leaves nothing more to be done by the court in
the merits. So 100% tapos na ang case. The government may now appeal.
If it is an order of expropriation, thereafter objections to the exercise of right to expropriate or the propriety
thereof, shall be filed. From the moment the court will say your property will be expropriated, that is now the
settlement of the right of the government. It is a final statement of the right of the government. So it is a final order
which finally disposes of the first stage.
2. Second stage is the determination by the court of just compensation of the property sought to be taken. The
order of fixing the just compensation would be final too. It could finally dispose of the second stage of the suit and
leave nothing more to be done by the court regarding the issue of just compensation.
Therefore, the SC concluded: in actions of eminent domain, two appeals are allowed. Yan!
Now, when you say just compensation or the value of the property, what do you mean by value of the property? Value of the
property when the case was filed? Or the value of the property when the property was taken by the government?
Normally sabay yan when the government files the complaint and they ask for preliminary deposit. I don’t think the value of the
property will change tremendously in one or two months.
But there are instances na malayo ang deperensya when the property was taken ahead of the filing of the case. And that
happened several times. I’ve seen it happened here in Davao, near Dumoy. Somebody owns a land there near the highway. Nung
sinukat nya, his property is part of the highway pala which is also part of his title.
Obviously, when the government built the road, the government did not know that they are encroaching a private property. And
the owner did not realize it. And I think the taking was as early as 1920 pa. And he only realize it in 1970.
Q: Suppose the government nagkamali dito, filed an expropriation to legalize the taking of the property 80 years ago. Ano
ngayon ang just compensation? Ang presyo nung 1920? Or the value as of year 2000? Malaking deperensya yan. Maybe at that
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time, one square meter is only 10 centavos. Maybe now, it is worth hundreds of pesos. Of course if you are the owner, mas gusto
mo yung ngayon because you are only filing the case now.
A: Look at the first paragraph of Section 4: “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.” Ayun! Whichever came first. If the filing was ahead of the taking, the
value is as of the time of filing. But if the property was taken as early as 1920 and the government is filing the case for the first time
now to correct its mistake, they will pay you based the price in 1920.
Actually, this provision is just a clarification e. Before, there are confusions in the jurisprudence. Ano ba talaga ang value?
Under the 64 Rules, the value at the time of filing. But there were some SC decisions saying that it would be too unfair because
when it was taken, the property was practically worthless. But now it’s valuable. But how come it become valuable? Precisely
because may kalsada na. If the government did not enter to put up a road, walang value. So your property was enhanced by the
taking.
So there were some decided cases which the SC ruled that the value at the time of taking, among which were the cases of:
PROVINCIAL GOVERNMENT OF RIZAL vs. DE ARAULLO 58 Phil 308 (1933)

REPUBLIC vs. LARA 96 Phil 170 (1954)
ALFONSO vs. PASAY CITY 106 Phil 107 (1960)
MUNICIPALITY OF LA CARLITO vs. SPOUSES BALTAZAR 45 SCRA 235 (1972)
And in order to clarify this, nilagay nila under the new rules: “as of the date of the taking of the property or the filing of the
complaint, whichever came first.”
Q: Now, what is the procedure for the determination of just compensation?

A: The court has to appoint commissioner or commissioners not more than 3 to guide and help the court in determining how
much is the amount.
So each party will go to the commissioner to present their evidence for them to study. It’s good to appoint dito yung mga
realtors, assessors or brokers. These are the people who are well-versed on the value of property. We will have to apply the
provisions of Rule 32. Ano man yang Rule 32? Trial by Commissioners. This is a perfect example of trial by commissioners.
Sec. 5. Ascertainment of compensation — Upon the rendition of the order of expropriation, the court
shall appoint not more than three (3) competent and disinterested persons as commissioners to
ascertain and report to the court the just compensation for the property sought to be taken. The order of
appointment shall designate the time and place of the first session of the hearing to be held by the
commissioners and specify the time within which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any of the
commissioners shall be filed with the court within ten (10) days from service, and shall be resolved
within thirty (30) days after all the commissioners shall have received copies of the objections. (5a)
Ok. Not more than three. The court will appoint this committee. If you object to the appointment of any of the commissioners,
you may do so.
Sec. 6. Proceedings by commissioners — Before entering upon the performance of their duties, 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. Evidence may
be introduced by either party before the commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the parties consent to the contrary, 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. The commissioners shall 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. But 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. (6a)
Sec. 7. Report by commissioners and judgment thereupon — The court may order the
commissioners to report when any particular portion of the real estate shall have been passed upon by
them, and may render judgment upon such partial report, and 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. The commissioners shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall not be effectual until the court shall have accepted
their report and rendered judgment in accordance with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be filed within sixty (60) days from the date the
commissioners were notified of their appointment, which time may be extended in the discretion of the
court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested
parties, with notice that they are allowed ten (10) days within which to file objections to the findings of
the report, if they so desire. (7a)
Sec. 8. Action upon commissioners’ report — Upon the expiration of the period of ten (10) days
referred to in the preceding section, or even before the expiration of such period but after all the
interested parties have filed their objections to the report or their statement of agreement therewith, the
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court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause
shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the
report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may
make such order or render such judgment as shall secure to the plaintiff the property essential to the
exercise of his right of expropriation, and to the defendant just compensation for the property so taken.
(8a)
So same procedure in Trial by Commissioner. The commissioner will report and they will give you copy. If you do not believe in
their report, you object. And the court may approve, disapprove or modify it. And once approved, the findings of the commissioner
is automatically the findings of the court.
Let’s go to a leading constitutional case which is also relevant to the appointment of the commissioners. I am referring to the
case of
EPZA VS. DULAY (1987)

149 SCRA 305
FACTS: During the Martial Law, President Marcos issued a lot of Presidential Decrees regarding valuation of
property. And in these decrees, he resorted to shortcuts on how to determine the market value ng property mo.
Actually, the market value in a tax declaration has 2 columns. In the first column is the value as declared by the
owner. And in the right column is as determined by the assessor.
Now, Marcos issued these decrees among which were PD’s 79, 464, 794 and 1533. Ito sabi niya: In case
of expropriation, in determining the market value of the property, the market value will be the market value as
declared by the owner himself of as found by the assessor, whichever is lower. Its either the finding of the
government through the assessor or the owner's declaration, meaning, if you under declare your property
you are in estoppel, or if it is the assessor's which has the lower findings, then they will tell the owner: "why
did you not appeal?" You file your appeal in the Board of Assessors. You are also under estoppel. So either
way, yari ka!
HELD: All these decrees are unconstitutional because the determination of just compensation is a
judicial function. You cannot deprive the court of its power to determine the just compensation. It is a judicial
function which cannot be encroached upon by the legislative or executive branch of the government. That’s
why this is also a leading case in political law.
“The method of ascertaining just compensation under the aforecited decrees constitutes impermissible
encroachment on judicial prerogatives. It tends to render this Court inutile in a matter which under the
Constitution is reserved to it for final determination. the court has only to choose between the valuation of
the owner and that of the assessor, and its choice is always limited to the lower of the two. The court cannot
exercise its discretion or independence in determining what is just or fair. Even a grade school pupil could
substitute for the judge insofar as the determination of constitutional just compensation is concerned…”
“The valuation in the decree may only serve as a guiding principle or one of the factors in determining
just compensation but it may not substitute the court's own judgment as to what amount should be awarded
and how to arrive at such amount.”
[And what do you mean by just compensation?] “Just compensation means the value of the property at the time
of the taking. It means a fair and full equivalent for the loss sustained. All the facts as to the condition of the property
and its surroundings, its improvements and capabilities, should be considered.”
“Various factors can come into play in the valuation of specific properties singled out for expropriation. The values
given by provincial assessors are usually uniform for very wide areas covering several barrios or even an entire
town…” (Dean I: I think so.)
“To say that the owners are estopped to question the valuations made by assessors since they had the
opportunity to protest is illusory. The overwhelming mass of land owners accept unquestioningly what is found in the
tax declarations prepared by local assessors or municipal clerks for them. They do not even look at, much less
analyze, the statements. The idea of expropriation simply never occurs until a demand is made or a case filed by an
agency authorized to do so.”
“It is violative of due process to deny to the owner the opportunity to prove that the valuation in the tax documents
is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to allow the haphazard work of a minor
bureaucrat or clerk to absolutely prevail over the judgment of a court…”
“The determination of "just compensation" in eminent domain cases is a judicial function. The executive
department or the legislature may make the initial determinations but when a party claims a violation of the guarantee
in the Bill of Rights that private property may not be taken for public use without just compensation, no statute,
decree, or executive order can mandate that its own determination shall prevail over the court's findings. Much less
can the courts be precluded from looking into the "just-ness" of the decreed compensation.”
So Sections 5, 6, 7, 8 are all intact. Yan!
MERALCO VS. PINEDA

206 SCRA 196
FACTS: After the issuance of the order of expropriation, the court did not anymore appoint commissioners saying
that even if there are commissioners, the report is only recommendatory. The court will still have the final say. So the
appointment of the commissioners can be dispensed with.
ISSUE: May the trial court dispense with the appointment of the commissioners in expropriation proceedings?
HELD: No. The appointment of the commissioners cannot be dispensed with. This is a mandatory procedure.
This is a substantive right of a party. While it is true that the court has the final say, the court can do that only if there
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is a showing that the report of the commissioners is 100% wrong. It cannot just disregard the report. The aid of the
commissioners is a substantial right that may not be done away capriciously or for no reason at all.
Sec. 9. Uncertain ownership; conflicting claims — If the ownership of the property taken is uncertain,
or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as
compensation for the property to be paid to the court for the benefit of the person adjudged in the same
proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums
awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it
for the public use or purpose if entry has already been made. (9a)
So, there is a conflict or claims in the property subject of expropriation. So what will happen now? The court will deposit the
money and after the conflict is resolved, the money will be given to the right owner.
Sec. 10. Rights of plaintiff after judgment and payment — 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 after tender to him of the amount so fixed and payment of the costs, the
plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public
use or purpose defined in the judgment, or to retain it should he have taken immediate possession
thereof under the provisions of section 2 hereof. 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. (10a)
Q: Assuming the government wins the case, when does the plaintiff become the owner of the property?
A: Usually, upon payment of just compensation. The title to the property will be transferred to the name of the plaintiff. From
that moment, the government has now the right to possess if it does not earlier entered, because in Section 2 it can take the
property earlier upon deposit of the preliminary deposit.
I noticed that one amendment introduced by the 1997 Rules is you are going to pay the just compensation with legal interest
thereon from the date of the taking of the property…because you might be taking the property as early as 1950 and then case is
filed now and the value of just compensation will be based on the time of the taking. So parang unfair naman no? Legal interest
would make it fair enough.
There was a case here in Davao were that statement came eh. ‘Yang whole PTA and some property of the late Monteverde.
The Monterverdes filed a case to recover the property which has been named in the name of the City I think as early as 1930 or
earlier pa.
The City won in the RTC of Davao. In the CA it was reversed and the Monteverdes were declared as owners. Since the case is
sensitive, the lawyer of the City which is the City Legal Office admits that it needs also the help of some people. The Office of the
City Mayor called mga 3-5 lawyers to review the case and help the City in preparing the appeal to the SC. So there are legal
consultants there and Batacan is the recent one. We review all the requirements, circulars, para there is no way for the case to be
dismissed simply because of mere technicalities. That was our function more or less.
But this was asked: When did the government take over the property? The government has been in possession already for the
past 70 years. Suppose the worst scenario, the SC will affirm the CA, although I believe it will not and that’s my personal opinion.
But assuming it will, the family will get back the PTA. Kalaki gud nyan. It’s very valuable. But the government will say: we will
expropriate even if we lose. Anyway we are in possession, we will still expropriate. It will still end up as government property.
But the question is asked: Pila man ang bayaran? Of course sabi ng City Legal Office: the value as of the time of filing of the
complaint. I said: I don’t think so because under the new Rules, it is the value at the time of the taking or at the time of the filing of
the complaint whichever came first. Kailan na-take over? 1930. Ayun! What is the value? The ascertained value as of 1930. Siguro
sentabos pa yan nung araw eh. The most you will pay is legal interest.
So based on the assessment of the City, come what may the City still wins maski anong gawin mo. The government has
options all along.
Sec. 11. Entry not delayed by appeal; effect of reversal — The right of the plaintiff to enter upon the
property of the defendant and appropriate the same for public use or purpose shall not be delayed by an
appeal from the judgment. But if the appellate court determines that plaintiff has no right of
expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the
restoration to the defendant of the possession of the property, and to determine the damages which the
defendant sustained and may recover by reason of the possession taken by the plaintiff. (11a)
Assuming the government has not entered yet and wins the case then nag-appeal ka. Immediately executory! Even if the
judgment is not yet final, you appeal will not delay the enforcement of the judgment.
On the other hand the government will lose the appeal, bayad! The government will pay you damages also. That’s why meron
ng preliminary deposit.
Sec. 12. Costs, by whom paid — The fees of the commissioners shall be taxed as a part of the costs
of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the
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plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which
event the costs of the appeal shall be paid by the owner. (12a)
Sec. 13. Recording judgment, and its effect — The judgment entered in expropriation proceedings
shall state definitely, by an adequate description, the particular property or interest therein expropriated,
and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated,
a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the
property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described
for such public use or purpose. (13a)
Sec. 14. Power of guardian in such proceedings — The guardian or guardian ad litem of a minor
or of a person judicially declared to be incompetent may, with the approval of the court first had, do
and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public
use or purpose of property belonging to such minor or person judicially declared to be incompetent,
which such minor or person judicially declared to be incompetent could do in such proceedings if he
were of age or competent. (14a)
Q: A property has been expropriated for public purpose and the government won. Suppose someday the government
abandons the public use, will the ownership go back to the original owner or will it still remain as government property?
A: In an old case sabi ng SC: depende. If the judgement says that if the public purpose is later on abandoned and there would
be reversion, then the property will go back to its original owners. But if the judgment is silent, the government continues to own the
property. There will be no reversion. (Fery vs. Mun. of Cabanatuan, 42 Phil. 28)
And this ruling always remind me of what happened here in Davao. It’s not really expropriation but it is similar that the original
owner can get back the property from the government.
I am referring to land occupied by the Sentral Bank (Uy! Du-ol ila Maya ug Chelin!). Dyan banda sa Tomas Claudio, Jacinto.
That was owned by the old Province of Davao. Before the division of the Province of Davao into 3, the Province owns several
properties.
Before the Province acquired that property, who was the owner? Again, the so-called Monteverdes. Kaya nga the children, the
well-known Mrs. Garcia, the mother of Congressman Garcia and the Tiongco family, mga descendants man yan ba.
That property was donated by the Tiongco family to the Province to be used as court and jail. However when the Province of
Davao was divided into 3, they have to move outside of the City because they have their own capital: Digos, Tagum, Mati. What did
they do with their property in Davao City? They sold it. Kaya nga itong Sanggunian was sold in the City and the City wanted to buy
that property. But the City was outweighted by the Sentral Bank.
I remember there was a sort of resentment why it was sold to the Sentral Bank rather than the City at that time. What was the
issue? The heirs of the original owner said based on what they recollect, when that property was donated to the Province of Davao,
in the deed of donation, there was a condition that if the property is no longer needed for court and jail, isauli! So they wanted to
recover, revoke the donation. The trouble is, where is t he deed of donation? Nobody has a copy! Because you have to invoke it.
Yun ang nakalagay eh. The Register of Deeds cannot find the copy.
What happened to the original documents, to the original archives of the Province? Actually the documents were also divided
into 3. Assuming it is still in the archives of the original Province, ay sus! Kahirap! They could not find it anymore. They were trying
to look out the notarial books of notaries public going back in 1930 to find out who notarized it. Sus! Kahirap. That is why nothing
came out of it.
Actually, if you and your family can recover the property, you’ll become billionaire considering the current value of real estates
in that area.
That’s why I was telling some of them, madali man lang yan ba. Because right now you do not know whether the document
exists or does not exist. Maybe for all you know the deed of donation is completely lost. But maybe it is intact or nobody is looking
for it. Sinabi nila; we look, we look, we look. How did you look? We went to ask somebody to look. Yun lang? Ah walang mangyari
sa inyo nyan! You do not know how to look for the documents eh.
The first thing, did you go to Zamboanga? Because at that time, the Register of Deeds for the whole Mindanao was in
Zamboanga. So nung City na ang Davao, the documents were transferred there. May mga na-cancel, so nandu’n yun! Why don’t
you go there? Of course archives na yan. You are looking for documents which are almost 100 years old. Now you need somebody
to look for that. Somebody who knows.
Sabi ko, if I were you, I will give the Registrar of Deeds P50,000 to look for it. If you can locate it, another P100,000! Tingnan
natin kung hindi maglabas yan!
Now, because na-hati-hati yung documents noon eh? You go to the 3 provinces. You go there. You invest: I’m giving you so
much to look. If you recover it, I’ll double it. You invest half a million. But if you recover it, that is worth billions! My golly! Ano man
lang yang half million as compared to the value of the land?! That is the way to move. Hindi pwedeng laway lang yan. Hindi pwede
yan. Somebody has to invest money.
Ok. Let’s go to the last point in expropriation.
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MUNICIPALITY OF PARAÑAQUE vs. V.M. REALTY CORP.
July 20, 1998 (292 SCRA 678)
FACTS: The government filed an expropriation case and by reason of some technicalities the case was
dismissed and the judgment became final. The expropriation is not for public purpose.
After 20 years, the government would like to file another case because of the changed conditions. Sabi ng
defendant, “ah hindi na pwede. Wala na yan! Res judicata!”
ISSUE: Is the principle of res judicata strictly applies to expropriation cases?
HELD: NO. the principle of res judicata does not strictly apply against the State in eminent domain because you
cannot curtail an inherent power of the State.
“…the principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the
right of the State or its agent to expropriate private property… The scope of eminent domain is plenary and, like police
power, can reach every form of property which the State might need for public use… Thus, the State or its authorized
agent cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal
requirement.”
Rule 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Fundamentals…
Q: Can there be a loan without a mortgage? Yes.

Q: Can there be a mortgage without a loan? No because the mortgage is an accessory contract and the loan is the
principal contract. There is nothing to secure if there is no principal obligation.
Q: Suppose somebody borrows money from me, secured by a mortgage and the obligation is not paid, what are the remedies
against the debtor-mortgagor?
A: There are two. First, I can enforce my right against the accessory contract by foreclosing mortgage. Second, I can waive the
mortgage and file an action to collect the principal contract. So the choice is either one of the two but never both.
DANAO vs. COURT OF APPEALS
September 30, 1987
FACTS: The bank file a case to collect a loan. After that, it sought to foreclose the mortgage.
HELD: There are 2 possible remedies, one or the other. It may pursue either remedies but not both.
“Evidently, the prior recourse of the creditor bank in filing a civil action against the Danao spouses and
subsequently resorting to the complaint of foreclosure proceedings, are not only a demonstration of the
prohibited splitting up of a cause of action but also of the resulting vexation and oppression to the debtor.”
Now, we are interested here in the second type of remedy – foreclosure of mortgage.
But in our laws there are 2 types of foreclosure of mortgage:
1. Judicial Foreclosure – governed by Rule 68. You file your case in the court;
2. Extra-Judicial Foreclosure - there is no court case here, but there is a procedure for foreclosing a
mortgage governed by Act 3135. Normally, creditor banks apply this type.
Q: Does every mortgagee have the choice of resorting between Judicial and Extra-Judicial foreclosure?
A: NO. The option to resort to extra-judicial foreclosure must be clearly provided for in the contract. The mortgage contract
must contain a Special Power of Attorney constituting the mortgagee as the attorney-in-fact of the mortgagor to resort to extra-
judicial foreclosure. So kung wala, then the mortgagee has only one option – judicial foreclosure. Yaan!
Now, we are not interested in Exta-Judicial foreclosure because that is governed by another law. We are interested in judicial
foreclosure because it is governed by Rule 68.
Section 1. Complaint in action for foreclosure — In an action for the foreclosure of a mortgage or
other encumbrance upon real estate, the complaint shall set forth the date and due execution of the
mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a
description of the mortgaged property; a statement of the date of the note or other documentary
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evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the
names and residences of all persons having or claiming an interest in the property subordinate in right to
that of the holder of the mortgage, all of whom shall be made defendants in the action. (1a)
Q: Who are the defendants?

A: The following:
1. Mortgage debtor – the one who borrowed money and mortgage his property; or
2. Mortgagor or owner if the debtor is another person. Pwede ba yan? Yes. I can mortgage my property to
accommodate your loan. So l am the mortgagor, you are the debtor.
Q: What happens if you file a case against the debtor and you will not include the mortgagor as defendant?
A: Your case will be dismissed. You filed the case without the real party in interest. You are foreclosing the mortgage,
you are not collecting the loan. Therefore the case should be directed against the owner of the property – the
party in the mortgage contract, not the party in the loan.
3. All person having or claiming an interest in the premises subordinate in the right to that of the holder of the mortgage.
Q: Example, under the law on mortgage, is it possible for a property mortgaged to be mortgaged again for the second time?
A: Yes that’s possible. Of course, under the law on land titles, the second mortgagee has a right subordinate to that of the first
mortgagee.
Example, Jaycee borrowed money from Myra and mortgaged his property to secure the loan, so una si Myra. Then, Jaycee
borrowed money from Grace and mortgaged the same property, with the consent of everybody, so the property is mortgaged to
Grace. So dalawa na. Suppose Nanding filed a case against Jaycee and secured a writ of preliminary attachment and Nanding
attached the same property already mortgaged to Myra and Grace. So the attachment of Nanding is recorded, he is now the third
lien holder. Tatlo na sila. We will assume that wala nang ibang property si Jaycee which Nanding can run against. Now suppose,
the first mortgagee Myra, would like to file an action for foreclosure of mortgage against Jayce.
Q: In the above case, who are the defendants?

A: Of course Jaycee, the mortgage debtor. And under Section 1, you must also include Grace, the second mortgagee; also
Nanding, the attaching creditor of Jaycee, as defendants. So tatlo sila. That’s why the law says you must also include as
defendants all those who have or claim an interest in the property, subordinate in right to that of the mortgagee who is now
foreclosing the mortgage.
Q: Why do you have to include them when they are not the owners of the property, it is Jaycee who mortgaged the property to
you, not Grace or Nanding?
A: The reason is, the purpose of the mortgage is not only to cut-off the rights of Myra over the property, but also to cut-off all
the rights of subsequent lien holders. Take note that Myra has no obligation to respect the rights of Grace and Nanding.
And of course, if Jayce does not care anymore, and we know just like in execution that Grace and Nanding have the right to
pay the mortgage so that their lien will be alive. Otherwise if Myra acquires the property, then all their rights will be gone. That’s why
the purpose of a mortgage is not only to cut-off the rights of the owner over the property mortgaged but of all persons who claim an
interest over the property subordinate in right to the mortgage holder. That’s why they have to be included as defendants.
Q: Suppose you will not include them as defendants. Suppose I will file a case only against Jaycee, the mortgagor, I will not
include Grace and Nanding. Can the action for foreclosure of mortgage proceed? Can it be tried and decided without including
Grace and Nanding as defendants as stated in section 1?
A: You have to go back to the basics on indispensable and necessary parties. If you are an indispensable party, the case
cannot go on without you so the action has to be dismissed. But if you are only necessary, the case can go on without you,
although your rights are to be respected by the parties.
That has already been asked in the Bar. Whether the second or the third mortgagee are considered as indispensable or as
necessary parties. The answer is the case can go on without Grace and Nanding. There could be a judgment against Jaycee, the
original mortgagor/owner. So the rights of the mortgage debtor will be cut-off. But Grace and Nanding still have rights over the
property, their lien still exists. You have cut-off the rights of Jayce but not the right of Grace and Nanding. So what will happen to
you now if Grace and Nanding still have rights over the property? You’ll say that you want to cut them off also. So you better file
another case against them.
In other words, there will be two cases, why not file only one case and include all of them so that you can cut off all the rights of
everybody, and that is the feature of a necessary party -- one who ought to be included as a party in a case if complete relief is to
be accorded between those who are already parties, but if they are excluded, the case can go on and it can be decided without
prejudice to their rights. Thus it will be a double effort, might as well include everybody as stated in Section 1 of Rule 68.
Sec. 2. Judgment on foreclosure for payment or sale — If upon the trial in such action the court shall find the
facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt
or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment
for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period
of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and
that in default of such payment the property shall be sold at public auction to satisfy the judgment. (2a)
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The case will be tried just like any other case. Now, suppose after trial the court finds that the allegations in the complaint are
true, it will now render judgment for the plaintiff, we call that the foreclosure judgment, now what will it say? Of course it will discuss
that there is a valid cause of action, and under Section 2, the foreclosure judgment will now order the defendant, “alright, you pay
everything, you are given one last chance to pay the obligation, interest, charges, etc. within a certain period.” That period
according to Section 2, you are given either 90 days or not more than 120 days. So 3-4 months.
This portion of the decision which says you are given so many days to pay everything is called the “equity of redemption of the
mortgagor”… not right of redemption but equity of redemption. The money will be either paid to the mortgagee or deposited to the
court.
Now, suppose the mortgagor will pay everything within the period? Wala na, goodbye! In other words, the judgment has been
fulfilled, but your property will no longer be sold at public auction, nabayaran mo na eh.
Q: What happens if the period of equity of redemption expires and the mortgagor has not paid everything?
A: Your property will now be sold at public auction. That is what you call the foreclosure sale. That is now the third step. That’s
the one described in Section 3.
Sec. 3. Sale of mortgaged property; effect — When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay the amount of the judgment within the period
specified therein, 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. Such sale
shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof,
and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of redemption
when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to
the possession of the property unless a third party is actually holding the same adversely to the
judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon
motion, from the court which ordered the foreclosure. (3a)
.
So he failed to pay the entire obligation within the equity of redemption. Next step, the plaintiff will file a motion asking the court
to now order the auction sale of the property and the court will now order the sale of the property at public auction, we call that the
foreclosure sale.
Q: What will be the procedure?

A: You follow Rule 39, because according to this provision, the provisions of Rule 39 on sale of property levied on execution, is
also applicable to sale of property foreclosed by virtue of a foreclosure.
Now, after the sale, what happens now? Because there will be bidding again to the public, and the highest bidder will pay, o
bayad ka na. So he is now the purchaser.
But, we will assume, because in most cases, unless someone is really interested in the property, the highest or the lone bidder
will be the mortgagee. He will just bid equal to the amount of the judgment in his favor. So now, just like in Rule 39, there will be the
sheriff’s certificate of sale. Then when you get the sheriff’s certificate of sale, after the foreclosure sale, what happens next? Next
step, you file a motion in court for confirmation of the sale. That is mentioned in Section 3.(read Section 3…ang gaganda pa naman
ng mga mata mo!…)
Now, did you encounter that procedure in Rule 39 that after the auction sale there will be a sheriff’s certificate of sale, after that
is confirmation? Wala man yan ba! In Rule 39, after the sheriff’s certificate of sale is issued, next step is you go to the register of
deeds to register the certificate of sale, doon lang wala na mang motion for confirmation of sale. That is one distinction between
execution sale and foreclosure sale. In execution sale, there is no need of confirming the sale, but in Rule 68 that is required. You
must get an order from the court confirming the sale. And the court will issue an order confirming the sale.
Q: Suppose the period of equity of redemption has expired already. So there was an auction sale. After the auction sale,
nagkapera ang defendant, so he now wants to pay. Is it too late to pay the entire obligation considering the fact that the period of
equity of redemption has already expired, and there has already been a highest bidder?
A: Jurisprudence says pwede pa for as long as there is still no order of confirmation of sale. That’s why this equity of
redemption should be exercised within the period stated in the judgment which shall not be less than 90 or more than 120 days, or
even after that period, but before the sale is confirmed. You can still save your property from being transferred, but once the
confirmation of sale is issued by the court, it shall operate to divest the rights in the property of all the parties in the action and to
vest the rights in the purchaser subject to such rights of redemption as may be allowed by law.
From the moment the court issues the order confirming the sale, the next step is for the purchaser to go to the register of
deeds and to register the sheriff’s certificate of sale in my favor and the order confirming the sale. That is what you call the
Registration of certificate of sale and order confirming the sale. That is the next step.
And once these documents are registered in the register of deeds, the register of deeds will now cancel the title of the
mortgagor and issue a new one in your favor. Now, how come the property is already his, hindi na sa akin? Di ba meron pa akong
one year to redeem? No. As a general rule in foreclosure sale under Rule 68 the mortgagor/defendant has no right of redemption.
What he enjoys only is equity of redemption.
Right of redemption is the right of a party to redeem the property sold at public auction within one year from the date of
registration of the certificate of sale, but that only applies to execution sale and extra-judicial foreclosure of mortgage. But in Rule
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68, the mortgagor has only one right, equity of redemption, kaya yan lang ang last chance mo eh. From the entry of judgment you
must pay everything dahil pag-nabenta na yan at na- confirm, goodbye na…you lose the property. That is the difference.
But how come the law says, “subject to such rights of redemption as may be allowed by law.” What is the explanation here?
You also have the right of redemption under Rule 68 if the law gives you, if the law does not give you, then you have no right of
redemption. And as a general rule, in Rule 68, the law does not give the mortgagor the right to redeem. What the law gives you
only is equity of redemption.
Q: But give an example of a law where even in judicial foreclosure, aside from equity of redemption, the mortgagor has another
right -- right of redemption and equity of redemption. Doble-doble na ba. So he has the right to redeem before the sale and after the
sale meron pa siyang right.
A: That is allowed only under the General Banking Act (RA 337?), when the mortgagee who is foreclosing the property is a
bank or a credit institution (finance companies). If the mortgagee is not covered by that Act, they only have the equity of
redemption, they have no right of redemption.
Q: So you are now the owner, the title is now under your name, but it is the obligation of the mortgagor to vacate because hindi
na siya ang owner, and he has no more right of redemption as a rule. What if he insists on remaining, what will you do now? Are
you obliged to file another action, for say unlawful detainer or forcible entry?
A: It is not necessary because under Section 3, the said purchaser or last redemptioner may secure a writ of possession upon
motion from the court which ordered the foreclosure. Pareho ng execution din. With that, the sheriff will place you in possession, so
that is the next step. Writ of possession, if necessary.
Now let’s proceed to Section 4, how are the proceeds of the auction sale disposed off. Now we will assume that there is a
highest bidder and he paid in cash. It’s similar to writ of execution eh, it’s similar to Rule 39.
Sec. 4. Disposition of proceeds of sale — The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the
same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court,
or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the person entitled to it. (4a)
First we will reimburse the cost of the sale, basta gastos sa sale. The next important is the judgment debt, which includes the
mortgage debt, interest, etc. Kung meron pang natira, the amounts due to junior encumbrances (if there is a second mortgagee) or
yung mga number 2 or number 3 na creditors, bayaran sila. But if there are no junior encumbrances and there’s still cash
remaining, then it will be given to the mortgagor.
Sec. 5. How sale to proceed in case the debt is not all due — If the debt for which the mortgage or
encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the
property has been sold to pay the total amount and the costs due, the sale shall terminate; and
afterwards, as often as more becomes due for principal or interest and other valid charges, the court
may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to
the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall
be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such
rebate is proper. (5a)
(Important) Sec. 6. Deficiency judgment — If upon the sale of any real property as provided in the
next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the
court, upon motion, shall render judgment against the defendant for any such balance for which, by the
record of the case, he may be personally liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff
shall be entitled to execution at such time as the balance remaining becomes due under the terms of the
original contract, which time shall be stated in the judgment. (6a)
Action in pesonam not in rem, because the intention is to bind the judgment debtor.
Now what happens if the loan secured by the mortgage is let’s say worth 4 million pesos, and after the auction sale, the
proceeds amounted only to P 2 million? Under section 6, he will now file a motion in court to render what is known as a deficiency
judgment. No need to file another case, just file a motion with the same court who made the judgment to render a deficiency
judgment. That is the next step, if necessary.
Q: So how do you define a deficiency judgment?

A: It is a judgment rendered by the court upon motion and showing that the proceeds from the sale of the property is not
sufficient for the payment of the judgment debt.
Therefore, it is possible that under Rule 68 there will be two judgments. The first judgment is the foreclosure judgment, the
second is the deficiency judgment.
Q: Distinguish foreclosure judgment from deficiency judgment:

A: The foreclosure judgment is classified as a judgment quasi-in rem. Why? because it is directed against the property itself.
The object of the judgment is a specific property to be sold. Whereas the deficiency judgment is a judgment in personam because it
is directed against the mortgage debtor personally, because the judgment will say “alright, mortgage debtor you are directed to pay
429
the balance.” There is no more mortgage, wala na eh. So how do you enforce that? You follow the rules on Execution. You look for
any other property of the debtor and you levy it under Rule 39, and have it sold again at public auction.
So the rule is a deficiency judgment can be rendered in a foreclosure judgment because of Section 6.
Q: When may a deficiency judgment not be rendered? When is it improper for the court to render a deficiency judgment under
Rule 68?
A: There are three (3) instances:
1. Where the mortgagor mortgaged his property to secure the debt of another without assuming personal liability for
such debt.
Example: You will borrow P 1 million from the bank, then to help you I will mortgage my property. So you are
the borrower not me. Now hindi ka nag-bayad, my property will be foreclosed I will be the defendant. Now after my
property is sold at public auction, meroong deficiency. Can the court render a deficiency judgment? Of course not, I
am not the debtor you better file another case against him because I have not assumed personal liability for the
loan. So I think the best procedure in order not to file another case anymore is to include the debtor, you file a case
against the mortgagor and against the debtor, so in case of a deficiency you can ask for a deficiency judgment
against the debtor.
2. Where the mortgagor is a non resident who failed to submit himself to the jurisdiction of the court, no personal
judgment for deficiency can be rendered against him. This has something to do with summons.
Example, I will mortgage my property to you, then after mortgaging I will migrate to the U.S. permanently. So I
am no longer a resident. Suppose I cannot pay the loan, can you file an action for foreclosure against me? Yes.
Nandito ang lupa, quasi-in rem yan eh. You can resort to service of summons by publication under Rule 14.
Suppose there is a valid judgment but there is a deficiency? Wala yan, kasi the deficiency is in personam eh. You
cannot obtain jurisdiction over my person.
After I was summoned by publication, suppose I filed an answer. Ayun na, I am submitting now my person to
the jurisdiction of the court, then there can already be a deficiency judgment against me; and
3. Where the mortgagor dies after the rendition of the judgment of foreclosure.
The proper procedure is found in special proceedings which will still be taken up by you next semester, you file
a claim against the estate of the deceased in the testate or intestate proceeding, but you cannot ask for a deficiency
judgment.
1. Where the mortgagor is not the debtor, if he does not assume personal liability for such debt.
2. defendant not resident of the Philippines
Sec. 7. Registration — A certified copy of the final order of the court confirming the sale shall be
registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of
the mortgagor shall be cancelled, and a new one issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be
cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief
memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property
is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief
memorandum thereof shall be made by the registrar of deeds on said certificate of title.
If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the
purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate
of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the
purchaser. (n)
If no right of redemption exists, meaning if the mortgagee is not a bank or a credit institution, the certificate of title in
the name of the mortgagor shall be cancelled, wala na yung right of redemption and a new one issued in the name of
the purchaser.
Now suppose the right of redemption exists because the mortgagee is a bank. Read second paragraph.
If there is a right of redemption, you apply Rule 39 let us wait for one year because you can still redeem.
The last paragraph is also the same procedure as in rule 39.
Sec. 8. Applicability of other provisions — The provisions of sections 31, 32 and 34 of Rule 39 shall
be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former
are not inconsistent with or may serve to supplement the provisions of the latter. (8a)
Rule 39, Section 31- Manner of using premises pending redemption.
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Rule 39 ,Section 32- Rents, earnings and income of property ending redemption.
Rule 39, Section 34- Recovery of price if sale not effective; revival of judgment.
Rule 69
PARTITION
Partition is related to co-ownership - when a property is owned in common by two or more persons. The best example here is
inherited property.
Most co-ownership are based on inheritance. The property is left by the parents. The children will inherit the same property in
equal shares so the property will be owned by two or more people, magkapatid no.
Now, we know very well that there is a limit to c o-ownership. A person may not want to own the property with so many people
because most co-owned properties are stagnant. There is no improvement because nobody can move. Marami masyado ang
may-ari, eh. Why will I invest money there hindi man akin lahat. Bawat kilos, dapat lahat ng co owners have to sign. Time will come
when one of the co-owners will say ayoko na (sometimes, nabudlayan na gid ko ‘ya!).
You can actually agree on a partition. I do not have to file a case against you. If we can agree on how to divide, we will just
enter into an agreement --- Deed of Partition. Ang problema, if I want, pero ayaw mo. Pwede na akong mag-file ng kaso sa iyo.
Q: So how do you define partition of real estate?

A: It is a judicial controversy between persons who being co-owners thereof, seek to secure a division for partition for
themselves of the common property giving to each one of them the part corresponding to each.
That is why it is known as accio commune debidendo---division of the community property. The object of the action is to enable
those who own property in common to put an end to the common ownership so as to vest in each a sole estate specific property or
an allotment of land or tenements.
Section 1. Complaint in action for partition of real estate — A person having the right to compel the
partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and
extent of his title and an adequate description of the real estate of which partition is demanded and
joining as defendants all other persons interested in the property. (1a)
Under section 1, who will be named as parties? All co-owners, all persons interested may be joined and this is the perfect
example of indispensable parties as distinguished from necessary parties.
Without naming all of them, even if you just omit one co-owner, the action for partition cannot proceed. All the co-owners must
be named in the action.
Defendants: co owners
Indespansabele that there should be co-owners or coparceners reyes vs cordero 463 phil 368
Civil code provisions
494, 945, 496, 498, 1083, 1084
There will be a trial…. So after the order the parties are allowed to enter into a voluntary partition agreement and the court will
confirm the partition agreement.
Is the order of partiotion appealable??

Yes, because it’s a final order. May include a prayer for accounting
What is the reglementary period for appeal?

30 days from notice of the order. Same in expropriation.
Two stages:
1. Determination whether there is co ownership and the partition is proper. Because it may happen that there is is
co ownership but it is not proper. Order to partition. Parties are given to enter a voluntary partition.
2. Partition done by the parties in the court. Assistance by not more than three commissioners.
Sec. 2. Order for partition, and partition by agreement thereunder — 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. Thereupon the parties may, if they are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the
parties, and 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. (2a)
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)
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Now, an action for partition is similar to an action for eminent domain. There are two stages in eminent domain cases.
Remember?
1. to determine whether the property should be expropriated;
2. to determine the just compensation through the help of commission, assuming that there is an order of expropriation.
Ganoon din ang partition.
DE MESA VS. CA
231 SCRA 773
z
HELD: There are two (2) stages in the special civil action of partition and accounting:
1. determination of whether or not a co-ownership in fact exists and a partition is proper.
Is there a co-ownership? Is partition proper? The court will render a decision. And then, partition is
proper. So according to section 2, after the judgment, the parties will then be obliged to divide. Suppose they
cannot even agree on how to divide, there is no choice but to divide but they cannot agree on the manner of
partition. Alright, we will go to stage two.
2. We will get commissioners to assist the court in determining how to divide. So you apply Sections 3, 4,5, and 6.
Sec. 3. Commissioners to make partition when parties fail to agree — If the parties are unable to
agree upon the partition, the court shall appoint not more than three (3) competent and disinterested
persons as commissioners to make the partition, 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. (3a)
Sec. 4. Oath and duties of commissioners — Before making such 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. In making the partition, the commissioners
shall view and examine the real estate, after due notice to the parties to attend at such view and
examination, and shall 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 shall 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. (4a)
Sec. 5. Assignment or sale of real estate by commissioners — 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, unless 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. (5a)
Example: the property co owned is a house, 3 owners? How do you partion?
The court may order to assign it to one party with the proviso that…sec. 5
st
1 . option. Assign
nd
2 option sell
Is it mandatory??
Yes, pursuant to sec 5
Sec. 6. Report of commissioners; proceedings not binding until confirmed — 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. Upon the filing of such report, the
clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten
(10) days within which to file objections to the findings of the report, if they so desire. 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. (6a)
The Supreme Court said that the second stage commences when the parties are unable to agree upon the partition ordered by
the court. Where partition shall be effected for the parties by the court with the assistance of not more than three commissioners.
So these are again the two stages in partition.
Q: If there are two stages, there are also two judgments or orders. If there are two orders, is the first order (the order of
partition) a final order or interlocutory, to determine whether the first order is appealable?
A: The first order is a final order under Section 2, last paragraph, “A final order decreeing partition and accounting may be
appealed by any party aggrieved thereby.” So, it is also a final order which can be appealed.
432
The second paragraph was not found in the old law but it was laid down by SC decisions. So if there is another order on the
manner of partition under Sections 3,4,5, and 6, that is another final order. So I will appeal again. So anong tawag diyan? A civil
action where multiple are allowed. Just like in expropriation.
Sec. 7. Action of the court upon commissioners’ report — Upon the expiration of the period of ten
(10) days referred to in the preceding section, or 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, upon hearing, accept the report and render judgment in accordance therewith; or, for cause
shown, recommit the same to the commissioners for further report of facts; or set aside the report and
appoint new commissioners; or accept the report in part and reject it in part; and 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. (7)
Sec. 8. Accounting for rent and profits in action for partition (it may involve accounting) — In an
action for partition in accordance with this Rule, a party shall recover from another his just share of rents
and profits received by such other party from the real estate in question, and the judgment shall include
an allowance for such rents and profits. (8a)
Labaro vs labatoria 54 phil 1718
Sec. 9. Power of guardian in such proceedings — The guardian or guardian ad litem of a minor or
person judicially declared to be incompetent may, with the approval of the court first had, do and perform
on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or
person judicially declared to be incompetent could do in partition proceedings if he were of age or
competent. (9a)
Sec. 10. Costs and expenses to be taxed and collected — The court shall equitably tax and apportion
between or among the parties the costs and expenses which accrue in the action, including the
compensation of the commissioners, having regard to the interests of the parties, and execution may
issue therefor as in other cases. (10a)
Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds — If actual partition of
property is made, the judgment shall state definitely, by metes and bounds and adequate description, the
particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest
in each party to the action in severalty the portion of the real estate assigned to him. If the whole
property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the
court, the judgment shall state the fact of such payment and of the assignment of the real estate to the
party making the payment, and the effect of the judgment shall be to 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, the judgment shall state the name of the
purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the
payment or payments, free from the claims of any of the parties to the action. 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. (11a)
(matter of reading)
Now, is the word “partition” in partition case literal in meaning…that you have to divide the property rectangular, triangular,
etc.? For example, you have a 100 square-meter parcel of land. Sampu kayong maghatihati. So, 10 square-meters each. Anong
gawin mo dyan sa 10 sq. m. mo? You can’t even put up a toilet within that area. So it is impractical na.
Usually ang ginagawa ng iba, if there is an order of partition, they will sell the land and divide the proceeds. So instead of
getting a 10 sq. m land, you will get the value equivalent to that portion of land. So, the word “partition” is not literal in its meaning.
I’ve seen a lot of these cases before. The most famous is the one involving an old house situated along C.M. Recto. Dyan
banda, fronting the Maguindanao Hotel. That old house, if I’m not mistaken, is the oldest building in Davao City. It was built way
back in 1905. And that old house which was made of woods, was owned by the Villa Abrille’s and the Juna’s.
Now, their heirs, including those within the second generation, partitioned the building. Because each of them will only get a
very small portion of the building, so they decided to sell it and divide the proceeds.
Actually, I met the buyers. I asked them anong ginawa nila sa mga kahoy…dinimolished nila e. Nahirapan daw sila. You have
to exert a lot of energy to demolish the old house. Solid masyado ang mga kahoy na ginamit nung araw. Mabungi pati ang
termites!
Unlike the woods used in the constructions today masyadong commercialized. Today we use hollow blocks to build a building.
But you go there in Intramuros in Manila. The buildings there were built during the Spanish period. Talagang solid rocks ang
ginamit. Even a 7-intensity earthquake will not bother to shake those buildings.
So that’s the architecture if the past. Even the Great Pyramids in Egypt. You will wonder how the ancient people built these
structures that would last for centuries. Hindi pa uso ang cranes nu’ng araw! Kaya nga these are the wonders of the past. Yan!
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Ok. Let’s go back to Partition.
The last important section is section 12.
Sec. 12. Neither paramount rights nor amicable partition affected by this Rule — Nothing in this Rule
contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person
claiming the real estate involved by title under any other person, or by title paramount to the title of the
parties among whom the partition may have been made; nor so as to restrict or prevent persons holding
real estate jointly or in common from making an amicable partition thereof by agreement and suitable
instruments of conveyance without recourse to an action. (12a)
Example: The property is 10 hectares and the entire property is mortgaged in the bank. Then the property is subdivided into 10
titles, one hectare per title. What happens now to the mortgage over the original debt? All the ten titles are also deemed mortgaged.
Pasa lahat yan.
So, the partition does not affect the rights of third persons over the property because in a partition, there is really no
transmission of rights. In a partition, a co-owner does not transfer his right to another co-owner. There is merely a designation and
segregation of shares.
So, the rights of third persons are not affected by the partition. And also under Section 12, the parties can resort to amicable
partition by agreement or suitable instrument without recourse to an action.
Q: Now, can there be a partition of personal property?

A: Yes, under Section 13.
Sec. 13. Partition of personal property — The provisions of this Rule 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.
(13)
Q: What rule applies?

A: The rule also applies to partition of personal property. Halimbawa, namatay ang tatay. So his personal properties will be
divided by his heirs: ang tv sa iyo; the refrigerator, sa kanya; ang dance pad, sa akin (dance revo addict ako e).
Rule 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Forcible Entry and Unlawful Detainer cases are the most famous Special Civil Actions. Also with Rule 65, Certiorari. In Bar
exams, out of 10 questions in Special Civil Actions, 70% deals with Rule 65 and Rule 70…Forcible Entry and Unlawful Detainer.
How do you define this kind of SCA? It is a real action which involves possession of real property. It is the only real action
exclusively triable by the Municipal Trial Court.
The other one is accion publiciana provided the property is P20,000.00 or less.
So accion publiciana could be MTC or RTC, but mostly RTC yan because properties are usually more than P20,000.00. Pero
iyong forcible entry, no problem. The jurisdiction of the MTC is not governed by the nature of the action.
So let us try to go back to the fundamentals of Property.
Q: What are the possible actions to be filed in court governing real property?
A: They are the following:
1. Accion Reinvindicatoria - recovery of ownership
2. Accion Publiciana - recovery of possession
3. Accion Interdictal –
a. forcible entry (detentacion); or
b. unlawful detainer (des halicio)
Now, Forcible Entry (FE) and Unlawful Detainer (UD) are now found under Sections 1 and 2 of Rule 70. Forcible Entry is Section 1.
SECTION 1. Who may institute proceedings, and when.— Subject to the provisions of the next
succeeding section, a person deprived of the possession of any land or building by force, intimidation,
threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of
any land or building is unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any
such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of possession, or any person or persons claiming
under them, for the restitution of such possession, together with damages and costs. (1a)
SEC. 2. Lessor to proceed against lessee only after demand.— Unless otherwise stipulated, such
action by the lessor shall be commenced only after demand to pay or comply with the conditions of the
434
lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the
person found on the premises, or by posting such notice on the premises if no person be found thereon,
and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the
case of buildings. (2a)
Q: As defined under Section 1, how do you describe forcible entry?

A: Forcible Entry consists in depriving a person of the possession of land or building for a period of time not exceeding one (1)
year by force, intimidation, strategy, threat, or stealth (FISTS). (Tenerio vs. Gamboa, 81 Phil. 55)
So, there is a deadline - one year. You can only file it within one year. The entry of the defendant over your land or building
should be through any of the five means. So force, di gaano. Majority is strategy or stealth in the middle of the night. Squatting ba.
Q: What do you mean by strategy and stealth?

A: Strategy means machinations or artifice. Stealth is defined as any secret, sly or clandestine act to avoid discovery and to
gain entrance into or remain within residence of another without permission. (Sumulong vs. CA, 232 SCRA 372)
Q: How do you define Unlawful Detainer?

A: Unlawful Detainer consists in the unlawful withholding by a person from another, for not more than one (1) year, of the
possession of any land or building after the expiration or termination of the right to hold such possession by virtue of a contract,
express or implied. (Torres vs. Ocampo, 80 Phil. 36)
Example: You want to eject your lessee from your apartment or house. Actually, the usual grounds are non-payment of rentals
or violation of any conditions of the lease contract. Maybe he has paid his rentals but he violated other provisions, or expiration of
the lease contract. These are the normal grounds for unlawful detainer.
Q: Distinguish Forcible Entry from Unlawful Detainer ?

1. In forcible entry, possession is unlawful from the very beginning. Like squatters ba.
In unlawful detainer, possession was lawfully acquired and became unlawful only because of termination of the right.
Like a lessee, he occupied the property lawfully but it became unlawful later. (Medel vs. Militante, 41 Phil. 526)
2. Based on Section 2, in forcible entry, formal demand is not required before filing the action.
In unlawful detainer for failure to pay rent or to comply with the conditions of the lease contract, a formal demand to
pay and to vacate is required otherwise the court has no jurisdiction over the case. (Dikit vs. Ycasiano, 89 Phil. 44)
The issue to be resolved in forcible entry and unlawful detainer is merely physical possession, not ownership; not right of
possession but physical possession. The only issue to be determined is: Does the plaintiff have a prior physical possession of
property in forcible entry? And then, was he deprived of his possession unlawfully through FISTS?
Q: Can a squatter occupying a property file a forcible entry case against another squatter who forcibly ejected him, when
technically both of them have no rights? If we will say no because you also have no right, then what will happen? The first squatter
has no recourse under the law so his only recourse is to use force also to deceive away the second squatter and there will be
breaches of peace in the society.
A: So even if he is not the owner, he can file a case because according to the SC, the purpose of the actions, this is regardless
of the actual condition of the title to the property, the party in peaceable and quiet possession of the land or building shall not be
turned out by strong hands of violence or terror. The object of the law is to prevent breaches of peace and criminal disorder which
will ensue if there were no such remedy. (Villaflor vs. Reyes, January 30, 1968)
Q: How do you distinguish Accion Interdictal from Accion Publiciana because both deal with recovery of possession ?
1. Forcible entry and unlawful detainer are under the summary proceeding governed by the Summary Rules the purpose of
which is recovery of possession de facto.
Accion publiciana is an ordinary civil action the purpose of which is recovery of the right of possession which we call
possession de jure - Real right.
2. Forcible entry and Unlawful Detainer : exclusive jurisdiction of the MTC

Accion Publiciana: It is with the RTC if it its value exceeds P20,000. If its P20,000 or less, MTC. But it is not governed by
the Summary Rules. Only forcible entry and unlawful detainer are governed by the Summary Rules.
3. The period to file the action ?

Forcible entry and Unlawful detainer: One (1) year from unlawful deprivation or unlawful withholding of possession.
Accion publiciana may be filed at any time before ownership or other real rights of the real property involved are lost by
acquisitive prescription. Normally, 10 years. If in bad faith, 30 years.
Case: SARONA vs. VILLEGAS G.R. No. L-22984, March 27, 1968
But actually in this distinction, acquisitive prescription applies only to untitled property. If the
property is titled under the Torrens Title, you can file the case even after 100 years because prescription
will not work against a Torrens Title.
435
4. As to the grounds:
Forcible Entry and Unlawful Detainer: Only the causes (FISTS) mentioned in Section 1.
Accion Publiciana: any other cause of unlawful dispossession other than FISTS or even FISTS under Section 1 but after
the lapse of one year.
5. The immediate execution of the Unlawful Detainer or Forcible Entry judgment is governed by Rule 70, Section
19.
Immediate execution or execution pending appeal in Accion Publiciana is governed by Rule 39 Section 2. There must be a
good reason. So iba ang basis.
Finally, there are instances when it is very easy to determine whether it is FE or UD. But there are some instances when it is
hard eh. What is the correct action? Because the correct action will also determine the proper jurisdiction. Like in the case of
LIM KIEH TONG VS. CA.

March 18, 1991
FACTS: Reginaldo Lim and his family resided in room 301 of the building of Lim Kieh Tong, Inc. until they
transferred to their new residence in Quezon City. However despite the fact that they moved to Quezon City,
Reginaldo Lim retained possession of the room to keep his important belongings. So he did not give up the lease of
that room 301. The building has only one common main door through which all the occupants of the various rooms
can get in.
Accordingly, all occupants including Reginaldo Lim were given a key to the main door lock by Lim Kieh Tong Inc.
However, when Reginaldo Lim wanted to go inside his room on September 30 to get some things which he
needed, he found out that the key he possessed was no longer compatible with the lock. So pinalitan na yung lock sa
main door, di na mabuksan ng susi niya.
He requested Lim Kieh Tong to provide him with the appropriate key but his request was denied. So Reginaldo
Lim filed a complaint against Lim Kieh Tong alleging those grounds. And he alleges that he has a clear and
unmistakable right to the use of the room and he prays that Lim Kieh Tong be commanded to provide him the
appropriate key to the lock of the main building. That was the complaint.
ISSUE: What kind of a complaint is that? Is that a complaint for FE or a complaint for specific performance
wherein jurisdiction is vested with the RTC?
HELD: The SC said from the facts of the case it appears that Lim Kieh Tong Inc. through stealth deprived
Reginaldo Lim of the possession of the rented room. Therefore, the suit is one for FE under Rule 70 of the Rules of
Court.
TIME BROADCASTING NETWORK VS. CA

June 19, 1997 (274 SCRA 366)
FACTS: Petitioner Times Broadcasting Network leased a portion of Hotel Arocha in Ozamis City owned by
private respondent Filomeno Arocha. The subject of the lease consisted of two rooms with a total area of 7 meters by
11 meters, a terrace with an area of 25 square meters, and the rooftop of the four-storey building. The premises were
to be used by petitioner to operate a radio station.
In June 1993, petitioner began installing its equipment and apparatus in the leased premises. Petitioner,
however, installed its radio antenna on the third floor rooftop of the hotel, instead of the fourth floor rooftop as
stipulated in the contract.
Private respondent Arocha filed before the Municipal Trial Court in Cities (MTCC) of Dipolog, Branch 1 a verified
complaint for ejectment with payment of back rentals and damages against petitioner
Petitioner moved to dismiss the complaint. It argued that the MTCC has no jurisdiction over the case because
private respondent's cause of action is actually not for ejectment but for specific performance. Petitioner contended
that private respondent's action was not simply for recovery of possession of the premises but was for compliance
with the terms of the lease contract. Hence, petitioner asserted that it was the Regional Trial Court (RTC), not the
MTCC, which had jurisdiction over the case.
ISSUE: Whether the complaint filed by private respondent is one for ejectment or specific performance.
HELD: The nature of the action and the jurisdiction of courts are determined by the allegations in the complaint.
The aforequoted complaint shows that the private respondent is the owner of the Hotel Arocha building in Ozamis City
and that the petitioner, through stealth and strategy, and without any authority from the owner, used the third floor
rooftop of the building as mounting pad of its radio antenna.
In the case at bar, private respondent was unlawfully deprived of the possession of the third floor rooftop of Hotel
Arocha when petitioner used it as mounting pad for its antenna. Private respondent sought to recover physical
possession thereof through an action for ejectment filed before the MTCC. Hence, the case properly falls within the
jurisdiction of the MTCC.
Q: In a FE case, what are the important allegations which must appear in the complaint?
1. The plaintiff must allege that he has been in prior physical possession of the questioned land or building; and
2. The plaintiff was unlawfully deprived of his possession by the defendant through any of the means recognized by law
(FISTS).
436
Q: In one case, the complaint for forcible entry alleges “that defendant unlawfully turned the plaintiff out of the possession of
the property in question.” Is that an allegation of prior physical possession? Is the complaint sufficient?
A: YES. While it is not true that there was an express allegation of prior physical possession by the plaintiff, this fact can be
inferred from the words "unlawfully turned the plaintiff out of possession" for how can a person turn someone out of possession if
the latter was not in the physical possession of the property. The allegation of prior physical possession by the plaintiff need not be
express. It is enough that said allegation is inferable from the other allegations in the complaint. (Maddammu vs. Mun. Court of
Manila, 74 Phil. 230)
Q: On the other hand, suppose the complaint for FE alleged “that before plaintiff could take possession of and occupy the said
house, defendant surreptitiously occupy the same without the knowledge and consent of the plaintiff.” Is the complaint sufficient?
A: NO, it is not sufficient. It is clear from the allegation that the plaintiff have not had prior physical possession because “before
plaintiff could take possession of…” (Maddammu vs. Mun. Court of Manila, 74 Phil. 230)
Q: In another case of FE, the complaint alleged that the plaintiff has been “deprived” of the land in question by the defendant.
Is it a sufficient complaint for FE?
A: NO. There was no allegation that the deprivation of possession was illegal though FISTS. Thus, you must alleged that you
were deprived through FISTS. (Gumiran vs. Gumiran, 21 Phil. 174)
How about in Unlawful Detainer cases?
Q: What is the important allegation?

A: Of course, you must have to admit that the defendant was already there legally. And then there must be an allegation that
the defendant is unlawfully withholding possession of plaintiff. (Co Tiamco vs. Diaz, 75 Phil. 672)
Like in a lease, you admit that you lease your building to him, and then he could not pay rentals; you asked him to leave; you
gave him until the end of the month to vacate; he did not vacate. Therefore from that moment, he is now unlawfully withholding
possession of the land or building.
Take note in Section 2, the basic distinction between FE and UD is that a demand to vacate is not required in FE. But a
demand to vacate by the plaintiff and the defendant refuses to vacate, is an essential requisite in UD. That is where you determine
that the defendant is unlawfully withholding.
The possession of the defendant cannot be unlawful until you asked him to leave and he refuses to leave. Therefore, if there
is no demand to vacate, the case will be dismissed because the MTC has no jurisdiction. So that is a jurisdictional requirement.
Why? Because if there is no demand to vacate, according to the SC, your action actually is accion publiciana which is normally
cognizable by the RTC.
That is why Section 2 says “Lessor to proceed against lessee only after demand”. Obviously, Section 2 applies only to UD.
Q: What is the demand?

A: 1. Demand to pay or comply with the conditions of the lease contract; AND
2. Demand to vacate.
The normal ground for UD is failure to pay rentals. Or even if the defendant has been paying rentals, if he violates the other
conditions of the lease contract, then that is also a ground because “demand to pay OR to comply”. So it is either of the two
because logically, failure to pay is already a violation of lease contract, di ba?
Take note, “failure to pay or to comply with the condition of the lease AND to vacate.” ‘AND to vacate’!
Suppose I will write you a letter. “This is to remind you Mr. Lessee that you have not been paying your rentals for the past 3
months. I hereby giving you exactly one week to pay all your rentals.” He did not pay. I will file a case after one week. But where is
you demand to vacate? Your demand is only to pay rentals. You should say “I am giving you one week to pay your back rentals
and to vacate!” Yan! Kailangan ‘yung “and to vacate” eh, because if it is only failure to pay rentals, there is no demand to vacate;
your claim is a sum of money.
Now, we will go to the issue of demand…
Q: Suppose “Mr. Lessee, this is to inform you that starting next month, your monthly rentals will be increased from
P1,000/month to P1 ,500/month. Therefore I am giving you until next month to pay the increased rentals OR to vacate.” Meaning, if
you will pay, no problem. Kung ayaw mo, lumayas ka. Now, is that a sufficient demand? Alternative kasi eh.?
A: Here, there are some conflicting decisions:
LESACA vs. CUEVAS

125 S 384
HELD: An alternative demand to pay rentals or to vacate is legally sufficient for the purpose of ejectment suit. A
more definite and unconditional demand to vacate is not necessary where the lessee has no legal right to remain in
the premises for his refusal to pay the increased rentals.
PEÑAS, SR. vs. CA

233 SCRA 704
437
“I am giving you until next month to pay OR to vacate.”
HELD: No proper demand to vacate. In other words, it should be “pay the rentals AND to vacate!” Hindi pwedeng
you may vacate or you may not vacate. Kailangan talaga merong word na and to vacate.
GOLDEN GATE vs. IAC

152 SCRA 684
FACTS: The lessee was in arrears for P18,000 so he received a letter from the lessor. "I am giving you 5 days to
pay back rentals, otherwise I will file an ejectment case against you." Of course after the deadline, he did not pay. So
the lessor filed a case for UD.
According to the defendant, there is no demand to vacate; you are definite to file a case against me but where is
the demand to vacate?
HELD: The letter is sufficient. Pwede na ‘yon! And the SC said, “When the private respondents defaulted in the
payment of rents in the amount of P18,000.00, they lost their rights to remain in the premises. Hence, when the
petitioner demanded payment of the P18,000.00 due and unpaid rentals or a case for ejectment would be filed
against them, the owner was giving strong notice that "you either pay your unpaid rentals or I will file a court case to
have you thrown out of my property." The word "vacate" is not a talismanic word that must be employed in all notices.
The alternatives in this case are clear cut. The tenants must pay rentals which were fixed and which became payable
in the past, failing which they must move out. There can be no other interpretation of the notice given to them. Hence
when the petitioner demanded that either he pays P18,000.00 in five days or a case for ejectment would be filed
against him, he was placed on notice to move out if he does not pay. There was, in effect, a notice or demand to
vacate.”
Compare that with the case of
LA CAMPANA FOOD PRODUCTS vs. CA

233 SCRA 151
Here, the lessee has not also been paying his rentals and water bills. So the lessor wrote a letter to the lessee,
“Warning: Upon your failure to pay your unpaid rentals and unpaid water bills, I will forward this matter to our legal
counsel for proper action.” Is there a sufficient demand?
HELD: No. We do not see in this statement an unequivocal or even an implied demand on the lessee to vacate
from the premises. The doctrine in the Golden Gate case is therefore not applicable.
BANDOY vs. CA
175 SCRA 459
FACTS: Prior to filing of ejectment case against the defendant, the plaintiff brought the matter to the Barangay
Captain, but to no avail. A certification to file a case was issued by the Barangay Captain. So nag-file ng kaso ang
plaintiff. The complaint for UD contained no allegation that there was a prior demand to vacate.
“Motion to dismiss,” sabi ng defendant, “no demand to vacate. Have you written me a letter? Did you notify me to
vacate?”
According to the plaintiff, “My golly! We have already talked with the Baranggay. May usapan na tayo dun!
Pareho na rin yun!” So the plaintiff contended that no further demand to vacate is needed after a certification to file a
case was issued by the Barangay Captain for the reason that the case was already certified to court for action. Any
further demand to vacate is merely repetitive and unnecessary.
HELD: Plaintiff is wrong. Mali! The certification of the Barangay Captain is not conclusive as to the jurisdiction of
the Court to which the case was subsequently filed. What was certified by the Baranggay Captain was that no
settlement was reached by the parties in the Barangay level. It did not certify that all the requisites for the filing of the
UD case was complied with. Therefore the case is dismissed.
So demand to vacate is jurisdictional. Kaya to play it safe, sabihin mo na lang “I am requesting you to pay your rentals AND
TO VACATE!” I-capitalize mo yung ‘AND TO VACATE’ para wala ng samok… because it has been the cause of so many problems
eh. It reaches the SC just because of the issue: was there a demand to vacate? The best thing is to use that words so that there
could be no room for controversy.
Q: Is there a possibility that an UD case will be filed without a prior demand to vacate?
A: It would seem so. Demand to vacate, if you observed, is essential if you ground for UD is non-payment of rentals or failure
to comply the condition of the lease.
Q: Now, suppose the ground for ejectment is expiration of the lease contract. Example: “Mr. Lessee, this is to remind you that
the lease contract will going to expire at the end of this month. I will not renew your contract so you better look for another place to
move.” Well, that is just a reminder. There is no demand to vacate. At the end of the month, nandun pa rin ang lessee. File ka ng
UD. But where is the demand to vacate?
A: There are some decided cases where the SC said that the demand to vacate may be dispensed with because anyway, the
ground for ejectment is not non-payment of rentals or violation of conditions of the lease contract. Meaning, the defendant should
be informed straight ahead that he could not extend his stays anymore.
438
That is what Section 2 seems to convey, “…such action by the lessor shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate…”
Actually I experienced this eh years ago. I filed an action for UD without any demand to vacate because my ground is
expiration of the lease contract. The defendant filed a motion to dismiss because no demand to vacate. I was telling the court,
“Your Honor, demand to vacate is not really necessary in all cases. When the ground is expiration of lease contract, hindi na
kailangan. And these are decided cases...”
And the judge does not know the cases. He does not know the exception. He knows the general rule! So I appealed to the old
CFI. Na-reverse. Bumalik. The hearing took almost 8 months.
And I said, this is a lesson for me. I will stick with the general rule most of the time because you do not expect the judge to
know the exception. So that is a lesson in my practice.
Q: Where do you compute the one year period ?

A: For Forcible Entry, from the date of unlawful deprivation.
For Unlawful Detainer, from the date of unlawful withholding. That is evident by the demand to vacate because you give a
deadline. You count the one year period from your deadline.
Q: Suppose, hindi nag-vacate. Hindi ka rin nag-file ng case. Pinabayaan mo lang. Then after one year you gave another
demand to vacate. When do you count the one year period ? From the date of the first demand or second demand?
A: Standing Rule : LATEST DEMAND.
PEÑAS, JR. vs. CA
233 SCRA 794
HELD: The one year period provided for in Section 1, Rule 70 should be counted from the last letter of demand to
vacate. The reason being that the lessor has the right to waive his right of action based on the previous demand and
let the lessee remain in the meanwhile. In effect, I legalize his possession all over again by not doing anything.
Now, the next provisions starting form Section 3 to 14 are new provisions and reiterations of the rules of Summary Procedure.
Remember when we took up Summary Procedure, all FE and UD cases are covered by the Summary Rules. That is why in 1997
when the SC decided to amend the rules in Civil Procedure, sinama na nila ang mga ito.
Sec. 3. Summary procedure — Except in cases covered by the agricultural tenancy laws or when the law
otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of
damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder
provided. (n)
Sec. 4. Pleadings allowed — The only pleadings allowed to be filed are the complaint, compulsory
counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. (3a,
RSP)
Sec. 5. Action on complaint — 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. If no ground for dismissal is found, it shall forthwith issue summons. (n)
Sec. 6. Answer — Within ten (10) days from service of summons, the defendant shall file his answer to the
complaint and serve a copy thereof on the plaintiff. 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. The answer to counterclaims or cross-
claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded. (5,
RSP)
Sec. 7. 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. 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 section 3 (c), Rule 9 if there are two or more defendants. (6, RSP)
Sec. 8. Preliminary conference; appearance of parties — Not later than thirty (30) days after the last answer
is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the
preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his
complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with the next preceding section. All cross-claims shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with
the next preceding section. 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.
(n)
439
Sec. 9. Record of preliminary conference — Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment
may be rendered without the need of further proceedings, in which event the judgment shall be rendered within
thirty (30) days from issuance of the order;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case. (8, RSP)
Sec. 10. Submission of affidavits and position papers — Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their position papers setting forth the law and
the facts relied upon by them. (9, RSP)
Sec. 11. Period for rendition of judgment — Within thirty (30) days after receipt of the affidavits and position
papers, or the expiration of the period for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts, it may, during the said period,
issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence
on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15)
days after the receipt of the last affidavit or the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. (n)
Sec. 12. Referral for conciliation — Cases requiring referral for conciliation, where there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that
requirement shall have been complied with. (18a, RSP)
Sec. 13. Prohibited pleadings and motions — The following petitions, motions, or pleadings shall not be
allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or
failure to comply with section 12;
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;
11. Third-party complaints;
12. Interventions. (19a, RSP)
Sec. 14. Affidavits — The affidavits required to be submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify
to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits the same to disciplinary
action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. (20, RSP)
Sec. 15. Preliminary injunction.— The court may grant preliminary injunction, in accordance with the
provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the
plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (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 thirty (30) days from the filing thereof. (3a)
Q: Can the court issue a writ of preliminary injunction ?

A: YES under Section 15, to prevent the defendant from further acts of disposition.
Q: Can the plaintiff file in an action for UD and FE a petition for mandatory injunction ?
A: YES
Q: Is the remedy of preliminary injunction available in UD and FE cases, especially the remedy of preliminary mandatory
injunction to restore the plaintiff immediately in the possession of real property?
A: YES.
If you look at Article 539 of the New Civil Code, Preliminary Mandatory Injunction (PMI) is only possible in FE cases. There is
no such thing under the CC as PMI in UD cases. You cannot get a PMI against your lessee.
440
But you look at the new law, Section 15 “A possessor deprived of his possession through forcible entry or unlawful detainer…”
Therefore the remedy of PMI has been made applicable also under the new rules to UD cases. Naging broader na.
The applicability of PMI in UD cases was first laid down by the SC before 1997 in the case of DAY vs. RTC of ZAMBOANGA
Branch 13, 191 SCRA 610.
Before, I was wondering when this thing came out. How about the objection: Did the Rules of Court a procedural law, amended
the Civil Code which is a substantive law? This is tantamount to Rules of Court amending Article 539 of the CC. Of course may
reason talaga ang SC nyan. But where did the SC get also that rule?
I went back to the case of DAY vs. RTC to find out the basis. And the SC said it was authorized by SEC 33 of the Judiciary
Law BP 129 that MTC can issue Provisional Remedies in all cases.
“(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including
the grant of provisional remedies in proper cases…” Sec. 33, BP 129
That’s how the SC explained. Actually, the Judiciary Law is substantive law. This was passed by the Congress. So in effect,
the Judiciary Law has already amended Article 539 of CC which is also a substantive law. It is not the SC that modified or
expanded the substantive right in the CC. It was the Congress and the SC is just interpreting it. Yaan!
This reminds me about the first question asked in Political Law in last Sunday’s Bar Exam: A senator makes a remark: “The
Supreme Court is a continuing constitutional convention.” Do you agree or disagree?
Actually, both sides are defensible. But you have to understand what the question is…because if you cannot understand, it can
bother you: how can the SC be a constitutional convention where a constitution can only be amended by a convention called for
that purpose by the Congress in joint session? How can the SC amend the constitution? That would be unconstitutional!
But you go deeper: who interpret the Constitution? Supreme Court man ba! Kaya nga sabi ng isang American Justice: ‘The
Constitution is what the Supreme Court says.’ Kahit mali ang pag-interpret, tama man ba!. And take note, decisions of the SC form
part of the law of the land. So everytime there is a constitutional issue and the SC interprets it, they are made into doctrines. So in
effect, you can say that the SC keeps on amending the Constitution by interpreting the different provisions of the Constitution. So in
that sense, the SC is a continuing constitutional convention.
SEC. 16. Resolving defense of ownership. When the defendant raises the defense 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. (4a)
Now this is taken almost word for word from the Judiciary Law, Sec 33.
Judiciary Law Sec 33 - Jurisdiction of MTC, RTC and MCTC in Civil Cases
“…2.Exclusive original jurisdiction over cases of FE and UL provided that when in some cases the defendant
raises the question of ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership. The issue of ownership shall be resolved only to determine the issue of
possession. “
.
The language is identical. So this is taken from that provision.
In FE and UD, the issue or controversy is possession. Ownership is irrelevant, immaterial in FE and UD. Not even possession
as a right or possession de jure but purely physical possession. That is why a squatter can file an action for FE, even if technically,
he has no legal right to the property he is possessing. Why? Because ownership is not the issue. Who has the legal right should be
threshed out in accion publiciana.
The only issue is the recovery of physical possession.
Q: What happens if there is also the issue of ownership? Can the MTC rule on the issue of ownership if it is raised?
A: YES, if it is necessary to rule on the issue of possession. Sometimes the issue of possession hinges on the issue of
ownership. But if the court says that based on the evidence, the court is of the opinion that the owner is A, that is a declaration of
ownership which is only prima facie. The court really has no power to rule on the issue of ownership in FE and UD.
If you want to quarrel on ownership, you want to find out who really is the owner, punta kayo sa RTC… dun kayo mag away,
huwag dito. But if I (MTC) will rule on ownership only as a preliminary step only to decide on the issue. That is only prima facie.
That is why the SC said :When the defendant raises the defense of ownership in his pleadings and the question of possession
cannot be resolved without deciding on the issue of ownership, the issue of ownership shall be resolved only to determine the issue
of possession. The decision of ownership is not final. That should be decided with the RTC
Q: Is it possible that we have two cases against each other? In the MTC on possession in the FE or UD, in the RTC we are
fighting on the issue of ownership.
A: YES. There is no interference.
Q: Suppose I file a case against you for FE or UD. Now you file a case also in the RTC where you raise the issue that you are
the owner. I'm claiming possession in the MTC and you are claiming ownership in the RTC. Suppose the person claiming
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ownership would say, "Alright, since we are quarrelling on ownership already in the RTC, the MTC should not try the case of FE or
UD. The cases of FE or UD should be dismissed because the issue of ownership is being litigated in the RTC.” Is that a correct
position?
A: NO. The two can continue. RTC decides on ownership, the MTC decides on possession. The two are separate issues. If I
will file a case against you for FE or UD, which is actually a summary proceeding for ejectment, you can easily defeat that by filing
a case against me in the RTC where you raise the issue of ownership, although your opposition is not serious. You will then contest
the ownership just to kill my case. That would be improper.
REFUGIA vs. CA,
258 SCRA 347. July 5, 1996
HELD: By virtue of the express mandate set forth in Section 33, paragraph 2 of the Judiciary Law, which is also
Section 16, inferior courts or first level courts, i.e. MTC, have the power to resolve the question of ownership raised as
an incident of an ejectment case where the determination thereof is necessary for a proper and complete adjudication
on the issue of possession. Any such pronouncements made affecting ownership is to be regarded merely as
provisional.
Hence it will not bar nor prejudice an action between the same parties involving title to the land.
HILARIO vs. COURT OF APPEALS
260 SCRA 420
HELD: Even where the defendant alleges ownership or title to the property in his or her answer, the first level
court will not be divested of its jurisdiction. (It will not be deprived of its role) A contrary rule will pave the way for the
defendant to trifle with the ejectment suit which is summary in nature. He could easily defeat the same through the
simple expedient of asserting ownership.
In the MTC, we are quarrelling with the issue of possession. In the RTC, we are quarrelling with the issue on ownership. The
MTC does not have to give way to the jurisdiction of the RTC. That is the principle to remember.
There are some RARE instatnces na baliktad pa nga. There are two cases between the same parties and the court said
everything should be decided on the ejectment case or UD. It should be the RTC (to give way for the MTC)... baliktad. One of them
is UNIVERSITY PHYSICIANS SERVICES INC. vs. CA (233 SCRA 86).The case is related to one of the grounds for a motion to
dismiss i.e. litis pendentia. There is another action pending between the same parties for the same cause.As a general rule, when
there are two cases pending between the two parties, for the same cause, which should be dismissed? The first or the second
case? Based on priority in time, the second will be dismissed.
Q: Is there a possibility that it should be the first (which must be dismissed)?

A: YES. When the first case was filed as an anticipatory suit, on the theory that the best defense is an offense. You are
converting your defense as a cause of action. That is what happened here.
UNIVERSITY PHYSICIANS SERVICES INC. vs. CA

233 SCRA 86
FACTS: UPSI is a corporation that operates a school. It bought 2 parcels of land in Manila where an apartment
was constructed. The obvious purpose of the company is to demolish it. They will put up a school (building) there or
classrooms. However, one unit of the apartment was occupied by a certain Jocelyn Formentira. Despite the demand
to vacate, Formentira refused. Hence UPSI commenced the demolition of the apartment.
When Formentira saw that the apartment was demolished little by little, what she did was to file a complaint for
damages against UPSI, claiming that the demolition was unlawful. With it was a prayer for preliminary injunction and
restraining order against UPSI in the RTC. As main relief, she demanded that UPSI be permanently enjoined from
doing any act to force out or cause her ejectment from said apartment unit.
UPSI, in turn, filed a complaint for ejectment against formentira in the MTC of Manila. Dalawa na ang kaso:
1. The first by Formentira i.e. damages with Preliminary Injunction; and

2. The second was filed by UPSI for ejectment.
ISSUE: Which of the two cases shall take precedence over the other? If we follow the rule of first-come-first-
serve, we will conclude that the case filed by UPSI (the second case) should be dismissed.
HELD: Formentira's action for damages should be dismissed. It is the RTC case filed ahead that should be
dismissed. Formentira cannot deny that the complaint for damages taken in its full context was meant to prevent
UPSI from ejecting her. The main action kunuhay, is damages. Kunuhay lang ba! But with the prayer for injunction,
in effect she is using the case for damages to stop her ejectment from the apartment. Her complaint for damages
bears unmistakable earmarks that show of its true nature and character, touching as it does, on her alleged right to
continue possession of the premises.
Though not couched in specific terms, Formentira is virtually asking for an indefinite extension of the lease of the
disputed premises. Admittedly, while she claims indemnity for what she believes were wrongful and illegal acts
committed against her by the UPSI, it is nevertheless indisputable that the pivotal issue presented by the complaint
involves the determination of her right or the lack of it over the disputed property. It follows therefore that the
damages allegedly suffered by her is merely an incident to the question of possession disputed by the parties.
The issue of whether Formentira has the right should be threshed out in an ejectment suit and not an action for
damages, though the question of possession is likewise in issue. We cannot simply ignore the fact that Formentira,
after her unjustified refusal to vacate the premises was aware that an ejectment case against her was forthcoming.
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Sec. 17. Judgment. If after trial the court finds that the allegations of the complaint are true, it shall render
judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as
reasonable compensation for the use and occupation of the premises, attorney’s fees and costs. If it finds that
said allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum found in arrears from either party and award costs as
justice requires. (6a)
There will be hearing, and after these and the court finds that the allegations in the complaint are true, it shall render
judgement in favor of the plaintiff.
Q: Ano ang judgment?

A: The judgment ordering the defendant to vacate .the property involved or the restitution… surrender the possession, the
sums due as arrears of rent. So if UD, you pay all the back rentals. And the back rental could go as high as more than P200,000
or as reasonable compensation for the use and occupation of the premises.
For example, in FE, what rentals are you talking about? How can you compute the rental? If it is UD, klaro. The rental of the
lessee is, lets say P2,000 a month. Kung FE anong rental ang sinasabi mo dun? Wala mang rental, squatter man yan. But he has
to pay… the reasonable compensation of the use and occupation of the premises. Meaning, how much, by way of damages is the
plaintiff entitled to recover for the use and occupation of the property.
The court will now fix the reasonable compensation. The court can also award attorney's fees and costs. It should not exceed
P20,000.
If the allegations are not true, then the case will be dismissed and if there is a counterclaim, the same can be awarded.
Q: Suppose you occupy my property, so I file FE. I will pray for ejectment, payment for reasonable compensation for the use of
my property, attorney’s fees, costs, damages i.e. moral and exemplary, unrealized profits (somebody wanted to lease my property
but cannot kasi andyan ka!). Or, if UD, I will eject you from my building, may sira ang bahay, nasira ang walls, roof, floor, windows,
doors, etc. So I will pay for damages for the deterioration you caused to my building. My question is: Can the court award these
damages i.e. moral, exemplary, or unrealized profits, for the value of the destroyed portions of my house or building?
A: NO. The only thing you can recover are unpaid rentals, or in case of FE, reasonable compensation, attorney's fees and
costs.
Q: How about my claims for damages and unrealized profits?

A: If you want to recover, you file another case. Damages are not recoverable in FE and UD except such damages as
attorney’s fees, costs, unpaid rentals, or reasonable compensation. All other damages are not recoverable. File another case.
While damages seems to be recoverable, these are limited only to:

1. attorney's fees;
2. costs;
3. unpaid rentals; and
4. reasonable compensation.(REYES vs. CA ,38 SCRA 138; BAEN vs. CA, 125 SCRA 634)
SEC. 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership. The
judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession
only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar
an action between the same parties respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide
the same on the basis of the entire record of the proceedings had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties or required by the Regional Trial Court. (7a)
When there is a judgement in a FE or UD, they will be conclusive with respect to the possession only. Definitely, the MTC has
no power to rule on the issue of ownership or title.
There is no res adjudicata. But there is as to the issue of possession.
However, if you say that the court has the power to rule on the issue of possession, it also means all other issues incident to
the possession, e.g. has the lease contract expired? Or on the interpretation of terms and provisions of the contract?
These issues are res adjudicata, except as to ownership. That is why Section 18 is related to Section 16. When there is an
issue raised in the pleadings as to the ownership, such will be resolved for the purpose of resolving the issue of possession. But
definitely, there should be another case to be filed as to the ownership.
Sec. 19. Immediate execution of judgment; how to stay same if judgment is rendered against the defendant,
execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay
execution files a sufficient supersedeas bond, approved by the Municipal Trial Court 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 unless,
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 Municipal Trial Court. In the absence of a contract, he
shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the
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preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of
each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the
other papers, to the clerk of the Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary
bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested
parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall
decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the
pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the
execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not
be a bar to the appeal taking its course until the final disposition thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes
of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial
Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or
building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such
deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal. (8a)
Plaintiff files a complaint for FE or UD. The complaint prays for the decision to order the defendant to vacate the property.
Chances are rentals are included. After the hearing, the court renders the judgment: "WHEREFORE. finding the plaintiff to have
proven his cause of action, the same being meritorious, the court hereby (orders the defendant) to pay all his unpaid rentals,
beginning last year, at the rate of P1,000 a month, until he vacates." Or kung FE, "pay P1,000 as reasonable compensation for
the occupation of the property from the time he entered it to the time he vacates." plus attorney's fees. So oredered.”
So panalo ka. The decision will be furnished to you. Following the usual pattern.
If we follow the general rules of civil procedure, the judgement is not yet final. The defendant has 15 days to appeal. Now
under the Rules, the plaintiff can file a motion to execute after the period to appeal, when there is no appeal.
That is the rule, although as an exception, the plaintiff can file a motion for discretionary execution i.e. execution pending
appeal, provided there is a good reason… yun lang. So kung walang good reason, pasensya. So you have to convince the court
that there is a good reason. Otherwise you stick to the general rule.
Now, I file a case of FE against you or UD. Decision… panalo ako. Of course we assume that I will also receive the decision
today. It is not yet final. Now, under Section 19, tomorrow, I will file a motion for immediate execution, because under the Rules,
the judgement for UD or FE is IMMEDIATELY executory.
Palag si Cholo: "Wala mang good reason?"
Q: Does the plaintiff have to cite good reason?

A: No good reason is required. The only reason is – I won. And according to the SC " it is a ministerial duty of the MTC to
order." Hindi kailangan na you have to wait for the judgment to become final. It is not necessary that you wait for it to be final –
that is only applicable to ordinary cases. Pagtanggap…file ka bukas. And the court will issue an order of execution… because
under Section 19 "a judgement is immediately executory".
That is a unique rule no? (tuod gid eh!)
We will now go to the side of the defendant. So there is now an order to eject you. The sheriff will go to you anytime and kick
you out. Is there a way for me to stop him?
Q: (As defendant) Can I stop the order of execution?

A: YES. There are three (3) things that you must do:
1. You must appeal.- You must appeal the judgement to the RTC. Appeal to the RTC.. Meaning, prevent the judgment
from becoming final.
2. The defendant must file a supersedeas bond to the RTC. - Ano ang supresedeas bond? A supersedeas bond will
answer for all the amount due to the plaintiff up to the date of the judgment.
Halimbawa ang back-rentals mo ay one year na. You have not been paying your rentals for a year. At
P1,000 a month, lets say P12,000. You post a supersedeas bond for P12,000. If the rental is P2,000 a month,
you pay a bond of P24,000.
You appeal, file bond, and you let the court approve the bond. With that the MTC will now withdraw the
order of execution.
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Your appeal will now proceed. The records will be elevated to the RTC. The money you deposited will be
with the clerk of court. When the case reaches the RTC you do the third requirement.
Remember, you filed the bond to answer the accounts due to the plaintiff under the judgement.
3. Pagdating sa RTC, be sure that every month you go to the office of the clerk of court. You make periodical deposits
of the rents falling due during the pendency of the appeal every month. Example, each month P2,000 (if such is the
monthly rental). While the appeal is going on, takbo nang takbo yung rental.
th
Kailan? Not later than the 10th day of the months succeeding. On or before the 10 day of the succeeding
month or period. E.g. If the rental is due on September, on or before September 10. For October, not later than
October 10.
What happens if nalimutan mo? Nalimutan… ? What will the plaintiff do? The plaintiff, through his lawyer
will now file a motion to execute in the RTC… to execute the judgement of the MTC. Bakit? Non-compliance.
According to jurisprudence, it is the ministerial duty of the RTC to order the execution.
So out. Paano yung appeal mo? Tuloy! Your appeal will continue, but in the meantime, out ka. Kung
nanalo ka, pabalikin ka. In the meantime, out ka!
The purpose of this law is to prevent the prolonged agony of the plaintiff.. The squatter or the delinquent
lesee can always delay. Kahit na talo na sige appeal… appeal… appeal (isang appeal pa… appeal! umm!).
These are the counter-measures.
Remember the three requirements. You fail to observe one, yari ka!. That is the rule. These are all intended to restore the
possession of the property to the plaintiff. That is the rule to remember. This is unique eh.
Q: Now, when do you file the supersedeas bond? What if I file my notice of appeal on the 10th day, and the bond on the 16th?
A: The SC said, EXECUTE! The supersedeas bond should be deposited together within the 15 days. Hindi pwede ma-extend.
NO EXTENSION for the filing of the supersedeas bond.
CORDOVA vs. GABAYLEN

249 SCRA 172, October 10, 1995
HELD: While it is true therefore that defendant deposited the amount which approximates the monetary judgment
for unpaid rentals, since the same was filed late, it could not qualify as a supersedeas bond. What is considered
material for the purpose of the stay of execution pending appeal under Rule 70 is not the fact of payment but more
importantly, the timeliness of the filing of the supersedeas bond. Execution could not be legally stayed by reason of
the admittedly belated filing of the aforequoted supersedeas bond.
CHUA vs. COURT OF APPEALS

286 SCRA 437, February 24, 1998
ISSUE: When do you file the supersedeas bond? Now there is no problem about the notice of appeal. Your
notice of appeal is filed within 15 days, otherwise it is file out of time. But is there a deadline for the filing of the
supersedeas bond? If you look at the law, wala man.
HELD: If the defendant-appellant perfected the appeal but failed to file a supersedeas bond, immediate execution
of the judgement automatically follows. Conversely, the filing of the supersedeas bond will not stay the execution if
the appeal is not perfected also. (Kailangan dalawa). Necessarily then, the supersedeas bond should be filed within
the period for the perfection of the appeal.
So everything within 15 days in order for the execution to not proceed. Take note of that.
Now normally, sino ba ang dapat mag-deposit while the case is on appeal? Normally defendant eh. Yung natalo. Now in the
old case of Cruz v. Hugo (77 Phil), the person under obligation to make the rental deposits is the defendant. Not the plaintiff. But
let us see what happened in the case of
CITY OF MANILA vs. CA

149 SCRA 150
FACTS: In a case involving the premises of an underpass in the Quiapo district, which is owned by the City of
Manila, below are stalls which the City is leasing. The stall owners were paying rentals per month, lets say P4,000 a
month. Manila increased the rental, let's say from P4,000 to P6,000. Ayaw nila. They refuse to pay.
The City filed UD. The old city court of Manila rendered a decision upon.. . BINAYOT BA: "Ok, the City Can
increase the rental from P4,000 to P5,000”. Halfway bah! Payag ang mga store owners. It is the City that is
aggrieved, and it appealed. It appealed on that issue on whether the court was authorized to fix its own rate as
against what the lessor is setting. So appeal. And when the appeal was going on, these defendants did not deposit
in the clerk of court the P5,000 monthly rental. So that City moved to execute. The judgement.
HELD: The SC said that the rule that immediate execution of judgement should be applied is not only when it is
the defendant appealing but also when it is the plaintiff appealing. Both sides.
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Remember that the decision of the city court is P5,000, ayaw ng City. Ikaw (defendant), payag ka? “Yes, payag"
O, kung payag ka, ba’t ayaw mong mag-deposit (gago!)! There is something wrong there. You are not questioning the
decision yet you refuse to deposit. So you should deposit.
“We rule that Sec. 8 of Rule 70 (referring to the 1964 Rules) can apply even if it is the lessor who appeals in the
sense that in such a case, if the lessee desires to prevent execution pending appeal, he (the lessee) must still file the
supersedeas bond and deposit in court the accruing rentals. Our doctrine in CRUZ, ET AL. vs. FERNANDO JUGO,
ET AL. is reversed insofar as it conflicts with the present case. The rationale for Our ruling is simple: why should the
lessee continue occupying the premises without filing the supersedeas bond and making the necessary deposit for
ensuing rentals (particularly when, by his failure to appeal, the lessee does not question said accrued and incoming
rents)?”
Q: Under Section 19, what is the RTC executing?

A: The RTC is executing the judgment of the MTC. The case will still be decided by the RTC
Sec. 20. Preliminary mandatory injunction in case of appeal. Upon motion of the plaintiff, within ten (10) days
from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or
dilatory, or that the appeal of the plaintiff is prima facie meritorious. (9a)
There are two (2) instances when preliminary mandatory injunction can be availed of under Rule 70. The first is Section 15,
second paragraph i.e. before the case is decided, immediately upon the filing of the complaint. Now, (second) eto namang appeal,
in case the defendant will appeal or the plaintiff will appeal, the plaintiff can still ask for it on appeal. That is on appeal if the
defendant is frivolous or dilatory or the appeal of the plaintiff is prima facie meritorious.
That is different from yung failure to file the supersedeas bond
Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court The judgment of the
Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal
that may be taken therefrom. (10a)
So, talo ka sa MTC, you appeal to the RTC, you post bond, pay rentals, so plaintiff cannot file for execution pending appeal.
Natalo ka parin sa RTC. Appeal ka sa CA under Rule 42, Petition for Review. But I will file a motion to execute because the
decision of the RTC is immediately executory.
You can appeal and cause more delay of a case under the summary procedure.
Under Section 17, you will file a motion in the RTC for the execution of the MTC decision. The RTC decided to affirm the
decision, so you will also file another motion for execution under Section 21.
Q: Where will you file your motion to execute under Section 21?
A: MTC or RTC.
Q: What are you actually executing?

A: The decision of the RTC or the MTC as affirmed by the RTC. (City of Manila vs. CA, 204 SCRA; SY vs. Romero, 214 SCRA;
Salientes vs. IAC, 246 SCRA 150 [1995]- the latest.)
What you are going to execute is the original decision of the MTC, so the records are brought back there and you file your
motion to execute in the MTC.
Rule 71
CONTEMPT
Q: How do you define contempt?

A: Contempt - it is a disregard of or disobedience with rules or orders of a judicial body, or an interruption of its proceedings by
disorderly behavior, or insolent language, in its presence or so near thereto, as to disturb the proceedings or to impair the respect
due to such a body. (17 C.J.S. 4)
According to SC, the power to punish contempt, is inherent in all courts; its existence is essential to the preservation of order in
judicial proceedings and the enforcement of judgements, orders and mandates of the court, and, consequently to the due
administration of justice. (Perkins vs. Dir. of Prisons, 58 Phil. 271) The court said, the reason behind this power to punish for
contempt is that respect of the courts guarantee, the stability of that institution, without such guarantee, such institution will be
resting on a very shaky foundation. (Cornejo vs. Tan, 85 Phil. 772)
Rule 135 (5) inherent power of the courts, - to compel obedience to its orders, to maintain its dignity while proceedings are
going on (that’s the essence). Violation of the same, you will be held liable for contempt.
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Section 1. Direct contempt punished summarily — A person guilty of misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and
punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it
be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos or
imprisonment not exceeding one (1) day, or both, if it be a lower court. (1a)
Sec. 2. Remedy therefrom — The person adjudged in direct contempt by any court may not appeal
therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall
be suspended pending resolution of such petition, provided such person files 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. (2a)
Sec. 3. Indirect contempt to be punished after charge and Hearing — After a charge in writing has been filed,
and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court
and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for 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 section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice;
(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.
But nothing in this section shall be so construed as to prevent the court from issuing process to bring the
respondent into court, or from holding him in custody pending such proceedings. (3a)
Classifications of Contempt:
As to the manner of commission:
1. Direct Contempt under Section. 1
2. Indirect Contempt under Section. 3
As to the nature of Contempt:
1. Criminal Contempt
2. Civil Contempt
Q: Distinguish Civil from Criminal Contempt:
A: A civil contempt consists in the failure to do something ordered to be done by a court or judge in a civil case for the benefit
of the opposing party therein; whereas a criminal contempt consists in conduct that is directed against the authority and dignity of a
court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in
doing a dully forbidden act. Perkins vs. Dir. of Prisons, 58 Phil. 271)
A good example of civil contempt is when you are file an injunction with a TRO. On the other hand, when You are inside the
court room and while the trial is going on, you start singing and dancing inside the court room, that is Criminal Contempt. It is
directed against the dignity, that is disrespect to the court while proceeding is going on.
REMMAH ENTERPRISE, INC. vs. CA

268 SCRA 68, February 26, 1997
ISSUE: How do you characterize whether the contempt is civil or criminal?

HELD: The SC said, the real character of the proceedings in contempt cases is to be determined by the relief
sought or by the documents purpose. When you ask the court to cite somebody in contempt, what is the purpose
behind that? The proceedings are to be regarded criminal when the purpose is primarily for punishment. And it is civil
when the purpose is primarily compensating or remedial.
In general, criminal contempt proceedings should be conducted in accordance with the principles and rules
applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt
proceedings. Strict rules that govern criminal prosecution apply to a prosecution for criminal contempt. The accused
will be accorded with protections provided in regular criminal cases and proceedings under the statutes governing
them are to be strictly construed. We just follow the general principles in criminal cases. However, criminal
proceedings are not required to take any particular form so long as the substantial rights of the accused are
preserved.
447
Civil contempt proceedings, according to the SC, are generally held to be remedial and civil in nature, that is for
the enforcement of some duty and essentially, the remedy resulted to preserve and enforce the right of a private party
to an action and to compel obedience to a judgement or decree intended to benefit such party litigant.
The rules of procedure governing criminal contempt proceedings or criminal prosecutions or devarily are
inapplicable to civil contempt proceedings.
Q: what are considered acts of direct contempt?

A: a.) misbehaviour in the presence of or disrespect towards the court or judge or to abstracts… Some lawyers are guilty of
this, minsan nagaaway or nagmumura na sila sa courtroom. One must maintain ones cool and professionalism.
Don’t treat the courtroom like a market place because the judge may hold you in contempt.
b.) refusal to be sworn or to answer as witness. This is related to evidence. So, if you refuse to answer, the judge may
declare you in contempt of court
c.) Refusal to subscribe to an affidavit or deposition when lawfully required to do so.
Q: How is a person made liable?

A: He may be summarily adjudged in contempt of court. Summarily means no hearing!
Q: What is the penalty?

A: If you are found guilty of contempt, the maximum imprisonment is ten (10)days. The maximum fine is P2,000 - or both
penalties may be given. This is before the RTC and CA. In MTC, the maximum fine is P200 and imprisonment should not exceed 1
day - or both.
Sec. 2. Remedy therefrom — The person adjudged in direct contempt by any court may not appeal
therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall
be suspended pending resolution of such petition, provided such person files 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. (2a)
Q: Is an order of direct contempt appealable?

A: NO, you cannot appeal.
Q: Suppose the judge held you in direct contempt with grave abuse of discretion?
A: Yur remedy is certiorari or prohibition - not an appeal.
And maybe the court will give you few days to file your opposition. On the meantime, the judgement will be suspended but you
put up a bond. The bond will be a condition that you will abide by and perform the judgement should the opposition be decided
against you.
Q: How is a charge for indirect contempt made?

A: There must be a charge in writing and the respondent is given opportunity to comment thereon and he can be heard. That is
one main difference between direct and indirect contempt. In direct contempt, there is no hearing, there is no charge, there is no
petition. On the spot! Your are not given the chance to comment. But in indirect contempt, the normal due process is observed.
Similar to a trial after which only then can a court within you are guilty.
Q: What are the grounds for Indirect Contempt?

A: The following:
a.) disobedience of an officer in court…
What’s the difference between this act and in Sec.1? The difference is, in Sec.1, your act of misbehaviour is right
there in the presence of the judge. In Sec.3, it is something that you do in the performance of your duty and
somebody brings to the attention of the court, so it must be heard. Lawyers can be held liable here because they are
held officers of the court. (ex. Sheriff, clerk of court, etc.)
b.) disobedience…
A good example would be resistance to heed an order or writ of preliminary injunction (TRO)
A resistance to be considered contemptuous, some requisites must be considered:

1.) It must appear that an order was in fact made by a court requiring the performance of some particular act.
2.) The act which is forbidden or required to be done must be clearly and precisely defined so as to leave no
reasonable doubt to what specific act is required or forbidden.
3.) The order must be lawful. (Ex. TRO, after the lapse of 30 days, wala ng violation dyan because the TRO already
expired.
4.) The disobedience must be willful or deliberate (not just negligence or mistake)
Q: Suppose you are sued for forcible entry. After trial you lost the case and you are ordered, to vacate. But despite
the judgement, you refused to leave the property. Can you be held liable for indirect contempt?
A: No, there is no contempt here because back to execution, there are two types of judgements: Ordinary and Special
Judgment(Rule 39):
448
A party can be punished for contempt if it is based on a special judgement, but if it is an ordinary judgement - you will
not be punished. Special judgement is a judgement which required a party to perform an act other than to pay money or to
deliver a property.
Whose judgements are ordinary? Ex. Judgement ordering a party to pay a sum of money. But if the defendant will not
pay, will you ask the court to render him in contempt of court? No- you just ask to levy his property, you don’t send him to
jail! Order to vacate - (ordinary judgement) delivery of property - No contempt, But if it is a special judgement, you may be
held in contempt. Ex. Rule 65 (9), the law says, disobedience thereto, shall be punished for contempt - that provision is for
a special judgement.
So what is the correct procedure in an ejectment case when the losing party fails to vacate?- You get a writ of
execution and the sheriff now will forcibly eject the defendant from your land. And then after a month, balik na naman sya!
What will you do now? You look at Section 3 par (b).- Ayan contempt ka na! That is the difference between the two
situations.
So if you are enforcing a judgement - no contempt but if the judgement is enforced already, and you come back - that
is when you will be liable for contempt under paragraph b of Section 3.
C.) Abuse of Court process…

Example: Postponement of trial on the ground that a party is very, very sick and the court believes but later found out
that the same was not true and it was proven. Now, can you hold him guilty for contempt? Yes. You abuse a court
process. What process? The process of postponement. In this case, you are trying to abuse the court process.
Another example is forum-shopping - this is an abuse of court process.
D.) Any impropper conduct… though courts are very lenient about this.
Example: the media… writing stories about a certain case or the life of the accused, this is subjudice. There should
be no commentary. What if you comment on a pending case, what happens? That is contemptuous! An improper conduct
degrading the wheel of justice.
What if the case has been disposed of? You many comment but not when the case is pending. But what , if you say
that the decision is wrong because the judge is ignorant, he doesn’t know the law! Now, that is different and is already
contemptuous because you are tending to degrade the administration of judgement. Take note that this is already after the
judgement was given!
You ask why it is contemptuous to comment a case while it is pending? The answer would be that it might influence or
affect the proceedings and judgement of the case.
However, supposed the judge is strong-willed or he never read or heard of the story- so, your attempt to influence will
not really affect him. Can you still be held liable for contempt? Yes, because you still degrade the administration of
judgement.
Another reason is that you will influence the mind of the public that would defeat the principle that an accused is held
innocent until proven guilty. This may degrade the court/judge who rules on evidence because the public may insist the
guilt of the accused. Remember that the court is not guided by publicity.
E.) Appearing as an attorney for a party without authority, that is contemptuous!

F.) Failure… Ayaw magsipot sa court!
G.) Interfering with court processes.
Sec. 4. How proceedings commenced — 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.
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 decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and decision. (n)
If you will notice Section 4 is a new provision in Rule 71
Q: How will you receive charges (?) in contempt proceedings?

A: If you look at the first paragraph, there are two ways:
1.) Motu propio by the court
2.) And other formal charge requires the respondent to show the cause why he should not be punished for contempt.
This proceeding is taken from the rulings of the SC, particularly…. (end of tape)
NAZARENO vs. BARNES

136 SCRA 37
FACTS: This case was originated in Municipality of Bagangga, Davao. del Norte. The petitioner here is Dr.
Nazareno, the respondent is former late judge Roque Barnes(?) who was assigned there before as judge of the CFI.
449
Now, there must have been some bad blood between the petitioner and the respondent because Nazareno
distributed letters to different people (Pres., SC etc.) attacking judge Barnes - questioning the latter’s integrity. The
petitioner tried to convince the judiciary to disallow or deny further appointment for Judge Barnes under the Judiciary
Reorganization Act. Now, Barnes felt that the acts of petition are contemptuous. The question is where there is
contempt? Judge Barnes was convinced that there is, but how will he institute a contempt proceeding in his own sala
without complaint?
Now, since the case is criminal in nature, Judge Barnes followed the procedure in filing a criminal complaint first
by filing an information so and so for contempt. Of course there are so many things discussed in the Sala of judge
Barnes. Then Nazareno went to SC on certiorari and one of the issues was, how are contempt proceedings initiated?
If the judge initiates contempt, do you initiate it by way of information using the rules of criminal procedure?
HELD: The SC said that the contempt proceedings against Nazareno was wrongfully initiated. The nature there
of being that of an indirect contempt/a written change(?) being necessary, of course you went to Sec. 3 of Rule 71.
The written charge may partake the nature of:
1.) An order requiring the respondent to show cause why he should not be punished for contempt for having
committed a contemptuous act imputed upon him.
2.) A petition for contempt by way of special civil action under Rule 71
The first procedure will apply only when the indirect contempt is committed against a court or judge who
possessed and endowed with contempt powers.
Therefore in the case of Nazareno vs. Judge Barnes, neither of the two modes of commencing an indirect
contempt proceedings was availed in the instant case. What was filed against Nazareno was, to all intents and
purposes, was an information in a criminal case.
“Contempt however is not in the nature of a criminal offense within the meaning of the law, and need not be
instituted by means of an information.”
“The institution of charges by the prosecuting official is not necessary to hold persons guilty for civil or criminal
contempt amenable to trial and punishment by the court. The law only requires that there will be a charge in writing
during trial in court and the opportunity for the person charged to be heard.”
Distinction between two modes: The first is initiated by the judge (motopropio), the second is inititated by another person
through a verified petition with supporting particulars and with full compliance in filing indicating pleadings. The second paragraph is
a new and radical change from the old because the case for contempt will be decided separately from the main action. Therefore,
the case will be treated as a new case, docketed and heard - panibagong kaso yan! So it’s possible that the contempt proceeding
under second paragraph will be handled by another judge. But for convenience, you may ask for consolidation of the contempt
charge and the principal action for a joint hearing.
Before, a contempt charge is treated as a mere motion. The same docket no. etc. But now it’s different! Bingo na!
GERMINO vs. RAMOS
Example is you file a written charge of contempt, is there a particular from, in Section 3, there seem to be none
but in Section 4, there is such as the filing, attachment of particulars and full compliance of requirements for filing on
initiating pleading (non-forum shopping etc.)
Do you have to furnish a copy of the contempt case to the respondent? No, because there will be another
summon, so and so . This is another case. The next question in this case is:
Suppose there will be a promulgation in the judgement for contempt, either one is aquitted or held liable, how will
you promulgate the decision in a contempt proceeding? Will you follow the rules in criminal proceeding for
promulgation (ready for contempt, presence of the accused in court etc.) Is that also the procedure for contempt
proceedings?
HELD: The SC said NO, just serve a copy of the decision to him just like the other civil case. So you don’t really
have to follow all the rules in criminal procedure 100%.
REYES vs. PALSIS

193 SCRA 649
FACTS: Whether somebody has a legal personality to file a contempt proceeding? I think the contempt charge
here is under Section 3 (b) - disobedience of or resistance to a court order. Usually who will file this? The party in
whose favor the order was issued - siya man ang agrabyado!
But in this case, the one who filed the petition is somebody who is not part of the case. A complete stranger. He
is not the person who benefited by the order and yet, he is the one inititating the petition against one of the parties
their for disobedience on a lawful court order. Now, if you are the respondent, how will you challenge? As usual - You
have no personality. So, that is what has been resolved in this case.
ISSUE: Will a charge of contempt for alleged diobedience properly lie if it is initiated by a person/s not party/ies to
the action or proceeding in which the order is issued?
HELD: The SC said YES, because of the following reasons:

1.) There is nothing in the Rule 71 that says only the party/ies to the case has the personality to receive the
contempt proceeding.
450
2.) In the exercise of the court’s power to punish for contempt, the interest of private parties, either litigants or
not in a case, in which it is invoked is at best only a coincidental, not a necessary or indispensable factor.
Meaning, the interest of the private parties are merely incidental, not indispensable.
Sec. 5. Where charge to be filed — Where the charge for indirect contempt has been committed against a
Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may
be filed with such court. Where such contempt has been committed against a lower court, the charge may be
filed with the Regional Trial Court 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 Regional Trial Court of such place in the same manner as
provided in section 2 of this Rule. (4a)
For example you want to file a petition for indirect contempt for disobeying am RTC order. You file the petition in the RTC. How
about a resistance to a MTC order? You file the petition for contempt in the MTC but you can also file it in the RTC.
In other words, petition for contempt in the MTC order can be initiated either in the MTC or RTC. So the RTC can declare you
guilty of contempt by disobeying an order of the MTC.
Sec. 6. Hearing; release on bail — If the hearing is not ordered to be had forthwith, the respondent may be
released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of
the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such
comment, testimony or defense as the respondent may make or offer. (5a)
In the indirect contempt, it is possible for the respondent to be held already in custody -unless you file a bond, but it is
discretionary.
Sec. 7. Punishment for indirect contempt — If the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine
not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged
guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand
pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of
injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution
to the party injured by such violation of the property involved or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a
fine unless the court otherwise provides. (6a)
Sec. 8. Imprisonment until order obeyed — 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. (7a)
When you are supposed to perform something, ayan no, the court will order you to be imprisoned, to be released when you are
already willing to comply. Example, failure to comply with the order to support pendente lite- ayaw magbayad. The court can order
you na ikulong to be released if you are willing to give the support already.
Sec. 9. Proceeding when party released on bail fails to answer — When a respondent released on bail fails
to appear on the day fixed for the hearing, the court may issue another order of arrest or may order the bond for
his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of
damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for
which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the
benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal
cases. (8a)
When you are released through bail and if you fail to appear, the bond will be confiscated, just like in criminal cases.
Sec. 10. Court may release respondent — The court which issued the order imprisoning a person for
contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his
release. (9a)
The same with Sec. 6, because the court can order you to be placed in custody while the contempt charge is pending. But Sec.
10 said, the court, which orders you to be in prison, may discharge you from imprisonment when the interest of the public will not be
prejudiced by the release. This is discretionary on the part of the court.
Sec. 11. Review of judgment or final order; bond for stay — 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. But 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 from 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. (10a)
451
If you are judged guilty for contempt of court, you are guilty of indirect contempt of court – one (1) month imprisonment, can
you appeal? Yes, this is unlike direct contempt because in direct contempt, there is no appeal. Dito pwede. Therefore, the
judgement sentencing you to 1 month imprisonment will be suspended until the appeal is resolved.
Q: Supposed the respondent is declared not liable, he did not commit an act of contempt, can the adverse party appeal?
A: The SC said No because we follow the rule in criminal prosecution - the prosecution cannot appeal from an order of
acquittal (double jeopardy). If you are liable, of course, you can appeal, just like the accused.
PEOPLE vs. GODOY,

March 29, 1995
Q: The case originated in RTC, after it was decided, it was appealed to the CA. Supposed you are the party who
commit the contempt in the RTC, who will declare him in contempt? The RTC or CA? Remember that the case
started in the RTC and once it was appealed, the RTC lost jurisdiction over the case. So, who will now declare the
party in contempt?
A: In this case, it is the CA because the appeal completely transfers the records and the proceedings thereto, or
where there is tendency to affect the status quo or otherwise interfere with the jurisdiction of the appellate court.
Q: Second, is it possible that a case of libel be filed against him under the penal code and the case for contempt
afaisnt him under the Rules of court? Pwede ba yung dalawa?
A: Yes - both may be filed. The fact that the act of constituting a contempt is also criminal and punishable by
indictment or other method of criminal prosecution does not prevent the outraged court from punishing him of
contempt. This principle stems from the fundamental doctrine that an act may be punished as a contempt even
though it has been punished as a criminal offense. The defense of anyone made in jeopardy based on the conviction
of a criminal offense would not lie a bar the contempt proceedings on the proposition of the contempt may be on the
offense against the dignity of a court and at the same time an offense against the peace and dignity of the people of
the state, because in criminal, the offended party is the people of the Philippines, while in contempt it is directed
against the court. So there is no inconsistency.
In the case of Godoy, the judge was maligned just like in Nazareno’s case. Here the defendant said to be the
judge that he should not file a contempt charge because talo siya, pano judge ang kalaban, eh, File ka na lang ng
libel, that way pareho tayo, pantay ang bakbakan.
But the SC said No, the suggestion that judges who are unjustly attacked can be remedied in an action for libel is
without rational basis and the principle according to the SC. In the first place, the outrage is not directed to the judge
as a private individual but in a judge as such and to the court as an organ for the administration of justice. In the
second place, public interest will greatly suffer where the judge as such will from time to time be pulled down in his
room, of his judicial authority, to face his on equal grounds and prosecute cases in his behalf as a private individual.
Q: The last question, if a lawyer does a contemptuous act, can you file two cases against him - a case for contempt and a case
for disbarment (ethical grounds)?
A: The SC said YES, the basic rule is that the power to punish for contempt and the power to disbar are separate and distinct
ant that the exercise of one does not exclude the other. A contempt proceeding or misbehaviour in court is designed to vindicate
the authority of the court, On the other hand, the object of disciplinary proceeding is to heed the fitness of the court’s officer to
continue in that office to preserve and protect the court from the official ministrations of persons unfit or unworthy to hold such an
office. (People vs. Godoy)
Iba ang purpose nang contempt sa disbarment. The position required as a penalty in a contempt proceeding is not considered
res judicata to a subsequent charge for unprofessional conduct. That is for the lawyer to show cause, why he should not be
punished for contempt cannot be considered as a notice to show cause why he should not be suspended from the grounds of law,
considering that each of them, there is a separate object and for each of them a different procedure is established.
Contempt of court is governed by the procedure laid down under the Rule 71 of the Rules, whereas disciplinary actions in the
practice of law are governed by Rules 138 and 139 of the Rules. So, that the holdings in the case of People vs. Godoy
Sec.12. Contempt against quasi-judicial entities — 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. The Regional Trial Court of the place wherein the contempt has been committed shall have
jurisdiction over such charges as may be filed therefor. (n)
Q: Do quasi-judicial bodies have the power to punish for contempt?

A: No, unless a court or a law specifically grants this body the power. Remember, the power to punish for contempt is
inherently judicial. Now, if the law gives you the power - no problem.
Q: But suppose there is no such provision. There is no power. What if you will misbehave before these bodies, ex. NLRC, what
will the remedy be?
A: The procedure is to file a petition declaring in contempt to the RTC. Meaning the RTC will be the one to hold him liable for
contempt in the NLRC because the NLRC has no power, pero kung meron doon kana magfile.
452
CRIMINAL PROCEDURE
Rule 110
PROSECUTION OF OFFENSES
Q: How are criminal cases or actions instituted?

A: Section 1, Rule 110.
SECTION 1. Institution of criminal actions.– Criminal actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by
filing the complaint with the proper officer for the purpose of conducting the requisite preliminary
investigation.
(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial
Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila
and other chartered cities, the complaints shall be filed with the office of the prosecutor unless otherwise
provided in their charters.
The institution of the criminal action shall interrupt the running of the period of prescription of the
offense charged unless otherwise provided in special laws. (1a)
The language has been changed no? If you try to compare it with the old Rules, merong major changes, meron man ding
pareho. The language is now simplier.
Q: Is there a difference between commencement of criminal action and institution of criminal action?
A: Yes. When you say “commencement”, generally it is already in the court once it is filed in court. But “institution” is earlier.
When you file a complaint with the fiscal’s office, it is already an institution.
Q: Is preliminary investigation required in all criminal cases? Because there are some criminal cases which do not require
preliminary investigation.
A: Generally, all RTC cases require preliminary investigation. But right now under the new rules, some cases triable by the
MTC may also require preliminary investigation.
For example in the RTC, more than 6 years, kailangan may preliminary investigation yan. Under Section 1, from the moment
you file a complaint with the proper officer for the purpose of conducting a preliminary investigation, it is already institution.
Q: Who are these officers referred to?

A: They are mentioned in Section 2, Rule 112:
SEC. 2. Officers authorized to conduct preliminary investigations. –

The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
453
Their authority to conduct preliminary investigations shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions. (2a)
Q: How about those other offenses which DO NOT require preliminary investigation?
A: Under the new rules, yung below 4 years and 2 months ang penalty – they are triable by the MTC. (If the penalty is 4
years, 2 months and 1 day, it requires preliminary investigation.)
Q: How do you institute them? Like slight physical injuries…

A: You have two (2) options:
1. File a complaint with the prosecutor’s office in the city or provincial who will now file the case in court; or
2. Kung gusto mo, direct filing. You can file the complaint directly to the MTC. Like sa munisipyo, police man ang mag-
file ba.
However in Davao City we do not see that because under the rules, in Metro Manila and other chartered cities, the complaint
shall always be filed with the office of the prosecutor unless the charter of the city provides otherwise.
So again, the complaint can be filed either in the MTC in the province or office of the fiscal merely for preliminary investigation.
Unlike in chartered cities na puro fiscals lang ang authorized to conduct preliminary investigation. For example: Murder, the police
can file a complaint for murder before the MTC of Sta. Cruz, Davao del Sur. That is not for trial but only for preliminary investigation
because the MTC of Sta. Cruz has no power to try a murder case.
The institution of the criminal action shall interrupt the running of the period of prescription of the
offense charged unless otherwise provided in special laws. (last paragraph, Section 1, Rule 110)
QUESTION: Does the filing of the complaint with the prosecutor’s office interrupt the running of the prescriptive period of the
crime?
In the old case of People vs. del Rosario (1964), SC: No. When a complaint is filed in the municipal court only for the purpose
of preliminary investigation, it does not interrupt the running of the prescriptive period. What interrupts is the filing of the complaint
in court which has jurisdiction to try the case.
That is reiterated 3 years later in the case of People vs. Coquia. The SC modified it in the case of People vs. Olarte where a
complaint for murder is filed in the MTC for preliminary investigation. The issue is: Is the running of the prescriptive period
interrupted? SC: Yes, abandoning the case of Coquia and del Rosario. Why? Because the Penal Code says, the filing of the
complaint interrupt the running of the prescriptive period. Article 91 of the RPC does not distinguish whether the filing is for trial or
merely for preliminary investigation. However the SC said here, the complaint is filed in court for preliminary investigation. If it is
filed in the fiscal’s office also for preliminary investigation, Hindi [does not interrupt]!! “Court” not “Fiscal”. That is the original ruling.
However in 1983 in the case of Francisco vs. CA, the SC made it total na: the filing of the complaint whether in the MTC or the
fiscal’s office for preliminary investigation is sufficient to interrupt the running of the prescriptive period. However, in 1985 when the
rules were revised, the SC rejected the ruling in the Francisco case: the filing of the complaint in the fiscal’s office does not interrupt
the running of the prescriptive period. But in 1988, in-amend na naman ang rules: the filing of the complaint in the fiscal’s office is
sufficient to interrupt the running of the prescriptive period.
And here comes the 1992 case of Zaldivia vs. Reyes Sr. (211 SCRA 277) which was a criminal case covered by the Summary
Rules.
ZALDIVIA vs. REYES SR.

211 SCRA 277
FACTS: It was a violation of a municipal ordinance. Arresto Menor lang yan e. F-in-ile sa fiscal’s office. The fiscal
is relaxed because according to him: the filing of the case with the fiscal’s office is sufficient to interrupt the running of
the prescriptive period. So, relax siya… he took his time.
F-in-ile niya (fiscal) sa court after 3 months. Pag-file niya, motion to quash: “Prescribed!” Fiscal: “Hindee! When
the case is filed with the fiscal’s office, the running of prescriptive period is interrupted!”
HELD: You (fiscal) are wrong. The filing of this case before your office did not interrupt the running of the
prescriptive period. You should have filed that on time before the court.
REASON: You look at the first paragraph of Section 1 (1988 Rules): “in cases not covered by the Rules of
Summary Procedure…” So, that rule only applies in cases not covered by the Summary Rules. But the case at bar is
covered by the Summary Rules precisely because it is only arresto menor.
Therefore, when the case is covered by the Rules of Summary Procedure, the filing of the case with the fiscal’s office does not
interrupt the running of the prescriptive period (Zaldivia vs. Reyes, Jr, 211 SCRA 277). It should be the filing of the case before the
court which will interrupt. So, klaro yan until the 1998 case of
REODICA vs. COURT OF APPEALS

292 SCRA 87, Davide, Jr. J. (choy!)
FACTS: The charge here was slight physical injuries through reckless imprudence which is actually punishable
by arresto menor. It was filed with the fiscal’s office within 2 months but it was filed in the court beyond 2 months. And
definitely, it is covered by the Summary Procedure. In Zaldivia case, the filing in the fiscal’s office interrupts the
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running of the prescriptive period.
NOTE: Remember, the case of Zaldivia involved a violation of an ordinance.
HELD: But in the case at bar, this is a felony under the Penal Code. [Dean I: Ginawan pa ng distinction!] If it is a
felony, the filing with the fiscal’s office is sufficient to interrupt the running of the prescriptive period even if it is
covered by the Summary Rules. But, if it is a light offense punished by a special law like an ordinance and therefore
covered by the Summary Rules, then the filing in the fiscal’s office does not interrupt the running of the prescriptive
period.
So I start to wonder: Saan ba nanggaling ‘yung distinction na ‘yun? The SC cited Act 3326 which is the law governing
prescription of crimes punished by special laws. Whereas, Article 90 of the RPC refers to prescription of felonies under the Penal
Code. And under Act 3326, it is very clear that the prescription period for the crime (punished by a special law) is interrupted only
upon judicial proceeding – filing in the court.
Ayun pala! Akala ko the Zaldivia case settled the rule after all. Meron pa palang Reodica.
The SC said: The revised rules of Summary Procedure “cannot be taken to mean that the prescriptive period is interrupted only
by the filing of a complaint or information directly with said courts. It must be stressed that prescription in criminal cases is a matter
of substantive law. Pursuant to Section 5(5), Article VIII of the Constitution, this Court, in the exercise of its rule-making power, is
not allowed to diminish, increase or modify substantive rights. Hence, in case of conflict between the Rule on Summary Procedure
promulgated by this Court and the Revised Penal Code, the latter prevails.” (Reodica vs. CA, supra)
Yan! When I was reading this case, I said, what happened to Zaldivia case? Was it reversed? SC: No! No! We never reversed
Zaldivia. “Neither does Zaldivia control in this instance. It must be recalled that what was involved therein was a violation of a
municipal ordinance; thus, the applicable law was not Article 91 of the Revised Penal Code, but Act. No. 3326, x x x x x Under,
Section 2 thereof, the period of prescription is suspended only when judicial proceedings are instituted against the guilty party.
Accordingly, this Court held that the prescriptive period was not interrupted by the filing of the complaint with the Office of the
Provincial Prosecutor, as such did not constitute a judicial proceeding; what could have tolled the prescriptive period there was only
the filing of the information in the proper court. In the instant case, as the offenses involved are covered by the Revised Penal
Code, Article 91 thereof and the rulings in Francisco and Cuaresma apply. Thus, the prescriptive period for the quasi offenses in
question was interrupted by the filing of the complaint with the fiscal's office three days after the vehicular mishap and remained
tolled pending the termination of this case. We cannot, therefore, uphold petitioner's defense of prescription of the offenses charged
in the information in this case” (Reodica vs. CA, supra).
Yan! And I think the Reodica case is now incorporated in the new rules. You read the last paragraph of Section 5, Rule 110:
“The prosecution for violation of special laws shall be governed by the provision thereof. (n)”
It is an entirely new sentence. Tama man yan ba: The prosecution for violation of special laws shall be governed by the
provision thereof. I think that’s the Reodica case: when it comes to prosecution for violations of special law, you follow the special
law.
SEC. 2. The complaint or information – The complaint or information shall be in writing, in the name of
the People of the Philippines and against all persons who appear to be responsible for the offense
involved (2a)
Q: How do you file a complaint?

A: The complaint shall be in writing in the name of the People of the Philippines and against all persons who appear to be
responsible for the offense involved.
Q: What happens if the criminal complaint or information is filed in the name of the private complainant?
A: According to the SC, the complaint is defective. It can be quashed but it is only a formal defect. In case it proceeds to trial, it
should be corrected but it is not really a fatal mistake. It can be cured at any stage of the action by amending the information or
even if it is not cured, there is a valid judgment, you are found guilty, it shall no be voided merely because the title is defective. It will
not invalidate the proceedings.
Now the law says, “against all who appear to be responsible.” Meaning, it is the sworn duty of a policeman or fiscal to file a
case against all who appear to be responsible. It does not say who are guilty.
Q: How do you define complaint?

A: Section 3, Rule 110:
SEC. 3. Complaint defined. – A complaint is a sworn written statement charging a person with an
offense, subscribed by the offended party, any peace officer, or other public officer charged with the
enforcement of the law violated. (3)
Q: Supposes a complaint is filed but it was not sworn to or signed, is it valid?

A: The SC said, it is a formal defect. It can be cured. Generally, the signature is not needed.
Q: How do you define information?

455
SEC. 4. Information defined. – An information is an accusation in writing charging a person with an

offense, subscribed by the prosecutor and filed with the court. (4a)
Q: Who are the people authorized to institute or commence criminal cases?

A: The following:
1. Offended party;
2. Peace officer;
3. Prosecutor; and
4. Public officer charged with the enforcement of the law.
Q: How do you distinguish a complaint from information?

1. As to who files the complaint or information

A COMPLAINT is filed by the (a) offended party; (b) any peace officer; (c) prosecutor; (d) or any public officer
charged with the enforcement of the law.
On the other hand, an INFORMATION is prepared and signed by the prosecutor.
2. As to purpose
A COMPLAINT filed in court is either for preliminary investigation or for trial, but an INFORMATION filed in court
is only for trial.
3. As to where to file
A Complaint may be filed in court or in the office of the prosecutor, but an INFORMATION is always filed in court.
4. A COMPLAINT can be filed in court, for trial or for mere preliminary investigation, or it can even be filed not in court
but in the prosecutor’s office for preliminary investigation. But where an INFORMATION is filed, it is always filed in
court and always for trial.
The complaint contemplated in Section 2 could be filed in the MTC for trial (e.g. physical injuries), or it could be a complaint for
murder in the MTC, not for trial but for preliminary investigation.
The complaint filed in the fiscal’s office, city or province, is known in Spanish as “DENUNCIA” which is filed for preliminary
investigation as distinguished from the real complaint mentioned in Section 3. In Section 3, it is always filed by the offended party.
Although in some cases like when the offended party died, it is the police who files the affidavit complaint before the prosecutor’s
office for preliminary investigation.
EXAMPLE: Pedro was a victim of robbery. Can he file a complaint for robbery? YES. What if he died before he could file?
Q: Can the family of Pedro file a complaint under Section 3?

A: No, because they are not the offended party. They should file a complaint in the fiscal. If you are talking of a complaint filed
under Section 3, you must be the offended party. But a complaint filed with the fiscal, need not be by the offended party. (Evarle vs.
Sucaldito, 156 SCRA 808)
That is the distinction, and the fiscal has the authority to investigate any crime whether the one complaining is the victim or not
because the offended party is the People of the Philippines.
SEC. 5. Who must prosecute criminal actions. – All criminal actions commenced by a complaint or
information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal
Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not
available, the offended party, any peace officer, or public officer charged with the enforcement of the law
violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or
upon elevation of the case to the Regional Trial Court.
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. The offended party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or
pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a
complaint filed by the offended party of her parents, grandparents or guardian, nor, in any case, if the
offender has been expressly pardoned by any of them. If the offended party dies or becomes
incapacitated before she can file the complaint, and she has no known parents, grandparents or
guardian, the State shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of the offenses of
seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or
guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor,
fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the
action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be
exercised successively in the order herein provided, except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation of any of the offenses mentioned
above shall be brought except at the instance of and upon complaint filed by the offended party. (5a)
456
The prosecution for violation of special laws shall be governed by the provision thereof. (n)
However once the case is in court, the complaint or information filed shall be prosecuted under the direction and control of the
public prosecutor. This shows the control of the government. This is one feature of the Inquisitorial System of criminal procedure.
The fiscal has the absolute control.
Q: Can the offended party hire his own lawyer to prosecute?

A: YES, the offended party can hire his own lawyer who is known as the private prosecutor. The personality of the private
prosecutor is based on the provision in the RPC that every person criminally liable is also civilly liable. It is because of this civil
liability that the offended party has an interest in the criminal case.
Even if the public prosecutor may turn over the active conduct of the trial to the private prosecutor, he must be present during
the proceedings because he is, by law, duty-bound to take charge of the prosecution of the case until its termination.
If the public prosecutor or fiscal and the private prosecutor do not agree on how to prosecute, the fiscal will prevail because the
private prosecutor is under the direct control of the fiscal.
Q: What happens if there are no fiscal in a municipality?

A: According to Section 5, Rule 110: “However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor
assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the
enforcement of the law violated may prosecute the case.”
This provision that if there is no prosecutor, puwede sila, is taken from the ruling of the SC in the case of People vs. Beriales,
17 SCRA 24. Usually, in the absence of the fiscal, it is the police authorities who act as prosecutors. However, according to the SC
in the 1992 case of
PEOPLE vs. RAMOS
207 SCRA 144
FACTS: The case is triable by the MTC of Ilocos Norte. The offended party went to the fiscal and filed the
information. During the trial, the judge declared the fiscal in contempt of court as when the case was called for trial,
the fiscal was not around. The fiscal answered in writing. When asked to explain why he refused to come to court
despite the previous order, he said his office is undermanned or understaffed. Thus he could not personally appear
and prosecute. At any rate, the fiscal pointed out in his explanation that the prosecution of the case can be handled by
the offended party or any peace officer.
ISSUE: Who should prosecute the case? The public prosecutor or any of the persons mentioned in Section 5,
Rule 110?
HELD: It is the public prosecutor who should prosecute the case because he already knew about the case. He
was the one who investigated the case. Therefore, he should continue in the prosecution of the case in court. While it
is true that the law allow the offended party, any peace officer, or other public officer to prosecute a criminal case in
places where there are no fiscals available, that is only the EXCEPTION.
The GENERAL RULE is that the fiscal himself should handle the prosecution of the criminal case. It is his duty
and moral obligation to prosecute the case after having conducted the investigation and, believing that there is a
case, filed an information in court.
“The Court feels that in those cases where the prosecutors themselves have filed the criminal charges, there is
all the more reason for them to actively intervene in their prosecution. Having presumably made the necessary
investigation of these cases before filing the corresponding informations, they are the best position to handle their
prosecution on the basis of their initial findings. If the prosecutor had not determined the prima facie guilt of the
accused, he should not have filed the information in the first place. At any rate, there is something not quite correct in
the prosecutor filing the information himself and then leaving the offended party in the lurch, as it were, by asking him
to fend for himself in prosecuting the case.
“The exception provided in Section 5 must be strictly applied as the prosecution of crime is the responsibility of
officers appointed and trained for that purpose. The violation of the criminal laws is an affront to the People of the
Philippines as a whole and not merely the person directly prejudiced, who is that the prosecution be handled by
persons skilled in this function instead of being entrusted to private persons or public officers with little or no
preparation for this responsibility. The exception should be allowed only when the conditions therefor as set forth in
Section 5, Rule 110 of the Rules on Criminal Procedure have been clearly established.”
According to Section 5, the criminal action shall be under the control and supervision of the prosecutor. That is only applicable
if you are talking of the trial court. But if the criminal case is lifted in the CA or SC on appeal, wala ka nang pakialam. It should be
the Solicitor General who must represent the People of the Philippines.
The next paragraphs of Section 5 are somehow reiterated in Article 144, RPC, which is popularly known as PRIVATE
CRIMES:
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse. The offended party cannot institute criminal prosecution without including the guilty
457
parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned
the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a
complaint filed by the offended party of her parents, grandparents or guardian, nor, in any case, if the
offender has been expressly pardoned by any of them. If the offended party dies or becomes
incapacitated before she can file the complaint, and she has no known parents, grandparents or
guardian, the State shall initiate the criminal action in her behalf.
Take note that in the third paragraph, RAPE is already deleted. It is not a private crime anymore. It is already a crime against
person because of the new law – RA 8353, Anti-Rape Law of 1997 – amending the RPC. Now, it can be prosecuted without the
private complainant.
Q: The SC said in one case that there is no such animal as Private Crimes because every crime is against the State. But why
do we call these private crimes - adultery, concubinage, seduction, abduction, and acts of lasciviousness?
A: It is because of all these requirements: the complaint is duly prepared, signed and sworn to by the offended party. Actually,
the correct name of these crimes is CRIMES WHICH CANNOT BE PROSECUTED DE OFFICIO.
Q: What is the reason for the requirement that they shall be prosecuted upon complaint of the offended party?
A: This requirement was imposed out of consideration for the offended party or her relatives who might prefer to suffer the
outrage in silence rather than go through with the scandal of a public trial. (Sumilin vs. CFI, 57 Phil. 298; People vs. Santos, 101
Phil. 798)
In ADULTERY or CONCUBINAGE, the offended party is only the husband or the wife. The parents have nothing to do with the
adultery or concubinage. In adultery, it is not allowed that the husband files a complaint against his wife without including her
paramour. Nor is it allowed that the husband files a case for adultery against his wife’s lover without including his wife. The law
provides, “xxx the offended party cannot initiate criminal prosecution without including the guilty parties, if both are alive, xxx”. The
same rule applies in concubinage.
In either case, consent or pardon by the offended party is a bar to criminal prosecution. Consent indicates allowance.
SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS. If the victim is already of AGE, the decision of filing or not filing the
case belongs to her.
Q: What happens if the offended party is a MINOR and does not want to file?
A: The parents, grandparents, or guardian may file the complaint.
Q: Suppose the minor is incompetent as in the case of insanity, who will file the complaint?
A: Her parents, grandparents or guardian my institute the case.
Q: Suppose the minor has no known parents, grandparents, or guardian?

A: The State shall initiate the criminal action in her behalf under the principle of Parens Patriae.
Q: What happens when an information for adultery or concubinage is filed without a complaint? Is it a jurisdictional effect?
A: According to some rulings, it is a jurisdictional defect. The SC held that compliance in Article 344 and counterpart (as well as
other crimes against chastity) is jurisdictional, and not merely a formal, requirement. While in point of strict law the jurisdiction of the
court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional
mandate since it is that complaint which starts the prosecutory proceeding and without which the court cannot exercise its
jurisdiction to try the case. (People vs. Mandea, 60 Phil. 372; People vs. Surbano, 37 SCRA 565; People vs. Babasa, 97 SCRA
672; Pilapil vs. Ibay-Somera, 174 SCRA 653)
But there is a SECOND VIEW: You can question the filing but it is not jurisdictional. It is a condition precedent but not
jurisdictional because if you say jurisdiction, they are vested by the judiciary law. There is nothing in the judiciary law which can
speak about complaint filed in court by the offended party. (People vs. Estrebella (1986); People vs. Saniaga (1988); People vs.
Bugtong (1989); People vs. Tarul (1989); People vs. Cabodac (1992); People vs. Leoparde (1992); People vs. Hilario (1993)
PROBLEM: Suppose a victim of a private crime in a municipality prepared a complaint, swore to it, and FILED IT IN THE MTC
FOR PRELIMINARY INVESTIGATION. [Remember that in provinces, there are two (2) possibilities if you want to file a case in the
RTC: (1) file a complaint in the MTC for preliminary investigation, or (2) file a complaint with the provincial fiscal’s office also for
preliminary investigation. Unlike in the cities we only file with the fiscal because only one is allowed to conduct preliminary
investigation in chartered cities.] After the preliminary investigation, the judge said there is a probable cause and therefore,
forwarded the case to the provincial fiscal. The fiscal filed the information in the RTC.
Q: Can the RTC try the case when there is no complaint by the offended party in the RTC?
A: The SC said YES. The complaint filed in the MTC for preliminary investigation will already serve the purpose. There is no
need for another complaint to be prepared and signed by the victim to be filed with the RTC.
PROBLEM: Suppose the offended party of a private crime in a municipality, instead of filing the complaint in the MTC, she filed
it in the office of the provincial fiscal or prosecutor.
Q: Will the case prosper?

A: The SC said NO. The case must be dismissed because the complaint contemplated by the law, signed and sworn to by the
victim, is a complaint FILED IN COURT, not a complaint filed in the fiscal’s office.
458
Q: What should be the correct procedure?
A: After preliminary investigation, the fiscal should prepare a complaint and should prepare an information signed by him and
the victim. Unlike where the complaint filed in the MTC for preliminary investigation, there is no need for another complaint to be
filed in the RTC. But if the complaint (denuncia) is filed in the fiscal’s office, the rule is: it will not serve as the basis for a criminal
prosecution. In connection with this principle is the leading case of
PEOPLE vs. ILARDE
125 SCRA 11
FACTS: This is a case for adultery originated in the City of Iloilo. A man caught his wife in an act of adultery. The
next thing he did was to execute an affidavit-complaint, which he filed in the office of the City Prosecutor of Iloilo City.
In his affidavit he said, “I’m formally charging my wife and X and would request this affidavit be considered as a formal
complaint against them.” While the case was pending before the fiscal for investigation, he died. So the Fiscal asked
how he can file an information in court when there is no complaint because the rule is, the complaint filed with the
fiscal’s office is not the complaint contemplated by law; there must be a complaint filed signed by the offended party.
But in this case, the complainant was already dead. Although there was an affidavit-complaint.
The fiscal knew that and so he prepared an information for adultery charging the wife and her paramour. In the
information he stated: “The undersigned City Fiscal upon sworn statement originally filed by the offended party, xerox
copies of which are hereto attached as annexes A and B …xxx” So what he did was to incorporate the affidavit of the
deceased offended husband in the information.
Now, the wife and the paramour moved to quash the information alleging lack of jurisdiction upon the offense
charged because under Article 344 of the RPC, the requirement for the complaint of adultery was not complied with
citing the case of People vs. Santos, 101 Phil. 798, where it was held that the complaint filed in the fiscal’s office for a
private crime is not the complaint contemplated by law. On that basis, RTC Judge Ilarde dismissed the case.
The prosecution went to the SC on certiorari.
HELD: The respondent trial court is wrong. The order of dismissal is hereby set aside and is directed to proceed
with the trial of the case. “It must be borne in mind, however, that this legal requirement was imposed out of
consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the
scandal of a public trial. Thus, the law leaves it to the option of the aggrieved spouse to seek judicial redress for the
affront committed by the erring spouse. And this, to Our mind, should be the overriding consideration in determining
the issue of whether or not the condition precedent prescribed by said Article 344 has been complied with. For
needless to state, this Court should be guided by the spirit, rather than the letter, of the law.”
“In the case at bar, the desire of the offended party to bring his wife and her alleged paramour to justice is only
too evident. Such determination of purpose on his part is amply demonstrated in the dispatch [speed] by which he
filed his complaint with the fiscal’s office [because he filed the complaint the day after the crime happened]. The
strong and equivocal statement contained in the affidavit filed with the Fiscal's Office that “I am formally charging my
wife of the crime of adultery and would request that this affidavit be considered as a formal complaint against them” –
is a clear show of such intent.”
“The ruling in People vs. Santos is not applicable to the case at bar. In that case, the sworn statement was not
considered the complaint contemplated by Article 344 of the Revised Penal Code because it was a mere narration of
how the crime was committed. Whereas, in the case at bar, in the affidavit-complaint submitted by the offended
husband, he not only narrated the facts and circumstances constituting the crime of adultery, but he also explicitly and
categorically charged private respondents with the said offense – “I’m charging my wife and her paramour with
adultery.”
“Moreover, in Santos, the SC noted that the information filed by the fiscal commenced with the statement ‘the
undersigned fiscal accuses so and so,’ the offended party not having been mentioned at all as one of the accusers.
But in the present case, it is as if the husband filed the case.”
“The affidavit of the husband here contains all the elements of a valid complaint under Section 5, Rule I10 of the
Rules of Court. What is more, said complaint-affidavit was attached to the information as an integral part thereof, and
duly filed with the court. Therefore, the affidavit complaint became the basis of the complaint required by Section 5.”
So it became sort of an exception to the general rule that the affidavit-complaint in the fiscal’s office is not the one
contemplated by law. While I was reading this case, I noticed that the fiscal was very imaginative on what he is going to do, kasi
alam niya ang rules eh. That fiscal is now Solicitor General Galvez. And I was surprised why the husband drafted the affidavit that
way. Maybe he knew he was dying. Later, they found out that the husband was a lawyer. And do not be shocked, the paramour
was also a lawyer! So that was a very interesting case. The ruling was reiterated in the 1991 case of PEOPLE vs. JAROL (June 19,
1991).
Last paragraph, Section 5, Rule 110: No criminal action for defamation which consists in the
imputation of any of the offenses mentioned above shall be brought except at the instance of and upon
complaint filed by the offended party.
The fifth paragraph of Section 5 is taken from Article 360 of the RPC. Article 360 refers to the crime of libel or slander.
Q: Is the crime of defamation [slander is when you defame somebody orally; libel is when the defamation is in writing] a private
crime?
A: NO.
459
Q: Can a case of slander be filed in court without a complaint signed and sworn to by the offended party?
A: As a GENERAL RULE, YES, EXCEPT when the defamation imputes to the offended party the commission of any of the
crimes mentioned above. Meaning, it imputes to the offended party the commission of a private offense like adultery, concubinage,
abduction, seduction, acts of lasciviousness (ACASA). In this case, the criminal action shall be brought at the instance of and upon
a complaint filed by the offended party.
Q: Is the accusation “mang-aagaw ng asawa ng may asawa!” an imputation of adultery?

A: No. It is a mere implication of a vice or defect, not an imputation of adultery. The phrase was translated as “seducer of the
husbands of other woman.” It implies that the person to whom it is addressed is a FLIRT, a TEMPTRESS, or one who indulges in
inciting another’s husband. (Gonzales vs. Arcilla, November 18, 1991)
The last paragraph states that “The prosecution for violation of special laws shall be governed by the provision thereof.” The
best example is the case of Reodica vs. CA, which we already discussed, that prescription for violation of a special law is not
governed by the RPC but by special law. The ruling was emphasized in the 1996 case of
LLENES vs. DICDICAN
July 31, 1996
HELD: “The institution of the complaint in the prosecutor’s office shall interrupt the period of prescription of the
offense charged under Section 1, Rule 110. The rule, however, is entirely different under Act No. 3326, as amended,
whose Section 2 explicitly provides that the period of prescription shall be interrupted by the institution of judicial
proceedings, i.e., the filing of the complaint or information with the court.” Therefore, the filing of the complaint in the
fiscal’s office does not interrupt the running of the prescriptive period. That is only true in felonies under the RPC. But
when in comes to special laws, we follow the special law.
Q: When is a complaint or information sufficient?

A: Read Section 6, Rule 110
SEC. 6. Sufficiency of complaint or information. – A complaint or information is sufficient if it states the

name of the accused; the designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate date of the
commission of the offense; and the place where the offense was committed.
When an offense is committed by more than one person, all of them shall be included in the
complaint or information. (6a)
Q: Suppose the information is defective, kulang-kulang ba, there are some essential facts required by law which are not
stated. Can it be cured during the trial?
A: YES. Any defect in the complaint or information may be cured by evidence introduced by the prosecution, EXCEPT:
1. when the defect is jurisdictional (People vs. Abad Santos, 76 Phil. 744); or
2. when the complaint or information does not charge any offense. (People vs. Austria, 94 Phil. 897)
SEC. 7. Name of the accused. – The complaint or information must state the name and surname of the
accused or any appellation or nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a statement that his true name is
unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner to
the court, such true name shall be inserted in the complaint or information and record. (7a)
Q: One of the requirements under Section 7 is that the name of the accused must be stated in the information. Eh kung
nagkamali ka? Is that fatal? What is the effect of an erroneous name given to the accused in the complaint or information?
A: The defect is not fatal. The error will not produce any adverse effect because what is important is the identity of the person
of the accused, not his name . (People vs. Ramos, 85 Phil. 683) Kung nagkamali, eh di palitan! [problema ba yun? Ha!] This
reminds me of the Fortun brothers – the Delia Rajas incident during the impeachment trial.
SEC. 8. Designation of the offense. – The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it. (8a)
SEC. 9. Cause of the accusation – The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language and
not necessarily in the language used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and aggravating
circumstance and for the court to pronounce judgment. (9a)
460
There is one major change here. The law now specifically emphasizes under Section 8 and Section 9 that you do not only
mention the crime. You must also specify the aggravating and the qualifying circumstance. What is new here is the “aggravating.”
The old rule is, there is no need of specifying the aggravating circumstances because anyway, they are not elements of the
crime. They are only circumstances that affect the criminal liability and if the aggravating circumstances are proven, they can still be
applied against the accused. The new law now says you do not only specify the qualifying, you also mention the aggravati ng. Now,
how does it affect the old jurisprudence?
Q: My question is this, based on my own interpretation of Sections 8 and 9, Problem: the information does not allege the
aggravating circumstances. In the course of the trial, the prosecution starts proving. Under the new rule, the defense can object to
any evidence to prove the aggravating circumstance because the same is not mentioned in the information. But I will go further: an
aggravating circumstance is not alleged in the information and the prosecution starts proving and there was no objection on the part
of the defense. Now, can the court in imposing the penalty, consider the aggravating circumstance?
A: My personal view is YES because of the waiver for failure to object, in the same manner that an aggravating circumstance
not alleged may still be considered as such. My only interpretation of this provision is that if this is not alleged in the complaint or
information and the prosecution starts proving it, the defense can object and that objection must be sustained. But if there is no
objection, the old rule can still be applied because of estoppel or waiver.
Well, that is my personal view on that matter. I do not know whether my view is correct or not. But I believe my view is correct
because anyway even the judges here in Davao are asking for my view. I receive calls from time to time from these people. [ehem!]
Q: Let’s go to Section 9. Suppose the offense says, “criminal case for murder” but in the body of the information there is no
allegation of a qualifying circumstance. What does the fiscal charge, Murder or Homicide?
A: HOMICIDE. The SC held that the designation of the offense is not an essential element of a complaint or information,
because, at most that is a mere conclusion of the fiscal. What is controlling is the recital of facts appearing in the body of the
complaint or information. (People vs. Agito, April 28, 1958; People vs. Cosare, 95 Phil. 656)
But there are some EXCEPTIONS like what happened in the case of
U.S. vs. TICZON

25 Phil. 67
FACTS: A complaint was filed by the woman stating that “while the offended party was inside her house at night
and all the doors were locked and all the windows were closed, the accused surreptitiously entered the house and
approached the offended party who was asleep, raised her skirt and at that very moment the woman woke up and
resisted.” [This can be an attempted rape but the element of the crime was not fully accomplished because of an act
or accident other than her own resistance.] But sabi ng caption, “for trespass to dwelling” – pwede man din.
HELD: Sabi mo, “trespass”. OK, eh di trespass! So the caption prevails. When the facts appearing in the
complaint or information are so stated that they are capable of two or more interpretations, then the designation of the
offense in the caption controls.
Take note that under the new rape law, RA 7659, there are some circumstances which if present call for the mandatory death
penalty. In the case of
PEOPLE vs. MANHUYOD, JR.
May 20, 1998
HELD: When you charge somebody with a heinous crime such as rape, the information must make reference to
the new law. If not, it will only be translated as an ordinary aggravating circumstance because the information was
charged after the effectivity of the heinous crime law.
“Finally, a few words on the lack of care devoted to the preparation of the information filed before the trial court.
The Office of the Provincial Prosecutor had in its possession evidence that the crime was committed by a father
against his 17-year old daughter after the effectivity of R.A. No. 7659, hence the imposable penalty was death. It was
then necessary to make reference to the amendatory law to charge the proper offense that carried the mandatory
imposition of capital punishment.”
“Prosecutors are thus admonished to exercise utmost care and diligence in the preparation of complaints or
informations to avert legal repercussions which may prove prejudicial to the interest of the State and private offended
parties.”
Q: According to Section 9, the elements of the crime must be recited in the complaint or information. Must the exact language
of the law be used?
A: NO. You can use other words provided it would convey the same idea or thought.
EXAMPLE: THEFT. The information does not contain the allegation “intent to gain” which is an element of the crime of theft.
The SC said it is not required because those words are presumed from the information that the accused appropriated to himself the
things belonging to the offended party. (U.S. vs. Alabot, 38 Phil. 698)
EXAMPLE: ROBBERY WITH FORCE UPON THINGS. There was no allegation that the accused entered the house of the
victim with the use of force upon things but the information alleges that the accused entered the house of the victim by passing
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through a hole in the ceiling, an opening not intended for entrance. Ano yan? The SC said that is tantamount to use of force upon
things. (People vs. Lareza, 73 Phil. 658)
EXAMPLE: MURDER. There was no allegation of treachery (alevosia) but the information says that when the accused killed
the victim, the latter was not in the position to defend himself. The SC said they mean the same thing. In fact, it became clearer.
(People vs. Gustahan, 47 Phil. 376)
Another interesting case of treachery is the case of
PEOPLE vs. ABUYEN

213 SCRA 569 (1992)
FACTS: The accused here killed two (2) children, one was aged 6 years and the other was 13 years old. He
stabbed them. The information charges the accused with the killing the 2 minors. There is no statement that there was
treachery. All that the information says is that the accused killed the 2 “minors.”
ISSUE: Was there a murder?
HELD: YES. When the accused killed the minors, that is equivalent of killing by treachery and therefore qualifies
the killing to murder.
“It has, time and again, been held that the killing of minor children who, by reason of their tender years, could not
be expected to put up a defense is considered attended with treachery even if the manner of attack was not shown.
The allegation in the Information that the victims are both minors is to be considered compliance with the fundamental
rule that the qualifying circumstances should be alleged in the information.”
“It is commonly understood in practice that when the victim in physical injuries, homicide, or murder cases is a
child of tender years, he is described in the information as a minor. Minority in such a case should not be equated with
its statutory meaning — that is, below eighteen (18) years old. It is used not so much as to state the age of the victim
(otherwise, the charging fiscal would have simply placed the exact ages) rather, it is more of a description of the state
of helplessness of the young victim.”
Q: CONSPIRACY. Jet and Pao are charged for murder pero ang sinasabi sa information, it was Jet who killed the victim. Now,
in conspiracy, the act of one is the act of all. Would that sufficiently charge Pao?
A: NO. Kailangan mong i-describe ang conspiracy para matamaan si Pao. Klaruhin mo yung conspiracy, otherwise if the
allegation of conspiracy is not shown against Pao, then, there is no crime of conspiracy. This is the guideline laid down by the SC in
the 1998 case of
PEOPLE vs. QUITLONG
292 SCRA 260
HELD: “Unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial,
may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute
criminal liability to an accused for the act of another or others, is indispensable in order to hold such person,
regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission
of the crime. Verily, an accused must know from the information whether he faces a criminal responsibility not only for
his acts but also for the acts of his co-accused as well.”
Meaning, if you are charging me for what my companion did, you better be clear that there is conspiracy para
ma-apply yung doctrine na ‘the act of one is the act of all.’
“The opinion of the trial court to the effect that conspiracy may be inferred from the allegation of abuse of superior
strength and with the aid of armed men is difficult to accept. the information must state that the accused have
confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement
to commit the felony among the accused. Conspiracy must be alleged, not just inferred, in the information on which
basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of
evidence that may be required to prove it.”
You can prove conspiracy by direct evidence. But kahirap niyan uy unless you were there listening. In criminal law, when two
or more persons act together in unison to attain the same criminal objective, then conspiracy can be inferred. Meaning, you can use
that as evidence to convict a person but for purposes of filing the case, you must expressly allege it.
Therefore, for purposes of charging – express. For purposes of proving – implied. Yan! This is precisely because directly
proving it, is difficult. The manner of charging is different from the manner of proving. (People vs. Quitlong, supra)
EXAMPLE: DIRECT ASSAULT. The SC said it is not enough for the information to say that the victim is a person in authority.
The charge for such offense must be so framed as to clearly allege the functions of the person assaulted, so as to show that he
comes under the definition of person in authority. (People vs. Carpizo, 80 Phil. 234) Of course, I believe that if the position is
obvious, the court will take judicial notice of that. There is no need to describe. But if it comes to some position which are not really
common, the information must recite the functions.
EXAMPLE: TREASON. An information for treason is insufficient if it merely alleges generally that the accused had adhered to
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the enemy, giving her aid and comfort. The charge must be specific by stating what is termed as overt act of giving aid and comfort
to the enemy. (Guinto vs. Veluz, 77 Phil. 798)
EXAMPLE: LIBEL. In charging libel, the prosecution must single out the libelous statements and quote verbatim in the
complaint or information. (People vs. Bustos, 59 Phil. 375)
We will go to another issue regarding HABITUAL DELINQUENCY. The case is
PEOPLE vs. VENUS
63 Phil. 435
FACTS: The City Fiscal of Manila file with the CFI of Manila an information charging the accused with the crime
of robbery in an inhabited house. The information alleges, among others,” that the accused is a habitual delinquent,
he having been previously convicted by final judgement rendered by a competent court, once for the crime of
attempted robbery in an inhabited house and once for theft, the date of his last conviction being November 14, 1934.
Note: There is habitual delinquency when, for a period of ten (10) years, from the date of his last conviction or
release for a crime of serious or less serious physical injuries, robbery, theft, estafa and falsification, he is found guilty
of any of said crimes, a third time or oftener.
ISSUE: Was there a sufficient allegation of habitual delinquency?
HELD: NO. “Habitual delinquency, can not be taken into account in the present case because of the insufficiency
of the allegation on this point in the city fiscal's information. While the information specifies the particular offense
(attempted robbery in an inhabited house) for which the defendant-appellant was alleged to have previously been
convicted and also the date of the last conviction for theft which occurred prior to the date of the commission of the
offense now charged. But this does not make the information sufficient in law for it fails to specify the date of the
conviction of the accused for the crime of attempted robbery. For all we know, the two previous convictions for
attempted robbery in an inhabited house and theft may have taken place on the same date (November 14, 1934) or
on two different dates so close together as to warrant the court in considering the two convictions as only one for the
purposes of the application of the habitual delinquency law.”
“Upon the other hand, it may happen that a person accused of robo, hurto, estafa or falsificacion may have been
convicted of any of said offenses after the commission of the crime with which he is charged. We have already held
that previous convictions in order to be considered for the purpose of imposing the additional penalty for habitual
delinquency, must precede the commission of the crime charged. Other instances may be mentioned but those given
suffice to demonstrate the necessity of charging the existence of habitual delinquency with sufficient clearness and
certainty to enable the courts to properly apply the provisions of our law on the subject.”
“It is therefore urged upon prosecuting attorneys that in the prosecution of cases of this nature, they should not
content themselves with a general averment of habitual delinquency but should specify the dates:
1. of the commission of the previous crimes,
2. of the last conviction or release, and
3. of the other previous convictions or release of the accused. “
“Informations filed in these cases should be sufficiently clear and specific to avoid the improper imposition of the
additional penalty on a plea of guilty to a general allegation of habitual delinquency, no less than the frequency with
which hardened criminals escape the imposition of the deserved additional penalty provided for by law.”
Q: Must excepting clauses be alleged in a complaint or information?

A: It DEPENDS. If the excepting clause forms part of the definition of the offense, it must be alleged; but if it is a matter of
defense, it need not be alleged in a complaint or information. (U.S. vs. Chan Toco, 12 Phil. 262)
Sometimes it is hard to distinguish what is an element of a crime, and what is a matter of defense as stated in a law. The
exceptive clauses such as “provided further”, and “provided furthermore” are very confusing. Sometime you get lost. Ano ba itong
“provided further”? Is this part of the crime or is it a part of the defense? Confusing ba! Like in the old case of
U.S. vs. POMPEYA
31 Phil. 245
FACTS: The municipal government passed an ordinance which requires all able-bodied male residence of the
municipality between the ages of 18 and 35 to assist in peace and order campaign in the municipality by rendering
services. The accused violated the ordinance. So he was charged. The information says he is a resident of the
municipality, he is male, he is able-bodied and he refuses to render service to the government. According to the
accused, the information is defective, it does not reconcile all the elements because it does not state how old he was.
But according to the prosecutor, “No! I do not have to allege your age. It is for you to prove that you are below 18 or
more than 35!”
ISSUE: Whether or not the clause in the ordinance pertaining to the age range of 18 to 35 is part of the crime,
because if it is part of the crime, then it must be alleged.
HELD: The SC ruled that the age requirement is an element of the crime and therefore must be alleged. Failure
to allege it is fatal because he may belong to the exempt age in which case the prosecution may not prosper.
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Let us try to compare that in the case of
U.S. vs. YAO SIM

31 Phil. 301
FACTS: The accused was charged with violation of the opium law. The opium law was the predecessor, the
great grandfather of the Dangerous Drugs Act. That was the old law which prohibits the use and smoking of opium
without the prescription of a licensed practicing physician.
The accused argued that there is no crime committed because the information did not allege that the accused
has no prescription from a duly licensed or a practicing physician. But the prosecution contended that it is for the
accused to prove that he has a prescription. The element of the crime is only smoking opium.
HELD: The SC said, the prosecution is correct. It is not part of the crime, it is a matter of defense. The crime is
smoking opium, period! But if you say you have prescription, then you prove it.
That is sometimes the difficult areas in the law. You don’t know whether it is part of a crime or just a part of your defense.
There are things that we have to determine. This is part of our study of Section 9.
Q: Like for example, yung ILLEGAL POSSESSION OF FIREARMS. Do you have to allege that the firearm is not licensed?
A: The SC said YES, that is part of the crime.
Q: But in DANGEROUS DRUGS ACT, iba man. If you are in possession of opium, marijuana or whatever, you are liable if
without authority of law. Now, who will prove the authority of law? Is that part of the definition of the crime?
A: The SC said NO. It is for you to prove that you are authorized. The crime is the possession or use of marijuana. That you
are authorized to possess or smoke is a matter of defense.
Now let’s go to the next section. You must allege the place of the commission of the crime. You must also allege the date of
the commission of the crime.
SEC. 10. Place of commission of the offense. – The complaint or information is sufficient if it can be
understood from its allegations that the offense was committed or some of its essential ingredients
occurred at some place within the jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense charged or is necessary for its identification.
(10a)
Q: When you say place, do you have to be very specific as to the place where the crime was committed? You must describe
the kalsada, the street?
A: NO. As a matter of fact, if you look at the information, it just says, you committed the crime in Davao City without even
stating what barangay or barrio. So, the place of the commission of the crime maybe stated generally. What is only important is it is
within the territorial jurisdiction
EXCEPTION when the place of the commission of the crime constitutes an essential element of the crime charged. Yan! You
must be specific. Examples:
EXAMPLE: TRESPASS TO DWELLING. You must specify that the crime was committed by entering into the dwelling of
somebody. You cannot just say that he committed it in Davao City. You must say na pumasok siya sa bahay na ito. Or
EXAMPLE. ROBBERY IN AN INHABITED HOUSE, PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP. You must
state the particular house. Kailangan specific ka diyan.
SEC. 11. Date of commission of the offense. - It is not necessary to state in the complaint or information
the precise date the offense was committed except when it is a material ingredient of the offense. The
offense may be alleged to have been committed on a date as near as possible to the actual date of its
commission. (11a)
Q: How about yung date? Is it necessary that it should be very accurate?

A: NO. What is important is that the information alleges that the crime was committed “on or about” a certain date.
Q: The information said that Judy committed homicide on January 20. During the trial, pinalabas na December 20 pala – one
month earlier. Is that harmless or fatal?
A: It is still covered by the phrase “on or about.” A variance of a few months between the time set out in the indictment and that
established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction
solely on that score alone. (Rocaberte vs. People, 193 SCRA 192)
But when you say December 2000 and then the crime pala was committed in 1995, ay sobra na yan! That is too much. Five (5)
years is no longer covered by “on or about.” That is already violative of Section 11. A variance of several years, or the statement of
the time of the commission of the offense which is so general as to span a number of years has been held to be fatally defective.
(Rocaberte vs. People, 193 SCRA 192)
Q: And what is the remedy in that case?

A: The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is
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a motion for a bill of particulars (Rocaberte vs. People, 193 SCRA 192). Do not dismiss the information. That was commented by
the SC in the recent case of People vs. Garcia, November 6, 1997 (281 SCRA 463).
I have to admit that the rules now try to make a gap between the date of the commission of the crime as alleged in the
information and the actual date of commission to be not so far. You look at Section 11: “xxx The offense maybe allege or committed
on a date as near as possible to the actual date of its commission.” That phrase “as near as possible” is not found in the 1985 rules.
The ONLY EXCEPTION is just like in the Section 10, UNLESS the date of the commission of the crime is an essential element
of the crime. Like for example:
EXAMPLE: VIOLATION OF ELECTION CODE, drinking liquor during election day. You must be specific kung anong araw
yun. Hindi pwedeng “on or about election day.” Hindi pwede yan! If you drank liquor before, wala mang crime. If you drink liquor
after, wala mang crime ba!
EXAMPLE. INFANTICIDE. It is committed by killing a child less than 3 days old or less than 72 hours. If the infant is exactly 3
days old, it is no longer infanticide. So the information must be very specific that the child was born on this day, on this time and the
killing was done on this day, on this time.
SEC. 12. Name of the offended party. – The complaint or information must state the name and surname
of the person against whom or against whose property the offense was committed, or any appellation or
nickname by which such person has been or is known. If there is no better way of identifying him, he
must be described under a fictitious name.
(a) In offenses against property, if the name of the offended party is unknown, the property must be
described with such particularity as to properly identify the offense charged.
(b) If the true name of the person against whom or against whose property the offense was
committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in
the complaint or information and the record.
(c) If the offended party is a juridical person, it is sufficient to state its name, or any name or
designation by which it is known or by which it may be identified, without need of averring that it is a
juridical person or that it is organized in accordance with law. (12a)
Let’s go to the next rule – name of the offended party. You must allege also who is the victim. We are talking here about the
victim – the private offended party.
Q: Why is it that the name of the offended party must be alleged in the information?
A: First, the general rule is that, aside from the People of the Philippines, there is a private victim. Second, so that we will know
to whom the court will award the civil liability.
Q: Is there a possibility by which the name of the offended party is not mentioned in the information but the same is still valid?
A: YES. Paragraph [a], in a crime against property. If you do not know who is the victim of theft or robbery, it is enough that you
describe the property in the information.
EXAMPLE: A thief, nahuli and he was found in possession of stolen goods and he admitted he stole. Kanino? “Ewan ko. Basta
gi-snatch ko man lang ito.” Can the police file a case? YES. You just describe the property in the information even if we don’t know
the owner because you commit theft when you take personal property belonging to another with intent to gain. What is important is
that, it belongs to another.
PEOPLE vs. CFI OF QUEZON BR. 5
209 SCRA 704
FACTS: The accused was charged with timber smuggling or illegal cutting of logs from public forest under PD
No. 320. Ayan, wala talagang private offended party diyan. The only offended party is the government. But the
information does not mention that the offended party is the State. The accused challenged the information on this
ground.
HELD: Even if the State is not mentioned, the information is NOT defective. Why? You look at the caption of the
case – “People of the Philippines”. That is actually the offended party.
Q: What happens if there was an erroneous naming of the offended party?

A: In the case of
PEOPLE vs. UBA

99 Phil 134
FACTS: Vidz, on a certain date, was alleged to have uttered publicly slanderous words against Jessamyn. So
Jessamyn is the victim of the slander. Alam niyo during the trial, it turned out that the victim pala was Lyle, not
Jessamyn. But everything is the same – the date and place of the commission, the defamatory words – pare-pareho!
Only, there was an erroneous designation of the offended party.
465
ISSUE: Can the court convict Vidz for the crime of slander?
HELD: NO. Although the words are the same, the slander against Lyle is a separate offense. Meaning, you are
charging a different offense from the crime proven. You cannot convict a person of a crime not properly charged.
“A mistake in putting in the information the name of the offended party is a material matter which necessarily
affects the identification of the act charged. The case should be dismissed for variance between the allegations of the
information and the proof.”
However, there were exceptions in the past like where the accused, who is not a doctor, was charged of illegal practice of
medicine. The information stated that the offended party is Paul. Pag-trial, hindi pala si Paul. Si Inay pala dapat ang victim. The SC
said the accused can be convicted. Why? The crime is illegal practice of medicine regardless of whether the victim is Paul or Inay.
(Diel vs. Martinez, 76 Phil. 273) Yan! It is different from the case of Uba.
SEC. 13. Duplicity of the offense. – A complaint or information must charge only one offense, except
when the law prescribes a single punishment for various offenses. (13a)
The complaint or information must charge only one offense. It cannot charge 2 or more offenses. If it does, it is called
duplicitous complaint or information.
Q: What is the remedy there?

A: Actually, you can file a Motion to Quash under Section 3 [f], Rule 117. But the defect is waivable because if you do not file a
Motion to Quash, the trial can proceed and if you are found guilty for committing 2 or more crimes, then there will be 2 or m ore
penalties (Section 4, Rule 120). Dapat diyan, one information, one crime. That is the GENERAL RULE.
This seems to go against the rule in civil procedure about joinder of causes of action. In one complaint you can join 2 or more
causes of action, although you can also file 2 or more cases. Ano’ng tawag diyan? Joinder of parties or joinder of causes of action.
There is no such thing as joinder of crimes in criminal procedure.
EXAMPLE: The Patrick got a gun, went out of the street, then met three people. Binaril niya: Bang! Bang! Bang! Tatlong tao
patay!. Now, he commits three (3) crimes of homicide.
Q: Can I file one information accusing Patrick of 3 homicide committed on that day?
A: NO. That is duplicitous. There must three (3) informations, one for each victim.
Q: But that is troublesome. The evidence or the witnesses are identical. What is the remedy?
A: You file a Motion to Consolidate your trial – joint trial for the 3 criminal cases. That is the remedy, but not 1 information
charging 3 acts of homicide unless the other party does not question the duplicitous character of the information.
EXCEPTION. The rule prohibiting duplicitous complaints or informations provides for exceptions: “Except when the law
prescribes a single punishment for various offenses.” When the law provides only one penalty for 2 or more offenses then Section
13 is not violated. Examples:
EXAMPLE: COMPLEX CRIMES – when a single act produces 2 or more grave or less felonies or when one offense is a
necessary means to commit another. Actually, parang duplicitous yun eh kung tingnan mo because you are accusing somebody of
2 homicides based on 1 single act. But that is only an exception. There is one penalty anyway.
EXAMPLE: SPECIAL COMPLEX CRIMES. Robbery with homicide or Rape with Homicide. That is not duplicitous. There is
one penalty there.
EXAMPLE: DELITO CONTINUADO. The accused stole 2 rooster owned by 2 different people. Actually, there are 2 acts of
taking but in the eyes of the law, there is only one crime. The accused was motivated by single criminal resolution.
EXAMPLE: Babang was charged of the crime of REBELLION. Rebellion – she took up arms against the government, killed
soldiers, burned government properties. “Duplicitous yan! Kadami-dami nyan o!” NO. That is not duplicitous because based of the
absorption doctrine – the common crimes are not to be treated as separate crimes but are already absorbed in the rebellion. The
SC said there is no crime such as rebellion complexed with murder or homicide. But why do you have to recite all these things?
That is merely a recital of the manner of the crime of rebellion. That is not a violation of Section 13.
PEOPLE vs. BUENVIAJE
47 Phil. 536
FACTS: There was a special law penalizing in once section the crime of illegal practice of medicine AND illegally
advertising oneself as a doctor. The penalty of 5-year imprisonment shall be imposed on a person who, not being a
physician, practice medicine or advertise himself as a physician. There is only one penalty for these acts. The
information alleges: “That the accused is charged of violating that law because he practiced medicine, or IN THE
ALTERNATIVE, he advertised himself as a doctor when in fact, he is not.”
466
ISSUE: Is the information duplicitous?
HELD: NO. When the information merely recites in the alternative or otherwise the different ways of committing
the offense like the information charges the accused for illegal practice of medicine and with illegally advertising
himself as a physician, there is only one crime because these are only alternative ways of committing the crime.
The rule is different when the accused is charged of violating 2 different sections of the same law with distinct penalties which,
if charged in a single information, would render it duplicitous. (People vs. Ferrer, 101 Phil. 234)
SEC. 14. Amendment or substitution. – A complaint or information may be amended, in form or in

substance, without leave of court and when it can be done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all parties, especially the offended party.
(n)
If it appears at anytime before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the
trial. (14a)
In civil procedure, formal amendment – no problem. It can be allowed at any stage. Substantial amendment, for as long as
there is still no responsive pleading, the plaintiff can amend his complaint anytime. Once a responsive pleading is filed, substantial
amendment is allowed but with leave of court.
In criminal procedure the rule is: for as long as the accused has not yet entered his plea – wala pang arraignment, the accused
has not yet pleaded guilty or not guilty – the information can be amended either in substance or in form.
Q: What happens if the accused has already entered his plea? Can the information still be amended by the prosecution?
A: As to FORM – Yes, as a matter of judicial discretion. Kailangan merong permission.
As to SUBSTANCE – Never! Bawal! 100% prohibited.
Q: How do you determine whether the amendment is formal or substantial? Sometimes madali, sometimes mahirap. Kung
wrong spelling lang, talagang formal yan.
A: According to the SC based on certain cases, the following are considered substantial and therefore cannot be allowed after
plea:
1. if the amendment changes the manner of the commission of the offense; (People vs. Zulueta, 89 Phil. 752)
2. if it changes the name of the offended party; (People vs. Uba, 99 Phil. 134)
3. if it changes the date of the commission of the offense; (People vs. Opemia, 98 Phil. 698)
Let’s say, from the year 2000 to 5 years backwards. Hindi pwedeng maging formal yan.
4. when the purpose of amendment is to make the information charge an offense when the original information does not
charge an offense; (Wong vs. Yatco, 99 Phil. 791) or
5. when it changes the fact or ground of responsibility alleged in the original information. (People vs. Labatete, 57 O.G.
6783)
Example: from accomplice, gagawin kang principal. The same is not formal.
Q: How do you determine whether the amendment is as to form or substance?

A: An amendment which merely states with additional precision something which is already contained in the original
information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be
made at anytime. (People vs. Montenegro, 159 SCRA 236)
Q: The amendment is substantial if the amendment will prejudice the rights of the accused. How do you determine whether the
rights of the accused are prejudiced?
A: The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a
defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and
when any evidence the accused might have, would be inapplicable to the complaint or information as amended. (People vs.
Montenegro, 159 SCRA 236) Meaning, evidence which could help you in the first place will no longer help you after the amendment
– that is prejudicial.
BUHAT vs. COURT OF APPEALS

265 SCRA 701, December 17, 1996
FACTS: Danilo Buhat was charged with homicide in an information which alleged that the accused killed the
victim using superior strength. [Dapat diyan murder eh because of superior strength] Accused Buhat pleaded not
guilty. After that the prosecution sought to amend the information by upgrading the crime charged from homicide to
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the more serious crime of murder.
ISSUE: Is the amendment SUBSTANTIAL or FORMAL?
HELD: It is FORMAL because the allegation of superior strength is already there. In other words, from the very
start, it was really meant to be murder. Mabuti sana kung dinagdag lang yung superior strength. It is already there all
along.
“The real nature of the criminal charge is determined not from the caption or preamble of the information nor from
the specification of the provision of the law alleged to have been violated, they being conclusions of law which in no
way affect the legal aspects of the information, but from the actual recital of facts as alleged in the body of the
information.”
“Petitioner in the case at bench maintains that, having already pleaded “not guilty” to the crime of homicide, the
amendment of the crime charged in the information from homicide to murder is a substantial amendment prejudicial to
his right to be informed of the nature of the accusation against him. He utterly fails to dispute, however, that the
original information did allege that petitioner stabbed his victim “using superior strength”. And this particular allegation
qualifies a killing to murder, regardless of how such a killing is technically designated in the information filed by the
public prosecutor.”
Meaning, in the case of Buhat the prosecutor believes originally that it is homicide, but it is murder pala all along. We are not
adding anything new.
Kaya nga when I read it, I think there’s something wrong here with this kind of ruling. Just imagine, na-capital crime ka, tapos
formal amendment lang? You know my personal view in the case of Buhat, it should be treated only as homicide with the
aggravating circumstance of abuse of superior strength. But that was what the SC said eh. Wala tayong magawa.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all parties, especially the offended party.
(n)(second paragraph, Section 14, Rule 110)
The second paragraph of Section 14 is new. Take note in the case of Buhat, from homicide to murder. Ito naman, baliktad.
Let’s say before arraignment, sabi ng Fiscal: “Teka muna, di pala murder, homicide lang pala,” So, gi-downgrade ba!
Now, if prosecutor will do that, he must notify the offended party, at least the family, so that he can be heard before the trial
court allows. So this time, the amendment is not a matter of right.
Again, when you amend a complaint or information to downgrade the nature of the offense or when the amendment is to
exclude an accused from the complaint or information, of course, it can only be done by motion of the prosecutor, notice to the
offended party, and decree of court. That is a new provision.
trial. (Last paragraph, Section 14, Rule 110)
Let’s go to basic.
Q: After the trial, the crime proven is different from the crime charge. However, the former is included in the latter. Will you
dismiss the case?
A: NO, just convict the accused for the crime proven since the crime proven is included in the crime charged.
EXAMPLE: Jenny was charged with murder. After trial, the prosecution proved homicide. What will the court do? Dismiss the
complaint for murder? NO. Jenny should be convicted for homicide because all the element of homicide are also included in the
crime of murder. (Rule 119)
However, that is not what Section 14 contemplates. What is contemplated by Section 14 is, the offense proven is completely
different from the crime charged and therefore the accused cannot be convicted for the crime proven because the crime proven is
not included in the crime charged.
Q: So what should the court do?

A: The court should dismiss the complaint or information upon the filing of a new information by the prosecution. Provided, the
principle of double jeopardy is not applicable.
Remember the case of Uba, where Vidz was charged with oral defamation for uttering slanderous remarks against Jessamyn
on a particular date and time. But during the trial, it turned out that the slander was committed against Lyle. Now, can Vidz be
convicted for the crime of slander against Lyle, when the information says the crime was against Jessamyn? NO. Although the
crime proven is the same, however the erroneous designation of the offended party deals with entirely another crime committed
against a different person.
Q: What should the court do in that case?

A: Following Section 14, the fiscal should file a new information almost exactly the same as the old one, now the offended
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party is Lyle. The court will now dismiss the original charge which is entirely different.
Q: What do you call that?

A: SUBSTITUTION of complaint or information.
Q: Now, how do you distinguish substitution of information from amendment of information?

A: The case of
TEEHANKEE JR. vs. MADAYAG
207 SCRA 134
FACTS: This case was about the murder of Maureen Hultman. She was shot but did not die immediately. So the
crime charged was frustrated murder. But while the case was pending, Hultman died. Therefore, the fiscal filed a new
information for consummated murder.
ISSUE: Distinguish amendment of information from substitution of information? [This would be clearer when we
reach Rule 112 on Preliminary Investigation]
HELD: The first paragraph provides the rules for amendment of the information or complaint, while the second
paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information may be made before or
after the defendant pleads, but they differ in the following respects:
1. AMENDMENT may involve either formal or substantial changes, while SUBSTITUTION necessarily involves
a substantial change from the original charge;
2. AMENDMENT before plea has been entered can be effected without leave of court, but SUBSTITUTION of
information must be with leave of court as the original information has to be dismissed;
3. Where the AMENDMENT is only as to form, there is no need for another preliminary investigation and the
retaking of the plea of the accused; in SUBSTITUTION of information, another preliminary investigation is
entailed and the accused has to plead anew to the new information; and
4. An AMENDED information refers to the same offense charged in the original information or to an offense
which necessarily includes or is necessarily included in the original charge, hence substantial amendments
to the information after the plea has been taken cannot be made over the objection of the accused, for if the
original information would be withdrawn, the accused could, invoke double jeopardy. On the other hand,
SUBSTITUTION requires or presupposes that the new information involves a different offense which does
not include or is not necessarily included in the original charge, hence the accused cannot claim double
jeopardy.
In amendment, you are not changing the crime. The crime is the same. Therefore, after the accused has pleaded, you cannot
change the information anymore. That is why substantial amendments can never be allowed after the plea. If this rule is violated,
he will be placed in double jeopardy because you are charging him for the same offense or an offense necessarily included in the
original charge.
On the other hand, substitution presupposes that the new information or complaint involves a different offense which is not
necessarily included in the in the original charge. Therefore, the accused cannot claim double jeopardy. How can you invoke
double jeopardy in substitution when the new charge is completely different from the original charge?
I remember this was a 1992 decision. During the 1994 Bar exams, this was one of the questions that entered into my mind.
Nahulaan ko na lalabas ito eh. (ehem!): distinguish amendment from substitution. Just remember the case of Teehankee Jr. vs.
Madayag. I think that question was only 3 points. Alright.
SEC. 15. Place where action is to be instituted. (a) Subject to existing laws, the criminal action shall be
instituted and tried in the court of the municipality or territory where the offense was committed or where
any of its essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course
of its trip, the criminal action shall be instituted and tried int eh court of any municipality or territory
where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and
arrival.
(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action
shall be instituted and tried in the court of the first port of entry or of any municipality or territory where
the vessel passed during such voyage, subject to the generally accepted principles of international law.
(d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal
Code shall be cognizable by the court where the criminal action is first filed. (15a)
In civil case we call this venue. In criminal procedure, venue is also jurisdiction. It refers to territorial jurisdiction. So if you file a
criminal case in the wrong place, the accused could question the jurisdiction of the court over the offense. This is one difference
between civil and criminal procedure.
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(a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the
municipality or territory where the offense was committed or where any of its essential ingredients
occurred. (Section 15, Rule 110)
The word municipality here includes cities because it could be a city. Municipality definitely refers to a crime triable by the
MTC. The word territory refers to a crime triable by the RTC because of the provision of Section 18, BP 129 that every RTC has its
own territory over which it resides, for purposes of venue in civil cases and jurisdiction in criminal cases where the offense was
committed or where any of the essential ingredients occurred.
Q: Why does the law prescribes that the case be filed or tried in the place where the crime was committed?
A: The following are the reasons:
1. The interest of the public requires that, to secure the best results and effects in the punishment of crimes, it is
necessary to prosecute and punish the criminal in the very place, as near as may be where he committed his crime
(MRR Co. vs. Atty. General, 20 Phil. 523);
2. As to the interest of the accused, it would cause him great inconvenience in looking for witnesses and other evidence
in another place. (Beltran vs. Ramos, 96 Phil. 149)
The law says, the criminal case will be tried, where?

1. where the offense was committed; or
2. where any of the essential ingredients occurred.
WHERE THE OFFENSE WAS COMMITTED
This refers to what you call local offense. What do you mean by a local offense? It is an offense, which is fully consummated in
one place. Meaning, all the elements of the crime happened in that place.
WHERE ANY OF THE ESSENTIAL INGREDIENTS OCCURRED
This refers to what text writers call the continuing offense – where the elements occurred in 2 or more places – one element
occurs here, the other in another place. So either one can try the case. The venue in this case is the choice of the prosecution.
And mind you, the word “continuing offense” should not be confused with the concept in criminal law – the so-called continuous
crime under Article 48 also known as “delicto continuado.” Dalawang klaseng continuing crime, eh. One of the relatives of complex
crime is “delicto continuado” – where a person performs a series of acts but all emanating from one criminal resolution – but the
issue to be resolved is: how many crimes were committed by the accused? Yun ang tanong dun.
Ito namang “continuing offense”, the question here is: in which court of what place will the crime be tried? Yan!
Q: How do you define a continuing offense or transitory crime?

A: It is a crime where the elements occur in several places.
EXAMPLE: KIDNAPPING or ABDUCTION. The accused kidnapped Eltor in Davao City and brought the Eltor in Cotabato and
hidden there. Same thing with abduction: Karen was abducted in Davao City and brought in Cotabato.
Q: Where should the case of kidnapping or abduction as the case may be, be filed?
A: It could be filed in Davao where the victim was taken or abducted, or in Cotabato were the victim was brought.
Q: Brod Pito took your vehicle here in Davao and brought it to Cotabato. Where should the crime of qualified theft be tried?
Davao or Cotabato? Is that a continuing offense or not?
A: Davao. It is a local offense. From the moment the car was taken in Davao, the crime has already been consummated. It is
not an indispensable requisite of theft that the thief carry, more or less far away, the thing taken by him from its owner. (Duran vs.
Tan, 85 Phil. 476) Theft is committed by taking personal things. Taking is instant. From the moment it came to y our possession,
tapos na!
Let’s go to the issue of FENCING – you buy stolen property. If you have known it is stolen, you are liable. But take note: there
can be no fencing if there is no robbery or theft. Fencing presupposes there is robbery or theft.
Q: Inday stole a property in Digos. It was brought here and Maritess bought it here in Davao. Maritess is now charged with
fencing. Of course Maritess can be charged here in Davao City because she bought it here. But can the crime of fencing be also
filed in Digos where the theft was committed on the theory that: how can there be fencing unless there was theft? Therefore
everything can go back to the place where the original crime was committed. Is that correct?
A: It is NOT correct because fencing is not a continuing crime. It is a local offense. It is different from the crime of theft or
robbery. Both crimes are two different crime. The law on fencing does not require the accused to have participated in the criminal
design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft. Neither is the crime of
robbery or theft made to depend on an act of fencing in order that it can be consummated. True, the object property in fencing must
have been previously taken by means of either robbery of theft but the place where the robbery or theft occurs is inconsequential.
It may not be suggested, for instance, that, in the crime of bigamy which presupposes a prior subsisting marriage of an
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accused, the case should thereby be triable likewise at the place where the prior marriage has been contracted. (People vs. De
Guzman, October 5, 1993)
Q: ESTAFA or MALVERSATION. The company’s head office is in Makati. Kenneth is the representative of the company
assigned in Davao. He collects payments from customers in Davao and he is supposed to remit all his collections to Makati.
Kenneth did not remit his collections to Makati. Where should the case of estafa be brought? Davao or Makati?
A: Either of the two. The crime is continuing. It shall be instituted in the place where the misappropriation was committed OR in
the place where the accused was to render his accounting. (U.S. vs. Mesina, 42 Phil. 67)
Let’s go to BOUNCING CHECKS law. Where should the criminal case for violation of bouncing checks law be filed?
Sometimes, fiscals get confused. You owe me, you are in Manila, then you issue a check in Manila and sent it to Davao. Then I will
deposit the check in Davao. Of course the bank will forward it to Manila for clearance. The Manila bank dishonored it kay walang
pondo. Where is the venue for such crime? That is what happened in the case of
PEOPLE vs. GOROSPE
January 20, 1988
(reiterated in Lee vs. CA [1995])
FACTS: The accused is from Bulacan. He was a dealer of San Miguel products and he is under the control of the
Central Luzon Regional Office of San Miguel Corporation (SMC) which is in San Fernando, Pampanga. So a
representative of SMC went to Bulucan, collected from him, he issued checks which were drawn in Bulucan. The
checks were received by the representative of SMC and went to the Head Office in Pampanga and turned-over it. The
Pampanga office of SMC deposited the checks with its depositary bank in San Fernando, Pampanga. The checks
were sent to Bulacan for clearing. Talbog! With this, series of cases were filed. Some cases were estafa. Some were
for violation of BP 22.
The accused challenged it because all these cases were filed in San Fernando, Pampanga eh. According to him,
the cases should be filed in Bulacan. Remember, the checks were Bulucan checks and it was dishonored also in
Bulacan. He said, “I did not deliver it in San Fernando. I gave it to your representative. So the check was delivered to
a representative. So the delivery was made in Bulacan. Thus the Pampanga court has no jurisdiction.”
ISSUE: Is the contention of the accused correct?
HELD: NO! Mali! Actually, the crime is continuing because the crime continues up to the delivery of the check to
the Central Luzon Office of SMC in Pampanga. Under the Negotiable Instruments Law, the delivery of the check must
be made to a person who takes it as a holder or bearer of the instrument. The checks are intended to be delivered in
the Head Office because it is the delivery in Pampanga which makes the payee the bearer or the holder – not the
employer who went to Bulacan. So tinamaan ang Pampanga court. In effect, it is a continuing crime.
In respect of the Bouncing Checks case, “it is likewise true that knowledge on the part of the maker or drawer of
the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing
eventuality, whether the accused be within one territory or another. Accordingly, jurisdiction to take cognizance of the
offense also lies in the Regional Trial Court of Pampanga.” Meaning, wherever the checks go, the knowledge of
insufficiency is a continuing element.
Q: Where shall the criminal action for FALSIFICATION of a private document be filed?
A: It shall be filed in the place where the document was falsified, regardless of whether it was or was not put to the illegal use
for which it was intended. (U.S. vs. Barretto, 36 Phil. 204)
Q: Genie executed a false affidavit in Manila. It was sent to Davao to be used in a certain proceeding or case. Where is the
venue of the PERJURY?
A: It should be filed in the place where the false evidence was submitted and NOT in the place where the false affidavit was
subscribed and sworn to. (U.S. vs. Cañete, 30 Phil. 371)
Let’s go to some EXCEPTIONS:
Q: Are there instances where the crime is committed in this place but the trial can be filed in another place, other than the
place where the crime was committed?
A: YES, if the law says so because of the opening clause of paragraph (a) of Section 15 which says, “subject to existing laws.”
Meaning, this is the applicable rule unless other existing law says otherwise.
Q: Give instances where the crime maybe committed in one place but the law provided for a different venue of trial.
A: The following:
1. Libel – under Article 360 of RPC, it is to be filed where the libelous matter was printed or first published, or where the
injured party resides or where he holds office;
2. Sandiganbayan Law – cases falling under the jurisdiction of the Sandiganbayan are tried in designated places;
3. Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place of trial to avoid a
miscarriage of justice as what happened in the case of Sanchez and Misuari.
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Those are the exceptions. All the rest covers other cases Paragraph (d) refers to crimes committed on board a Philippine ship
or airplane abroad. It is triable in the Philippines. Where in the Philippines? – where the criminal action is first filed. Kung saan,
mamili ang prosecution kung saan i-file.
SEC. 16. Intervention of the offended party in criminal action. – Where the civil action for recovery of civil
liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by
counsel in the prosecution of the offense. (16a)
Of course, the prosecution is under the control of the fiscal but the law says, the private offended party can intervene through
counsel. That is what you call the appearance of the private prosecutor.
Q: When is it allowed?
A: The following are the requirements:
1. if there is civil liability arising from the crime because the purpose of the private prosecutor is to protect the civil
liability of the offended party;
2. there is no waiver. The offended party should not waive the civil liability;
3. the offended party should not have reserved to file a separate civil action because once you have made a reservation,
wala na. You cannot anymore hire a private prosecutor;
4. the civil action has not been previously instituted because if the civil action is already filed, you cannot intervene in the
criminal case.
Q: What are the rights of the offended party in a criminal action?

A: The following:
1. to take part in the prosecution of the offense;
2. to recover civil liability from the accused arising from the crime; and
3. to appeal from any judgment or order adversely affecting his claim to such civil liability. (People vs. Velez, 77 Phil.
1026)
Q: Give the limitations to the offended party’s right of intervention in a criminal action.
A: The following:
1. such intervention shall be under the direction and control of the fiscal (Section 5);
2. such intervention shall only be for the purpose of enforcing the accused’s civil liability arising from the crime. (People
vs. Velez, supra)
One of the interesting case decided based on Section 16 is the 1987 case of
BANAL vs. TADEO, JR.
156 SCRA 325
FACTS: This is a case for violation of BP 22. The offended party hired a private prosecutor to prosecute the
case. The accused challenged the appearance of the private prosecutor on the ground that BP 22 does not provide
for any civil liability and therefore there is no civil liability.
So the trial court disqualified the private prosecutor. The offended party went to the SC.
ISSUE: Is a private prosecutor allowed to intervene in a BP 22 case?
HELD: YES. A private prosecutor is allowed to intervene in a BP 22 case because there is a civil liability in BP 22
even if the law silent about it.
Normally lawyers would say that civil liability in a criminal case arises from the crime; because of the crime, there
is civil liability. According to the SC: WRONG!! It is not the crime which is the source of the civil liability. It is the
damage that the accused caused to the victim!
“The generally accepted notion that the civil liability actually arises from the crime a misconception or fallacy.
[Masyadong malalim ang discussion ng SC dito] “While an act or omission is felonious because it is punishable by
law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing
things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral
duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done
intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give
rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct
and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not
the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is
punishable, regardless of whether or not it also causes material damage to another. Article 20 of the New Civil Code
provides:
“Every person who, contrary to law, willfully or negligently causes damage to another, shall
indemnify the latter for the same.”
“Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be
had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The
indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission
of a crime. Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil
action for the restitution of the thing, repair of the damage, and indemnification for the losses.”
The ruling in Banal seems not to jive with Article 1157 of the New Civil Code. Under Article 1157, the following are the sources
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of obligations:
1. laws;
2. contracts;
3. quasi-contracts;
4. quasi-delicts;
5. acts or omissions punishable by law.
According to Article 1157, a crime punishable by law is a source of obligation. But in the case of Banal, the SC says NO, it is
not the act or omission but the damage or injury resulting from such act or omission. That is how to reconcile these two ideas.
Q: We will go back to the issue in Banal – is there civil liability in BP 22 cases?

A: YES because the offended party cannot get back his money. If there is damage, there is civil liability even if the law is silent.
Huwag mo na lang hanapin ang provision ng civil liability. For as long as there is damage, there is civil liability. Yaaann!
Rule 111
PROSECUTION OF CIVIL CASES
SECTION 1. Institution of criminal and civil actions. – (a) 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 unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or
information, the filing fees therefore shall constitute a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal
civil action. (1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the
filing fees based on the amount of the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate
or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged
therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the
court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal actions. (cir. 57-97)
We will now go to Rule 111. This rule has been subjected to many amendments although the amendments may not be very
radical. As a matter of fact, they only incorporate jurisprudence or principles laid down in decided cases. The main principle is:
when a criminal action is filed, the civil action of the recovery of the civil liability arising from the offense charged is deemed
instituted with the criminal action.
What is the basis for that principle? The basis is Article 100 of the RPC, “Every person criminally liable is also civilly liable.”
When you say deemed instituted, it does not only cover the civil liability of the accused himself but also the probable subsidiary civil
liability of the employer under Article 103. You already knew of that rule that when an employee-accused is adjudged criminally
liable and is insolvent, the employer of that accused who committed the crime while he was in the discharge of his duties will be the
one to answer the civil liability. That is why the SC said that whether he likes it or not, he is covered. It is advisable for the employer
in that situation to help his employee in the criminal case because he will also be prejudiced if his employee will be convic ted. To
borrow the language of the SC, whether he likes it or not, he is a forced intervenor in the criminal case filed against his employee.
Q: When is a civil action arising from a crime NOT deemed instituted with the criminal action?
A: The civil action is NOT deemed instituted with the criminal action:
1. when the offended party has waived the civil aspect of the case;
2. when the offended party has reserved his right to file a separate civil action; or
3. when the civil action was filed or instituted ahead of the criminal action.
4. when the crime is one to which no civil liability attaches. (People vs. Maceda, 73 Phil. 679)
5. when the civil action was filed in court before the presentation of the evidence for the prosecution in the criminal
action of which the judge presiding on the criminal cases was duly informed. (Yakult Phils. vs. CA, 190 SCRA 357);
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According to the second paragraph, the reservation must be made before the prosecution starts presenting its evidence and
under circumstances affording the offended party reasonable opportunity. Before the trial, kailangan mag-reserve na siya.
Otherwise the court will consider the civil aspect deemed instituted.
YAKULT PHILS. vs. COURT OF APPEALS

190 SCRA 357 (1990)
FACTS: In a criminal case, the offended party did not make a reservation but there is still no trial. However,
without making a reservation, the offended party filed a civil action. After such filing, the offended party told the court
trying the criminal case, that he has already filed a separate civil case so that the court will not include anymore the
civil aspect.
ISSUE: Is there a proper filing of the civil action without making a reservation? Was the civil action filed ahead of
the criminal case?
HELD: NO. However, there is no question that after filing the civil case he told the court that he already filed a
separate civil action and that is even a better reservation. In effect, there was an automatic reservation although
normally, reservation is done before the filing of the criminal case. Ito naman, filing before he informed the court.
Q: Has the offended party the right to claim and prove damages in the criminal action where the complaint or information is
silent as to such claim?
A: Every person criminally liable is also civilly liable. Therefore, even if the complaint or information is silent as to damages, the
offended party has the right to claim and prove them in the criminal case, unless a waiver or a reservation of the civil action is
made. (People vs. Rodriguez, July 29, 1959; Roa vs. dela Cruz, Feb. 13, 1960)
So it is possible for the information to recite the claim for civil liability or hindi na kailangan. The only difference is: if the
information mentions the claim of the civil liability, the offended party is required to pay the docket fee provided the docket fee is
only for any claims for moral, exemplary and nominal damages. There is no docket fee for actual damages.
Q: Suppose there was no mention of any claim for moral or exemplary damages, can he still prove them during the trial? YES.
But he did not pay docket fee?
A: Never mind, once it is awarded, there is now a lien in the judgment for the payment of the docket fee.
So there is difference in the rule in docket fee in civil and criminal cases. Remember the case of Sun Insurance in civil
procedure? If the docket fee was not mentioned in the complaint in the civil case they are deemed waived. You must pay the
docket fee at the start of the case though if it is not mentioned, you are given the chance to complete the payment or amend the
complaint within reasonable time. In criminal cases, even if there is no mention of damages in the information, you can still prove
and claim them as long as there is no waiver or reservation.
So in criminal cases, if the claim for moral or exemplary damages is mentioned in the information, you must pay the docket fee
upon filing of the information. But whether alleged in the information or not, you can claim for actual damages and there is no
docket fee for actual damages except in cases under BP 22. That is the exception which is now embodied in Section 1 paragraph
[b] which was take from SC circular 57-97 – there is no payment of docket fee for actual damages except in criminal cases for
violation of BP 22 because paragraph [b] says:
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the
filing fees based on the amount of the check involved, which shall be considered as the actual damages
claimed.
Now, take note of the ruling in the case of Cabaero vs. Cantos mentioned in civil procedure which is now incorporated in the
last paragraph of Section 1, paragraph [a]:
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal
civil action.
That’s the Cabaero case which reversed Javier vs. IAC, (171 SCRA 376) and Shaffer vs. RTC, (167 SCRA 376).
SEC. 2. When separate civil action is suspended. – After the criminal action has been commenced, the
separate civil action arising therefrom cannot be instituted until final judgment has been entered in the
criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter shall be
suspended in whatever state it may be found before judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits
rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action. In case of consolidation, the evidence already
adduced in the civil action shall be deemed automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine the witness presented by the offended party in
the criminal case and of the parties to present additional evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.
474
During the pendency of the criminal action, the running period of prescription of the civil action
which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n)
The extinction of the penal action does not carry with it extinction of the civil action. However, the
civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability may arise did not exist. (2a)
Let’s go to Section 2. Suppose the offended party made a reservation to institute a civil action and a criminal case is filed, he
cannot file the civil action – that’s the rule. He must wait for the outcome of the criminal case. The criminal case enjoys priority.
The reason here is that there might be an embarrassment in the administration of justice. You allowed the filing of the civil and
criminal cases together. Same evidence, same incident. In the criminal case, the accused was convicted but in the civil case the
claim for damages was dismissed because the offended party failed to proved his claim by preponderance of evidence. That is
something absurd!
So the best thing is unahin muna ang criminal case because anyway if there is an acquittal in the criminal case, you can still
recover in the civil case because it is only a preponderance of evidence, or the accused may be acquitted by reason of an
exempting circumstance and yet it does not exempt him from civil liability in another civil action.
Take note that what is suspended is the civil action arising from the criminal act. (opening paragraph of Section 2; Article 1157,
New Civil Code)
Q: What happens if na-una na-file yung civil action?

A: According to Section 2, from the moment the criminal case is filed, the trial of the civil case is suspended to wait for the
outcome of the criminal case.
Q: Is this prejudicial to the offended party?

A: There is a way out according to Section 2. The first thing for him to do is to file a petition to consolidate the trial of the
criminal and civil case for them to be tried together and the evidence already presented in the civil case is deemed automatically
reproduced in the criminal case. This is what you call the consolidation of the civil and criminal action under Section 2.
Q: Is this consolidation mandatory?

A: NO. It is permissive. Actually, the offended party is the one to initiate this because if not, then he has to wait for the criminal
case to be terminated before he can file the civil case.
Q: What are the instances when the offended party is not allowed to make a reservation therefore requires a mandatory
consolidation?
1. Violations of BP 22. (Paragraph b, Section 1, Rule 111);

2. Libel – under Article 360, RPC;
3. Mandatory consolidation under the Sandiganbayan law. For example, a criminal case is supposed to be tried by the
SB and then you file a civil case before the ordinary courts. What will happen now to the civil case? The law says
there must be a mandatory consolidation of both cases in the SB.
Q: What happens if the filing of the civil action will have to wait for the outcome of the criminal case, baka nag-prescribed na
yung civil action?
A: Read 3rd paragraph of Section 2:
During the pendency of the criminal action, the running period of prescription of the civil action
which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n)
Ayun! The running of the prescriptive period shall be suspended. This was the doctrine in the case of People vs. Bayotas.
There is something new in the 2nd paragraph about consolidation. When the civil case is filed ahead, the filing of the criminal
case will suspend the civil unless there is a petition to consolidate in which case the evidence presented in the civil case is
automatically considered reproduced in the criminal case. Now read this part, third paragraph of Section 2:
“x x x In case of consolidation, the evidence already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-
examine the witness presented by the offended party in the criminal case and of the parties to present
additional evidence. x x x”
What is new here is the phrase “without prejudice to the right of the prosecution to cross-examine the witnesses presented by
the offended party in the criminal case…” I was wondering, there is something wrong here. I believe there is a typographical error
here. Di ba the witnesses of the offended party in the civil case are also the witnesses of the prosecution in the criminal case? I was
wondering why will the fiscal cross-examine his witnesses? I think the phrase really means “the witnesses presented by the
accused”.
Let’s go to some decided cases.
CAÑOS vs. PERALTA

115 SCRA 843
475
FACTS: The case of Caños was decided before the 1985 Rules. Here, there was reservation. There were two (2)
cases arising out of the same incident. At that time, there was still no specific rule on consolidation. Judge Peralta
ordered the consolidation of the criminal and civil cases and that was questioned.
ISSUE: Was the consolidation proper? If so, how do you reconcile these cases because the degree of proof in
the criminal case is not the same in the civil case?
HELD: The consolidation was proper under Rule 31 because there is a common question of fact and law. They
can be consolidated but for purposes of decision, the court will now apply two (2) different criteria: Proof beyond
reasonable doubt in the criminal case and preponderance of evidence in the civil case. So there is no incompatibility.
Now, here comes the 1985 Rules on consolidation and one of the first cases which reached the SC involving the new Rules
was the case of Naguiat.
NAGUIAT vs. IAC

164 SCRA 505
FACTS: Naguiat filed a case against a subdivision development corporation where he bought a lot in installment
basis. Under the subdivision law kapag bayad na, you issue the title. But according to Naguiat, bayad na pero hindi
binigay yung title. So he filed a case for specific performance with damages against the subdivision and he also filed a
criminal case against the president of the corporation for failure to deliver to him the title of the land under PD 957.
Now, he filed a motion to consolidate under Rule 111.
ISSUE: Is the motion to consolidate proper?
HELD: NO. They cannot be consolidated under Rule 111 because what can be consolidated is a criminal case
together with a civil case for damages from the crime committed. In other words, damages “ex delicto.” But here, the
criminal case was filed against the officers of the corporation for damages and a civil case for specific performance
was also filed against the same officers. That civil case arose from a contract, i.e. “ex contractu.” [So if the civil case
arose from a contract, it cannot be consolidated with the criminal case under Rule 111.]
But because it cannot be denied that it would be better if we try them together because we are talking of the
same incident – failure to deliver the title – why not consolidate the two cases under Rule 31, citing the case of Caños
vs. Peralta. In that case, the only ground was there was a common question of fact and law so they should be
consolidated under Rule 31 and NOT Rule 111.
The extinction of the penal action does not carry with it extinction of the civil action. However, the
civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability may arise did not exist. (2a) (Last
paragraph, Section 2, Rule 111)
Yan! If the accused is acquitted, it will not bar the offended party from filing a civil action because the extinction of the penal
action does not carry with it the extinction of the civil action because for all you know in the civil case the accused may be found
liable.
It is now emphasized in the new rules “however, the civil action based on delict shall be deemed extinguished if there is a
finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.” This
means that if the accused is acquitted based on reasonable doubt, there could still be civil liability arising from the crime or when
the accused is acquitted based on an exempting circumstance. But when the accused is acquitted on the ground that the act or
omission from which the civil liability may arise did not exist, that is the end of the civil liability arising from a crime.
Q: However, if I file an action based on quasi-delict, can it prosper?

A: YES, because it is now established that the action based on delict is extinguished but not on quasi-delict, a contract, or
other sources of obligation. This is the ruling in the case of Bayotas in criminal law – that, for example, once the accused dies, the
civil liability arising from crime is already extinguished but you can still file a case against the estate of the deceased accused
provided you can find another source of the obligation. This ruling was emphasized in the 1998 case of
SALAO vs. COURT OF APPEALS

284 SCRA 493, January 22, 1998
HELD: The civil liability referred to in this Rule is the civil liability arising from crime (ex delicto). It is not the civil
liability for quasi-delict which is allowed to be brought “separately and independently” of the criminal action by Art. 33
of the Civil Code. The civil liability based on such cause of action is not extinguished even by a declaration in the
criminal case that the criminal act charged has not happened or has not been committed by the accused. Indeed,
because the offended party does not intervene in the criminal prosecution, it is entirely possible that all the witnesses
presented in the civil action may not have been presented by the public prosecutor in the criminal action with the
result that the accused in the criminal case may be acquitted.
476
So remember ha, in the case of Salao the offended party has no intervention in the criminal case. He does not know how the
public prosecutor handled the case, baka ang testigo kulang kaya na-acquit. So paano ako (offended party)? I will file my own civil
case and maybe I will use quasi-delict as the basis and no longer the delict.
These are the complicated portion of this rule. As a matter of fact, there are queer cases decided by the SC even before the
new rules like the 1987 case of
RUFO MAURICIO CONSTRUCTION vs. IAC

November 27, 1987
FACTS: A driver of the construction company collided with a car, killing the owner. What was filed was a criminal
case against the driver. No reservation was made. Therefore the civil liability arising from the crime is already
instituted. The driver was convicted. On appeal, the driver died.
ISSUE: What will happen to the civil liability arising from the crime? Can you enforce it against the employer
based on Article 103, RPC on subsidiary liability?
HELD: NO, because there was no judgment of conviction which became final. There must be a judgment of
conviction against the employee; it must be final; he must be proven insolvent. But the trouble is he died. So you
cannot enforce the subsidiary liability of the employer.
However, if this was quasi-delict, you can file a direct action against he employer because in quasi-delict, the
liability of the employer is primary, not subsidiary. The SC treated the case as an action for quasi-delict against the
employer but that is unfair for the employer because he never participated in the trial of the civil case. According to
the SC, we will put it back and now you will cross-examine them (Dean I: Ano’ng klaseng procedure ito?!). This is
what the SC said:
“The death of the accused during the pendency of his appeal or before the judgment of conviction became final
and executory extinguished his criminal liability but not his civil liability should the liability or obligation arise not from a
crime but from a quasi-delict. The liability of the employer here would not be subsidiary but solidary with his driver
unless said employer can prove there was no negligence on his part at all, that is, if he can prove due diligence in the
selection and supervision of his driver.”
“Inasmuch as the employer was not a party in the criminal case, and to grant him his day in court for the purpose
of cross-examining the prosecution witnesses on their testimonies on the driver's alleged negligence and the amount
of damages to which the heirs of the victim are entitled, as well as to introduce any evidence or witnesses he may
care to present in his defense, the hearing on the motion to quash the subsidiary writ of execution must be reopened
precisely for the purpose adverted to hereinabove.”
This is the only instance I knew that the criminal case against a driver ended up as a case for quasi-delict against the
employer. In other words, sh-in-ort-cut-short-cut ng SC yung procedure eh!
SEC. 3. When civil action may proceed independently. – In the cases provided in Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended
party. It shall proceed independently of the criminal action and shall require only a preponderance of
evidence. In no case, however, may the offended party recover damages twice for the same act or
omission charged in the criminal action. (3a)
Let’s go back to basic rules.
Q: Which takes precedence when there is reservation, the criminal or the civil action?
A: The criminal action takes precedence. The filing of the criminal suspends the filing of the civil action. If the civil action is
filed, the civil action is deemed suspended unless there would be consolidation.
Now, the rule about the filing of the criminal action will suspend the filing of the civil action, and the rule about the subsequent
filing of the criminal action will suspend the trial of the civil case, however, DOES NOT apply if the civil action is classified as an
independent civil action under Section 3. This is another important provision.
Q: What are the independent civil actions under the law?

A: They are those covered by Articles 32, 33, 34, and 2176 of the New Civil Code.
Take note that you have to know what is Article 32, 33, 34, 2176. It is not enough that you memorize the articles. What is
Article 32 all about? What kind of civil action is referred thereto? Or what is the civil action referred to in Article 34? I think nandito
yung when the civil action is based on a violation of a constitutional right. Article 33 is the most famous… when the civil action is
defamation, fraud and physical injuries.
Here (Section 3), the criminal action and the civil action can be filed simultaneously and the trial of the two cases can go on
separately and independently of the other without regard to the latter. Unlike when the civil action is not classified as independent,
where it is governed by Section 2, it will be suspended in the meantime. That is the important point to remember in this rule.
COJUANGCO, JR. vs. COURT OF APPEALS

203 SCRA 629
477
FACTS: In this case, there was an independent civil action for recovery of civil liability arising from defamation
filed by Cojuangco against a media company. So there were two (2) cases – a criminal action for libel under the RPC
and a civil case for damages arising from defamation under Article 33 of the Civil Code. The question is: can the two
cases be consolidated under Section 2? – because one argument is you only consolidate the civil action if it is not
independent action. But anyway, independent man ito – why will consolidate?
ISSUE: May a civil action for damages arising from defamation (independent civil action) and the criminal case
for libel be consolidated?
HELD: YES, they can be consolidated under Rule 31 of the Rules of Court, citing again the case of Caños vs.
Peralta, because there is a common question of law and fact.
“Section 1, Rule 31 of the Rules of Court authorizes consolidation of actions involving common questions of law
or fact pending before the court. The purpose or object of consolidation is 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 or expense; in short, the attainment of justice with the least expense and vexation to the parties
litigants. This provision applies to both civil and criminal actions. The case Caños had removed any doubt on this
point.” [So even if we disregard Rule 111 Section 2, it can be consolidated under Rule 31]
“There is yet a further consideration why in the instant case consolidation of civil case and the criminal case
should be allowed. What is involved is the crime of libel. As correctly stated by petitioners, per the third paragraph of
Article 360 of the Revised Penal Code, as amended, the criminal case for libel and the civil action for damages arising
therefrom must be filed in the same court.”
In other words, if there is a second reason why consolidation should be allowed, that reason is Article 360 of the
RPC on libel. While there maybe 2 separate actions in libel – damages and criminal case – Article 360 orders the
consolidation of the two. That is mandated under Article 360.
The next question is: Suppose I will file an independent civil action, do I have to make a reservation? The civil action specified
is an independent one. Take note that under Section 1, when you file a criminal case without making a reservation, the civil action
is already deemed instituted unless you make a reservation.
There were some confusions on that point because in the old cases of GARCIA VS. FLORIDO (52 SCRA), ABELLANA VS.
MARABE (57 SCRA), the SC implied that when the civil action is independent, there is no need to make a reservation. That is an
implication because it is independent – why should its filing be dependent on reservation?
However, the 1985 Rules on criminal procedure made reservation mandatory even in independent civil actions. Section 3 of
the 1985 Rules says, “in the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, the independent civil action which has
been reserved may be brought by the offended party, shall proceed independently.” So in the instructive case of MANIAGO VS.
CA, (253 SCRA 674) as well as the case of SAN ILDEFONSO VS. CA, (289 SCRA 568), the SC ruled that there is still a need,
whether a civil action is independent or not, to make a reservation, otherwise the civil action is deemed instituted.
NOW, you will notice in Section 3 of the new rules, that phrase “which has been reserved” is deleted. So based on the
language of the new rules, babalik na naman tayo sa FLORIDO and MARABE ruling, that an independent civil action NEED NOT
BE RESERVED. Therefore, the ruling in the MANIAGO and SAN ILDEFONSO cases is deemed abandoned by the SC.
SEC. 4. Effect of death on civil actions. – The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the case may be. The
heirs of the accused may be substituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially
provided in these rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil
action the offended party may file against the estate of the deceased. (n)
Section 4 is entirely new. The first sentence is enunciated in the case of Bayotas – the death of the accused after arraignment
and during the pendency of the criminal action shall extinguish the civil liability arising from the delict – the civil liability arising from
the crime is deemed extinguished which you have taken up already in criminal law. However, the independent civil action instituted
under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources – meaning, another source
other than the delict – may be continued against the estate or legal representative of the accused after proper substitution as the
case may be.
Balik na naman tayo sa civil procedure nito. The action survives – there will be substitution. This is actually a repetition of civil
procedure – “the heirs of the accused maybe substituted for the deceased without requiring the appointment of an executor or
administrator and the court may appoint a guardian…” That is a repetition of Rule 3, about substitution of a party. But the civil
action here refers to a civil action where the source of a claim is not a crime, wala na eh, extinguished na kaya it could be a
contract or a quasi-delict.
Q: On the third paragraph, assuming there is a judgment. How will you enforce it? By execution?
478
A: NO. You must file it as a claim against he estate. As a rule, there is no execution. All the creditors mush share equally with
the assets. That is Special Proceedings: what claims must be filed against the estate of the deceased?
Q: Last paragraph. In case before arraignment, namatay – wala na! – the criminal liability is extinguished. What happens now
to any possible civil action which the offended party may file?
A: He can file it against the estate of the deceased but the assumption is, it is based on quasi-delict or any other sources of
obligation other than the crime.
SEC. 5. Judgment in civil action not a bar. – A final judgment rendered in a civil action absolving the
defendant from civil liability is not a bar to a criminal action against the defendant for the same act or
omission subject of the civil action. (4a)
Section 5 is the exact opposite of Section 2 because the last paragraph of Section 2 says “the extinction of the penal action
does not carry with it the extinction of the civil action.” Itong Section 5 naman, baliktad! – the extinction of civil action. Is the criminal
action also extinguished? NO. “A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a
criminal action against the defendant.”
Now, what is new here is the last clause – “for the same act or omission subject of the civil action” – because for all you know,
the evidence submitted in civil case might be incomplete and the government has better evidence in the criminal action.
SEC 6. Suspension by reason of prejudicial question. – A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed
in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the
prosecution rests. (6a)
SEC. 7. Elements of prejudicial question. – The elements of a prejudicial questions are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal
action may proceed. (5a)
The concept of prejudicial question is the exact opposite of Section 2 because in Section 2, unless independent civil action, the
filing of the criminal action will cause the suspension of the civil action. Ito naman, baliktad – the filing of the civil case will suspend
the criminal case – that is, if there is a prejudicial question involved in the civil case.
Q: What is a prejudicial question?

A: A prejudicial question is that arising in the civil case but which is so intimately connected with the issues involved in the
criminal case as to be determinative of the innocence or guilt of the accused. (Mendiola vs. Macadaeg, February 27, 1961)
So the resolution of the civil action will determine the guilt or innocence of the accused in the criminal case. The guilt or
innocence of the accused will depend on the outcome of the issue in the civil case kaya paunahin natin ang civil.
Q: How do you determine whether a question is prejudicial?

A: The elements of a prejudicial question are found in Section 7:
1. the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent
criminal action, and
2. the resolution of such issue determines whether or not the criminal action may proceed.
Q: What will happen to the criminal case filed in the court?
A: It will be suspended. The accused will have to file a motion for the suspension of the proceeding.
For example, Rod is accused of bigamy for marrying twice. However, there is a civil case also pending where the issue is
whether his first marriage is valid or not. Kung valid yon, patay ka! – bigamy! Kung void naman yun, there is no bigamy.
PEOPLE vs. ARAGON

94 Phil. 357
FACTS: Pches contracted a second marriage with Cholo, a married man. The latter subsequently married Thea,
the second girl. Cholo was prosecuted for bigamy. Thea, the second wife filed an action to declare her marriage as
defective because of the force employed against her by Cholo. And, even if his first marriage is not valid, sabi niya
(Thea), yung akin ay voidable pa rin because my consent was secured through force or intimidation.
Sabi naman ni Cholo, kung ganun, it is prejudicial. We will have to wait for the result of that case filed by the
second wife (Thea) whether really I used force or intimidation to get her consent. So the case of bigamy should not be
tried.
HELD: Cholo is wrong because it was him, who is accused of bigamy, who employed the force. Cholo cannot
use his own malfeasance to defeat the action based on the criminal act. Ikaw and nag-gawa ng force tapos you use
the force to suspend the criminal case? Di puwede yan! There is something wrong in that situation.
479
But assuming it is Thea who is accused of bigamy for contracting a second marriage with the man. And the woman says, “It is
true pero pinilit niya ako. Ayoko man ba!” So she filed an action to declare the second marriage defective on the ground of vitiated
consent. Ayan! Prejudicial yan because she is the victim [of force and intimidation]. Really, if her second marriage was obtained
without her consent, how can she be guilty of bigamy? Yan! Pwede yan!
CASE: (decided by Court of Appeals) A criminal case was filed against Kenneth for forcible abduction with rape. While the
criminal case was pending, there was a supposed marriage between him and his victim (Hannah) para ma-extinguish ang criminal
liability ni Kenneth. But Hannah filed a case to declare the marriage as null and void. Question: Will the pendency of the civil case
for nullity of marriage filed by Hannah be considered as prejudicial question to determine whether the forcible abduction case will
proceed to the SC?
RULING: According to the CA, YES because of this argument: suppose it is proven that the marriage between the Kenneth
and the Hannah is null and void, therefore, the criminal liability of Kenneth for forcible abduction with rape cannot be extinguished
because the marriage is a false one. However, if it turned out that the marriage is really valid, then the criminal case for abduction
will definitely be extinguished.
CASE: This one is squatting. André was accused under the anti-squatting law for occupying the property of Eumir. In another
civil case, the issue is ownership of the same property between André and Eumir. They are quarreling as to who is really the owner.
Here, kailangan muna matulog ang criminal case. Depende yan kasi kung sinong manalo sa civil case. How can you be a squatter
if it turns out that you are the owner of property. So it is considered as prejudicial question.
The last point to consider here:
Q: Can you raise a prejudicial question as a ground to suspend the preliminary investigation before the fiscal’s office? Or, does
the issue of prejudicial question only applicable when the case reaches the court?
A: Prejudicial question can be raised as a ground to suspend a preliminary investigation. Section 6 says, “a petition for
suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the off ice of the
prosecutor or the court conducting the preliminary investigation.”
Of course, when the criminal action has been filed in court, the petition for suspension must be filed in the same criminal
action.
The first case where the SC said that prejudicial question can be raised even in the preliminary investigation was first laid down
in the 1940 case of DE LEON VS. MABANAG (72 Phil. 202).
However in 1962, the SC had a change of mind in the case of DASALLA VS. CITY ATTORNEY, (5 SCRA 193) where the SC
said, the suspension on the ground of prejudicial question only applies when the case is already in court but not where the case is
still under preliminary investigation. The ruling in Mabanag is abandoned. The Dasalla ruling was reiterated in the case of FALGUI
VS. PROVINCIAL FISCAL OF PAMPANGA, 62 SCRA 462.
However, when the 1985 rules were enacted, you will notice in Section 6 that the issue of prejudicial question may be raised in
the office of the prosecutor or the judge conducting the preliminary investigation. That means the resurrection of the Mabanag
ruling in 1940 and the abandonment of the subsequent cases of Dasalla and Falgui, Jr. So binalik nila ang Mabanag.
Rule 112
PRELIMINARY INVESTIGATION
SECTION 1. Preliminary investigation defined; when required.– Preliminary investigation is an inquiry or

proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted
before the filing of a compliant or information for an offense where the penalty prescribed by law is at
least four (4) years, two (2) months and one (1) day without regard to the fine. (1a)
Alright. We will now go to Preliminary Investigation. This is one of the features of the inquisitorial system of criminal procedure.
The government is the boss. The purpose is for determining whether there is probable cause, not guilt or innocence of the accused,
because what is probable cause to you may not be probable cause sa akin. That is why you can see the fiscal as a very powerful
person in the government. He could say that there is probable case or there is none. Depende kung anong gusto niya.
So, the government through the investigating officer will decide whether there is a case or no case. He will first conduct an
investigation and if he believes that there is a probable cause, then he will prepare a resolution recommending to this superior that
the respondent be indicted in court.
The purpose of preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to
protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect
the state from useless and expensive trials. (Marcos vs. Cruz, 68 Phil. 96; Hashim vs. Boncan, 71 Phil. 216)
Q: Is Preliminary Investigation required in all criminal cases?

A: Under the new rules, it is required when the crime for which the respondent is charged carries a penalty of at least four (4)
years, two (2) months, and one (1) day.
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Q: What happen if a case is filed in court without preliminary investigation? Can the accused file a motion to quash the
information on the ground of absence of a preliminary investigation?
A: Of course there is no question that there is a denial of a right. However, if there is an irregularity, that is not a ground for
dismissal. An information cannot be dismissed because there was no preliminary investigation. The procedure is for the court to
suspend the proceedings and refer the matter back to the proper officer for preliminary investigation (People vs. Oliveria, 67 Phil.
427; People vs. Manlapas, L-17993, August 24, 1962)
Q: Who has the discretion whether to prosecute or not to prosecute?

A: The public prosecutor. That is why he is a powerful officer. He exercises quasi-judicial function because he is the one to
determine whether to file a case against you or not. He has the authority to file or the authority to dismiss.
Q: Can the discretion of a public prosecutor be controlled? Can you file a petition for mandamus to compel a public prosecutor
to file a case?
A: General Rule: The public prosecutor cannot be compelled by mandamus to prosecute a case because it is discretionary eh!
Maybe you can prove grave abuse of discretion. Maybe the probable cause is very, very clear or obvious, then ayaw pa nyang i-
file, ayan na!
Q: What are the remedies of the offended party if a fiscal refuses to file a case even when there is a sufficient evidence n
which action may be taken?
A: There are three (3) possible remedies:
1. He may take up the matter with the Secretary of the Justice who may then take such measures as may be
necessary in the interest of justice; or to his superior officer, the Regional State Prosecutor;
2. He may also file with the proper authorities or court criminal or administrative charges against the fiscal. That
is what you call prevericacion in the Revised Penal Code;
3. He may file a civil action for damages under Article 27, New Civil Code.
There are other cases where the Supreme Court (SC) commented on this aspect about the quasi-judicial power of the public
prosecutor. In the case of GUIAO VS. FIGUEROA (94 Phil. 1018), the SC said that the prosecution, as an exception, may be
compelled by mandamus if he abuses his discretion and refuses to include a person as a co-accused against whom there appears
to be at least a prima facie evidence. That is grave abuse of discretion. However, this extraordinary writ is available only if the
petition shows that he has first exhausted all remedies in the ordinary course of law such as a motion filed with the trial court for the
indictment of the person or persons excluded by the prosecutor.
SANCHEZ vs. DEMETRIOU

November 9, 1993
HELD: “The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special
cases by the President of the Philippines. But even this Court cannot order the prosecution of a person against whom
the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or
convict the accused but as a rule have no part in the initial decision to prosecute him. “
“The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify
judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is
a petition for mandamus, not certiorari or prohibition.”
Let’s go back in the case of
TEEHANKEE JR. vs. MADAYAG

March 6, 1992
FACTS: Here, Claudio Teehankee, Jr. was originally charged for the crime of frustrated murder for shooting
Hultman na na-comatose for how many months. In the course of the trial, Hultman died. The prosecution sought to
change the information from frustrated murder to consummated murder. Teehankee Jr. questioned the new charge
for lack of preliminary investigation thereon .
There are three (3) questions to be answered here:
ISSUE #1: Was there an amendment of the information or substitution when the information was changed from
frustrated murder to consummated murder?
HELD: There is an amendment. “There is an identity of offenses charged in both the original and the amended
information [murder pa rin!]. What is involved here is not a variance of the nature of different offenses charge, but only
a change in the stage of execution of the same offense from frustrated to consummated murder. This being the case,
we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended
information for murder is proper.”
ISSUE #2: What kind of amendment? Formal or substantial?

HELD: Formal. “An objective appraisal of the amended information for murder filed against herein petitioner will
readily show that the nature of the offense originally charged was not actually changed. Instead, an additional
allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in
determining the proper penalty for the crime [So it is still murder.]. That the accused committed a felonious act with
intent to kill the victim continues to be the prosecution's theory. There is no question that whatever defense herein
481
petitioner may adduce under the original information for frustrated murder equally applies to the amended information
for murder.”
So halimbawa sabihin ng prosecutor: “You shot Hultman who almost died.” Teehankee Jr.: “Wala man ako du’n
ba! I was at home asleep!” Alibi ang defense niya ba. Now, namatay si Hultman. Ano man ang depensa mo? Mau
man gihapon: “Wala man ako du’n!”
So you are not prejudiced because the same defense available to you is still available to you now.
ISSUE #3: Is there a need of a preliminary investigation on the new charge?

HELD: No need because you have not changed the crime. If you change the crime or when there is substitution,
kailangan ng preliminary investigation. Since it is only a formal amendment, preliminary investigation is unnecessary.
“The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious
reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we
have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one
would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is
not necessary.”
SEC. 2. Officers authorized to conduct preliminary investigations. –The following may conduct
preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions. (2a)
Q: Going back to Rule 110, Section 1, how is a criminal action instituted?

A: Read Section 1, Rule 110:

investigation.
Q: Who are those proper officers?

A: They are the officers authorized to conduct preliminary investigation and they are mentioned in Section 2:
1. Provincial, city prosecutors and their assistants;
2. Judges of the MTC, MCTC;
3. Other officers as may be authorized by law to conduct preliminary investigation.
An example of “Other officers as may be authorized by law to conduct preliminary investigation” is the Ombudsman. In the
case of UY VS. SANDIGANBAYAN (312 SCRA 77 [August 9, 1999]), the Ombudsman and his deputies are only authorized to
conduct preliminary investigation of public officers in cases which are falling within the original jurisdiction of the Sandiganbayan
(SB).So even if the crime is a violation of the Anti-Graft law, or a crime committed by a public officer in relation to his office, if he is
below Grade 27, the proper court is not the SB, but the MTC or RTC. Before kasi, the original SC interpretation of the Ombudsman
law as laid down in the first case of DELOSO VS. DOMINGO (November 21, 1990), is that, all crimes committed by public officers
should be investigated by the Ombudsman.
HOWEVER, Ombudsman Desierto filed a Motion for Further Clarification in the SC in relation to the case of UY where I think
the Ombudsman is trying to convince the SC to change its mind because it is practically making that office a useless office. Now,
SC resolved to consider the same. Therefore the ruling in UY is reversed in a SC resolution (dated March 20, 2001 [G.R. 105965-
70]) where the SC went back to its original ruling that the Ombudsman is authorized to conduct preliminary investigation and to
prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but
those within the jurisdiction of the regular courts as well. So take note of that.
SEC. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for
the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government
official authorized to administer oath, or, in their absence or unavailability, before a notary public, each
of whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent, and
these shall be made available for examination or copying by the respondent at his expense.
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Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits
and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence
presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party
or a witness. The parties can be present at the hearing but without the right to examine or cross-examine.
They may, however, submit to the investigating officer questions which may be asked to the party or
witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five (5)
days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for trial. (3a)
Q: What is the procedure for Preliminary Investigation?

A: You read Section 3 step by step. Actually it’s a battle of affidavits eh. It is the same as the old rules. Anyway I’ll just mention
the changes no:
1. In 2nd paragraph of [b] “The respondent shall have the right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at his expense.”
2. paragraph [c]. What is new here is the last sentence – “The respondent shall not be allowed to file a motion to dismiss
in lieu of a counter-affidavit.” So you can file your counter-affidavit. Do not file a motion to dismiss;
3. “[d] If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10)
day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant.”
4. paragraph [e]. What is new is the 2nd paragraph, “the hearing shall be held within 10 days…” Actually here, tapos na
ang affi-affidavits. But if you want to clarify something, you can call the witnesses for clarificatory questioning, pero he
has a deadline to do it – 10 days.
In the case of
TATAD vs. SANDIGANBAYAN

159 SCRA 70, March 21, 1988
FACTS: The preliminary investigation lasted for 3 years. So Tatad questioned the information.
ISSUE #1: Is the 10-day period to issue a resolution mandatory or directory?

HELD: “The 10-day period fixed by law is merely “directory,” yet, on the other hand, it can not be disregarded or
ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that
is deliberately intended to become meaningless and to be treated as a dead letter.” So all of the information filed must
be dismissed for violation of the right for speedy trial.
ISSUE #2: The government contended that a total lack of preliminary investigation is not a ground for dismissing
an information, how come the delay in terminating a preliminary investigation becomes now a ground for dismissal?
HELD: “It has been suggested that the long delay in terminating the preliminary investigation should not be
deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the
information. True — but the absence of a preliminary investigation can be corrected by giving the accused such
investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man
has not yet invented a device for setting back time.”
SANTIAGO vs. GARCHITORENA

December 2, 1993
FACTS: Anti-graft charges were filed against Miriam Defensor-Santiago when she was still the Immigration
Commissioner. Santiago raised this issue (on delay) because the offense was allegedly committed on or about
October 17, 1988 and the information was filed only on May 9, 1991 or almost 3 years later. The amended information
was filed only on December 8, 1992 or 4 years later. So following the Tatad ruling they shall be dismissed.
HELD: “[Santiago] cannot complain that her constitutional rights to due process were violated by reason of the
delay in the termination of the preliminary investigation. Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable
to petitioner's case. In Tatad, there indeed was an unexplained inaction on the part of the public prosecutors inspite of
the simplicity of the legal and factual issues involved therein. In the case at bench, there was a continuum of the
investigatory process but it got snarled because of the complexity of the issues involved. “
“We note that [Santiago] had previously filed two petitions before us involving 2 criminal cases. Petitioner has not
explained why she failed to raise the issue of the delay in the preliminary investigation and the filing of the information
483
against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-
defeating.” So it is like splitting your causes of action working against you. Yaan!
SOCRATES vs. SANDIGANBAYAN

253 SCRA 773, February 20, 1996
NOTE: I think Socrates was a governor of Palawan. He was also facing cases in the Sandiganbayan where he
invoked the Tatad ruling.
HELD: “In the application of the constitutional guaranty of the right to speedy disposition of cases, particular
regard must also be taken of the facts and circumstances peculiar to each case. It is palpably clear that the
application of the Tatad doctrine should not be made to rely solely on the length of time that has passed but equal
concern should likewise be accorded to the factual ambiance and considerations. It can easily be deduced from a
complete reading of the adjudicatory discourse in Tatad that the three-year delay was specifically considered vis-a-vis
all the facts and circumstances which obtained therein.”
So you just don’t consider the time element. You must also consider the facts. Panahon ni Marcos yung kay Tatad eh.
SERVANTES vs. SANDIGANBAYAN

307 SCRA 149, May 18, 1999
NOTE: The Tatad ruling was applied in this case.

FACTS: Here, Elpidio Servantes was charged for violation of Section 3(e) of the Anti-Graft law. It took the special
prosecutor six (6) years from the filing of the initiatory complaint before he decided to file an information for the
offense in the Sandiganbayan. Servantes filed a motion to quash for violation of the right to speedy disposition of the
case. Special prosecutor tried to justify the delay in the resolution of the complaint by stating that no political
motivation appears in the prosecution of the case in apparent reference in the case of Tatad because in the case of
Tatad there was political motivation dun eh kaya na-delay.
Special Prosecutor: “Servantes here was insensitive to the implications and contingencies thereof by not taking
any step whatsoever to accelerate the disposition of the matter.” Meaning, 6 years anong ginawa mo? Hindi ka man
nagreklamo! You did not file a motion to hurry up. So you are estopped.
HELD: “We find Servantes’ contention meritorious. He was deprived of his right to speedy disposition of the case,
a right guaranteed by the Constitution. We cannot accept special prosecutor’s ratiocination. It is the duty of the
prosecutor to speedily resolve the complaint as mandated by the Constitution regardless of whether Servantes did not
object to the delay although the delay was with his acquiescence provided it was not due to causes directly
attributable to him.” So the mere fact that he was not complaining is not a factor. What is the factor is when the delay
was caused by him. Yaan!
I know a case decided here during the time of former deputy Ombudsman Delpacio(?) when he was still here in Davao. For
more than 4 years the preliminary investigation has not been terminated. The respondent filed a mandamus direct to the SC to
compel the dismissal of his case citing Tatad case. With this mandamus, the SC required the Ombudsman to comment. So what
the Ombudsman did, pinaspasan niya! So he came out with a resolution immediately – a resolution to file. Then he answered the
SC: “I already terminated the preliminary investigation in fact there is now a resolution to file. Cured na! There is no more delay.”
Sabi ng SC: “Hindi na puwede yan! i-dismiss mo na!”
Let’s go back to paragraph [b]:
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent, and
these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
There is no mention that after the counter-affidavit, the complainant can also file a reply-affidavit. There is nothing which says
that it cannot be done, there is nothing which says that it can be done. Well, my position is, since it is not prohibited, try it. Anyway
wala mang bawal ba.
Q: Going back to paragraph (b) when the respondent is subpoenaed, he is supposed to file his counter-affidavit. Paano kung di
siya ma-subpoena or even if subpoenaed he does not submit his counter-affidavit?
A: The investigating officer shall resolve the complaint based on the evidence presented by the complainant.
MERCADO vs. COURT OF APPEALS

484
July 5, 1995
HELD: “The New Rules on Criminal Procedure does not require as a condition sine qua non to the validity of the
proceedings [in the preliminary investigation] the presence of the accused for as long as efforts to reach him were
made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the
rule is to block attempts of offenses by hiding themselves or by employing dilatory tactics."
SEC. 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in- the information that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has
been committed and that the accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given an opportunity to submit
controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such
action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the
information against the respondent, or direct another assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu propio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting anther preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the Ombudsman. (4a)
The investigating prosecutor after the preliminary investigation will now issue a resolution to be approved by his superior
recommending the filing or dismissal of the case. If he finds probable cause to hold the respondent for trial, he shall prepare the
resolution and information and he will certify under oath that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses that there is a reasonable ground to believe that a crime has been committed that the
accused is probably guilty thereof, that the accused was informed of the complaints and of the evidence submitted against him and
that he was given opportunity to submit controverting evidence. That is a standard form in the information filed by the prosecutor.
Q: Suppose the prosecutor failed to make that certification in the information, is the information valid or defective?
A: It is still VALID. “Notwithstanding the absence in the information of a certification as to the holding of a preliminary
investigation, the information is nonetheless considered valid for the reason that such certification is not an essential part of the
information itself and its absence cannot vitiate it as such.” (Alvizo vs. Sandiganbayan, 220 SCRA 45)
Q: After that, what will he do? To whom will he forward his resolution?
A: To the provincial or city prosecutor or chief state prosecutor depending on who is conducting the preliminary investigation;
Q: Is the resolution of the prosecutor appealable?

A: YES. It is appealable to the Secretary of Justice. The last paragraph of Section 4 gives the power of review to the
Department of Justice – that is, if the case originally started in the Fiscal’s office.
The DOJ can reverse or modify resolution of a city or provincial prosecutor and the procedure for review is governed not by the
Rules of Court, but by a department order. There is also a procedure there for appeal or review by the DOJ (2000 DOJ Rules on
Appeal, July 3, 2000).
One of the cases we have to remember here is the leading case of CRESPO VS. MOGUL, (June 30, 1987). Here are some
points discussed in this case:
Q: What happens if the DOJ sustains the appeal?

A: It will reverse the resolution of the prosecutor.
Example:
PROSECUTOR: “Dismiss! The case should not be filed.”
DOJ: “Reversed! You file the case.”
Walang magawa ang fiscal diyan. He must file the case because that is the order of his superior. What if:
Example:
PROSECUTOR: “There is probable cause. I will file the case.”
485
RESPONDENT/ACCUSED: “Appeal!”
DOJ: “I will reverse. You are hereby ordered not to file.”
Q: E kung na-file na?

A: Under the new rules, the fiscal is ordered to file a motion to dismiss the case in court.
There is no problem if the resolution of the fiscal is to dismiss and then ang DOJ order is “to file.” Ang mahirap is if the
resolution of the fiscal is to file and na-file na, and then sabi ng DOJ, “ah walang probable cause – do not file!” Prosecutor: “Eh, na-
file na?” DOJ: “Okey, you move to dismiss the case.”
So the fiscal will file a motion to dismiss. His argument will be, there is no probable cause according to DOJ – my superior and
the Secretary of Justice has ordered me to move for the dismissal of the case. Eh kung sabihin ng court:
COURT: “Ayoko! Tuloy ang kaso!” [ay naloko na!!]

FISCAL: “Sorry Your Honor but that is the order of my superior. I cannot go against the DOJ.”
COURT: “Superior mo, hindi akin! It is not my superior! Ituloy ang kaso!
Yaan!! That was the issue in the case of CRESPO. And the SC ruled that:
CRESPO vs. MOGUL

June 30, 1987
HELD: The power of the fiscal is practically absolute whether to file or not to file. But once the case is filed in
court, the power now belongs to the judge and he is the one who will determine whether to proceed or not to proceed.
The court will be the one to decide because control over the case is already shifted in the court. The court now has
the absolute power and once the court tell the fiscal ‘you proceed,’ then the fiscal has to proceed. The latter should
not shirk from his responsibility of representing the People of the Philippines. So the absolute power of the fiscal ends
upon the filing of the case in court.
“As an advise [advise lang, hindi naman order], that in order to avoid this unpleasant situation where the opinion
o the Secretary of Justice is not to proceed but the opinion of the judge is to proceed, and the fiscal is caught in the
middle [naipit ba!], when the case is already filed in court, as much as possible huwag ka (DOJ) ng makialam. The
Secretary of Justice as much as possible, should not review the resolution of the fiscal to file when the case is already
filed in court to avoid this unpleasant situation because it will really cause a conflict of opinion between the two (2)
offices.”
There are other cases where the SC elaborated on this but the leading case is CRESPO. I will just cite to you some of these
cases where the SC had something to comment about this issue as we have no more time to go over them one by one:
1. REPUBLIC VS. SUNGA (162 SCRA 191);

2. MARCELO VS. CA (235 SCRA 39);
3. PEOPLE VS. CRUZA (237 SCRA 410);
4. MARTINEZ VS. CA (237 SCRA 575);
5. MOSQUERA VS. PANGANIBAN (258 SCRA 473);
6. LEDESMA VS. CA, 278 SCRA 658 (September 5, 1997).
And based on some of these cases in relation to reinvestigation, the SC held that once the case is already in court and the
accused would like to have his case reinvestigated, the court must agree. There must always be the concern of the court because
of the absolute control is already in the court once the case is filed. And take note that there is no double jeopardy in preliminary
investigation.
SEC. 5. Resolution of investigating judge and its review.– Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his deputy incases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of
facts and the law supporting his action, together with the record of the case which shall include: (a) the
warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting
evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the
transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of
his bail bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the
Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on
the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on
which it is based and the parties shall be furnished with copies thereof. They shall order the release of an
accused who is detained if no probable cause is found against him. (5a)
Section 5 applies to preliminary investigations conducted by MTC judges. Remember, aside from fiscal, MTC judges are also
allowed to conduct preliminary investigations. But in Metro Manila and chartered cities, MTCC judges do not conduct preliminary
investigations – everything is given to the state prosecutor.
486
What happens if the judge or the MTC judge will conduct a preliminary investigation? The judge will conduct a preliminary
investigation. Ang kanya, there is a probable cause or there is no probable cause, either way he must forward his resolution to the
provincial prosecutor. The provincial prosecutor will be the one to decide.
Q: Do you mean to tell me the provincial prosecutor will conduct again another preliminary investigation?
A: NO. He will just review the findings of the judge. Maybe the provincial fiscal will simply adop the finding of the MTC judge.
Q: Suppose sabi ng fiscal, “Di ako kuntento. I am not satisfied with the preliminary investigation by that judge. I will conduct
another preliminary investigation” Puwede ba yan?
A: YES. The provincial prosecutor has 100% control. He may adopt the finding and just follow the recommendation filed, or he
may conduct his own preliminary investigation.
Q: What happens if his decision is different from what the MTC judge believes? Whose decision will prevail?
A: Fiscal’s decision will prevail. He can reverse the resolution of the MTC judge.
And in case the respondent has been arrested while the case is under preliminary investigation and detained in jail, according
to Section 5, last paragraph, last sentence, the provincial fiscal shall order the release of an accused who is detained if no probable
cause is found against him. This is one instance where the opinion of the provincial prosecutor prevails over that of the judge. The
fiscal can reverse the findings of the judge eh.
Q: Bakit naman ganun? Why are we giving the provincial fiscal more power than the MTC judge when it comes to preliminary
investigation?
A: The reason is simple: who will prosecute the case – the judge or the fiscal? Of course, it is the fiscal. He will be the one to
handle the case and not the judge.
Another reason is given by the SC in one case that actually, preliminary investigation is not really the function of the judiciary.
The power to determine whether to file or not file does not belong to the judiciary. “When a preliminary investigation is conducted by
a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties. The assignment of that function to
judges of inferior courts and to a very limited extent to courts of first instance was dictated by necessity and practical
considerations. Consequently, the findings of an investigating judge are subject to review by the provincial fiscal.” (Castillo vs.
Villaluz, March 8, 1989)
Alright. Let’s go to Section 6 – a very important provision – when warrant of arrest may be issued.
SEC. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from
the filing of the complaint or information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or
a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or information was filed pursuant to
section 7 of this Rule. Incase of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of information.
xxxxxx
Let us picture what happens here. The case is triable by the RTC – so this means, 6 years and 1 day up. Now, the fiscal
conducts a preliminary investigation. Assuming after finding probable cause, he will file information. After that, what will happen?
The judge may issue a warrant of arrest to arrest the accused because in his opinion, there is probable cause to issue the warrant
of arrest. So that is the situation.
So you will notice that this word – “probable cause” – has many functions. When the fiscal file the information, he believes that
there was probable cause – probable cause to file the case. Pagdating sa court, the RTC judge will present probable cause na
naman to issue warrant of arrest. Iba yan eh! Kanya-kanya yan – probable cause to file, probable cause to issue warrant. That is
why in the case of
CASTILLO vs. VILLALUZ

March 8, 1989
HELD: “The fiscal prevails over the judge only in the determination of the existence of a probable cause justify
the filing of a complaint or information. This task is concededly executive. But the determination of probable cause to
justify the issuance of a search warrant or a warrant of arrest is the constitutional prerogative of the judge and may
not be withdrawn from him or even only limited by statute or the Rules of Court. This task is undoubtedly judicial.”
“The findings of the fiscal in the preliminary investigation do not control or foreclose the exercise of the power
conferred personally on the judge under Section 2 of the Bill of Rights. That power is his alone.”
Q: Now, under the Constitution, before the RTC judge issued the warrant of arrest because of probable cause, anong dapat
gawin niya?
A: He must personally examine the complainant and his witnesses to determine whether there is probable cause to issue or
not to issue a warrant of arrest.
How do you interpret the phrase, “personally examine”? I have to admit that the cases before were somehow confusing. There
were some case na literal – pag-file mo ng kaso, the RTC judge has to call the complainants, tanong… tanong… tanong… to
487
determine the probable cause to issue a warrant. Otherwise if I will not examine them, it is unconstitutional for to issue a warrant.
Or in another case, RTC judge: ‘sabi ng fiscal, may probable cause to file eh. Tama na yon! I believe him. I will now issue the
warrant.’ But there are some cases that say na hindi puwede yan because you are giving now to the fiscal the right to determine
your duty under the Constitution. You cannot do that because the law says you must personally examine. Otherwise, the fiscal is
the one who is determining.
But meron namang mga kaso where the SC said that if we will require the RTC judge to personally examine the complainant
and his witnesses to determine probable cause before issuing the warrant, he might have no more or nothing to do more except to
do that. He cannot anymore try cases, wala na, puro na lang probable cause. So he may not have time anymore to do his usual
duty. Thus he can rely on the findings of the fiscal.
So this really cause some kind of confusion. Now, these confusions are now reconciled. There are many cases such as
ROBERTS VS. CA (the PEPSI-COLA “349” tansan case). But the first one the SC really discussed the issue exhaustively was the
1991 case of
LIM, SR. vs. FELIX

194 SCRA 292 [1991]
FACTS: The information was filed – information lang and a certification by the fiscal that based on the
investigation, there is probable cause. And on the basis of that information certification, the judge issued a warrant of
arrest.
ISSUE: May a Judge without ascertaining the facts through his own personal determination and relying solely on
the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?
HELD: In order to clarify this rule once and for all, the SC went over all the cases where this issue kept coming
back, starting from: US VS. OCAMPO (18 Phil.); AMARGA VS. ABBAS (98 Phil.); PLACER VS. VILLANUEVA (126
SCRA 463); SULTA VS. CA (143 SCRA 228); SOLIVEN VS. MAKASIAR (167 SCRA 393); CASTILLO VS. VILLALUZ
(171 SCRA 39); PEOPLE VS. INTING (187 SCRA 798); to PEOPLE VS. DELGADO (189 SCRA 725).
This is the dilemma: “if a Judge has to personally question each complainant and witness or go over the records
of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications
for arrest warrants on his desk, he may have no more time for his or her more important judicial functions. At the
same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires probable cause to be
personally determined by the judge, not by any other officer or person.”
“If a Judge relies solely on the certification of the Prosecutor, he has not personally determined probable cause.
The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied.”
“The Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform
the same functions as a commissioner for the taking of the evidence. However, there should be a report and
necessary documents supporting the Fiscal's bare certification. All of these should be before the judge. The judge
must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the
complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case
so require.”
“We reiterate that in making the required personal determination, a judge is not precluded from relying on the
evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each
case and is subject to the judge's sound discretion. However, (as happened in the case of Lim) the judge abuses that
discretion when having no evidence before him, he issues a warrant of arrest.”
How did the SC reconcile that? When the fiscal files an information, the judge will require the fiscal to attach to the information
all the records of the preliminary investigations – affidavits, counter-affidavits, or other whatever documents. All the evidence will be
submitted to the judge and he will review them. After reading them, if the judge is not satisfied that there was probable cause, he
may summon the witnesses. BUT if he is satisfied, he can issue the warrant without the need for summoning the witnesses. He can
rely on the affidavits. That is what personally examined means.
ROBERTS vs. COURT OF APPEALS

March 5, 1996
FACTS: This is the Pepsi-Cola 349 tansan case. Pag-file ng fiscal, marami, makapal ang documents. The
records of the case is voluminous. Maraming nanalo ng 349 nu’n eh. So pag-file, after 20 minutes the judge issued
the warrant of arrest. The accused challenged it:
ACCUSED: You did not determine probable cause.
JUDGE: Bakit? All the supporting documents are attached in the information.
ACCUSED: Yes, but how can you go over them in less than 20 minutes? You did not go over them. Ibig
sabihin binasa mo lahat yan within 20 minutes only?
So it is now doubtful that the judge will go over the entire records within 20 minutes. Ang kapal ng records eh!
HELD: Sabi ng SC: “Eh kung mabilis pala mag-basa ang judge? [Ano’ng pakialam mo? Ha!] Ang importante
nandoon ang records!
Now, these issues were further supplemented by other cases in 1997. The leading case is
488
HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997
ISSUE: Is it required that everything that was filed in the fiscal’s office will really be included? Lahat ba talaga?
Eh kung makapal?
HELD: “It is NOT required that the complete or entire records of the case during the preliminary investigation be
submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine
the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is
required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of
probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation.”
Going back to Section 6 (a):
(a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. [This is
a new sentence:]He may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if
the accused has already been arrested pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information was filed pursuant to section 7 of this
Rule. [The last sentence is also new:]In case of doubt on the existence of probable cause, the judge may
order the prosecutor to present additional evidence within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days from the filing of the complaint of information.
This brings to my mind one of the leading cases on this issue which was asked in the Bar and which I also asked in some
examinations here. The case of
AMARGA vs. FISCAL

98 Phil. 739
FACTS: The provincial fiscal filed an information in the CFI (now, RTC). Normally, the judge will issue the
warrant. Nag-alanganin naman ang judge. What the judge did was to issue an order requiring the fiscal to appear
before him and convince him that there is probable cause for the judge to issue warrant. Eh ayaw ng fiscal, “My golly!
That is already an insult for me as a quasi-judicial officer! I found probable cause. That is my finding. The judge
should believe me because that is my prerogative.” So ayaw mag-sunod ng fiscal. Judge, “Ayaw mo ha! Okey! Case
is dismissed!”
Remember, there are two (2) questions there asked in the bar:
ISSUE #1: Does the court have the power to require the fiscal to present evidence to convince the judge that
there is probable cause to issue the warrant of arrest when the fiscal already found probable cause to file the case?
HELD: YES. The power of the fiscal is to determine probable cause to file while for the judge is probable cause
to issue the warrant of arrest. Iba yung iyo, iba rin yung sa akin! You cannot say that simply because you found
probable cause, I will follow you. [We already discussed that principle and it is already stated in the rules] So, it will be
the power of the judge to inform the prosecutor and to require the fiscal to convince him that there is probable cause
to issue the warrant. (now last sentence of Section 6 [a])
ISSUE #1: Since the fiscal refuses to comply, did the judge act correctly in ordering the dismissal of the
information?
HELD: NO. This time mali ang judge. If the fiscal does not want to comply with the judge’s order, the remedy of
the judge is not to issue the warrant. Ayaw mong sumunod? – then do not issue the warrant. But do not dismiss the
case because this time we are already encroaching the power of the prosecutor. (c.f. second sentence of Section 6
[a])
Now, based on the present rules, we will now ask the same questions today.
Q: Can the judge require the fiscal to present evidence of probable cause in convincing him to issue the warrant of arrest?
A: YES. That is the prerogative of the judge. (AMARGA VS. ABBAS)
Q: If fiscal refuses, has the judge the power to dismiss the case?
A: In the case of Amarga, no. However, under Section 6, the judge may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause.
That is a new sentence, “xxx he may immediately dismiss the case xxx” not found in the prior rule. To my mind, that has
change the answer. While before, the judge may not have the power to dismiss the case if he finds no probable cause. Right now,
the rules says YES because of that new provision, “he may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause” even if the fiscal has already found probable cause. In other words, this has changed the ruling in the old
case of Amarga.
489
Let’s go to Section 6 [b]: (Preliminary Investigation conducted by MTC judge)
(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this
Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for
the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When
the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3
of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by
the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of
arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of
arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in
the form of searching questions and answers, that a probable cause exists and that there is a necessity
of placing the respondent under immediate custody in order not to frustrate the ends of justice.
Obviously, this rule does not apply in chartered cities but in municipalities. Sa probinsiya, for example, the case is murder. That
is not triable by MTC but you can file the complaint for murder before the MTC not for the purpose of trial but for the purpose of
preliminary investigation. That is the difference.
We already learned that he resolution of the judge, whether to file or not to file, is ipasa niya sa Provincial Prosecutor who has
the final say. That’s why the rule says, if his findings and recommendations are affirmed by the provincial or city prosecutor, or by
the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without
waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and
under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and
that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.
Let’s compare.
Q: Does the fiscal have the power to issue warrant of arrest?

A: NO. His power is to conduct preliminary investigation and if there is probable cause – File!
Q: Who will issue the warrant?

A: RTC.
Pero ang municipal judge, iba eh. The police will file a complaint for homicide in MTC for preliminary investigation. Pag-basa
ng MTC judge, “aba! Grabe ito! There is probable cause. Pero teka muna, delikado ito baka makawala – arrest him!” So even
before the case is filed in the RTC, the MTC judge has the power to issue warrant of arrest.
That is the difference between the power of the MTC judge and the power of the Provincial Prosecutor. Both of them have the
power to conduct a preliminary investigation in the province. But the fiscal has no power to issue a warrant but the judge has the
power to issue warrant even while the preliminary investigation is going on. That is why in the province, complainants prefer to file
sa MTC para issue dayun ang warrant.
The issuance of warrant by the MTC judge is ex parte. He will just determine it based on the affidavit of the complainant and
his witnesses after searching questions and answers. So the examination conducted by the judge is literal in meaning. And once
you are arrested, tuloy tayo. You now follow preliminary investigation. You submit now your counter-affidavits. For what purpose?
We will determine whether the case will be filed in the RTC or not.
So there are two (2) stages:
1. first stage – Preliminary Examination – to determine whether or not to issue a warrant of arrest. This is done ex parte.
2. second stage – Preliminary Investigation proper - to determine, after you are arrested, whether or not you will be
indicted in the RTC.
Q: Is it mandatory that every time you file a case in the MTC, the judge will always issue a warrant or arrest?
A: NO. Hindi naman sinabi yun because in order to determine whether a warrant of arrest will be issued, the judge will conduct
the examination. He will examine in writing under oath of the complainant and witnesses in the form of searching questions and
answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not
to frustrate the ends of justice.
So if you file a case for homicide against somebody in the municipality; tao na kilala mo; mayaman at may malalaking
properties; if I’m the judge, I will not issue a warrant of arrest. Tatakbo ba yan? I don’t think so. I may or may not issue the warrant
but my criterion is: is there a necessity of placing him under immediate custody in order not to frustrate the end of justice? But
suppose the accused has no permanent address, ayan! Delikado na yan, baka makawala! I will now issue a warrant of arrest.
Now, what has changed the picture now is this: there is no question if the case is triable by the RTC, the MTC judge will
conduct a preliminary investigation in order to determine whether or not the case should be filed in the RTC.
Q: But now, when is the preliminary investigation required?

A: When the crime is punishable by 4 years, 2 months and 1 day and up.
Q: The case has a maximum penalty of 6 years – therefore triable by the MTC. Is the MTC judge required to conduct a
preliminary investigation?
490
A: YES. Mandated man yan ba! Although it is triable by the MTC, it is still mandatory for the MTC judge to conduct preliminary
investigation because any crime which carries the penalty of 4 years, 2 months and 1 day or up, is subject to preliminary
investigation.
Q: In this case, who will conduct the preliminary investigation? The fiscal or the MTC judge?
A: Either one of them. Let us read the opening paragraph of Section 6 (b):
(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this
Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor.
But I was wondering with this issue. This happens in places where there is only 1 branch, 1 judge. For example, ako ang judge
and the case is filed before me – preliminary investigation ito ha! – 4 years, 2 months and 1 day. There is a probable cause so I will
continue. Now, who will try the case? Ako rin di ba? Sabihin ng defense, “Ah wala na. Talo na kami. Bias ka na eh!” Naloko na!
This might be a ground for disqualification eh because you already found probable cause, chances are dire-diretso na ito – you will
convict me, you are no longer impartial. This is now the danger because of this new provision.
Suppose sabihin ng judge, “Hindi man. I found probable cause only for the case to proceed to trial but for all you know during
the trial, I might find you innocent, not guilty beyond reasonable doubt. Ang criterion ko diyan is probable cause man lang –
probably you are guilty. But when I will try it, it should be guilt beyond reasonable doubt.” Yan ang delikado dito! Mabuti sana if the
fiscal was the one who conducted the preliminary investigation. But when I am the one who conducted the preliminary investigation
and then I will also be one to try the case, there might be complaints of biases or prejudgment. So there are provisions in the new
rules which might create practical problems.
Let’s go to the last portion of Section 6. Let’s read Section 6 [c]:
(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already
under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph
(b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for
an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction.
(6a)
Normally, when the information is filed in court, the court issues a warrant of arrest. However, there are instances when the
court need not issue a warrant of arrest.
Q: What are the instances when the court need not issue a warrant of arrest?
A: Under Section 6 [c], the following are the instances:
1. if the accused is already under detention pursuant to a warrant issued by the MTC in accordance with paragraph [b]
of Section 6. If the MTC issues the warrant of arrest and later on the cases reaches the RTC because there is
probable cause, there is no need for the RTC to issue another warrant because there is already a warrant issued by
the MTC. And as a matter of fact, the accused has already been detained;
2. when the complaint or information is filed pursuant to Section 7 of this rule. Section 7 – the accused is arrested for
committing a crime in the presence of a peace officer, the fiscal will only conduct an inquest preliminary investigation
and there is no need to issue a warrant because the accused is also under detention already. Normally, what the
court there issues is a commitment order, just to confirm the detention of the accused; and
3. if the accused is charged for an offense penalized by fine only – di na kailangan ang warrant of arrest. There are
crimes where there is no penalty for imprisonment but only fine like damage to property through reckless imprudence.
Based on the new rules, there is no need for a warrant, just an order to appear is sufficient.
SEC 7. When accused lawfully arrested without warrant. – When a person is lawfully arrested without a
warrant involving an offense which requires a preliminary investigation, the complaint or information
may be filed by a prosecutor without need of such investigation provided an inquest has been conducted
in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the
Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may
apply for bail and the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the
accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation
with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)
Section 7 is another important provision. This is called INQUEST PRELIMINARY INVESTIGATION, related to Rule 113,
Section 5 [a] and [b] on warrantless arrest. Here, there is no need for preliminary investigation because there is a deadline for the
accused to be detained. Otherwise the peace officer will be guilty of arbitrary detention – delay in the delivery.
491
If we will conduct a preliminary investigation, that will last for many days. So what will happen to a person who committed a
crime if we will conduct a regular preliminary investigation? Well, to avoid this possibility, wala ng preliminary investigation. The
prosecutor will conduct an INQUEST preliminary investigation based only on the affidavit of the complainant, the police maybe, and
his witnesses so that the court may issue a commitment order. With that, the deadline has been met – you have been delivered to
the proper judicial authorities.
Now, there is a new sentence inserted in Section 7, first paragraph – “In the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a peace officer directly with the proper court.” – a very radical provision.
The normal procedure is: for example, the offended party or the peace officer will file the case before the fiscal to inquest
preliminary investigation. And then the fiscal will now file the information in court let’s say in the RTC.
Q: However, suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is not available, what will
happen now to the case?
A: The new provision says, “the complaint may be filed by the offended party or a peace officer directly with the proper court”
so that the accused should be delivered.
Why is this a very radical change? There is no problem with the MTC because you can file directly in the MTC. But as a matter
of practice, you cannot file a complaint directly with the RTC. Everything here is done by information. The RTC does not entertain
complaints filed by the police or the offended party.
But now, puwede na eh, under this situation lang: – (1) the accused is arrested without a warrant and (2) there is the absence
or unavailability of an inquest prosecutor. With that situations, the new rules now allow a direct filing of the complaint by the
offended party or the peace officer directly with the proper court even in the RTC. That is why this is radical change.
Now, whether this is the one or the other, you cannot deny the fact that the accused is entitled to a preliminary investigation.
You cannot deprive him of this right. When there is a case filed in court without preliminary investigation so that he can be detained
indefinitely in which case, he can ask for a preliminary investigation in accordance with this rule – but after the case is filed.
Baliktad!
Normally, the preliminary investigation comes before the filing of the case. Dito naman, filing comes before preliminary
investigation – baliktad! During preliminary investigation, if there is no probable cause, the complaint will be dismissed or the fiscal
will move to dismiss the case. But if you insist on that right to preliminary investigation before filing, ayaw mo ng inquest, then you
must sign a WAIVER in the presence of your counsel – waiver of your right under Article 125, RPC. Here, while the preliminary
investigation is still going on, you remain under detention. The second paragraph applies if he insist on the right to a regular or
ordinary preliminary investigation.
Correlate this with Section 2 [e] of RA 7438 – Law Protecting Rights of Persons under custody – i.e. he must be assisted by his
counsel. Otherwise the waiver is not valid.
Now, if there is no insistence, the case will be filed ahead. After it was filed, you can still ask for preliminary investigation within
5 days from the time you learn of the filing of the case. So within 5 days lang, otherwise you are deemed to have waived your right
to preliminary investigation
Note that the SC had ruled that the period of 5 days is NON-EXTENDIBLE – that is absolute. (PEOPLE vs. CA, 242 SCRA
645). The five-day period is absolute. After 5 days, you have no more right to ask for a preliminary investigation.
Take note that the general rule, once you post bail, you are waiving your right to a preliminary investigation. In PEOPLE VS.
CA, if you do not want to waive your right to preliminary investigation, then if you post bail, you must make a reservation. You must
say, “I’m posting bail but I’m not waiving my right to preliminary investigation. In fact, I am asking for it.” In Section 7, last
paragraph, when the accused post bail for his provisional release, he is deemed to have waived his right to preliminary
investigation. To avoid the waiver, there must be a previous or simultaneous demand for a preliminary investigation upon posting of
bail bond.
SEC. 8. Records. – (a) Records supporting the information or complaint. – An information or

complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their
witnesses, together with the other supporting evidence and the resolution on the case.
(b) Record of preliminary investigation. – The record of the preliminary investigation, whether
conducted by a judge or a prosecutor, shall not form part of the record of the case. However, the court,
on its own initiative or on motion of any party, may order the production of the record or any of its part
when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an
evidence in the case by the requesting party.
Section 8 is just a reiteration of a doctrine that when the fiscal files an information, he should back up his certification of
probable cause with appropriate records. An information with mere certification is not enough. (Lim, Sr. vs. Felix, supra)
SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. –
(a) If filed with the prosecutor. – If the complaint is filed directly with the prosecutor involving an offense
punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure
outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based
on the affidavits and other supporting documents submitted by the complainant within ten (10) days from
its filing.
492
(b) If filed with the Municipal Trial Court – If the complaint or information is filed with the Municipal
Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in
section 3 (a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or
information, the judge finds no probable cause after personally evaluating the evidence, or after
personally examining in writing and under oath the complainant and his witnesses in the form of
searching questions and answers, he shall dismiss the same. He may, however, require the submission
of additional evidence, within ten (10) days from notice, to determine further the existence of probable
cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10)
days from its submission or expiration of said period, dismiss the case. When he finds probable cause,
he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and
hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest. (9a)
Section 9 – Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. Obviously,
Section 9 talks only of cases (a) cognizable only by MTC; (b) the penalty does not exceed 4 years 2 months because even if it is 4
years 2 months 1 day (up to 6 years), it still requires a preliminary investigation under the new rules; and (c) it should not be
covered by the Rules of Summary Procedure. The coverage of summary procedure is up to 6 months penalty.
Q: What cases are covered by Section 9?

A: Where the prescribed penalty exceeds 6 months but not more than 4 years and 2 months. These does not require
preliminary investigation and also not covered by the summary rules.
Q: Now, going back to Rule 110. In cases cognizable by the MTC, how is it instituted?

investigation.
(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial
Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila
and other chartered cities, the complaints shall be filed with the office of the prosecutor unless otherwise
provided in their charters.
xxxxx
So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor and the provincial prosecutor will file the
information.
Let’s go to Section 9. If it is filed with the prosecutor, the procedure in Section 3[a] of this rule shall be observed. There is no
need for preliminary investigation. The prosecutor will simply find out based on the affidavit of the complainant and his witnesses
whether or not there is probable cause. Wala ng counter-affidavit. There is no need for the prosecutor to give a chance to the
respondent to give this counter-affidavits. Section 3[a] lang sundin eh. There is no mention of [b], [c] or [d].
Section 9[b]. What happens if it is filed in the MTC directly? Again, the judge will observe the same procedure in Section 3[a] of
this rule. If the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and
under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. So he
has the power to dismiss the case. Why continue if there is no probable cause?
The next sentence is new: “He may, however, require the submission of additional evidence, within ten (10) days from notice,
to determine further the existence of probable cause.” If the judge still finds no probable cause despite the additional evidence, he
shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. [The next
sentence is new again:] However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may
issue summons instead of a warrant of arrest.”
So it is not really necessary that every time a case is filed in the MTC with a penalty not more than 4 years and 2 months,
kailangan mag-warrant of arrest agad ang judge. Wala na yan! That is the old practice. Sometimes it is very tedious. Lalo na sa
MTC. Karamihan ng kaso sa MTC is bouncing check law. If I were the MTC judge, bouncing check law, sino ba yang akusado? “Di
ko kilala. Balita ko maraming kaso yan.” Ah sige, I will issue a warrant.
Pero halimbawa, sino yang akusado? “He is Jet Pascua, Your Honor.” Uy! Kilala ko ito! Businessman ito, titser pa sa Ateneo.
Mayaman ito! Sus! Minalas lang. If I am the judge, I will not issue a warrant. Tatakbuhan ka ba niyan?
So the judge need not issue a warrant. You better tell that to those judges because they are automatic ba! –warrant! warrant!
warrant! Just imagine kahit respectable man, first time offender – warrant kaagad ang mga MTC judges.
Well, under the new rules, hindi man kailangan bah! Even if there is probable cause to file, if he is satisfied that there is no
necessity to put the accused in custody, he may issue summons. Summons here is not really the same in the Rules of Court. It is
just a notice bah – notice that you are required to appear. And that is a new provision.
Now, we will go to some decided cases related to this rule.

493
PEOPLE vs. NAVARRO
270 SCRA 393, March 25, 1997
NOTE: This case signifies that once the case reached the court, the court has the absolute power. Anything that
you like to happen in the case like reinvestigation or absence of preliminary investigation, the judge will be the one to
approve.
FACTS: The RTC judge felt that the case should be reinvestigated, or maybe there is no preliminary
investigation. So he orders the fiscal to conduct preliminary investigation, then submit the result to him afterwards
what happened. Siguro, the judge had particular confidence in the assistant provincial prosecutor. Sabi ng judge, “The
preliminary investigation should be conducted by this particular prosecutor – provincial assistant prosecutor Boyd
Atensor.” Siya ang nag-pili ba. Sabi ng provincial prosecutor, “Hindi! Ako ang magpili and not you!”
ISSUE: In remanding the complaint or information to the provincial prosecutor, may a regional trial court judge
name or designate a particular assistant prosecutor to conduct the preliminary investigation of the case?
HELD: NO. The RTC judge is already interfering with the office of the prosecutor. “It must be stressed that
preliminary investigation is an executive, not a judicial, function. That an RTC judge has no authority to conduct a
preliminary investigation necessarily means that he cannot directly order an assistant prosecutor, particularly over the
objections of the latter's superiors, to conduct a preliminary investigation. To allow him to do so is to authorize him to
meddle in the executive and administrative functions of the provincial or city prosecutor.”
Q: Can a preliminary investigation be stopped by asking the court to grant a preliminary injunction or a restraining order? Can a
criminal prosecution be enjoined or restrained?
A: NO, as a GENERAL RULE. If you believe that you are not guilty, then you prove that in court. Anyway if you are not guilty,
you will be acquitted.
However, the SC came out with EXCEPTIONS where courts is authorized to stop a criminal prosecution. These exceptions
were all cited in the case of
BROCKA vs. ENRILE

192 SCRA 83
HELD: Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction,
preliminary or final. There are however exceptions, among which are:
a. To afford adequate protection to the constitutional rights of the accused;

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
c. When there is a pre-judicial question which is sub judice;
d. When the acts of the officer are without or in excess of authority;
e. Where the prosecution is under an invalid law, ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by the lust for vengeance; and
j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has
been denied.
There are some interesting cases where the SC intervened. Normally, hindi nakikialam ang SC eh – i-acquit mo na lang yan sa
trial. But there are cases when the SC is convinced that there is no probable cause, bakit mo pa pahirapan yung tao? You can
order the case to be dismissed. These are rare instances where the SC becomes activist.
In the case of ALEADO VS. DIOKNO (232 SCRA 192) two (2) lawyers: Atty. Diosdado Jose Aleado and Atty. Roberto
Mendoza who were associates in the office of senator Jovito Salonga were implicated in the murder of a German national. There
was an investigation and a case was filed against them. Salonga entered into picture and questioned whether or not there is
probable cause. [Normally, hindi dapat yan eh. Yang probable cause, sa fiscal lang yan, hindi dapat sa SC.]
But surprisingly, the SC reviewed and said that there was no probable cause which justified the issuance of order of arrest of
the 2 lawyers. The SC ordered that the warrant of arrest be set aside and the trial court is permanently enjoined from further
proceeding against them. In effect, the respondent judge was ordered to dismiss the information before him. (Aleado vs. Diokno,
supra)
It was a very rare situation. That does not happen every year. It does not happen even in 10 or 20 years! Yan ang mga kuyaw
where the Court has the power to issue injunction order to stop a case when there is no probable cause. Salonga yata yan!
Rule 114
BAIL
Q: Define Bail.
A: Under Section 1:
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SECTION 1. Bail defined. – Bail is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as required under the
conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash
deposit, or recognizance. (1a)
Ano ba yang bail? Pyansa! As a general rule, once a case is filed in court and there is probable cause, the judge will issue a
warrant. So sa presohan ka. Paano yan because you are still presumed innocent? Ang tawag diyan is preventive detention. That
is why if you are convicted, that is already credited as advanced service under Article 29 of the Revised Penal Code.
But that will be too tedious. You are already detained, and you are still presumed innocent. The remedy is you apply for bail –
you post bail – because bail is, as a rule, a constitutional right.
Q: And what is the primary purpose of bail?

A: American jurisprudence says the purpose of bail is (a) to combine the administration of criminal justice with the convenience
of a person accused but not yet proven guilty; (b) to relieve the accused of imprisonment, and the State of burden of keeping him,
pending trial. (6 Am. Jur. 61)
Can you imagine without the provision on bail? There will be thousands of people who are already in jail and all at the expense
of the government. So, we have to combine these two – the convenience of the accused and the convenience of the State.
Now, let us go to some political law basic questions: When there is invasion or rebellion, the Constitution authorizes the
Commander-In-Chief to suspend the privilege of the writ of habeas corpus. You can be arrested on suspicion that you are engaged
in rebellion even if there is no warrant and there is no case.
Q: Are you entitled to bail? Does the suspension of the privilege of the writ of habeas corpus also carry with it the suspension
of the right to bail?
A: That issue bugged the Supreme Court several times prior to the 1987 Constitution where the SC gave conflicting answers.
In the case of NAVA VS. GATMAITAN, (90 Phil. 172) the SC said, Yes, he is entitled to bail once the case has been filed in
court. At least 5 out of 9 justices said that. Very close fight! Once the case is filed in court, the right to bail can be availed of. So,
the right to bail is different from the suspension of the privilege of the writ of habeas corpus.
But when that issue came out during the martial law regime, the SC gave a different answer eh. So, that issue came out again
in the case of BUSCAYNO VS. MILITARY COMMISSION (109 SCRA 273), GARCIA-PADILLA VS. ENRILE (121 SCRA 472). Is
there a right to bail when the privilege of the writ of Habeas Corpus is suspended? Ang sabi ng Supreme Court, NO! because the
government’s campaign to suppress rebellion might be ineffective. Captured rebels, would no doubt rejoin their comrades in the
field and jeopardize the success of the government efforts to end the rebellion. That sounds logical. Just imagine, why are you
suspending the privilege of the writ? To arrest suspected rebels. Pag naaresto, and then entitled to bail, balik na naman sila sa
mga kasama nila! Anong klaseng campaign ito? That is the reasoning in the case of Buscayno and Ponce Enrile.
I think that debate is already moot and academic. There is now a direct provision in the Constitution, Article 3 Section 13 which
says that the right to bail exists and is not suspended by the suspension of the privilege. Talagang settled na.
Another interesting case on bail. These are the cases that cropped up after the 1989 coup d’ etat attempt against Cory Aquino
because some of the RAM suspects were detained. Many of them were detained because of court martial charges. They are
charged for violating military law pero nakakulong sila. Some of them applied for bail.
Q: Are the same military officers facing charges before a court martial entitled to bail?
A: In COMMENDADOR VS. DE VILLA (200 SCRA 80) the SC said: NO, “the right to bail has traditionally not been recognized
and it is not available in the military as an exception to the general rule as embodied in the Bill of Rights.” There is no such thing as
bail in the military. So, that’s an exception to the general rule. “The right to speedy trial is given more emphasis in the military
where the right to bail does not exist.”
The dissenter in the case of Commendador is Abraham Sarmiento. Diyan mo makikita pagiging humanitarian lawyer niya.
During the time of Marcos he hates the military [gi-lubot siguro siya]. But he was the one who said that they are entitled to bail
[nalamian siguro siya] because sabi niya, “according to the majority the right to bail has traditionally hot been recognized in the
military. I’ve been looking in the bill of rights and I cannot find that exception. Where did the majority get that? You mean to tell me
the military before are not citizens of the Philippines anymore?” According to Isagani Cruz who is the ponente in that case, “They
are not entitled to bail as a matter of tradition in the military!” Sarmiento: “No! We are a government of laws, not a government of
traditions.” Mag-isa lang siya, wala siyang nagawa.
PROBLEM: Tato is charged with a capital crime. So, no bail. Ayaw mag-surrender. Gusto niya bail muna bago surrender.
(Anyway, even if you are charged with a capital crime, you can file a petition for bail.) But he got a lawyer and the lawyer filed a
petition for bail in his behalf.
Q: In this case, can Tato apply for bail?

A: NO. The SC said, We cannot entertain the petition for bail because Tato is not in custody! Simple: what is the definition of
bail? “Security given for the release of a person in custody of law.” You are even at large then you’re asking for bail? Surrender
first bago ka makahingi ng bail. (Marigbasa vs. Luna, 98 Phil. 466; Feliciano vs. Pasicolan, July 31, 1961)
Q: What do you mean by “in custody of law”?

A: “In custody of law” may mean
1. physical or actual custody; or
495
2. constructive custody. (Panderanga vs. CA, 247 SCRA 41)
PANDERANGA vs. COURT OF APPEALS

247 SCRA 417
FACTS: This case originated in CDO. The accused was charged of murder – non-bailable. So, ayaw niyang
magpahuli. Pero actually, he wants to face the case pero dapat lang may bail. Pero problema niya how can he file a
petition for bail when you are not even in custody? (In custody, you have to surrender or you must be arrested. Kaya
nga ayaw niya yun eh. As much as possible, pag-surrender niya, meron ng bail. Then what happened?) He entered
the hospital, may sakit daw and then his lawyer filed a petition for bail before the RTC, “We are appearing for the
accused for his petition for bail. We would like to manifest that he is right now in the hospital. Will you please consider
him already in the custody of the court?” Sabi ng court, “[Sure!] OK, let’s proceed.”
ISSUE: Is the accused already in custody? Can the court entertain his petition for bail even if he was not
arrested, and the lawyer said he was in the hospital and the court never bothered to ask a policeman to go there,
check, verify, bantayan mo yung hospital until he gets well?
HELD: YES, he is already in the CONSTRUCTIVE custody of the law. “It may be conceded that he had indeed
filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at
that point and in the factual ambience thereof, be considered as being constructively and legally under custody. Thus,
in the likewise peculiar circumstances which attended the filing of his bail application with the trial court, for purposes
of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and,
necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. The undeniable fact is that
Panderanga was by then in the constructive custody of the law.
Q: What are the types of bail?

A: There are four (4) types of bail under Section 1:
1. Corporate surety;
2. Property bond ;
3. Cash deposit; and
4. Recognizance.
Q: What are the conditions of a bail?

A: Section 2:
SEC. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the following conditions:
(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at
all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of
whether the case was originally filed in or appealed to it;
(b) The accused shall appear before the proper court whenever required by the court of these Rules;
(c) The failure of the accused to appear at the trial without justification and despite due notice shall
be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and
(d) The bondsman shall surrender the accused to the court for execution of the final judgment.
The original papers shall state the full name and address of the accused, the amount of the
undertaking and the conditions required by this section. Photographs (passport size) taken within the
last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.
(2a)
Q: So, for example in the MTC, you are arrested, natalo ka, you will appeal. How about pag-appeal mo sa RTC, what will
happen to your bail?
A: Tuloy-tuloy pa rin yan because under paragraph [a], your bail is effective up to the RTC.
Q: Another example: na-convict ka sa RTC and you want to go to the CA, are you still entitled to bail?
A: The answer is MAYBE. This is one instance where bail is discretionary.
Q: But assuming that the court will say, “OK, you are entitled to bail on appeal.” What happens now to your bail?
A: The GENERAL RULE is you get another bail bond because your bail is only up to the level of the RTC. This is back to the
1964 rules. In the 85 Rules, iba naman – the bail is tuloy-tuloy up to the CA. Now, RTC level lang. You have to ask for another bail
bond if you want to go further to the CA. So, it’s back to the 64 rules ‘no?
Q: Paragraph [b] – you will appear before the proper court whenever required by the court or these rules. Normally, when is a
person required by the court to appear?
A: Generally, ARRAIGNMENT or PROMULGATION lalo na pag convicted ka. But there are others for example, let’s read Rule
115 Section 1 [c]:
“(c) To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial
pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court
for purposes of identification. x x x x x x”
That is one instance where the court may require his presence. His presence there is not a privilege but an obligation.
496
Q: Now supposed you failed to appear in court without justification. Like for example, you escaped, you jumped bail and
disappeared? What will happen to the case?
A: Tuloy pa rin according to paragraph [c] because that would be a waiver of your right.
Q: Anong tawag niyan?

A: TRIAL IN ABSENTIA pursuant to Section 14, 2nd paragraph, Article 2 of the Constitution.
Q: A bail bond required the bondsmen to pay the fine of the accused, in addition to the usual condition. Is this additional
condition valid?
A: NO. The additional condition is void because it made the obligation of the bondsmen more onerous, in violation of the
constitutional provision that no excessive bail shall be required may not impose additional conditions because it might prevent or
render it impossible for the accused to secure his liberty during the trial. (Bandoy vs. CFI of Laguna, 14 Phil. 620)
Q: A condition in a bail bond states that the sureties do not undertake to deliver the person of the accused if the reading of the
sentence is postponed to a later date, nor do they consent to such extension. Is this condition valid?
A: YES, the condition is valid, because it is not contrary to law or public policy, and, besides, it lightens the obligation of the
bondsmen, which is allowable. Conditions restricting liability on the bond when accepted by the court and not contrary to public
policy are valid. (People vs. Wong Pun, 48 Phil. 713)
SEC. 3. No release or transfer except on court order or bail. – No person under detention by legal
process shall be released or transferred except upon order of the court or when he is admitted to bail.
(3a)
Now, we go to these important issues on bail:

1. When bail is a matter of right;
2. When bail is discretionary;
3. When bail is not available.
As a general rule, bail is a matter of right. That is a constitutional right. And Section 4 tells us what are the instances when bail
is a matter of right.
BAIL AS A MATTER OF RIGHT
Q: When is bail a matter of right?

A: Section 4:
SEC. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter
of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a)before
or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities,
or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not
punishable by death, reclusion perpetua, or life imprisonment. (4a)
Q: So you are charged in the MTC; no conviction yet. So you are still an innocent. Are you entitled to bail?
A: Yes, as a matter of right.
Q: Suppose you have been convicted already, found guilty by the MTC, maybe sentenced to 2 years imprisonment but you
would like to appeal to the RTC. While your appeal is going on, can you still post bail?
A: YES. Whether it is before or after conviction by the MTC, bail is a matter of right.
Q: But suppose you are charged in the RTC, for example homicide punishable by reclusion temporal, are you entitled to bail?
A: YES, it is also a matter of right. For as long as the prescribed penalty is not life imprisonment, perpetua or death, it is a
matter of right. So, up to reclusion temporal it is a matter of right.
So based on the provision of law, let us try to outline –
Q: When is bail a matter of right:

A: Bail is a matter of right –
1. Before conviction by the MTC, MTC, or MCTC (Section 4 [a]);
2. After conviction by the MTC (Section 4 [a]);
3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Section
4 [b])
4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when evidence of guilt
is not strong. (People vs. Donato, infra)
Under the law, when a person charged in court for example murder, non-bailable man yan ba. What is the procedure under
Section 8 if he wants to post bail? He must file an application or petition for bail. And that is when the prosecution will have to
present evidence immediately to prove that the evidence of guilt is strong.
Q: Suppose after hearing for the petition for bail, the court is convinced that the evidence of guilt is not strong and the court
said so, what happens now to bail?
A: Bail becomes a matter of right. (People vs. Donato, 198 SCRA 130)
497
PEOPLE vs. DONATO
198 SCRA 130
HELD: “If the offense charged is punishable by death, reclusion perpetua or life imprisonment, bail becomes a
matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining
whether or not evidence of guilt is strong. But once it is determined that the evidence of guilt is not strong, bail also
becomes a matter of right.”
BAIL AS A MATTER OF DISCRETION
Q: When is bail discretionary? Meaning, the court may grant bail or may not grant bail.
A: Section 5:
SEC. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The
application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal,
provided it has not transmitted the original record to the appellate court. However, if the decision of the
trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed with and resolved by the appellate court.
xxxx
Q: Supposed you are charged with homicide. The maximum penalty there is temporal. You are convicted. The court found you
guilty of homicide. It sentenced you to 20 years imprisonment and you would like to appeal. Can you ask for bail?
A: YES.
Q: What will the court do?

A: The court may or may not grant. Yan ang discretion.
Now, the second sentence is new:
The application for bail may be filed and acted upon by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original record to the appellate court. (Section 5, first paragraph,
second sentence)
This is a reversal of a ruling in the case of
OMOSA vs. COURT OF APPEALS

266 SCRA 281, January 16, 1997
FACTS: The court convicted the accused for homicide. So temporal. The accused said: “Your honor, we intend
to appeal this case but may we be asked to post bail while the appeal is going on. The court said, “Granted!
[discretionary man!]. We will fix your bail at P50,000.” Two days before, the accused filed a notice of appeal. After
filing the notice of appeal, he applied for bail which was approved by the court.
ISSUE: Can the court approve the bail?
HELD: NO, because when the accused filed his notice of appeal, from that very moment the court has lost
jurisdiction over the case. Dapat, inuna muna yung approval of bail bago mag-file ng notice of appeal. When the
court fixed the bail, he has must not yet filed his notice of appeal, so the court has the power to fix the bail. The
trouble is he immediately filed a notice of appeal bago niya ging-post ang bail. So the court has no more jurisdiction to
approve the bail. It should have been approved by the Court of Appeals.
That is the ruling in the Omosa. Obviously, the SC wanted to change it. The application for bail may still be filed and acted
upon by the trial court despite the filing of a notice – that is a modification of the Omosa ruling – Puwede, provided it has not
transmitted the original record. Based on the Omosa ruling, once the notice of appeal is filed, the trial court has no more jurisdiction
to act on the application for bail.
But NOW under the NEW RULES, puwede pa even if there is already a notice of appeal on the condition that the records are
still with the RTC. If the records are already in the appellate court, you better apply for bail before the Court of Appeals.
Now the next sentence
However, if the decision of the trial court conviction the accused changed the nature of the offense
from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate
court. (Section 5, first paragraph, last sentence)
This is also a recognition and modification of the ruling of Omosa vs. CA, supra.
In the case of Omosa, the accused was charged with murder – non-bailable. But after the trial the court convicted him only for
homicide, a lesser offense. And homicide is bailable – discretionary in the court. If he was convicted for murder, wala talagang
pag-asa. But he was convicted for homicide. So he applied for bail. And the court granted the bail. And the SC said the trial court
498
should not grant bail because the accused is appealing. For all you know on appeal, the appellate court may reinstate the original
charge for murder because when you appeal, the whole case is open for review. So, because of the possibility that the penalty of
murder would be imposed, then there should be no bail. That was the ruling of Omosa vs. CA.
Now, of course it is now modified in the sense that, bail could be granted in that situation because he was charged with a non-
bailable offense but found guilty of bailable offense. However, if there is any court which should grant the bail, it should be the CA
and not the trial court. So these are new provisions which were somehow taken from the ruling in Omosa which is also now
modified. That is the history of that provision.
Alright. Now let us go to the second paragraph:
Should the court grant the application, the accused may be allowed to continue on provisional liberty
during the pendency of the appeal under the same bail subject to the consent of the bondsman. (Section
5)
That is more or less an exception to Section 2[a] that we already discussed. When you are charged in the RTC and you post
bail, the bail is good up to when? The bail is only valid in the RTC. If you want to appeal, and the court grants bail on appeal, you
have to post another bail.
But this provision grants the court the authority to say, “Alright, your bail which you posted here will continue.” Nasa court yan
kung gustong ipatuloy. Puwede rin yun. Ok. We will continue, subject to the consent of the bondsman. That is now the condition.
The bondsman may say, “Delikado na ito, baka ma-convict na ito. Mamaya baka lumayas na ito at tumakbo, patay na ako. Ako ang
magbabayad.”
Alright, let us go now to the next sentence:
If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall
be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the
accuse, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse party in either case. (5a)
Alright. Let us go back to the basic:
What is the jurisdiction of the RTC? The penalty is 6 years and 1 day up to death.
If the penalty is prision mayor to reclusion temporal [6 yrs and 1 day to 20 years] yan, sa phrase na yan, bail could be granted
on appeal but it is discretionary. However, even if the bail is granted the prosecution tells the court, “Judge, this guy was found
guilty of homicide and you grant bail. Iba pala ito eh because he is a recidivist, or etc or any of the conditions mentioned in [a] – [e],”
the court will now cancel the bail.
So bail is discretionary provided it will not fall under [a], [b], [c], [d], or [e]. You are a recidivist; you are habitual delinquent; you
have previously escaped from a confinement; you have committed an offense while under probation, parole or conditional pardon;
or when the circumstances of the case indicates the probability of flight (there is a risk ba!); or there is an undue risk that the you
might commit another crime during the pendency of the appeal, the court will not grant the bail. The discretion there will not be in
your favor. If the court has already granted, the bail will be cancelled. Take note of that.
Q: When is bail discretionary?

A: Based on that provision, after conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment, provided the case does not fall under Section 5, third paragraph [a]-[e] of the same law because once the case falls
under any of these, no bail even if it is a matter of discretion.
Take note of the second instance – bail as a matter of discretion. The first instance is when bail is a matter of right – Section 4.
When is bail discretion – Section 5. Yung Section 4, walang problema, that is absolute even if you are a recidivist.
CASE: The accused was charged with homicide, there was no conviction yet. And then bail. He jumped bail – lumayas! But
he was arrested again. When arrested apply na naman for bail. Binigyan na naman ng bail. After a few months, layas na naman.
He escaped again. Nahuli na naman. And then he applied for bail for the third time. This time, sabi ng judge, “Ayaw ko na.
Because of your character, di na puwede for jumping bail twice already. I will not grant you bail.” And he questioned it before the
court. Is the denial of bail correct because of the past record of the accused?
The SC said NO because the bail is a matter of right. He falls under Section 4 there. Wala pang conviction. Even if he jumps
bail 100 times you cannot deny him bail for as long as the crime is not punishable by perpetua to death. (Sy Guan vs. Amparo, 79
Phil. 670; People vs. Alano, 81 Phil. 19)
Q: What is the remedy to this kind of accused? Remedy?
499
A: Taasan mo ang bail. So magkano bail mo dati? P30,000? Alright, ngayon P70,000 na! Tingnan natin kung tatakbo pa yan.
[putulin kaya ang paa?] Previous abscondence or escape is not a ground for the denial of the bail; it merely gives the court
discretion to increase the amount of the bond as will reasonably tend to assure the presence of the accused. (Sy Guan vs. Amparo,
79 Phil. 670; People vs. Alano, 81 Phil. 19)
Now, I am amused by what happened in Section 5. Did you hear the promulgation of the Robillo case one month ago? I don’t
know how many were convicted. I think 3 or more were convicted. One of them is a radioman. I know where he hangs around.
One day before the promulgation, he is no longer hanging around. He disappeared already, na-amoy na niya siguro. Some were
military men.
They were convicted. At least one of them was acquitted. Many were convicted. The penalty was reclusion perpetua. And
after the trial everybody left, including the convicted accused. I was visiting the jail the following day. The warden was t elling me,
“What happened to this case? Since yesterday we were expecting the convicted person to be brought here. Convicted eh.”
So I asked the fiscal kung anong nangyari dyan because from what we know, if you are found guilty for murder, for example,
and sentenced to reclusion perpetua on the spot, you will be sent to jail. “Teka muna! Hindi pa final yung conviction!” Never mind!
You can appeal but you are now detained indefinitely. Wala nang labas labas ‘yan. From the court room, diretso ka na sa jail . “But
the judgment is not yet final?” But there’s already the judgment of conviction. Even when there’s still no of conviction, when the
evidence of guilt is strong, your bail will be denied. Even in the middle or at the start of the case, if the evidence of guilt is strong,
bail will be denied lalo na kung capital punishment. How much more here when there is already a judgement of conviction?! Logic!
simple logic.
And the branch clerk of court, I think you know her – Atty. Morales. She called me up in the office. Sabi niya, “Anong nangyari
dito? di ba walang bail yan?”. Sabi ko “Yes”. I wonder bakit walang bail. Bakit hindi ikinancel? Kailangan daw i-cancel pa ang bail.
That was what the judge said. Sabi ko, NO! The bail is automatically cancelled. That is what I said so.
Sabi niya (clerk of court), “I was pointing to the judge Section 5. Eh sabi niya (judge), ‘No. Bail is discretionary because of this
paragraph 3 – if the penalty imposed by the trial court is imprisonment exceeding 6 years the accused should be denied bail or bail
should be cancelled upon showing by the prosecution with notice of the accused of the following. Therefore, bail could be granted
because the penalty is exceeding 6 years.’”
That implies that bail is discretionary because in Section 5, the heading is “Bail, when discretionary” so hindi cancelled. I said,
“Tingnan mo ang opening paragraph of Section 5 – upon conviction of the RTC of an offense not punishable by death, perpetua or
life imprisonment, admission to bail is discretionary. So itong paragraph 3, upon 6 years but less than perpetua. So up to 20 years.
We have to connect paragraph 3 with the first paragraph. Sabi niya (clerk of court), “This is what I know eh. Since I am new in this
job. I cannot insist.” Dean I: “Sabihin mo sa judge na nagkamali sya. Ako ang nagsabi.” And after 2 days, pinacancel niya (judge).
I’ve talked that judge. He was my friend personally. When I see him sabi ko nagkamali ka man dun ba. Dapat yun, on the spot.
That’s why everybody is wondering bakit nakaganun yun. Well, that was his first experience with a capital heinous crime. Dio siya
naiiba eh. He’s not used to trying this kind.
Yung sasabihin mong bail may continue – that assumes that the penalty is above 6 years but not more than 20 years. Pag
naging perpetua, wala na. Yung wala pang conviction bail could be denied, lalo na pag may conviction na! The evidence of guilt is
now strong! It’s simple logic. That is why this provision will be tricky if we do not know how to interpret this rule.
WHEN BAIL IS DENIED
SEC. 6. Capital offense defined. – A capital offense is an offense which, under the law existing at the
time of its commission and of the application for admission to bail, may be punished with death. (6a)
Take note that the crime is punishable by DEATH not only at the time of its commission but also at the time of the application
for bail. The law uses the conjunction “and.” C.f. RA 7659 gives us a list of capital offenses.
SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. –
No person charged with a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the
criminal prosecution. (7a)
This means if the accused is charged with a crime which is punishable by death, reclusion perpetua, or life imprisonment, there
is NO BAIL even at the start of the trial or even before judgment of conviction, provided that the two (2) conditions are present.
“xxx regardless of the state of the criminal prosecution.” Meaning, NO BAIL before conviction. Lalo na pag after conviction!
That’s why I told (Atty.) Evalyn Morales na ipakita mo [sa judge] yung Section 7 – “xxx regardless of the state of criminal
prosecution.” You already found him guilty beyond reasonable doubt and sentenced him to perpetua, huwag mo sabihing ‘the
evidence of guilt is not strong’! How come you convict him?! Yaan!
Now, this is where lalabas yung application for bail – Section 8:
SEC. 8. Burden of proof in bail application.– At the hearing of an application for bail filed by a person
who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life
500
imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence
presented during the bail hearing shall be considered automatically reproduced at the trial but, upon
motion of either party, the court may recall any witness for additional examination unless the latter is
dead, outside the Philippines, or otherwise unable to testify. (8a)
Arestado ka, nakulong ka. Under the law, what is the procedure? You file an application for bail. And once an application for
bail is filed, it is now MANDATORY for the court to conduct a hearing for the prosecution to present evidence to prove that the guilt
is strong, not guilt beyond reasonable doubt because the latter is conviction na yan!
Ang ibig sabihin niyan, mag-sample ka lang. You present some of the witnesses but not all. Sample-an mo lang ba. Parang
preliminary injunction ba! You present some of your evidence. after that, the court will now consider whether the evidence of guilt is
strong or not strong.
Either way the court will grant bail or deny bail – tuloy pa rin ang trial! Yaan!
Q: What happens now to those witnesses? Balik na naman sila sa trial?

A: NO. Under Section 8, the evidence received during the bail hearing is automatically reproduced at the trial. Di na kailangang
ulitin pa. But you can add more witnesses and more evidence.
After that, we will now determine if the accused is guilty or not guilty. Yan na ang guilt beyond reasonable doubt.
Now, [Atty.] Ceniza had a problem in Davao Oriental. He told me about it. An offense is, I think punishable by perpetua or
higher. Then pag-hingi ng bail, sabi ng prosecutor, “No objection!” Siguro sabi ng court, “No objection? O sige, grant bail!” The
prosecutor did not present evidence. Meaning, the prosecutor admits that the evidence of guilt is not strong – wala ng hearing!
Puwede ba yan? NO! The SC said that there must be a hearing. Even if the prosecution will not want to present evidence, the
court must require a hearing. And the court cannot dispense with the hearing.
Let’s go to some decided cases.
TUCAY vs. JUDGE DOMAGAS

[Adm. Matter No. RTJ-95-1286] March 2, 1995
HELD: “Although the Provincial Prosecutor had interposed no objection to the grant of bail to the accused,
respondent judge should nevertheless have set the petition for bail for hearing and diligently ascertained from the
prosecution whether the latter was not really contesting the bail application.”
“He should have called a hearing for the additional reason of taking into account the guidelines in Rule 114 in
fixing the amount of the bail. Only after satisfying himself that the prosecution did not wish to oppose the petition for
bail for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, sec. 6
for fixing bail should respondent judge have granted the petition for bail and ordered the release of the accused.”
Assuming na sabi ng prosecution, “for tactical reason, we will not object.” The court will still have to conduct a hearing – kung
pila ang bail. Yaan! You still have to conduct a hearing. You look at Section 9 – Amount of bail; guidelines. In determining how
much is the bail, may mga guidelines eh! So if we will grant bail, at least we will have to find out how much. These guidelines must
be met. So you still have to conduct a hearing.
GUILLERMO vs. JUDGE REYES, JR.

January 18, 1995
HELD: “A hearing, in the nature of a summary proceeding entailing judicial determination is required where the
grant of bail is addressed to the discretion of the court. The prosecution should be given the opportunity to adduce
evidence thereat after which the court should then spell out at least a summary or resume of the evidence on which
the order, whether it be affirmative or negative, is based. Otherwise, the order is defective or voidable.”
Meaning, if you grant or deny bail, may court order yan. Kailangang i-summarize mo ang evidence. then you state why you
believe it is strong or it is weak. Otherwise the judge is administratively liable for not complying with the requirement.
AURILLO vs. FRANCISCO

235 SCRA 283
HELD: In a hearing for petition for bail, affidavits will not suffice. Witnesses must be present to testify.
Affidavits will suffice only when it determines probable case for the purpose of whether or not to issue search
warrant. The judge has the personal duty of calling the witnesses one by one to hear them for or review the
evidence, i.e. affidavits presented at the fiscal’s office.
“Verily, it was patent error for him to base his order granting bail merely on the supporting affidavits attached
to the information since those were merely intended to establish probable cause as basis for the issuance of an
arrest warrant, and not to control his discretion to deny or grant bail in all situations”
AGUIRRE vs. JUDGE BELMONTE

501
October 27, 1994
HELD: “Even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the
court may still require that it answer questions in order to ascertain not only the strength of the state's evidence but
also the adequacy of the amount of bail.”
So kahit na sabihin pa ng prosecution that it is not opposing in the application of the bail, sabi ng SC: Ah, hindi puwedee! The
court will have to ask the prosecution, why are you not opposing? Yaan! Whether to grant or deny bail, a hearing is a 100%
requisite. Otherwise the order granting or denying bail is defective, and the judge may lose his job.
Let’s go to this important question:
Q: For bail to be denied, what are the requirements?

A: Under the law:
1. the evidence of guilt is strong;
2. the crime is punishable by death, reclusion perpetua or life imprisonment;
3. [based on jurisprudence] if the accused is convicted in all probability the penalty will also be death, reclusion perpetua
or life imprisonment.
So you have to look at the probable penalty. This principle has been illustrated in the case of
BRAVO, JR. vs. BORJA

134 SCRA 466
FACTS: The accused was charged with murder – perpetua to death – talagang non-bailable yan. The accused
filed a petition for bail where the case is pending on the argument that when he committed a crime, he was only 16
years old. He attached his birth certificate in the application for bail. Sabi niya, if found guilty, the penalty is automatic
one (1) degree lower – so, temporal. The worst that will happen to him is temporal. Therefore, bail now becomes a
matter of right.
ISSUE #1: In the hearing for bail, should the court allow the presentation of evidence of mitigating or aggravating
circumstances?
HELD: NO. Bravo, Jr. is wrong. In the hearing for a petition for bail, the presentation of aggravating and
mitigating circumstances is NOT covered because if the court will required the presentation of said circumstances,
then there would be a need for a trial on the merits of the case. All the court has to do after the bail hearing would be
to render a decision. That would defeat the purpose of the hearing for bail.
ISSUE: #2: Whether or not Bravo, Jr. is entitled to bail.
HELD: YES. Although the presentation of aggravating and mitigating circumstances is NOT allowed, the SC said,
However, we cannot close our eyes to the fact that when Bravo, Jr. committed the crime he was only 16 years old.
Normally, we close our eyes, but in this case, we cannot close it because he alleged it. As a matter of fact, his birth
certificate was attached to this petition and the prosecution DID NOT challenge his minority. Since the plea of minority
is already before us and the accused did not challenge it, we cannot close our eyes to the fact that even if we fin him
guilty, the penalty to be imposed would not be reclusion perpetua or death but lower. Since the probable penalty is not
death or perpetua, then he is entitled to bail as a matter of right.
Q: So what are the principle points to remember in the case of Bravo, Jr?
A: The following:
1. that in a petition for bail there should be no evidence of any aggravating or mitigating circumstances. It should not be
presented in a petition for bail. This should be presented during the trial;
2. however, despite the fact that it should not be presented, if it is alleged and presented there and the prosecution did
not dispute it, the court should consider it just the same; and
3. even if the accused is charged with a crime punishable by death, perpetua or life imprisonment and the evidence of
guilt is strong, if the probable imposable penalty is less than perpetua, bail becomes a matter of right.
PEOPLE vs. CALO

186 SCRA 620 [1990]
FACTS: Three (3) people were accused of murder for the death of the victim. The prosecution recommended no
bail. After a hearing to determine whether the evidence of guilt is strong, the trial court issued the order granting bail.
The son of the victim went to the SC questioning the order granting the bail of the accused.
ISSUE: Whether or not the son of the victim has sufficient legal personality to question the order granting bail?
(Normally, if there is anyone who should question it, it should be the Solicitor General representing the people of the
Philippines)
502
HELD: While the rule is, only the Solicitor General may represent the People or the State in criminal proceedings
pending in this Court and the Court of Appeals, the ends of substantial justice would be better served, and the issues
in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar.
As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against the
judge's order granting bail to the alleged murderers of his (private petitioner's) father.
So, the case of Calo was considered an exception because he is also an aggrieved party – the aggrieved parties are the
People and the family of the victim. So in this case, the son is also an aggrieved party.
So based on what we have gone so far, let us now try to summarize the instances under Rule 114 where bail is a matter of
right, discretion, or is denied.
Q: When is bail a MATTER OF RIGHT:

A: Bail is a matter of right –
1. Before conviction by the MTC, MTC, or MCTC;
2. After conviction by the MTC;
3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; and
4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when evidence of guilt
is not strong. This is because once the court finds that the evidence of guilt is strong, bail becomes a matter of right.
Q: When is bail DISCRETIONARY?

A: Bail is discretionary after conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life
imprisonment provided, the case does not fall under the 3rd paragraph of Section 5 [a] – [e].
Q: When shall bail be DENIED?

A: The bail shall be denied under the following instances:
1. before conviction by the RTC of an offense punishable by death, reclusion perpetua or life imprisonment when the
evidence of guilt is strong;
2. after conviction by the RTC and the penalty imposed is death, reclusion perpetua or life imprisonment. He can appeal
but in the meantime, there is no bail; and
3. after conviction by the RTC where the penalty imposed is imprisonment exceeding 6 years but no more than 20
years, and the case falls under Section 5 [a] – [e].
So, recidivist, or you escaped from confinement, or there is undue risk, etc. ayan! Pagnahulog ka diyan, bail shall not be
granted. And this is where the question of Ms. Masepequeña will come in:
Q: Mr. Peloton was charged with a crime (sorry kaayo Gay! ) punishable by temporal. He was convicted but the penalty is 6
years or less (for instance, there are mitigating circumstances) and he wants to appeal to the CA. Is it a matter of right or a matter
of discretion?
A: My view is, it is a matter of discretion but even if these circumstances (recidivist, etc.) still bail can be granted. That is the
effect. Whereas, if the penalty is 6 years 1 day to 20 years and he is a recidivist, etc., bail shall not be granted. But if it is only 6
years or less, it may be granted although it is not a matter of right.
SEC. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall
fix a reasonable amount of bail considering primarily, but not limited to, the following factors:
(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required. (9a)
Q: When bail shall be granted, how much is the amount of it?

A: There are guidelines under Section 9 – marami eh! Of course one of the factors is paragraph [c] – penalty for the offense
charged. That’s why the DOJ has a guidelines eh na kapag ganito ang penalty, ganito a ng i-recommend mo. But that is only one
of the factors. The court can either follow the recommendation or raise it or lower it because aside from that, marami pa eh like
financial ability of the accused, character or reputation of the accused, etc. And all these guidelines where taken from the ruling in
the case of VILLASEÑOR VS. ABANO (21 SCRA 312)
Q: What do you mean by corporate surety?

A: Section 10:
SEC. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a surety in accordance
with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the
accused and an officer of the corporation duly authorized by its board of directors. (10a)
Q: What do you mean by a property bond?

503
A: Section 11:
SEC. 11. Property bond, how posted. – A property bond is an undertaking constituted as lien on the
real property given as security for the amount of the bail. Within ten (10) days after the approval of the
bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry
of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided
therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding
tax declaration in the office of the provincial, city and municipal assessor concerned.
Within the same period, the accused shall submit to the court his compliance and his failure to do so
shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention. (11a)
SEC 12. Qualifications of sureties in property bond. – The qualifications of sureties in a property bond
shall be as follows:
(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that expressed in the
undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail
demanded.
In all cases, every surety must be worth the amount specified in his own undertaking over and above
all just debts, obligations and properties exempt from execution. (12a)
SEC. 13. Justification of sureties. – Every surety shall justify by affidavit taken before the judge that he
possesses the qualification prescribed in the preceding section. He shall describe the property given as
security, stating the nature of his title, its encumbrances, the number and amount of other bails entered
into by him and still undischarged, and his other liabilities. The court may examine the sureties upon
oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved
unless the surety is qualified. (13a)
Q: What do you mean by cash deposit?

A: Section 14:
SEC. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash
with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail
fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon
submission of a proper certificate of deposit and a written undertaking showing compliance with the
requirements of section 2 of this Rule, the accused shall be discharged from custody. The money
deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if
any, shall be returned to the accused or to whoever made the deposit. (14a)
RECOGNIZANCE
Let’s go to the 4th type of bail – recognizance – which are not understood by many how it operates.
SEC. 15. Recognizance. – Whenever allowed by law or these Rules, the court may release a person in
custody on his own recognizance or that of a responsible person. (15a)
So, no money – nothing is filed in court. “On my word of honor, I will appear when the court requires me to appear. If I’m
convicted, don’t be afraid. I will not runaway.” Court: “Word of honor ha? [promise ha] OK!” – Yan! Yan ang recognizance.
Or, instead of going to jail, “Payag man ang mayor na doon na lang daw ako sa kanya. Siya daw ang bahala sa akin.” Court:
“OK. You will be in the custody of the mayor. Kung may problema, or anytime you are required to appear, you appear!” And the
mayor will promise, “Akong bahala dito. Hindi ito tatakbo [puputulan ko ng paa!] Sagot ko ito.” – Yan ang recognizance – word of
you word or word of a responsible person.
Para bang character loan – you borrow money, no collateral and I promise to pay you. Creditor: “Believe ako sa iyo. Your word
is as good as a security. OK!”
Q: Is recognizance possible in all criminal cases?

A: NO. Under the rules, recognizance is only allowed whenever allowed by law or these Rules. So, if it is not allowed by law or
the rules, hindi puwede.
Q: How do you define recognizance?

A: A recognizance is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the
condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.
(People vs. Abner, 87 Phil. 566, 569)
The next question is, what are the instances where recognizance is allowed by the law or this Rules? There are four (4)
instances originated and as mentioned by the SC in the 1997 case of ESPIRITU VS. JOVELLANOS (280 SCRA 579). But even
before JOVELLANOS came out, the 1985 Rules says that recognizance is possible if allowed by law or the Rules. Ano man yang
“by law or this Rules”? So as early as 1985, I was already gathering the instances when the law or the rules allow it. And I gathered
four (4). Meron pa man sigurong iba, pero di ko pa siguro nakita. That is why when the case of Jovellanos came out, tiningnan ko –
exactly the very four! – not more, not less. [ehem! ehem!]
504
Q: What are the instances when recognizance is allowed by the law or this Rules?
A: In the case of ESPIRITU VS. JOVELLANOS (280 SCRA 579):
1. Under RA 6036 – when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the
imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances
provided in R.A. No. 6036;
2. Rule 114, Section 16, last paragraph:
“A person in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offense charged, without application of the Indeterminate Sentence Law or any
modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the
discretion of the court.”
3. Rule 114, Section 24:
“No bail shall be allowed after a judgment of conviction has become final. If before such finality,
the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail
was filed or the accused is incapable of filing one, the court may allow his release on recognizance
to the custody of a responsible member of the community. In no case shall bail be allowed after the
accused has commenced to serve sentence.”
4. Under PD 603 (Child and Youth Welfare Act) – in case of a youthful offender held for physical and mental
examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in P.D. No. 603, as
amended.
Those are the four instances where recognizance is allowed. So it is not possible in all cases.
This reminds of a former student of this law school who graduated way back in 1977. He is from Agusan. I remember during
the mid-80’s, I went to Cagayan. Wala pa itong Buda, so I have to travel via Butuan. On my way back at around 4 P.M., we were
riding in a private vehicle, we stopped at a town in Agusan. We took a break kay kapoy eh. There were numerous big houses there.
And then I saw this attorney so and so and I recognized him because he was a graduate of this school. Anyway I’m not in a hurry, I
went there. So I met this lawyer and I gave my name. ATTY: “Uy! You! We did not see each other for a long time. Kumusta?
[videoke ta!]” DEAN: “I was just passing by. What are you doing now? [na kay fundador diha?]” ATTY: “I’m practicing law.
Karamihan criminal.” And I noticed marami siyang helpers sa bahay niya. So I asked him, “Ba’t karami mo namang houseboys?”
ATTY: “They are not houseboys, Sir. They are all accused!” DEAN: “Why are they with you?” ATTY: “Recognizance.” DEAN: “Ano
pala mga crimes nila?” ATTY: “Murder, Homicide.” Na-shock ako!! Paano nakakuha ng recognizance ito eh hindi man puwede yan
because recognizance is only possible if allowed by law or the rules. Pero nobody is complaining naman there.
SEC. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law
or these Rules so provide.
When a person has been in custody for a period equal to or more than the possible maximum
imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to
the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused
may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offense charged, without application of the Indeterminate Sentence Law or any
modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the
discretion of the court. (16a)
Let’s go further. As a general rule, when the criminal case is filed, there will be warrant of arrest. If there is warrant of arrest,
there must be a bail either in cash or recognizance. But Section 16 provides that no bail shall be required when the law or these
Rules so provide. This is now the question:
Q: What are the instances where despite the pendency of the criminal case, the accused is not required to post bail? Meaning,
he is exempt from putting up a bail bond because the law or the rules says so.
1. Under RA 6036 – yung mga 6 months or less under the conditions mentioned therein;
2. When the crime is covered by the Summary Rules because of Section 16 of Rule 114. When a case is filed under the
Summary Rules, a mere notice is sufficient. No need of a warrant of arrest.
3. Section 9 [b] of Rule 112 (this is a new sentence):
“x x x x However, if the judge is satisfied that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest.”
So, the court is satisfied that there is no need to issue a warrant of arrest maybe because the court believes that
you will not run away. In effect, no bail shall be required.
505
SEC. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is
pending, or in the absence or unavailability of the judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or
municipality. If the accused is arrested in a province, city, or municipality other than where the case is
pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on
recognizance, the application may only be filed in the court where the case is pending, whether on
preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may apply for bail with any court in the
province, city, or municipality where he is held. (17a).
Section 17 is another important provision on where to file the bail. Normally, you file the bail before the same court where you
case is pending. But if the judge is not around, under paragraph [a], puwede man any RTC judge, MTC judge, etc.
Q: Suppose your case is in Davao and you are arrested in Manila, can you post bail in Manila?
A: YES because it would be very tedious if you will be arrested and brought back in Davao just to post bail. And under
paragraph [a], it may be filed with any RTC of such place. And of course, the judge there will accept the bail and transmit everything
to Davao.
Q: What are the instances where the accused is only allowed to post bail before the very same court where the case is
pending?
A: Under paragraph [b], the following are the instances:
1. if you seek to be released on recognizance, no other judge can grant it other the judge where you case is pending;
2. when bail is a matter of discretion. For example: Ms. Tormon is accused of a capital offense and she would like to file
a petition for bail because the evidence of guilt is not strong, that should be decided by the very court where her case
is pending.
Q: Is the MTC entitled to entertain a petition for bail?

A: YES
Q: What are the instances when a MTC is entitled to entertain applications for bail?
1. Under paragraph [b], the application may be filed in the court where the case is pending, whether on preliminary
investigation, trial, or appeal. With this provision, it would seem puwede;
2. MTC can entertain petitions for bail in cases not cognizable by it filed before it for purposes of preliminary
investigation. That is why in one case the SC held that inferior courts (MTC) can entertain applications for bail in
capital offenses as an incident to its power to conduct preliminary investigation. (Manigbas vs. Luna, 98 Phil. 466);
and
3. Section 35 of the Judiciary law (Special jurisdiction of the MTC) –the MTC may hear and decide petitions for a writ of
habeas corpus or applications for bail in the absence of ALL the RTC judges.
Let’s go now to the last paragraph of Section 17:
“Any person in custody who is not yet charged in court may apply for bail with any court in the
province, city, or municipality where he is held.”
This is one provision that has stunned so many: how can a person be in custody who is not yet charged in court? He is already
in custody pero wala pa mang kaso? What is contemplated under the last paragraph of Section 17 is Rule 112 Section 7 on
INQUEST preliminary investigation – when a person is lawfully arrested without a warrant, he will be detained immediately without
preliminary investigation. But if he demands a preliminary investigation, he can get it but he must waive the effects of Article 125 of
the RPC.
Section 7, Rule 112, last sentence of second paragraph provides: “Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its inception.” So he can ask for bail even if he is not yet charged in
court.
Q: If you apply for bail with any court in the province, city or municipality, ano ang title and number ng petition mo? You cannot
put there “People of the Philippines versus…” kay wala pa mang criminal case? What will be your reference?
A: “IN RE: PETITION FOR BAIL.” So bahala na kayo diyan. Bahala na ang clerk of court how to docket it. Basta that is my
right under the law! So you think of your own caption.
SEC. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these
Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the
accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen
given thirty (30) days within which to produce their principal and to show why no judgment should be
rendered against them for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production; and
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(b) explain why the accused did not appear before the court when first required to do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and
severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the
bondsmen, unless the accused has been surrendered or is acquitted. (21a)
Another important provision is Section 21 – how bail is forfeited.
If you are required to appear in court for an arraignment, or for some other reason, and you did not appear, the first step is,
upon motion of the prosecution, the court will issue an order to confiscate the bond and the court will also direct the bondsmen:
1. to produce the body of their principal within 30 days; AND
2. to explain why the accused did not appear before the court when first required to do so.
Dalawa yan – (1) produce him within 30 days, and (2) explain why you failed to produced him. If you satisfy both conditions, no
problem – the court will issue an order lifting the order of the forfeiture.
Q: Suppose you failed to comply both or one of the conditions, what will happen?
A: The court will render judgement on the bond. Meaning, the bonding company is now liable on its bond.
So ang una, order of confiscation or forfeiture of the bond. The second stage is, if the conditions are not met, there will be
judgment against the bond. So that is the step-by-step application of Section 21.
SEC. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen
may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to
be arrested by a police officer or any other person of suitable age and discretion.
An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to
depart from the Philippines without permission of the court where the case is pending. (23a)
Section 23 is an instance of a valid warrantless arrest. This is a continuation of Section 5 Rule 113.
For the purpose of surrendering the accused, they can arrest him without a warrant. The bondsmen is his jailer. The theory of
bond, lalo na yung corporate bond, is that the sureties or bondmen becomes you jailer in the eyes of the law, and you are their
prisoner. They took over the government. In reality, they are not really imprisoning you. You are a free man. And importante, you
put up money for you release – you pay premium, back up your commitment with property. Parang insurance din ito eh.
Now halimbawa, nainis sila sa iyo? – hindi ka nagabayad ng premium – puwede ka man nila arestuhin bah! The bondsmen
can have you arrested without a warrant. So diretso ka sa jail.
Let’s go to last paragraph of Section 23. If you are attempting to leave the Philippines, lalo na kung may hold departure order,
even if you are on bail, you can be arrested without a warrant. Now, we will go to this question related to you constitutional right to
travel:
Q: How do you reconcile Section 23 with the constitutional right to travel?

A: In the 1986 case of
MANOTOC vs. COURT OF APPEALS
142 SCRA 149
ISSUE: How come if you are out on bail, you cannot leave the country without the permission of the court?
HELD: “A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond. The condition imposed upon petitioner to make
himself available at all times whenever the court requires his presence operates as a valid restriction on his right to
travel.” (because this is one of the conditions of the bail bond – you must be available whenever the court requires
you to appear.)
“Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond
the reach of the courts. If the sureties have the right to prevent the principal from leaving the state, more so then has
the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal
remains unaffected despite the grant of bail to the latter.”
“The court cannot allow the accused to leave the country without the assent of the surety because in accepting a
bail bond or recognizance, the government impliedly agrees that it will not take any proceedings with the principal that
will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or
recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his
assent.”
So, if your own bondsmen have the right to prevent you, with more reasons with the court who has the complete jurisdiction
over your person. But even if the court wants to grand you permission to leave, gusto mong mag-tour, but sabi ng bondsmen,
“Ayoko nga!”, then the court has no power to grant your request because the bondsmen must also agree. (Manotoc vs. CA, supra)
SILVERIO vs. COURT OF APPEALS

April 8, 1991
FACTS: Silverio was charged criminally for violation of Revised Securities Act. For more than two years, there
were series of postponements of the arraignment scheduled therein. He could not be arraigned because he had gone
abroad several times without the necessary court approval. The prosecution got fed up already. So upon motion of
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the prosecution, the trial court ordered the DFA to cancel Silverio’s passport or to deny the application to re-new the
passport. The Commission on Immigration is also ordered to prevent Silverio from leaving the country.
Now, according to Silverio, the court’s orders are unconstitutional because under the Constitution, courts can
impair the right of a citizen to travel only on the ground of national security, public safety or public health. Silverio: “Is
there an issue of national security? Wala man! Public safety? Wala man! Public health? Wala rin! Therefore, you
cannot prevent me from travelling.”
The SC here traced the history of that constitutional provision. How did that provision came out?
HELD: The phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under
the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon
application of an interested party. (because during the Marcos era, he created a travel processing agency headed by
General Ver, where every Filipino who wants to travel abroad must be cleared by that office.)
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power
of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them.
In other words, the court has always the power to prevent an accused from leaving for abroad. And that constitutional provision
was never interpreted to limit the power of the court. Therefore, Silverio was citing the wrong provision. The philosophy does not
apply to Silverio. Yaan!

December 2, 1993
FACTS: Several criminal cases were filed against Miriam Santiago arising from her tenure as Immigration
Commissioner. Now, she was interviewed by the media and she said that she is leaving in a few days for abroad
because she was offered a fellowship grant by the Harvard University. Nabasa ng Sandiganbayan ang interview sa
newspaper, “Uy! Aalis! Alright, Hold-Departure Order!” Santiago questioned the order.
ISSUE: May a court trying a criminal case issue a hold-departure order motu propio to prevent the accused from
leaving the country even if the prosecution did not file any motion to issue such order?
HELD: YES. “The court has the power to issue motu propio a hold-departure order. The hold-departure order is
but an exercise of the court’s inherent power to preserve and to maintain the effectiveness of its jurisdiction over the
case and the person of the accused.”
MARCOS vs. SANDIGANBAYAN

247 SCRA (August 9, 1995)
FACTS: Criminal charges were filed against Imelda Marcos. In one of the cases, she was convicted by the
Sandiganbayan. After conviction, she filed a motion for reconsideration and while her motion was p ending, she filed a
motion for leave to travel abroad for treatment of hypertensive heart disease, uncontrolled angina pectoris, and
anterior myocardial infarction. The motion was supported by medical reports prepared by her physician and
cardiologist and other doctors in Makati Medical Center.
Presiding Justice Garchitorena referred the issue to a committee of cardiologists from Health Center of the
Philippines for extra opinion on some questions among which was: “Is Marcos’ condition fatal? Or, Is she in danger of
dying? The committee submitted a report which was heard in the presence of the two lawyers of Marcos. Report ng
committee: she was sick but the evidence not confirm the allegation that Mrs. Marcos is in the high risk group of
sudden cardiac death. In other words, she is sick but she is not in danger of dyiing.
With that, the Sandiganbayan, “Ah hindi pala malala eh! So, wala! Motion denied!” Marcos went to the SC
attacking the Sandiganbayan order alleging that the court adopted an unusual and unorthodox conduct by motu
propio conducting a third party asking the latter to give an opinion. Marcos: “Nobody is questioning. Bakit ba itong
Sandiganbayan will not take the words of my doctors? Parang walang kumpiyansa!”
HELD: “The Sandiganbayan acted properly. Respondent court had to seek expert opinion because petitioner's
motion was based on the advice of her physician. The court could not be expected to just accept the opinion of
petitioner's physician in resolving her request for permission to travel. The subject lay beyond its competence and
since the grant of the request depended on the verification of the claim that petitioner was suffering from a medical
condition that was alleged to be serious and life threatening, the respondent court, we think, followed the only prudent
course available of seeking the opinion of other specialists in the field.”
“Indeed, when even in their own field of expertise (law) courts are allowed to invite amici curiae to shed light on
recondite points of law, there is no reason for denying them assistance on other subjects.”
“Perhaps the best proof that she is not in the group is the fact that she ran in the last election for a seat in the
House of Representatives and won. It may be assumed that she waged an arduous political campaign but apparently
is none the worse for it.”
Meaning, even in law which is already your field of expertise, the court are even allowed to seek the help of other lawyers, lalo
na when it comes to the field of medicine. And finally after one year, she ran for congresswoman in Leyte and she won. Of course
when you campaign, you have to undergo a terrible schedule of campaigns. Eh bakit buhay ka pa? So in other words, you are not
really in danger of dying. And she is very much alive now.
COJUANGCO vs. SANDIGANBAYAN

300 SCRA 367 [1998]
508
FACTS: Cojuangco has several pending cases before the Sandiganbayan. And there is a travel ban everytime
he travels abroad.
ISSUE: Is there a need of hold-departure orders everytime Cojuangco travels abroad considering that many
things happened to Cojuangco?
HELD: “We resolve in the negative. The travel band should be lifted, considering all the circumstances now
prevailing. It now becomes necessary that there be strong and compelling reasons to justify the continued restriction
on Cojuangco’s right to travel abroad. Admittedly, all of Cojuangco’s previous requests to travel abroad has been
granted and that Cojuangco has always returned to the Philippines and complied with the restrictions imposed on
him.”
“The necessity of further denying Cojuangco’s right to travel abroad, with attendant restrictions, appears less than
clear. The risk of flight is further diminished in view of Cojuangco’s recent reinstatement as Chairman and Chief
Executive of San Miguel Corporation, though he has now more justification to travel so as to oversee the entire
operations of that company. In this regard, it has to be conceded that his assumption of such vital post has come at a
time when the current economic crisis has adversely affected by international operations of many companies,
including San Miguel.”
“The need to travel abroad frequently on the party of Cojuangco, to formulate and implement the necessary
corporate strategies and decisions, could not be forestalled. These considerations affecting Cojuangco’s duties to a
publicly held company, militate against imposing further restrictions on Cojuangco’s right to travel abroad.”
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An
application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the
legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises them before entering his plea.
The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. (n)
Section 26 is a new provision.
Q: If you post bail, are you under estoppel to question the validity of the arrest or the regularity or absence of a preliminary
investigation?
A: Under Section 26, NO. The pivotal point is for as long as you have not yet entered your plea. Once you entered your plea,
all the defects are considered waived. But the posting of bail alone is not considered as waiver to raise those issue.
Rule 115
RIGHTS OF ACCUSED
I know you are not anymore a stranger to many of these provisions because many of them are already found under the
Constitution.
Section 1 – Rights of accused at the trial – In all criminal prosecutions, the accused shall be entitled to
the following rights;
a.) To be presumed innocent until the contrary is proved beyond reasonable doubt.
xxxxx
Paragraph [a] emphasizes the degree of proof in criminal cases.
Why is it in criminal case an accused enjoys this presumption? Why does the law give the accused the presumption of
innocence? The SC already answered that the reason is to make the fight at least equal. In criminal cases, all the resources are
directed against the accused. It is the accused versus the People of the Philippines – so you are fighting the government, and the
government has all the resources at its command – the PNP, NBI, etc. Anong laban mo diyan? So at least para mag-tabla-tabla ng
konti ang laban, the law will give certain presumptions in your favor. In the case of
PEOPLE vs. SEQUERRA

October 12, 1987
HELD: “Confronted by the full panoply of state authority, the accused is accorded the presumption of innocence
to lighten and even reverse the heavy odds against him. Mere accusation is not enough to convict him, and neither is
the weakness of his defense. The evidence for the prosecution must be strong per se, strong enough to establish the
guilt of the accused beyond reasonable doubt. Otherwise, he is entitled to be freed.”
“But as solicitous as the Bill of Rights is of the accused, the presumption of innocence is not an automatic or
blanket exoneration. It is at best only an initial protection. If the prosecution succeeds in refuting the presumption, it
then becomes the outlook of the accused to adduce evidence that will at least raise that inkling of doubt that he is
guilty. Once the armor of the presumption is pierced, so to speak, it is for the accused to take the offense and ward off
the attack.”
509
So the accused cannot rely forever in the presumption of innocence. This is a disputable presumption. The prosecution can
destroy that presumption by presenting evidence that you are guilty and once the prosecution has presented that you cannot
anymore rely on this presumption. It is now your duty to present evidence that you are innocent.
b.) To be informed of the nature and cause of the accusation against him.
Yes, you should know why you are there. It is very awkward that you are charged without even knowing what the charge is all
about. That is why there is an arraignment to make everything formal.
Q: Can you waive the right to be informed of the nature and cause of the accusation against him?
A: NO. It is not waivable because public interest is involved in this right, the public having an interest in seeing to it that no
person is unlawfully deprived of his life or liberty. (U.S. vs. Palisoc, 4 Phil. 207)
There are certain rights of the accused that are waivable; there are certain rights that cannot be waived. For example: to be
presumed innocent until the contrary is proved – can you waive that? “Ah OK lang, you can presume me guilty!” I don’t think the
court will agree with that. That is not waivable.
And mind you, there was a bar examination in the past, where the examiner asked this question – “among the rights of the
accused outline those which can be waived and cannot be waived.” So practically you have to know [a] – [i]. It’s not only a question
of enumerate the rights of the accused but segregate those which can be waived and those which cannot be waived. Medyo
mahirap yan. But if you have a lot of common sense, [meaning, ang common sense is common sa iyo!] malaman mo man ba! “To
be presumed innocent – pwede bang ma-waive ito? Mukang hindi man...” Yaan!
c.) To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial
pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court
for purposes of identification. The absence of the accused without justifiable cause at the trial of which
he had notice shall be considered a waiver of his right to be present thereat. When an accused under
custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates
until custody over him is regained. Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel.
Paragraph [c] is quite important.
This is a right to be present from arraignment to promulgation – right yan eh! – I want to be there.
Q: But technically, do you have the obligation to be there?

A: NO. This right is waivable because the law says the accused may however waive his presence during the trial, unless the
presence of the accused is specifically ordered by the court for purposes of identification.
This was taken from the case of NINOY AQUINO, JR vs. MILITARY COMMISSION where Ninoy was arrested and tried in a
military court and he refused to participate in the proceedings. And issue now is, can he be forced by the court to appear? SC:
YES, because how can he be identified if he will not appear? That is why it is now found in the Rules.
CARREDO vs. PEOPLE

183 SCRA 273
ISSUE: After arraignment he can waive his presence during the trial, but can he be ordered arrested by the court
for an appearance, upon summons to appear for purposes of identification?
HELD: YES. “Waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived
of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the
conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his
obligation under the bond to appear in court whenever so required. The accused may waive his right but not his duty
or obligation to the court.”
So, you can waive your right but not your duty. That is one of the conditions in the bond under Rule 114, Section 2 [b] – “the
accused shall appear before the proper court whenever so required by the court or these Rules.”
Q: Now, what happens if during the trial, the accused did not show up but he was notified? Can the trial proceed without him?
A: YES, 2nd sentence of paragraph [c] provides, “The absence of the accused without justifiable cause at the trial of which he
had notice shall be considered a waiver of his right to be present thereat.” This is taken from Article II, Section 14 (2), - Trial in
absentia.
But take note that in trial in absentia, it assumes that:

1. the court already acquired jurisdiction over your person;
2. you were arrested; and
3. you must first be arraigned. So arraignment is a prerequisite for trial in absentia to apply.
Q: What is the difference between these two sentences in [c]: “The absence of the accused without justifiable cause at the trial
of which he had notice shall be considered a waiver of his right to be present thereat” and “when an accused under custody
510
escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is
regained”?
A: In the first sentence, the accused is absent without justifiable cause during the particular trial date, and so the trial may
continue. But he can still appear in the next trial. He only waived his right to be present on that date but he has not waived his right
to be present on subsequent trial dates. He has not waived his right to present evidence.
In the second sentence, iba eh. You escaped or you jumped bail. You are not only waiving your right to be present on this date
but on all subsequent dates. And therefore, there can be a judgment against you when the prosecution rests.
This trial in absentia was explained by the SC in the case of
PEOPLE vs. AGBULOS

222 SCRA 196 (1993)
HELD: The prisoner cannot by simply escaping thwart his continued prosecution and possibly eventual conviction
provided that:
1. he has been arraigned;
2. he has been duly notified of the trial; and
3. his failure to appear is unjustified.
(But how can the prosecution establish that the accused has been duly notified of the trial? How can you notify a
person who is hiding? And how can you say that his failure to appear is unjustified?)
“The fugitive is deemed to have waived such notice precisely because he has escaped, and it is also this escape
that makes his failure to appear at his trial unjustified. Escape can never be a legal justification. His escape will,
legally speaking, operate to his disadvantage as he will be unable to attend his trial, which will continue even in his
absence and most likely result in his conviction.”
GIMENEZ vs. NAZARENO

160 SCRA 1 (1988)
FACTS: The accused is arraigned, then he escaped from jail. The prosecution moved for the trial to proceed
without him – trial in absentia. So the prosecution presented all its witnesses, and then it rested and submitted the
case for decision based on the prosecution’s evidence alone – parang ex-parte ba. The judge said “NO, we will have
to hear the accused. Trial in absentia means the prosecution can present its evidence without him but the case will
not be decided until we catch him because we have to hear him.” The prosecution went to the SC.
ISSUE #1: Is the court’s interpretation of trial in absentia correct?

HELD: NO. Definitely, that is not the meaning of trial in absentia. Pagtapos na, eh di tapos na! why wait for the
accused? However, there are questions. Does an accused, who has been duly tried in absentia retain his rights to
present evidence on his behalf and to confront and cross-examine witnesses who testified against him? The court
said that, “Upon the termination of a trial in absentia, the court has the duty to rule upon the evidence presented in
court. The court need not wait for the time until the accused who escape from custody finally decides to appear in
court to present his evidence and cross-examine the witnesses against him. To allow the delay of proceedings for this
purpose is to render ineffective the constitutional provision on trial in absentia.”
ISSUE #2: Why is it that an escapee who has been tried in absentia does not retain his right to cross-examine
witnesses and to present evidence? How come those rights are lost?
HELD: “By his failure to appear during the trial of which he had notice, he virtually waived these rights. This Court
has consistently held that the right of the accused to confrontation and cross-examination of witnesses is a personal
right and may be waived. In the same vein, his right to present evidence on his behalf, a right given to him for his own
benefit and protection, may be waived by him.” So an escape can be considered a waiver.
ISSUE #3: If judgment is rendered as to the said accused and chances are you would be convicted, would it not
violate his right to be presumed innocent and right to due process?
HELD: NO, he is still presumed innocent. “A judgment of conviction must still be based upon the evidence
presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also, there can be no violation of
due process since the accused was given the opportunity to be heard.” If the prosecution does not present anything,
he would be acquitted.
Now, the last sentence of paragraph [c]:
“Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears
to the court that he can properly protect his rights without the assistance of counsel.”
Take note that under the first sentence of [c] he can be present and defend in person and by counsel. For example, ayaw niya
ng abogado? “I will defend myself!” Anong mangyari diyan? Is the right to counsel waivable by the accused? YES. The right to
counsel may be waived by the accused BUT the waiver must be clear, intelligent and competent. (People vs. Ben, L-8320, Dec. 20,
1955)
511
But now, the guideline is clearer – the accused can be allowed to defend himself in person “when it sufficiently appears to the
court that he can properly protect his rights without the assistance of counsel.”
Meaning, although he is not a lawyer, parang marunong and may common sense naman… the court will say, “Magbasa ka ng
Constitution, Criminal Law, Evidence?” Accused: “Oo! Basahin ko lahat yan! Pag-aralan ko! I will defend myself!” Ah problema mo
na yan. And of course, whether he succeed we do not know. That is your risk. I think there is something wrong with that accused.
Even lawyers when they have cases, they hire another lawyer. He will not depend on his own skills. Eh kung layman ka? I saw
that happen. Ah talagang kawawa ka. Kahit na siguro yung prosecutor na pinaka-banga, yariin ka talaga because he will invoke
many rules, laws, jurisprudence… eh anong malay mo diyan?
According to one statesmen, “A lawyer who handles his own case has a FOOL for a client.” Did you understand that? Meaning:
Sino ang lawyer? Lawyer: “Ako!” Sino naman ang client? Lawyer: “Ako rin!” Ah GAGO ka!
Q: Now, I will expand the question: Sabi ng offended party, “Alright, ayaw ng akusado na may abogado. Ako rin! Ayoko ko rin
ng abugado! I’ll be the one to prosecute him!” Eh meron mang private prosecutor? “Ah hindi na kailangan ng private prosecutor!
Siya personal, ako personal din!” Can he do that?
A: Let’s go back to Rule 110, Section 16 on whether the rights of the accused and the offended party are same:
“Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to
Rule 111, the offended party may intervene by counsel in the prosecution of the offense.”
So their rights are different. The offended party cannot intervene personally. The law will not allow it. He must have a counsel.
Sabihin niya, “Wala man akong pera pang-hire ng private prosecutor?” Eh di yung fiscal! The fiscal will be the one to come in. That
is why we have public prosecutors precisely to handle criminal cases.
d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by
direct examination. His silence shall not in any manner prejudice him.
This is the right of the accused to testify on his own behalf. But he has no obligation to testify. If you connect this to the next
right – [e] to be exempt to be a witness against himself (that is why you cannot compel him to testify) – once he testifies on his own
behalf, he waives the privilege against self-incrimination and he can be cross-examined like any other witness. He cannot say, “I
will testify but I refuse to be cross-examined.” That would be unfair no?
So, you are waiving your right against self-incrimination if you testify in your own behalf because the law is clear – subject to
cross-examination on matters covered by the direct examination. You can be cross-examined on matters covered by direct
examination. Let’s go back to Evidence.
Q: What is the rule on cross-examination?

A: Look at Rule 132, Section 6:
“Upon termination of the direct examination, the witness may be cross-examined by the adverse
party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness
and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.”
So, masyadong broad eh! – You can be cross-examined on matters or connected with matters in the direct examination with
sufficient fullness and freedom, etc. – very liberal! It is called the ENGLISH RULE on cross-examination.
The AMERICAN RULE on cross-examination is different – the witness can be cross-examined ONLY on matters stated in the
direct examination.
In the Philippines, we followed the English Rule because of Rule 132, Section 6. However, it seems the American Rule on
cross-examination is applied, as an exception, when you are talking about cross-examining an accused in a criminal case because
of paragraph [d] – subject to cross-examination on matters covered by the direct examination.
So we follow the American Rule on cross-examination of the accused in criminal cases. Mas limitado! Sabihin mo sa mga
judges yan! Maraming hindi alam yan eh, because I knew of a graduate here, ginamit niya talaga ang rule. Pag-cross-examine ng
prosecution sa kanyang cliente who is the accused, object siya, “Objection!” Prosecution: “No! This is cross-examination! We are
testing the credibility of the accused to testify.” Sabi niya, “No! No! No! We are following the American Rule on cross-examination of
the accused under Rule 115 and you are citing the English Rule – the general rule – under Rule 132!” Sabi ng judge, “Ano ba yang
American Rule, English Rule?”
Naloko na! Sabi nung lawyer, “Ganito pala ito! What I learned in law school is different from what I see!” Talagang ganyan yan.
Kailangang masanay kayo diyan. Just like [Atty.] Ceniza. He was talking to me last week. He was telling me of what happened in
Davao Oriental in one MTC. Sabi niya, “Ganito! Ganito! Parang niluto man ako?!” Talagang niluto ka! Ganyan gud yan diyan sa
Davao Oriental – they knew each other! So you have to get used to it. Kapag matapang ka, file ka ng kaso. File-an mo silang lahat!
That is the beauty of law in the classroom, and the tragedy of law outside! Yaan!
Q: Now, what is the effect if the accused does not want to testify on his own behalf?
A: No unfavorable deduction can be drawn from the neglect or refusal of an accused to testify. (U.S. vs. Luzon, 4 Phil. 343) His
silence is not in any manner prejudice him. (paragraph [d])
512
Meaning, if he refuses to testify, that should not be taken against him because of his right to remain silent. He can testify if he
wants to. Kung ayaw niya, puwede rin. Admission by silence is not generally applicable. ALTHOUGH there are one or two
decisions of the SC where it said that if the evidence presented by the prosecution is overwhelming, the accused should testify.
One of these cases is the 1998 case of
PEOPLE vs. DELMENDO

296 SCRA 371 [1998]
ISSUE: If the accused refuses to testify, can it be taken against him?

HELD: General Rule is NO. BUT the SC said in this case, “An adverse inference may also be deduced from
accused’s failure to take the witness stand. While his failure to testify cannot be considered against him, it may
however help in determining his guilt. The unexplained failure of the accused to testify, under a circumstance where
the crime imputed to him is so serious that places in the balance his very life and that his testimony might at least help
in advancing his defense, gives rise to an inference that he did not want to testify because he does not want to betray
himself.”
“An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of self-
preservation, and as precaution against prejudicing himself. A person’s silence, therefore, particularly when it is
persistent, may justify an inference that he is not innocent. Thus, we have the general principle that when an accused
is silent when he should speak, in circumstances where an innocent person so situated would have spoken, on being
accused of a crime, his silence and omission are admissible in evidence against him. Accordingly, it has been aptly
said that silence may be assent as well as consent, and may, where a direct and specific accusation of crime is made,
be regarded under some circumstances as a quasi-confession.”
And to my mind, that was the risk which Erap was taking during the impeachment trial because his lawyers never agree that
Erap will testify because lalong masisira si Erap kung mag-testify siya. Estrada is their greatest nightmare. He is one person who
cannot control his mouth and once he starts talking, he does not know what his saying.
That is why his lawyers are already afraid that if the second envelope will be opened, the evidence of the prosecution becomes
overwhelming, and there is no other choice but to Estrada to testify. So hangga’t maaga pa, patayin na! But they were not
anticipating that by killing that evidence, it hastens Estrada’s downfall!
[e] To be exempt from being compelled to be a witness against himself.
This is the right against self-incrimination – Nemo tenetur seipsum accusare.
Take note that the right of the accused against self-incrimination is not limited to testimonial evidence. According to the SC, it
refers not only to testimonial compulsion but also to production by the accused of incriminating documents and things. (Villaflor vs.
Summers, 41 Phil. 62) So you cannot subpoena his personal documents.
However, supposed you are asked to perform a mechanical act, for example footprint, “Ilagay mo nga yang paa mo diyan beh!
Let’s find out kung pareho kayo ng size nung footprint.” This is not covered. Mechanical lang yan eh – physical act. However, to
produce specimen signature requires concentration and intelligence. This is covered by the protection. (People vs. Otadora, 86
Phil. 244; Bermudez vs. Castillo, 64 Phil. 433; Beltran vs. Samson, 53 Phil. 570)
There was a tricky question in the Bar exam in the past:
PROBLEM: The accused is charged with falsification for writing a falsified letter. The prosecution present its evidence that this
letter was written by the accused. The accused said, “No, that is not my handwriting.” On cross-examination, he was asked to write
on a piece of paper as dictated. The defense object on the ground of violation of the right to self-incrimination. Rule on the
objection.
ANSWER: The objection should be overruled. The case is not covered by the right against self-incrimination. He can be
compelled because he testified that it is not his handwriting. From that moment he waived his right against self-incrimination. It is
unfair that you say it is not your signature and I have no way of telling you to give me a specimen.
Q: How is the right against self-incrimination be waived?

A: The privilege is waivable by the accused taking the stand and testifying as a witness or by freely answering the incriminating
questions put to him. (U.S. vs. Grant, 18 Phil. 122; U.S. vs. Rota, 9 Phil. 426) Or by not objecting.
Q: What is the reason for the right of an accused against self-incrimination?

A: The rule was established on the ground of public policy, because if the accused were required to testify, he would be placed
under the strongest temptation to commit perjury, and of humanity, because it would prevent the extortion of confession by duress.
(U.S. vs. Navarro, 3 Phil. 143) So, if you require him to testify, chances are he will lie.
That is why according to former U.S. SC Justice Black, “The accused should not be fried by his own fat. [e di cooking oil!] No
sane man will burn his own shirt nor he will get a stone to hit his own head. [eh kung gusto ko pala? Anong paki mo?] The pri vilege
against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized. We do not make even the most
hardened criminal sign his own death warrant or dig his own grave.”
Our own SC also followed that kind of explanation through Justice Reynato Puno in the 1994 case of
513
MAPA vs. SANDIGANBAYAN
231 SCRA 783
HELD: “The days of inquisitions brought about the most despicable abuses against human rights. Not the least of
these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. To guard against
the recurrence of this totalitarian method, the right against self-incrimination was ensconced in the fundamental laws
of all civilized countries.”
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as
part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be
found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding,
judicial or administrative, involving the same parties and subject matter, the adverse party having the
opportunity to cross-examine him.
Q: Is the right to confront and cross-examine the witnesses against him waivable?
A: YES as ruled by the SC in the case of GIMENEZ VS. NAZARENO, (160 SCRA 1), such right is waived if the accused
decides to run away, jumps bail, or disappears – he is automatically waiving the right to confront and cross-examine the witnesses
against him.
Q: Now what is the reason behind this right? Why is there such a right?
A: It is intended to prevent the conviction of an accused upon mere depositions and affidavits; to preserve the right of the
accused to test the recollection of witnesses against him; and to enable the court to observe the demeanor of the witnesses who
are testifying. (Dowdell vs. U.S., 221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413)
You have taken up Evidence. Those are the important factors for the court to gauge the credibility of witnesses. Demeanor ba
– their manner of testifying. How can the court exercise that option if he does not even see the witnesses? So more or less, that is
the reason behind it. To borrow the language of an American justice commenting on this issue, “It ensures that convictions will not
be based on the charges of unseen and unknown, hence unchallengeable individuals".
Another Justice, Justice Scalla, he is still an incumbent of the Federal Supreme Court, describing this right, he said, “It is
always more difficult to tell a lie about a person to his face than behind his back, and even if the lie is told, it will often be told less
convincingly.” Meaning, it is easier to tell a lie ba against somebody if he is not in front of you. Pero pagkaharap na, parang
alanganin kang magsinungaling eh. And even if you still tell a lie, it becomes not so convincing if you will lie about a person in front
of you. But if he is not there, you become very persuasive in your talk. These are the psychological reasons behind that.
Q: What are the EXCEPTIONS to the right of the accused to confront and examine witnesses against him?
A: The following:
1. Second portion of paragraph [f]:
Either party may utilize as part of its evidence the testimony of a witness who is deceased,
out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable
to testify, given in another case or proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having the opportunity to cross-examine him.
Sometimes there is no choice. Now, one good example where the testimony of a witness is admissible even if he
does not appear in the trial is when the witness is about to die. Malapit ng mamatay, so you need to take his
testimony in advance. In civil cases we call it deposition. In the criminal procedure, deposition is called conditional
examination of a witness. That is governed by Rule 119 Sections 12, 13, and 15.
2. when there is a separate civil action filed against the accused by the offended party and he made a reservation
Normally, the prosecution witnesses in the criminal case are also the witnesses for the plaintiff in the civil case.
Assuming nauna ang trial ng civil case, these witnesses testified during the trial of the civil case, they were cross-
examined by the lawyer of the defendant who is also the accused in the criminal case. Now, under the law, when the
criminal case is tried, these witnesses have to testify again in the criminal case, practically they will have to repeat
their testimony. The trouble is, in the meantime, some of these witnesses died.
Q: Can the testimony recorded in the civil case be now admissible in the criminal case when there is no more
confrontation there?
A: Yes. because that is the exception, “when the testimony of the witness who is now deceased, given in another
case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having
the opportunity to cross examine him.”
As a matter of fact, this is also considered as one of the exceptions to the Hearsay Rule. It is the 11th exception
to the Hearsay Rule. Try to connect this with Rule 130 on Evidence. How many exceptions are there to the Hearsay
Rule? eleven (11) iyan eh – starting from dying declaration. That is the last exception – testimony or deposition at a
former trial or proceeding. Yaan! That is considered as an exception to the right against confrontation.
3. The exceptions to the hearsay rule are likewise exceptions to this right of the accused. (U.S. vs. Gil, 13 Phil. 530)
514
If there are 11 exceptions to the hearsay rule, all of them are also exceptions to this. Like dying declaration, how
can you cross-examine iyung taong patay na. So there are 11 exceptions to the right to confront and cross-examine
the witnesses against him which are all found in the rules on evidence.
Q: One last point, does the right to confront and cross-examine the witnesses against you, include your right to know their
names and addresses in advance?
A: NO, the accused has no such right because the case of the prosecution might be endangered if the accused were to know
the prosecution witnesses in advance, for known witnesses might be subjected to pressure or cowered not to testify. (People vs.
Palacio, L-13933, May 25, 1960) So, you confront them during the trial, not now.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other
evidence in his behalf.
I think that is self-explanatory, that is one of your rights as an accused. As a matter of fact, the question has been asked in the
bar.
Q: Suppose my witness is somewhere there in Cagayan de Oro, can I secure a subpoena to compel him when under the rules
on subpoena a witness is not bound if he resides more than 100 kilometers?
A: That has already been answered in the cases of PEOPLE VS. MONTEJO and MILLORCA VS. QUITAIN. The SC said that
the 100-km limitation (formerly 50 kms.) does not apply when you are talking of witnesses for the defense in a criminal case
because of the Constitutional right to have compulsory process issued to secure the attendance of witnesses in his behalf. That
right cannot be precluded by provisions in the Rules of Court.
(h) To have speedy, impartial and public trial.
There are actually three rights here:

1. the right to a speedy trial;
2. the right to an impartial trial; and
3. the right to a public trial.
Q: What do you mean by speedy trial? Meaning, no postponements? not even one postponement?
A: NO. That is not the interpretation. In the case of
ALVIZO vs. SANDIGANBAYAN

220 SCRA 55
HELD: It must not be lost sight of that the concept of speedy disposition of cases is a RELATIVE term and must
necessarily be a flexible concept. Delays per se are understandably attendant to all prosecutions and are
constitutionally permissible with the monition that the attendant delay must NOT be OPPRESSIVE. [Hindi palagi. Pa-
minsan-minsan okay lang man ba] Hence, the doctrinal rule is that in the determination of whether or not that right
has been violated, the factors that may be considered and balanced are:
a.) the length of delay;
b.) the reasons for such delay;
c.) the assertion or failure to assert such right by the accused; and
d.) the prejudice caused by the delay.
Q: What are the remedies of an accused whose rights to a speedy trial is being violated because the prosecution keeps on
postponing the case? How do you invoke this right to speedy trial?
A: There are three (3) possible remedies:
1. The accused should OPPOSE the postponement and insist on trial. If the court denies the postponement and directs
the prosecution to proceed and cannot do so because he does not have the evidence, the accused should move for
dismissal of the case on the ground of failure to prosecute or insufficiency of evidence. (Jaca vs. Blanco, 86 Phil. 452;
Gandicela vs. Lutero, 88 Phil. 299; People vs. Diaz, 94 Phil. 714) The dismissal is equivalent to an acquittal and there
is no way for that case to be brought back because it will amount to double jeopardy. (People vs. Diaz, 94 Phil. 714)
2. If the court grants the postponement everytime the fiscal asks for it, over the protest of the accused, the latter’s
remedy is mandamus to compel dismissal of the case; (Mercado vs. Santos, 66 Phil. 215)
3. If the accused is restrained of his liberty, his remedy is habeas corpus to obtain his freedom. (Mercado vs. Santos, 66
Phil. 215; Conde vs. Rivera, 45 Phil. 650)
Q: When is trial impartial?

A: There should be no bias otherwise, the trial will not be fair – you are not given due process. If the court or the judge has
already pre-ordained your guilt. “Every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” (Villapando
vs. Quitain, January 20, 1977)
Q: Right to a public trial – this is one of the features of the accusatorial system. What is the reason for public trial?
515
A: The requirement of public trial is for the benefit of the accused, that the public may see that he is fairly dealt with and not
unjustly condemned, and that the presence of spectators may keep his triers keenly alive to a sense of responsibility and to the
importance of their functions. (1 Cooley, Constitutional Limitations, p. 647)
Meaning, everybody is on their toes. You don't want to commit a mistake eh, mahihiya ka eh, maraming nanonood. The judge,
the prosecutor, the witnesses, the defense counsel, everybody is careful because they are watched by the public. Look at what
happened in the impeachment trial, everybody wants to be careful there because, imagine how many millions of people are
watching you there on T.V. So, pati ang mga senators di makatulog, some are sleepy no, mapapahiya ka, you are ashamed na
makita ka ng camera natutulog ka or you are using your cellphone.
I was reading an interview with Davide, he was asked how he was able to cope with his hours – full concentration iyan eh,
because he has to listen to every question because you do not know when an objection will come. Senators can just relax and
pretend they are listening. Davide has to make the ruling. So he has 5 or 6 hours of full concentration. Katakot-takot daw na
bitamina at kape. [bato?]
Please connect this provision on Speedy Trial with Rule 119 Section 9 which is a new provision taken from the Speedy Trial
Act. What is the heading of Section 9 Rule 119? Remedy where accused is not brought to trial within time limits. So there is such a
provision. When your case will not move, the accused may question the delay why his case has not been set for trial. That is a new
provision taken from the Speedy Trial Act.
[i] To appeal in all cases allowed and in the manner prescribed by law
There is something you will notice here – all the rights of the accused in this Rule, from [a] to [h], are also found in the
Constitution. These are all Constitutional rights except the last – [i]. The right to appeal is purely statutory which may be granted or
withheld at the pleasure of the State. (People vs. Ang Gioc, 73 Phil. 366)
RULE 116
ARRAIGNMENT AND PLEA
The accused must be arraigned before the court. That is the manifestation of the right of the accused to be informed as to t he
nature and cause of the accusation against him. The procedure is there in [a].
SECTION 1. Arraignment and plea; how made. (a) The accused must be arraigned before the court
where the complaint or information was filed or assigned for trial. The arraignment shall be made in open
court by the judge or clerk by furnishing the accused with a copy of the complaint or information,
reading the same in the language or dialect known to him, and asking him whether he pleads guilty or
not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or
information.
xxxxx
You can even ask for a copy of the complaint and information there, although normally the lawyers ask for it in advance, they
do not merely ask during the arraignment, before the arraignment may kopya na sila. Take note of the last sentence:
“The prosecution may call on the trial witnesses other than those named in the complaint or
information.”
Have you seen a criminal information? Normally, at the last potion – “Witnesses for the prosecution: Aquiatan, Tormon,
Salesa, Balite and others.” Mayroon man usually iyan “and others”. The prosecution will sometimes not name all. So mayroong
reservation.
Q: Now, can you question that reservation of the fiscal? If you are the accused, can you question that procedure?
A: YES, puwede. Whether it is possible for the prosecution not to name everybody was the issue in the case of
PEOPLE vs. DE ASIS

December 7, 1993
HELD: “There is nothing that could prevent the prosecution from presenting witnesses in court not listed in the
information, as it is well settled that the court has the undisputed right to call on a witness whose name does not
appear in the list of the fiscal, unless the omission of said witness is intentional and tainted with bad faith. The
established rule is that the prosecution may call unlisted witnesses to testify.”
“Moreover, the purpose of the listing of the names of the witnesses in the complaint or information is merely to
avoid the presentation of surprise witnesses and to enable the defense to examine their record, morality and
character, but once placed on the witness stand, it can no longer be disputed that the defense has already the
opportunity to examine the character and credibility of the unlisted witness.”
“Finally, it is beyond question, that it is the prosecution's privilege to present such number of witnesses it deems
sufficient. Their non-inclusion in the list of witnesses is of no moment. In fact the omission of their names in the list of
prosecution witnesses in the information is commonly practiced for their own protection at least until the termination of
the case.”
516
(b) The accused must be present at the arraignment and must personally enter his plea. Both
arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the
proceedings.
Q: Now, what happens if a case is tried without arraignment?

A: The GENERAL RULE, that is irregular – the proceedings are tainted with irregularity because arraignment is MANDATORY.
(U.S. vs. Palisoc, 4 Phil. 207). HOWEVER, there was an instance where the SC considered the proceedings as valid where the
lawyer of the accused also did not object the absence of the arraignment. This the case of
PEOPLE vs. CABALE

May 8, 1990
FACTS: Nag pre-trial, walang arraignment. But the parties presented evidence. And when the case was about to
end they noticed, “Teka muna, wala pang arraignment ito, ah? O sige, i-arraign!” So, in other words, the accused was
arraigned when the trial was about to end, or I think already ended.
ISSUE: Is the trial valid?
HELD: What is the purpose of arraignment? – to inform the accused of the nature of the charge against him.
Now, if he does not know, how come he was able to participate in the trial? He was able to cross-examine the
witnesses against him, he was able to present witnesses. So, the defect became a formal defect.
“We find that while the arraignment of the appellant was conducted after the cases had been submitted for
decision, the error is non-prejudicial and has been fully cured when counsel for the appellant entered into trial without
objecting that his client had not yet been arraigned. Said counsel had also the full opportunity of cross-examining the
witnesses for the prosecution. There was, therefore, no violation of the appellant's constitutional right to be informed
of the nature and cause of the accusation against him.”
Now, accused are arraigned sa trial when the case is filed in court and about to be tried. Now, how about preliminary
investigation conducted by the MTC outside chartered cities, should the accused be arraigned by the MTC judge?
Alam mo, I met that kind of situation years ago, in one of the MTCs in the North. There was a preliminary investigation and
then I noticed an arraignment. Actually the case was triable by the RTC. The purpose there (MTC) was only to determine probable
cause. So I asked, “Mayroon bang arraignment ang preliminary investigation?” Sabi nung abogado doon, “Yes, mayroon.” DEAN:
“Wala man sa Rules of Court?” LAWYER: “Iyan man ang ginagawa ng mga judges dito.” In other words, MTC judges conduct
arraignment in preliminary investigation – matter of practice daw – you do not find a provision in the Rules saying yes or no.
However, in 1993, I came across a case where the SC commented on that – the case of
ALISANGCO vs. TABILIRAN, JR.

224 SCRA 1
HELD: There is NO such thing as arraignment in a Preliminary Investigation. “There is no law or rule requiring an
arraignment during the preliminary investigation. Under Section 1, Rule 116 of the Revised Rules of Court, the
arraignment must be conducted by the court having jurisdiction to try the case on its merits.”
Q: Now, is there such a thing as arraignment by proxy?

A: Wala. The accused must be personally present. He must enter his plea.
(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be
entered for him. (1a)
Q: Halimbawa ayaw mag-enter ng plea? COURT: “What do you say—Guilty or Not guilty?” ACCUSED: “No comment. I do not
want to say anything.”
A: Under paragraph [c], a plea of "Not guilty" will be entered, or conditional plea, because a plea must be absolute and
unconditional.
I saw such situations before – Homicide, where the accused was arraigned. Siyempre, “on or about something with the use of
a knife stabbed so and so which caused his death.”:
COURT: “Kasabot ka?”
ACCUSED: “Yes.”
COURT: “What do you say? Guilty or Not guilty?”
ACCUSED: “Guilty – inunahan man niya ako ba.”
According to him, he is guilty. But actually, it is the deceased who tried to kill him first. It is self-defense! so, within the “not
guilty” plea din yan. Pag-guilty, guilty! Hindi puwede iyung guilty pero may condition – so not guilty. Conditional pleas are not
allowed. If you do that, we will enter a plea of not guilty for you.
Now, paragraph [d] of Section 1 is new:
517
(d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered for him. (n)
We will understand this more when we read the case of PEOPLE vs. MENDOZA (231 SCRA 264). For example: You enter a
plea of guilty. But sabi mo, (sometimes this happens eh) “may we be allowed to present evidence to show mitigating
circumstances?” And then the court will allow you. You will present evidence to prove you are entitled to this or that mitigating
circumstance para magbaba ang penalty.
Q: Halimbawa pag-present ng evidence, na prove na wala pala siyang kasalanan?

A: Then, under the rules, the plea of “guilty” is automatically withdrawn, and the court will order the substitution of “not guilty”
because, when you plead guilty, you are not supposed to present evidence to prove your innocence, that is being inconsistent. But
if you do it, then the court will change it immediately from guilty to not guilty.
Paragraphs [e], [f], and [g] are new:
(e) When the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom the case was raffled within three (3) days from the filing of the
information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle.
The pre-trial conference of his case shall be held within ten (10) days after arraignment. (n)
(f) The private offended party shall be required to appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of
the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty
to a lesser offense which is necessarily included in the offense charged with the conformity of the trial
prosecutor alone. (cir. 1-89)
(g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment
shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the
accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes
justifying suspension of the arraignment shall be excluded in computing the period. (sec. 2, cir. 38-98)
Let’s go to paragraph [f], this is one of the important amendments here.
The private offended party is supposed to appear at the arraignment for purposes of plea bargaining. Plea bargaining is
explained in Rule 118 and also here in Section 2. Now, what do you mean by this – Plea Bargaining?
We will connect this right away to Section 2:
SEC. 2. Plea of guilty to a lesser offense – At arraignment, the accused, with the consent of the
offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which
is necessarily included in the offense charged. After arraignment but before trial, the accused may still
be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment
of the complaint or information is necessary. (sec. 4, circ. 38-98)
Plea bargaining – mag-tawaran ba! You are charged with murder, “homicide na lang [pliiiiiss].” Kung homicide, plead ako
“guilty” para at least mababa ang sentensiya.
According to the law if the prosecutor agrees and the offended party or the family of the deceased agrees, puwede. Both of
them must give their consent.
So from Robbery, mahulog sa theft. Qualified theft, maging simple theft. At least mababa di ba? Or, from attempted homicide
to physical injuries na lang. Meaning, tawaran ba! That is allowed under the law provided the condition is, with the consent of the
offended party and the prosecutor.
That is why during the arraignment, according to the previous section paragraph [f], the private offended party shall be required
to appear for purpose of plea-bargaining.
Q: Now suppose the offended party will not appear during the arraignment?
A: According to paragraph [f], “in case of failure of the private offended party to appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of
the trial prosecutor alone”. So, the consent of the prosecutor would be enough.
Sabi ngayon ng private offended party, “But I did not give my consent.” Aba, kasalanan mo yan! You should have appeared
during the arraignment. Wala ka man, so there is a valid plea-bargaining.
Now, I noticed that the 2000 Rules went back to the original provision of the 1964 Rules. Under the 1964 rules, you are
allowed to plead guilty to a lesser offense provided the lesser offense is necessarily included in the offenses charged. Murder to
homicide; Theft is part of Robbery; Qualified theft, simple theft; from serious to less serious physical injuries; that is the condition –
the lesser offense will be included in the offense charged.
518
But when the Rules were amended in 1985, naiba – it became a very controversial provision because the 1985 Rules said
that, “You are allowed to plead guilty to a lesser offense, even if not included in the offense charged”. That’s why it created a lot of
problems. Halimbawa, I am accusing you of serious physical injuries, you will plead guilty to slander, there is no connection. But
the language of the 1985 Rules as written, puwede.
Now, the SC went back to the original provision “which is necessarily included in the offense charged.”
After arraignment but before trial, the accused may still allowed to plead guilty to said lesser offense after withdrawing his plea
of not guilty. After you are arraigned you can still change your mind for as along as the prosecution has not yet commenced the
presentation of evidence. And there is no need of amending the complaint or information, automatic na yan, less paperworks for
the prosecutor.
Now, let’s look at some interesting cases decided by the Supreme Court. These cases were decided before the amendment
but we can see the philosophy is still there.
AMATAN vs. JUDGE AUJERO

[Adm. Matter No. RTJ-93-956] September 27, 1995
FACTS: The accused was charged with homicide. So obviously, he killed somebody. During the plea bargaining,
sabi ng accused, “We would like to plead guilty to the lesser offense of attempted homicide (2 degrees lower).” The
prosecutor and the widow agreed. So the court rendered a decision on attempted. Nagalit ang pamilya ng namatay –
ang brother, “anong klase ito?!” The brother of the deceased brought a letter to Chief Justice Narvasa at that time,
questioning the judge, “Pwede ba yan?”
Of course, according to Judge Aujero, “Teka muna, under the new Rules (citing the 1985 Rules) you can plead
guilty to a lesser offense whether or not included in the offense charged, and even you, you have to consider that
attempted homicide is related to homicide kaya lang two degrees lower. The law is very clear.”
Ano sabi ng Supreme Court? The Supreme Court gave a lecture.
HELD: The fact of death of the victim cannot by simple logic and plain common sense be reconciled with the plea
of guilty to the lower offense of attempted homicide. (imagine, namatay, ngayon buhay na? how can you reconcile
these two?) The crime of homicide as defined in Article 249 of the Revised Penal Code necessarily produces death;
attempted homicide does not.
However, the law is not entirely bereft of solutions in such cases. In instances where a literal application of a
provision of law would lead to injustice or to a result so directly in opposition with the dictates of logic and everyday
common sense as to be unconscionable, the Civil Code, particularly Article 10, admonishes judges to take principles
of right and justice at heart. (Meaning, when a judge decides, do not look only at the letter of the law, you look at the
logic of your decision, the sense of right and justice.) In case of doubt the intent is to promote right and justice. Fiat
justicia ruat coelum. Stated differently, when a provision of law is silent or ambiguous, judges ought to invoke a
solution responsive to the vehement urge of conscience.
These are fundamental tenets of law. In the case at bench, the fact of the victim's death, a clear negation of
frustrated or attempted homicide, ought to have alerted the judge not only to a possibly inconsistent result but to an
injustice. (In other words, the charge is he died, I will convict him for attempted homicide which assumes he did not
die, how can you reconcile? Dapat pag-isipan mo yan, look at the effects of your decision.) The failure to recognize
such principles so cardinal to our body of laws amounts to ignorance of the law and reflects respondent judge's lack
of prudence, if not competence, in the performance of his duties. While it is true, as respondent judge contends, that
he merely applied the rule to the letter, the palpably incongruous result ought to have been a “red flag” alerting him of
the possibility of injustice. The death of an identified individual, the gravamen of the charge against the defendant in
the criminal case, cannot and should not be ignored in favor of a more expedient plea of either attempted or frustrated
homicide. We have held before that if the law is so elementary, not to know it or to act as if one does not know it,
constitutes gross ignorance of the law. (Where the law is so basic and you do not know it or pretend not to know it,
that is gross ignorance of the law.)
What happens now to Judge Aujero? Sinabon siya ng SC, “Finally, every judge must be the embodiment of
competence, integrity and independence. A judge should not only be aware of the bare outlines of the law but also its
nuances and ramifications, otherwise, he would not be able to come up with decisions which are intrinsically fair.”
(Wala namang malice. Di naman sinadya or bad faith that he was paid to do it, so the SC said,) “Nonetheless, the
case at bench stands unique because of the potently absurd result of respondent's application of the law.”
I think he was just censured or fined a minimal amount. Di naman sinadya, kaya lang pangit ba. Iyan ang sinasabi ko, how do
you get quality judges? That is the big problem – yung malawak ang pag-iisip. Yaan!
PEOPLE vs. VILLARAMA, JR.

210 SCRA 226
FACTS: The accused is charged with, let’s say, murder. Then the case was tried and the prosecution rested.
Afterwards, the accused argued, “You have not proved any qualifying circumstance, so I will not present any evidence
anymore. I will just plead to a lesser offense of Homicide.”
ISSUE: Can plea bargaining still be entertained at that stage? Because normally plea-bargaining is done before
the trial. Is that allowed?
519
HELD: YES. There is nothing wrong with that, provided the prosecution does not have sufficient evidence to
establish the guilt of the accused for the crime charged. The only basis for allowing a plea of guilty to a lesser offense
is nothing more and nothing less than the evidence already in the record. There is nothing wrong with that procedure.
Take note also that under Section 1 [f], the private offended party should be required to appear in the arraignment precisely
because of a possible plea of guilty to a lesser offense which requires his consent. That is why under the new rule in Section 1 [f], if
he does not appear, the plea-bargaining can proceed and only the consent of the prosecutor is necessary. The consent of the
offended party is no longer required according to the present rules on criminal procedure, i.e. if he does not appear.
Q: What happens if an accused enters a plea of guilty?

A: The GENERAL RULE is that there would be no trial anymore. No more presentation of evidence because the accused has
already admitted the crime.
Q: What is the implication of a plea of guilty?

A: That the accused is admitting the essential elements of the crime as charged in the information, and according to the SC,
including the aggravating circumstances. Especially now, under the new Rules where the prosecution is mandated to allege also
the aggravating circumstances. So, as a general rule, judgment of conviction can proceed immediately.
HOWEVER, according to the SC, even if there is a plea guilty, certain facts alleged in the information are not deemed
admitted. What are those facts that are deemed not admitted? These are:
1.) Facts not alleged in the complaint or information;
2.) Mere conclusions of facts;
3.) The jurisdiction of the court. So even if I plead guilty, I can still question later the jurisdiction of the court;
4.) The sufficiency of the complaint or information is not considered even if there has been a plea of guilty.
Q: So what happens if I plead guilty and it turns out there is no crime?

A: There can be no conviction because the sufficiency of the complaint or information is not admitted by a plea of guilty.
On the other hand, when the accused pleads not guilty, then the issues are joined and the case is ready for trial. That is the
counterpart of an answer in civil procedure because there is no Answer in criminal cases. Your plea is your answer.
As already emphasized in some cases, when you enter a plea of not guilty, you are considered to have waived any previous
defect, like lack of preliminary investigation or validity of arrest. Those things are deemed cured by entering a plea of not guilty.
Now, going back to the GENERAL RULE, when a person pleads guilty, no more trial, he can be convicted, EXCEPT when he
is charged with a capital offense. Let’s read Section 3:
SEC. 3. Plea of guilty to capital offense; reception of evidence. – When the accused pleads guilty to a
capital offense, the court shall conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and
the precise degree of culpability. The accused may present evidence in his behalf. (3a)
Q: So when a person pleads guilty to a capital offense, can the court sentence him to death based on his plea of guilty?
A: NO. The correct procedure is:
1.) The court shall conduct a searching inquiry into the voluntariness and full consequences of his plea. The court must
determine whether he really understood it and its effects;
2.) Even if the accused pleads guilty, the court will still require the prosecution to prove the guilt of the accused. Thus, the
plea of guilty is not accepted anymore in capital offense. That is only corroborative because the prosecution is still
required to present evidence;
3.) The accused may still present evidence in his behalf.
“THE COURT SHALL CONDUCT A SEARCHING INQUIRY INTO THE VOLUNTARINESS AND FULL COMPREHENSION
OF THE CONSEQUENCE OF HIS PLEA”
What do you mean by “the court shall conduct a searching inquiry into the voluntariness and full comprehension of the
consequence of his plea”? Section 3 is actually taken from decided cases, even before the 1987 Constitution. Prior to the 1987
Constitution, there were so many people sentenced to death based only on a plea of guilty. The SC said, di pwede ito. Thus, all
these jurisprudence are culled and embodied in Section 3. Of course it became dormant for a while when the death penalty could
not be imposed. But na naman eh. It’s now back to life [alleluia!] because of the restoration of death penalty.
I remember before, there was even a time before the 1987 Constitution, where:
JUDGE: “Guilty or Not guilty?

ACCUSED: “Guilty.”
JUDGE: “Do you understand what you are doing by pleading guilty?”
ACCUSED: “Yes.”
JUDGE: “Do you understand by pleading guilty, you are admitting all the elements of the crime as alleged in the
complaint?”
ACCUSED: “Yes.”
520
JUDGE: “And still you are pleading guilty?”
ACCUSED: “Yes.”
Sabi ng SC: Kulang ang mga tanong mo! Why are you asking those questions? What does the layman know about those
elements of the crime? Use simple language para maintindihan niya!
Now, if we follow the jurisprudence after the 1987 Constituition, lalung mahirap! Ito yung mahirap – shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequence of his plea.” That is a very general term and we do not
really know what is really the effect of that or its scope. If we will follow all the guidelines of the SC, it would seem that all judges
will not pass the test of conducting a searching inquiry. There are some tests like the case of
PEOPLE vs. ALBERT

251 SCRA 136
HELD: “The controversy over improvident pleas of guilty dates back to the early years of the American
administration, developed into a furor over the succeeding years, subsided during the martial law regime, and was
sidelined but occasionally invoked when the 1987 Constitution proscribed the imposition of capital punishment. With
the return of the death penalty for heinous crimes, it is high time for the trial courts to review and reflect upon the
jurisprudential and statutory rules which evolved over time in response to the injustice created by improvident pleas
acknowledging guilt, at times belatedly discovered under the judicial rug, if at all.”
“The rationale behind the rule is that courts must proceed with more care where the possible punishment is in its
severest form — death — for the reason that the execution of such a sentence is irrevocable and experience has
shown that innocent persons have at times pleaded guilty. The primordial purpose then is to avoid improvident pleas
of guilt on the part of an accused where grave crimes are involved since he might be admitting his guilt before the
court and thus forfeit his life and liberty without having fully understood the meaning, significance, and consequences
of his plea. Moreover, the requirement of taking further evidence would aid the Supreme Court on appellate review in
determining the propriety or impropriety of the plea.”
PEOPLE vs. ALICANDO

251 SCRA 293
HELD: “To show the voluntariness of the plea of guilt of the accused and that the court’s questions demonstrate
the accused full comprehension of the consequences of his plea, the records must reveal information about the
personality profile of the accused which can serve as a trustworthy index of his capacity to give a free and informed
plea of guilt. The age, socio-economic status and educational background of the accused must be plumbed by the
trial court.”
So, you must get the personality profile of the accused – the age, socio-economic status as well as his educational
background. Now, are the judges doing that? I don’t think so.
PEOPLE vs. ESTOMACA

256 SCRA 421 (1996)
HELD: “Although there is no definite and concrete rule as to how a trial judge may go about the matter of a
proper "searching inquiry," it would be well for the court, for instance, to require the accused to fully narrate the
incident that spawned the charges against him, or by making him reenact the manner in which he perpetrated the
crime, or by causing him to furnish and explain to the court missing details of significance.”
“The trial court should also be convinced that the accused has not been coerced or placed under a state of
duress either by actual threats of physical harm coming from malevolent or avenging quarters and this it can do, such
as by ascertaining from the accused himself the manner in which he was subsequently brought into the custody of the
law; or whether he had the assistance of competent counsel during the custodial and preliminary investigations; and,
ascertaining from him the conditions under which he was detained and interrogated during the aforestated
investigations. Likewise, a series of questions directed at defense counsel as to whether or not said counsel had
conferred with, and completely explained to the accused the meaning of a plea and its consequences, would be a
well-taken step along those lines.”
So, the judge must be very, very patient in conducting a searching inquiry. Kung sundin mo ito, it may take one or two days.
Just take note that we are talking about capital offense.
According to one commentator: Before, the plea of guilty constituted the main evidence of guilt and the evidence
taken during the further inquiry was merely to aid the trial court in exercising its discretion as to whether the lighter or
graver penalty is to be imposed. That is the original principle. But under the new procedure, a plea of guilt is only a
secondary basis, the main proof being that which the court requires the prosecution to establish the guilt of the
accused. The plea of guilty by the accused can only be used as supporting evidence for a finding of culpability. (So,
baliktad ‘no?) In short, once an accused, in a charge of capital offense enters a plea of guilty, a regular trial shall have
to be conducted. Just the same as if no such plea of guilty was not entered. The only effect of a plea of guilty, if ever,
is to serve as an additional mitigating circumstance in case the penalty imposable is less that an indispensable
penalty and if the guilty plea is entered before the prosecution starts to present evidence.
So if we follow that guideline: MURDER, or other heinous crime; “Guilty!” Disregard it! Trial! So, bale wala yung plead of guilty
because you still have to conduct a trial just the same.
521
SEC. 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. – When the accused
pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the
penalty to be imposed. (4)
Q: Can there be reception of evidence if the accused enters a plea of guilty to a non-capital offense?
A: YES. There is no need for the presentation of evidence but if the court wants it, pwede rin, the court can till require it. That is
why reception of evidence is discretionary to determine the penalty to be imposed.
PEOPLE vs. MENDOZA

231 SCRA 264
FACTS: The accused was charged with Robbery before the RTC of Malaybalay, Bukidnon. During the
arraignment, the accused pleaded guilty. Instead of pronouncing judgment, the court conducted trial. The prosecution
failed to present evidence that the accused is guilty of the crime, so Judge Mendoza acquitted the accused. The
prosecution argued that the judge should not have acquitted him because he already pleaded guilty.
ISSUE: Was the acquittal of the accused proper?
HELD: YES. Under the Rules, when the accused pleads guilty to a non-capital offense the court may receive
evidence from the parties to determine the penalty to be imposed. This rule is at most directory.
Was the judge correct? “It will certainly be a clear abuse of discretion on the part of the judge to persist in holding
the accused bound to his admission of guilt and sentencing him accordingly when the totality of the evidence points to
his acquittal. There is no rule which provides that simply because the accused pleaded guilty to the charge that his
conviction automatically follows.”
However, there is something wrong here because the records will show that he pleaded guilty and yet he was
acquitted, so let us harmonize the record. The correct procedure, according to the SC, is for the judge to order the
withdrawal of the plea of guilty and substitute it with a plea of not guilty.
This principle has been embodied in Section 1[d] – “When the accused pleads guilty but presents exculpatory evidence, his
plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (n)”
SEC. 5. Withdrawal of improvident plea of guilty. – At any time before the judgment of conviction
becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by
a plea of not guilty. (5)
Q: Can a plea of guilty be withdrawn?

A: YES.
Q: Suppose there is already a judgment of conviction, can he still withdraw?

A: YES, as long as the judgment of conviction is not yet final.
SEC. 6. Duty of court to inform accused of his right to counsel. – Before arraignment, the court shall
inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is
allowed to defend himself in person or has employed counsel of his choice, the court must assign a
counsel de officio to defend him. (6a)
Section 6 should be read with the ruling of the SC in the leading case of PEOPLE VS HOLGADO (85 Phil. 752). In the said
case, SC enumerated the duties of the court when the accused appears before it without a lawyer. The following are the duties of
the court:
1.) The court must inform the accused that it is his right to have an attorney before being arraigned;
2.) After giving him such information, the court must ask him if he desires the aid of an attorney;
3.) If he desires but is unable to employ an attorney, the court must assign an attorney de oficio to defend him; and
4.) If the accused desires to procure an attorney of his own, the court must grant him a reasonable time therefor.
SEC. 7. Appointment of counsel de oficio. – The court, considering the gravity of the offense and the
difficulty of the questions that may arise, shall appoint as counsel de officio such members of the bar in good
standing who, by reason of their experience and ability, can competently defend the accused. But in localities
where such members of the bar are not available, the court may appoint any person, resident of the province
and of good repute for probity and ability, to defend the accused. (7a)
SEC. 8. Time for counsel de oficio to prepare for arraignment. – Whenever a counsel de oficio is appointed by
the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the
accused as to his plea before proceeding with the arraignment. (8)
SEC. 9. Bill of particulars. – The accused may, before arraignment, move for a bill of particulars to enable
him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or
information and the details desired. (10a)
Section 9 is similar to Rule 12 on bill of particulars. If the complaint is vague and ambiguous, the defendant in a civil case can
more for a bill of particulars. Counterpart, if the allegations in the information are also vague and ambiguous, “I cannot understand
522
it, so I cannot intelligently enter my plea.” The accused, before arraignment, can move for a bill of particulars to enable him to
prepare properly for the trial. Then he must specify the defects. Civil case, pareho.
CINCO vs. SANDIGANBAYAN

202 SCRA 726
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscal’s office when the
case was under preliminary investigation. (In preliminary investigation, you are given the affidavit of the complainant
and his witnesses. And then you are given 10 days to submit your counter-affidavits.) Here, the affidavit is vague
according to the accused, so he is filing a bill of particulars. He wanted to compel the complainant to make his
affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot understand what the complainant is saying in his
affidavit?” The SC said, that is simple! If you cannot understand what the complainant is saying in his affidavit,
chances are, the fiscal also will not understand it. And consequently, he will dismiss the case. Eh di mas maganda!
Wag ka nalang mag-reklamo! [gago!]
SEC. 10. Production or inspection of material evidence in possession of prosecution. – Upon motion of the
accused showing good cause and with notice to the parties, the court, in order to prevent surprise,
suppression, or alteration, may order the prosecution to produce and permit the inspection and copying
or photographing of any written statement given by the complainant and other witnesses in any
investigation of the offense conducted by the prosecution or other investigating officers, as well as any
designated documents, papers, books, accounts, letters, photographs, object, or tangible things not
otherwise privileged, which constitute or contain evidence material to any matter involved in the case
and which are in the possession or under the control of the prosecution, police, or other law
investigating agencies. (11a)
Section 10 deals also with a mode of discovery – production and inspection of material evidence in the possession of the
prosecution. Not only that, the accused can have access to all evidence in the possession not only of the prosecution but including
those in the possession and control of the police and other law investigating agencies. Take note, if we follow the case of LIM VS
FELIX, JR, when the case is filed by the fiscal, meron namang kaunting ebidensya na dun, so that, the judge can review and find
out if there is probable cause, but it is not really all.
Q: So if the accused wants to see other evidence and the fiscal refuses, can the accused file a motion to compel the fiscal to
reveal?
A: YES, because take note of Rule 112, Section 8 [b], the records of the preliminary investigation do not form part of the
records of the case when it reaches the court. That is why your remedy is to have them inspected. Let us good back to Rule 112,
Section 8:
Rule 112, Section 8[b] Record of preliminary investigation. – The record of the preliminary investigation,
whether conducted by a judge or a prosecutor, shall not form part of the record of the case. However, the
court, on its own initiative or on motion of any party, may order the production of the record or any of its part
when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an
evidence in the case by the requesting party.
Another interesting case here on Section 10 is the ruling in
WEBB vs. DE LEON

247 SCRA
FACTS: You know the story of Hubert Webb, the convict in that Vizconde rape-homicide case. Somehow the
defense discovered that there were two (2) affidavits of Jessica Alfaro (the State witness) which were executed before
the NBI. Of course what was presented by the NBI to the DOJ was only one. So, the defense filed a motion to compel
the NBI to produce the other affidavit. This happened when the case was under preliminary investigation.
ISSUE: Can you apply Section 10 when the case is still in the fiscal’s office? Because if you read Section 10, it
applies when the case is already in court. The same with Section 9. Can the mode of discovery under the Rules of
Court in criminal cases apply during the preliminary investigation?
HELD: “The issue is novel in this jurisdiction as it urges an expansive reading of the right of persons under
preliminary investigation. It deserves serious consideration. So, the SC was intrigued: can you invoke the rights of an
accused during the trial when he is still under preliminary investigation?”
“To start with, our rules in criminal procedure does not expressly provide for discovery proceedings during a
preliminary investigation stage of the criminal proceeding. But the SC noted, “This failure to provide discovery
procedure during preliminary investigation does not, however, negate its use by a person under investigation when
indispensable to protect his constitutional fight to life, liberty and property. Preliminary investigation is not too early a
stage to guard against any significant erosion of the constitutional right to due process of a potential accused. that the
finding of a probable cause by itself subjects the suspects life, liberty and property to real risk of loss or diminution.
The fact that the law is silent does not mean that it does not apply. (Meaning, even if it is under preliminary
523
investigation, your liberty is already in danger.) The right to discovery is rooted on the constitutional protection of due
process which we rule to be operational even during the preliminary investigation of potential accused.”
“In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. The rationale is
well put by Justice Brennan in Brady – “society wins not only when the guilty are convicted but when criminal trials are
fair.” Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where
gain by guile is not punished.”
So, the prosecutor should not hide anything because his job is not to convict but to see to it that justice is done. I’ve been
reading lately SC recent decisions along that line na naman, where the SC said that your job Mr. Fiscal is not to convict, but seek
that justice is done. When you have no evidence, do not file. When there is no evidence in court, you move to dismiss the case –
ikaw mismo! Do no insist in trying the case.
And there was one decision where the SC said, “What is the greatest achievement or moment of a prosecutor?” Some may
say when pagna-convict niya ang accused. That is an achievement but is it not the greatest on your part. The greatest achievement
on you part is when you ask the court to dismiss the case because there is no evidence to convict the accused. That is the greatest
achievement because that is your job – to see to it that justice is done.
SEC. 11. Suspension of arraignment. – Upon motion by the proper party, the arraignment shall be
suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which effectively renders
him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the
court shall order his mental examination and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of
Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the reviewing office. (12a)
What are the grounds for suspending an arraignment? There are three and let’s go over them one by one.
(a) The accused appears to be suffering from an unsound mental condition which effectively renders
him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the
court shall order his mental examination and, if necessary, his confinement for such purpose;
When the accused is in an unstable condition, you cannot properly, intelligently inform him of the nature of the charge. So
example: Buang, unstable condition, Let us suspend the arraignment. Let us wait for his recovery and as long as he is not yet
recovered, the arraignment is suspended indefinitely. For as long as he has not recovered, the arraignment remains suspended.
BAR QUESTION : What are the legal effects of insanity or unsound mental condition of the accused?
A: It DEPENDS as to when was he insane –
1. Suppose he was insane at the time he committed the crime but now he is OK, then that is not a ground for the
suspension of the arraignment, not even a ground for a motion to quash unless the information admits that he is
insane when he committed the crime in which case you can move to quash under Rule 117, Section 3 [h] – that the
information contains averments which in truth would constitute a legal excuse or justification.
But there is no prosecutor crazy enough to file an information admitting that the accused was insane when he
committed the crime. That is tantamount to admitting that he is exempt from liability. It is the defense who will prove
insanity. So what is the effect? You enter your plea of not guilty and let’s go to trial and I will prove insanity as my
defense.
2. Suppose he became insane when the case is set for arraignment but he was normal when he committed the crime?
Then we apply Rule 116, Section 11 – you move for the suspension of the arraignment.
3. Suppose he became insane after the arraignment? You move to postpone the trial because he cannot adequately
defend himself if he is crazy. The trial should be suspended.
4. Suppose he became insane when he is already convicted and serving sentence? Let us go back to the Penal Code,
Article 86 – it is a ground for a motion for the suspension of the execution of the sentence.
Second ground:
(b) There exists a prejudicial question;
When there is a prejudicial question. Just connect this with Rule 111, Section 6 – what do you mean by a prejudicial question,
the elements, when do you raise them. When the case is in court, suspend the trial, suspend the arraignment, lets wait for the civil
case to be decided.
The third ground is new:
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of
Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the reviewing office.
524
Based on existing jurisprudence, when the prosecutor says “File the case,” technically, the accused can appeal that although
generally that is not appealable because of the MOGUL doctrine. As a general rule, the DOJ should no longer entertain an appeal
from the resolution of the fiscal stating that the case should be filed because the court may not follow the DOJ. That is what
happened in the case of Mogul. Sabi ng DOJ, ”no probable cause, Fiscal, you dismiss” Sabi ng court, “No, Fiscal, you continue!”
The problem is when the case reaches the court, in most cases, the lawyer of the accused will move for the suspension of the
arraignment because he will say, “I have a pending petition for review of the resolution in the DOJ.” According to the circular of the
DOJ, the petition for review can only be entertained if the accuse has not been arraigned, kung na-arraign na, wala na. But
normally courts will honor that. That court will say, “alright, let us suspend and wait for the resolution of the DOJ.” That is why it is
a ground for suspension.
The trouble is this: how long does it take for the DOJ to resolve it? If they can resolve it within 2 or 3 years, you are lucky, the
case cannot go on because the DOJ is not done yet. This has been the cause of delays. That’s why the new rules says, “provided,
the suspension will not exceed 60 days counted from the filing of the petition with the reviewing office.” This is tantamount to the SC
indirectly telling the DOJ or the reviewing office (Provincial State Prosecutor) na “bilisan ninyo”. If the petition is not acted within that
period, let’s proceed with the arraignment, “bahala na kayo dyan!”
At least there is now a deadline. And that is good. I really like this amendment. It is the accused who filed the petition for
review who is under pressure – to pressure the DOJ to resolve because the suspension is only good for 60 days. Unlike before
where the pressure is in the offended party because the case cannot run while the petition for review is pending. Now, I do not
know whether the DOJ right now, can do in 60 days what they have been failed to do for years.
Late one night, Jack took a short cut through a graveyard. Hearing a tapping sound, he felt a little scared, but kept
going. As the tapping grew louder, he became more frightened. Finally, he found a man chiseling at a gravestone.
“Thank goodness,” Jack said to the man with relief. “You gave me quite a fright. What are you doing?”
“They spelt my name wrong,” replied the man.
Source: Reader’s Digest, January 2001
“Man has not invented a reliable compass by which to steer a marriage in its journey over troubled waters. Laws
are seemingly inadequate. Over time, much reliance has been placed in the works of the unseen hand of Him who
created all things.
“Who is to blame when a marriage fails?
“Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in
marriage is to say “I could not have cared less.” This is so because an ungiven self is an unfulfilled self. The egoist has
nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual
intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation
and ensures the continuation of family relations.”
– Justice Torres, Jr. on the issue of psychological incapacity
CHI MING TSOI vs. COURT OF APPEALS

G.R. No. 119190, January 16, 1997
Rule 117
MOTION TO QUASH
SECTION 1. Time to move to quash. – At any time before entering his plea, the accused may move to
quash the complaint or information. (1)
SEC. 2. Form and contents. – The motion to quash shall be in writing, signed by the accused or his
counsel and shall distinctly specify its factual and legal grounds. The court shall consider no ground other
than those stated in the motion, except lack of jurisdiction over the offense charged. (2a)
In civil cases, within the time for but before filing the answer to the complaint, the defendant may move to dismiss the case on
certain specified grounds under Rule 16. In criminal procedure naman, at anytime before entering the plea, the accused may move
to quash the complaint or information.
Take note that under Section 2, the motion to quash partakes the nature of an omnibus motion because the court will consider
no ground other than those stated in the motion. The court will not quash a complaint or information on a ground that you did not
cite. This is because you can waive this right.
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The only ground the court will consider moto propio, is lack of jurisdiction over the offense charged, even if not raised in the
motion to quash. The theory is that: “No amount of silence on the party of the accused will grant the court jurisdiction over the
subject matter of the case.” Jurisdiction over the subject matter is conferred by law.
Q: What are the grounds for a motion to quash?

A: Section 3:
SEC. 3. Grounds. The accused may move to quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent. (3a)
1ST GROUND: (A) THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE;
The counter part of this in civil cases is, that the pleading asserting the claim states no cause of action.
Q: How do we know the complaint or information do not constitute an offense?

A: You look at the allegations in the complaint. If the facts alleged do not constitute any crime, then the information should be
quashed. This was emphasized in the case of
LOPEZ vs. SANDIGANBAYAN

October 13, 1995
HELD: “As a general proposition, a motion to quash on the ground that the allegations of the information do not
constitute the offense charged, or any offense for that matter should be resolved on the basis alone of said allegations
whose truth and veracity are hypothetically admitted. However, additional facts not alleged in the information,
admitted or not denied by the prosecution may be invoked in support of the motion to quash.”
2ND GROUND: (B) THAT THE COURT TRYING THE CASE HAS NO JURISDICTION OVER THE OFFENSE CHARGED;
3RD GROUND: (C) THAT THE COURT TRYING THE CASE HAS NO JURISDICTION OVER THE PERSON OF THE
ACCUSED;
Instances when the court has no jurisdiction:

1.) the court has no jurisdiction to try the case because of the penalty;
2.) the court has no jurisdiction to try the offense because it is committed in another place – territorial jurisdiction; or
3.) the court has no jurisdiction over the person of the accused because the latter has never been arrested and never
surrendered himself.
4TH GROUND: (D) THAT THE OFFICER WHO FILED THE INFORMATION HAD NO AUTHORITY TO DO SO;
Q: Who has the authority to file the case?

A: Prosecutor.
So if it was the clerk who signed for the city prosecutor (e.g. By: Kent Clark – clerk typist), the accused can move to quash
because the clerk is not authorized. Remember, if the fiscal filed an information without the previous complaint signed by the victim
or by the parents, the same can be quashed.
CUDIA vs. COURT OF APPEALS

January 16, 1998
HELD: “An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by
silence, acquiescence, or even by express consent.”
5TH GROUND: (E) THAT IT DOES NOT CONFORM SUBSTANTIALLY

TO THE PRESCRIBED FORM;
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You know very well the form of complaint or information. You go back to Rule 110 – you state the time, the place, etc. then in
Rule 112 a certification is required. The fiscal will certify that I have conducted the preliminary investigation, etc. that is the form.
The fiscal will certify that the other party has given the chance to be heard. If the same was not afforded the accused, he can move
to dismiss the case.
Q: Now, what is your ground to quash?

A: You say, “It does not comply with the prescribed form” because the correct form requires certification. It is a ground for a
motion to quash.
6TH GROUND: (F) THAT MORE THAN ONE OFFENSE IS CHARGED EXCEPT WHEN A SINGLE PUNISHMENT FOR
VARIOUS OFFENSES IS PRESCRIBED BY LAW;
This refers to a duplicitous complaint or information – when it charges more than one offense under Rule 110, Section 13. It is
not allowed. However under Rule 120, Section 3 it is waivable. If the accused fails to object to it before trial, the court may convict
him of as many offenses as are charged and proved, and impose on him the penalty for each offense,
7TH GROUND: (G) THAT THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED
Q: How is criminal liability extinguished?

A: Under Article 89 of the RPC:
1.) by death of the convict;
2.) by service of sentence;
3.) by amnesty;
4.) by absolute pardon;
5.) by prescription of the crime;
6.) by prescription of the penalty;
EXAMPLE: The information should be filed only within 5 years but the charge was filed on the 7th year. So you can move to
quash because the liability has already been extinguished by prescription.
8TH GROUND: (H) THAT IT CONTAINS AVERMENTS WHICH, IF TRUE, WOULD

CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION
The complaint or information contains averments which if true would show that you are NOT liable.
SITUATION: The information says that there is a case of homicide because in such certain date Rose stabbed Rucel because
Rucel tried to stab Rose first. The information is admitting that Rose acted in self-defense. Prosecutor himself admits that Rose
acted in self-defense. Therefore, the information admits the existence of a justifying circumstance.
SITUATION: You are charged for committing a crime and when you committed it, you are out of your mind. Thus, it admits
insanity. So you can move to quash on the ground that the information admits that you are insane.
That is what is meant by a complaint or information which contains averments which if true, constitute a legal excuse or
justification. Of course this is very rare ‘noh? Why will the fiscal allege in the information something that is favorable to you? This is
very queer.
One of the most interesting case here is the 1994 case of
DANGUILAN-VITUG vs. COURT OF APPEALS

232 SCRA 460 [1994]
FACTS: Danguilan was a columnist in a newspaper and was charged for libel for writing in a column something
which is discriminating. According to her the information should be quashed because it was a privileged
communication.
HELD: NO, it cannot be quashed because of “paragraph [g] of Section 3 Rule 117 which states that the accused
may move to quash the complaint or information where it contains averments which, if true, would constitute a legal
excuse or justification. Hence, for the alleged privilege to be a ground for quashing the information, the same should
have been averred in the information itself.” Meaning, the information should admit that it is privileged in nature. If it is
not stated there, then it is not admitted.
“The privilege should be absolute, not only qualified. Where, however, these circumstances are not alleged in
the information, quashal is not proper as they should be raised and proved as defenses. With more reason is it true in
the case of merely qualifiedly privileged communications because such cases remain actionable since the defamatory
communication is simply presumed to be not malicious, thereby relieving the defendant of the burden of proving good
intention and justifiable motive. The burden is on the prosecution to prove malice. Thus, even if the qualifiedly
privileged nature of the communication is alleged in the information, it cannot be quashed especially where
prosecution opposes the same so as not to deprive the latter of its day in court, but prosecution can only prove its
case after trial on the merits.”
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9TH GROUND: (I) THAT THE ACCUSED HAS BEEN PREVIOUSLY CONVICTED OR ACQUITTED OF THE OFFENSE
CHARGED, OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESS
CONSENT.
This is known as the defense against double jeopardy. The double jeopardy as a ground for a motion to quash is the most
complicated ground. That is why it is thoroughly discussed in Section 7. We will go now to Section 4.
SEC. 4. Amendment of complaint or information. – If the motion to quash is based on an alleged defect
of the complaint or information which can be cured by amendment, the court shall order that an
amendment be made. (4a)
If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if
the prosecution fails to make the amendment, or the complaint or information still suffers from the same
defect despite the amendment. (n)
Actually, some of the grounds of a motion to quash are harmless, they are not fatal. They can be cured by amendments.
The second paragraph of Section 4 is new. It was merely inserted to complement the first paragraph.
EXAMPLE: Motion to quash that the information does not comply with the prescribed form because taking of oath was
forgotten. I do not think the court will order for the dismissal of the criminal case because of that. It will instead issue an order
directing the fiscal to amend, “Take the oath, so it will be cured.” This is a ground for quashal which is not a serious defect but only
a formal defect. Thus, instead of quashing the information the court may extend the right to the fiscal to amend the complaint or
information since the name is curable.
However under the second paragraph, despite the lapse of so many days, the prosecutor did not file the amended information
or even if he filed the corrected information, pero ganun pa rin, the defect is still there, I will rather move to quash the information.
We will take up Section 5 together with Section 6.
SEC. 5. Effect of sustaining the motion to quash. – If the motion to quash is sustained, the court may
order that another complaint or information be filed except as provided in section 6 of this rule. If the
order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is
made or if having been made, no new information is filed within the time specified in the order or within
such further time as the court may allow for good cause, the accused, if in custody, shall be discharged
unless he is also in custody of another charge. (5a)
SEC. 6. Order sustaining the motion to quash not a bar to another prosecution; exception. – An order
sustaining the motion to quash is not a bar to another prosecution for the same offense unless the
motion was based on the grounds specified in section 3 (g) and (i) of this Rule. (6a)
SITUATION: An information is filed against you and it is not in the prescribed form.
Q: What would the court do?

A: Based on Section 4, the court will, instead of quashing , allow the fiscal to amend. And your motion is already moot and
academic. But suppose the court will quash the information because it was filed by somebody who was not authorized to file and
the motion to quash is sustained, it does not mean to say that the case cannot be re-filed since the defects are incurable.
SITUATION: The case of homicide is filed in the MTC when actually it should be filed in the RTC. Since the MTC has no
jurisdiction, you file a motion to quash. And the judge shall quash it.
Q: What would the fiscal do?

A: Tomorrow he will re-file it. So when the case is dismissed on such a ground – lack of jurisdiction or it does not conform with
the prescribed form – the rule is it is not a bar to re-file the case. It can be filed again.
EXCEPT when the ground for dismissal is falling under paragraphs [g] and [i] of Section 3, Rule 117.
Q: What is paragraph [g]?

A: “That the criminal action or liability has been extinguished.” If the case is quashed on this ground, that is the end since the
same is extinguished already. You cannot re-file it anymore.
Q: What is paragraph [i]?

A: “that the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed
or otherwise terminated without his express consent.” So you cannot re-file the information because of double jeopardy.
As a general rule, all other grounds for motion to quash even if granted will not really be a total victory for the accused. That is
why some lawyers will never bother to file a motion to quash anymore. This is because once you file it, the same case would be re-
filed. As a matter of fact, there are cases when it is not advisable to file a motion to quash unless there is a serious reason. It is a
matter of judgment. If you think it will not benefit you client, then do not file it. Like in preliminary investigation some lawyers will not
submit to criminal investigation most especially if they believe the fiscal will file because of probable cause. Better if I will not file so
that you will not know who are my witnesses or statements.
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As a matter of fact that happened already. There was a case wherein the information stated that the accused issued five (5)
checks, with different dates, all are post-dated. All five checks bounced. So, a complaint against the accused was filed before the
fiscal. What the fiscal did was to file one case for estafa reciting there that the accused issued five checks of five different dates
with different maturities, and all bounced.
So it turned out that the information is duplicitous because every check should have been one case. You know what the lawyer
for the accused did? He file a motion to quash stating that the information charges more than one case of estafa. The lawyer was
correct, so the dismissed the information. The following day, the fiscal filed 5 informations. One case for every check. In effect there
are five warrants of arrest already. Then the accused asked his lawyer, “Atty, what happened? Before I have only one case. Now,
there are already five!”
Q: If you are the lawyer, how will you explain that?

A: Actually, legally you are correct. An information should charge only once crime. But since t charges five crimes so you move
to quash which is a valid ground. But look at the effect – the accused now has five warrants. Can you say, it is because of a
duplicitous information? He cannot understand that.
That is why there is difference in just knowing the law from knowing how to apply the law. You should know the law and you
should know how to use it. If it is not in you interest, do not use it. Why move to quash when by doing so would worsen your
situation. Of course, there are also instances where there is a need to object by virtue of a duplicitous information.
Q: When do you apply it?

A: That is for the lawyer to judge. Will you use it or not? In other words, there is a need for you to have a clear picture of the
situation. You must not only know the Rules of Court but also when the law must be used. An example is a motion to quash. How
to apply it.
However, when a case is quashed on the ground that the criminal liability has been extinguished or the accused is placed in
double jeopardy, once it is quashed, that is the end. It cannot be re-filed.
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former complaint or
information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information under any of the
following instances:
(a) the graver offense developed due to supervening facts arising from the same act or omission
constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea was
entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the
offended party except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment,
he shall be credited with the same in the event of conviction for the graver offense. (7a)
One important ground for a motion to quash is Section 7 on double jeopardy which is also found in the Constitution – Section
21, Article 3 on the Bill of Rights.
Q: Define jeopardy?
A: Jeopardy is the peril in which a person is put when he is regularly charged with a crime before a tribunal properly organized
and competent to try him. (Commonwealth vs. Fitzpatrick, 1 LRA 451)
Meaning, if a case is filed against you before a court which is competent to try you, then from that moment, there is a risk,
danger or peril. Everytime there is peril, there is jeopardy. And after what happened to you, whether you are acquitted or convicted
or the case was dismissed without your consent, later on ibalik ka naman in the second time around, ah hindi puwede yan. It is
inhuman to put you in jeopardy twice.
Let’s go to the Constitution. Under Article 3, Section 21, there are two (2) sentences:
1.) “No person shall be twice put in jeopardy of punishment for the same offense.” and
2.) “If an act is punished by a law or ordinance, conviction or acquittal in either shall constitute a bar to another
prosecution for the same act.”
The first sentence is what you call protection against double jeopardy of punishment for the same offense. The second
sentence is what you call the protection against double jeopardy for the punishment of the same act. So there is double jeopardy
for the same offense and double jeopardy for the same act. The second sentence is not the same offense, but it is the same act.
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The second sentence says that the act is punished by a law passed by Congress and it iis also punished for example, by an
ordinance passed by the City or Municipal Council. So it is a crime under the municipal or city ordinance and also under the
national law. It is not the same crime because it is punished by two laws, so there must be two crimes.
However the sentence says, that if you are acquitted or prosecuted under the national law, you cannot anymore be acquitted
or convicted under the city or municipal ordinance all over again or vice-versa. You are protected for the same act not for the same
offense.
Now, the best illustrative case comparing the first and the second sentences is the 1987 case of PEOPLE vs. RELOBA, infra
where Justice Feliciano traced the history of double jeopardy staring from the 1935 Constitution.
PEOPLE vs. RELOVA

148 SCRA 292
FACTS: The accused installed an electrical connection without permit. He was charged with theft under the RPC
– theft of electricity. And it so happened that in that place, there was an ordinance passed by the municipal council
making it a crime for you to make an electrical connection without permit.
So he was charged both for violation of the RPC and the municipal ordinance. The accused filed a motion to
quash the second information, stating that he has already been charged for theft of electricity. The prosecution
contended that the first charge was theft under the RPC and the prosecution is charging him not for theft but for illegal
electrical connection under the municipal ordinance.
ISSUE #1: What is the reason why there are 2 rules in the provision on double jeopardy?
HELD: “If the second sentence of the double jeopardy provision had not been written into the Constitution,
conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same
act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense
under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-
making authorities — though one be subordinate to the other — and the plea of double jeopardy would never be. The
discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely
for the purpose of extending the constitutional protection against double jeopardy to a situation which would not
otherwise be covered by the first sentence.”
ISSUE #2: Was there double jeopardy?

HELD: The purpose of installing illegal connection is to steal electricity, which is also theft. In other words, it is
the same act of installing which is punishable. Since you are acquitted or convicted under the national law, you cannot
be prosecuted under a municipal law. You are protected by the second sentence of double jeopardy in the
Constitution: “If an act is punished by a law or ordinance, conviction or acquittal in either shall constitute a bar to
another prosecution for the same act.”
However, Section 7 is not concerned with the second sentence but with the first sentence – the protection against double
jeopardy from being punished for the same offense. This is similar to res adjudicata. The SC explained the rational behind the
double jeopardy rule in the case of
MALLARI vs. PEOPLE

168 SCRA 422
HELD: “The rule against double jeopardy protects the accused not against the peril of second punishment but
against being tried for the same offense. Without the safeguard this rule establishes in favor of the accused, his
fortune, safety and peace of mind would be entirely at the mercy of the complaining witness who might repeat his
accusation as often as it is dismissed by the court and whenever he might see fit, subject to no other limitation or
restriction than his will and pleasure. The accused would never be free from the cruel and constant menace of a never
ending charge, which the malice of a complaining witness might hold indefinitely suspended over his head.”
Let’s go to the double jeopardy rule.
Q: Bar Question: What are the requisites of double jeopardy?

A: The SC tried to compressed that 2 paragraphs (of Section 7) in only 3 sentences in the case of
PEOPLE vs. BOCAR (138 SCRA 166) reiterated in

PANGAN vs. PEOPLE (155 SCRA 45)
HELD: To raise the defense of double jeopardy, three (3) requisites must be present:
1.) The first jeopardy must have been attached prior to the second;
2.) The first jeopardy must be validly terminated; and
3.) The second jeopardy must be for the same offense as that of the first.
Well, this is my advice, for purposes of answering the question on double jeopardy and in order to understand completely the
double jeopardy rule, let us analyze Section 7 by dividing it into three (3) parts:
A.) WHAT ARE THE REQUISITES OF DOUBLE JEOPARDY IN ORDER TO ATTACH?
B.) IN WHAT INSTANCES MAY THE ACCUSED INVOKE THE PROTECTION OF DOUBLE JEOPARDY? and
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C.) ASSUMING THAT ALL THE REQUISITES OF DOUBLE JEOPARDY, THE ACCUSED IS PROTECTED AGAINST FROM
WHAT OFFENSE?
In effect, Section 7 talks of those three. Let’s start with the first one:
A.) WHAT ARE THE REQUISITES OF DOUBLE JEOPARDY IN ORDER TO ATTACH?
Q: When does the first jeopardy attach?

A: It attaches when the following requisites are present:
1. The former complaint or information is valid;
2. It was filed in a court of competent jurisdiction;
3. The accused had been arraigned under said complaint or information; and
4. The accused had pleaded to the same.
THE FORMER COMPLAINT OR INFORMATION IS VALID
Q: When is a complaint or information valid within the meaning of the double jeopardy rule?
A: The requisites are:
1. if it charges an offense; (People vs. Austria, 94 Phil. 897)
2. if it is filed by a person or officer legally authorized to do so. (People vs. Kho, 97 Phil. 825)
CASE: An information was filed against Mr. Acelar for theft. Mr. Acelar moved to quash on the ground that the information does
not charge any offense. The court agreed and the information was quashed. So, the fiscal corrected the information and re-filed it.
Mr. Acelar moved to quash on the ground of double jeopardy. Is there double jeopardy?
A: There is no double jeopardy for the following reasons:
1. The dismissal of the first information was on motion of the accused. Therefore, it was a dismissal with his express
consent. Diyan palang, tumba ka na!
2. The accused moved to quash the first information on the ground that it did not charge an offense. Therefore, it was
not a valid information. So, the accused was never in jeopardy. (People vs. Reyes, 98 Phil. 646)
IT IS FILED IN A COURT OF COMPETENT JURISDICTION
CASE: A case of homicide is filed in the MTC; that will be dismissed in MTC for lack of jurisdiction. But that can be cured if the
fiscal will file the information of homicide in the RTC. Is there double jeopardy?
A: None. The accused was never in jeopardy because the first information was filed before the wrong court. There was no
danger of being convicted based on the case filed. (People vs. Salico, 84 Phil. 722)
B.) ASSUMING THAT THE REQUISITES OF DOUBLE JEOPARDY ARE PRESENT, IN WHAT INSTANCES MAY THE
ACCUSED INVOKE THE PROTECTION OF DOUBLE JEOPARDY?
Q: In what instances may the accused invoke the protection of double jeopardy?
A: In the following:
1.) when the accused had been previously convicted;
2.) when the accused had been previously acquitted; and
3.) when the case against the accused had been dismissed or otherwise terminated without his express consent.
Let’s go to a decided case: The fiscal filed a case against you for homicide alleging that on a certain day you killed Juan dela
Cruz. While the case is pending, the fiscal filed a second information for the same homicide committed on the same day by the
same accused. So you are now facing two charges for the same homicide. Can you move to quash the second information on the
ground of double jeopardy?
In so many cases, like in the case of Buscayno vs. Milatary Commission, the SC said NO, because you have not been
acquitted or convicted. The first case was not validly terminated kay pending pa man. In civil case, that is litis pendencia. Now, if
the case is already decided, convicted or acquitted, or dismissal without his express consent, then there can now be double
jeopardy. In civil case that is res adjudicata.
However in the case of People vs. City Court of Manila (121 SCRA 627), the SC made a pronouncement that mere pendency
of a criminal case against the accused can be invoke as a ground for double jeopardy.
So, which is which? The issue has been resolved in the 1993 case of
PEOPLE vs. PINEDA

219 SCRA 1
HELD: “The mere filing of two (2) informations charging the same offense is not an appropriate basis for the
invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or
termination of the case without the consent of the accused.”
“The ambiguity stirred by the imprecise observation in People vs. City Court of Manila, a 1983 case, can now he
considered modified in that a prior conviction, or acquittal, or termination of the case without the express
acquiescence of the accused is still required before the first jeopardy can be pleaded to abate a second prosecution.”
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Now, the law says that you have been convicted or acquitted, or a case against you have been dismissed without you express
consent. That is what you mean by “the first jeopardy has already been terminated.” But take note that this is not a key for the
prosecutors to file several the same cases against the accused. The law only provides that you cannot raise the defense of double
jeopardy in this situation. But you can question the acts of the prosecution to his superior or you may file an injunction case citing
the case of Brocka vs. Enrile. But definitely you cannot use double jeopardy as defense.
Q: What is the difference between acquittal and dismissal of the case?

A: Generally, dismissal is not on the merits. But there are dismissals which are classified as acquittal, like demurrer to
evidence, or dismissal because of the violation of the right of the accused to speedy trial.
In the same manner, for double jeopardy to attach, the law says, the case must have been dismissed without your express
consent. So, as a general rule, when the accused himself files a motion to dismiss, he cannot invoke double jeopardy because he
himself intended the dismissal of his case; it is with his express consent.
DISMISSAL WITHOUT THE EXPRESS CONSENT OF THE ACCUSED
We will explore the first issue: Whether or not the dismissal is with the express consent of the accused. One of the interesting
cases interpreting the meaning of the phrase is the 1993 case of
PEOPLE vs. VERGARA

221 SCRA 960
FACTS: Vergara was accused of frustrated murder for allegedly conspiring with some people. While the case is
pending, the accused asked the provincial prosecutor for a reinvestigation of the case. The request was granted.
After reinvestigation, the prosecutor made a finding that there was no crime because the accused acted in self-
defense. Therefore, the prosecutor moved for the dismissal of the case in court. The trial court granted the motion
for dismissal of the case for frustrated murder.
However, when the fiscal made a finding that there was no probable cause, in the meantime naman, the
complainant appealed such finding to the Secretary of Justice. The recommendation of the prosecutor was
disapproved. Sabi ng DOJ, “No, there is a case here. Provincial prosecutor, i-re-file mo.” So, there was another
information for frustrated murder filed against the same accused. This time, the accused pleaded Double Jeopardy.
Bakit? According to the accused:
ACCUSED: “The cases were dismissed upon motion of the prosecutor; I was not the one who filed the
motion. So, when the case was dismissed, it was dismissed without my express consent.”
COMPLAINANT: “No, why did you ask for reinvestigation? Di ba, the purpose is that it will lead to the
dismissal of the case? So, when you filed a motion for reinvestigation, in effect, you are seeking a dismissal
with your express consent.”
ACCUSED: “No! Express consent is different from intention. When I filed a motion for reinvestigation,
my intention was to let the case be dismissed, but I did not give my express consent. While I may have
intended to let the case be dismissed upon moving for reinvestigation, I never give my express consent for
the dismissal of the case. It was the prosecutor himself who did it.”
ISSUE: Is there double jeopardy?
HELD: YES, there is double jeopardy. When you say express consent, the consent must be categorical, clear.
You cannot infer that by simply asking for reinvestigation. You cannot infer that there is express consent; that is not
within the concept.
“Express consent has been defined as that which is directly given either viva voce or in writing. It is a positive,
direct, unequivocal consent requiring no inference or implication to supply its meaning. This is hardly what the
accused gave. What they did was merely to move for reinvestigation of the case before the prosecutor. To equate this
with express consent of the accused to the dismissal of the case in the lower court is to strain the meaning of ‘express
consent’ too far. Simply, there was no express consent of the accused when the prosecutor moved for the dismissal
of the original Informations.”
There was a second issue in the case of VERGARA based on the rule on motion. In general, when you file a motion, you must
furnish a copy of the motion to the adverse party because, generally, motions cannot be filed ex-parte unless the motion is non-
controversial. Therefore, when the prosecution filed a motion to dismiss ex-parte [without furnishing the parties a copy of the
motion].
PEOPLE vs. VERGARA, supra
ISSUE: Is there a necessity to furnish the parties a copy of the motion to dismiss?
HELD: NO. It is not necessary. Is there a necessity to furnish the accused a copy of the motion to dismiss? Do
you think the accused will oppose the motion? Of course not because it is favorable to him. Definitely, the accused
will not question the filing of the motion to dismiss the criminal case.
532
As to the complainant, is there a necessity for the prosecutor to furnish a copy of the motion to dismiss the
criminal case to the private offended party? Remember, every criminal case is under the direction and control of the
prosecutor. If we will allow the general rule, if the victim will question the dismissal, he will be having control and no
longer the prosecutor. The prosecutor determines whether there is a case or none. Therefore, there is also no
necessity of furnishing to the private offended party a copy of the motion to dismiss.
What should be the remedy of the private offended party? Because the offended party is aggrieved, imagine
nawala ang kaso niya! The remedy, when the court ordered the dismissal of the case, is to appeal the order of
dismissal because it is also adverse to their claim for civil liability. Instead, they allowed the order of dismissal to
become final and, now, they are arguing that the order of dismissal is void. They should have appealed it.
One last point. According to the law, if a case is dismissed without your express consent, that could be a basis for double
jeopardy. HOWEVER, jurisprudence says, an order dismissing a case will NOT constitute double jeopardy if the order of dismissal
is NULL and VOID. Meaning, an order of dismissal of a case will constitute double jeopardy on the assumption that the order of
dismissal was a valid order of dismissal.
Q: What is the usual reason why an order of dismissal is void?

A: The usual reason is when the prosecution was deprived of due process. That has been exemplified in many cases. One of
the cases is Senator Aquino et al. Na-acquit man yan sila ba. These people were already acquitted by the Sandiganbayan. How
come nabalik ang kaso? On the theory that everything was pre-arranged including the acquittal. The SC said, the acquittal of the
case is null and void because the prosecution was deprived of due process in the sense that no matter what it does, the acquittal of
the accused was already pre-ordained. So there is no double jeopardy.
That has been applied in many cases like in the case of
PEOPLE vs. MOGOL

131 SCRA 296
FACTS: The accused was charged with physical injuries. After trial in the MTC, the court discovered that it
should not have been physical injuries, rather it should have been frustrated murder because there was intent to kill
eh. The MTC dismissed the case of physical injuries and told the fiscal to file information for frustrated murder dahil
mali ang fi-nile mo. The accused claimed that he was charged for the same act. Thus, he moved for the dismissal of
the frustrated murder case.
HELD: NONE. There was no double jeopardy because the order of the trial court dismissing the physical injury
case is wrong. It was a void order because what the judge should have done is to continue trying the case even if
there was an error in the offense charged. So, if the accused would be convicted, it is for physical injuries. In other
words, you cannot order dismissal and then re-file the case for frustrated murder. Because the order dismissal is void,
there is no double jeopardy.
However, there was one dissenting justice in the case of Bogol – former Justice Makasiar. He said that “there is double
jeopardy as the case had already been tried and submitted for decision where the MTC judge ordered the physical injury to be
dismissed and ordered the filing of a new case for frustrated murder in the RTC. Frustrated murder includes physical injuries.
Therefore, dismissal of the latter resulted in double jeopardy.”
If you look at it, talagang tama siya (Makasiar, J.) eh – all the elements are there. But the trouble is, sabi ng SC, the order of
dismissal is void, there was no valid dismissal – ibalik! The charge for physical injury was reinstated.
Another instance, the 1992 case of
GORREON vs. RTC OF CEBU

213 SCRA 138
FACTS: The case was set for pre-trial for 2 days (September 27 and 28). On the first day of the trial, the
offended party was there pero wala ang accused. The court said, “We will have to cancel the hearing for today and
tomorrow on the presumption that maybe they did not receive the notice.” The trouble is the following day, paglabas
ng court calendar, nandoon pa rin ang kaso – it was supposed to be cancelled. This time, ang accused naman ang
sumipot, ang offended party wala. Of course, why would the offended party be there, eh, na-cancel na. Since the
accused was present for trial, but the prosecution was not ready because wala ang testigo niya, the court dismissed
the case for failure of the complainant to appear and to testify. [Well, the court and the prosecution should have
remembered that the hearing is already cancelled.] So, when the complainant learned about it, nagreklamo, “I was
not supposed to be there anymore, na-cancel naman.” They looked at it, nagkamali talaga; everybody realized this
error.
ISSUE: Is there double jeopardy if the action will be filed again?
HELD: NONE. “The erroneous dismissal order was issued capriciously and arbitrarily; it unquestionably deprived
the State of a fair opportunity to present and prove its case. Thus, its right to due process was violated. The said order
533
is null and void and hence, cannot be pleaded to bar a re-opening of the case on the ground of double jeopardy.
Consequently, the first jeopardy was not terminated and no second jeopardy threatened the accused.”
“The Judge, Clerk of Court and the prosecution should shoulder the blame because unless amnesia suddenly
struck all of them simultaneously, it cannot be imagined that in a brief span of about twenty-four (24) hours, they had
all forgotten about the order dictated in open court cancelling the hearing for September 27 and 28, 1990. [The order
of cancellation was given the day before, and the following day nobody remembered about it.] For the prosecutor who
orally moved for such cancellation and the Judge himself who dictated the said order, no plausible explanation may
be offered for such lapse.”
That is a demonstration of the rule that when the order of dismissal is null and void, you cannot plead double jeopardy.
And the last part:
C.) ASSUMING THAT ALL THE REQUISITES OF DOUBLE JEOPARDY, ARE PRESENT, THE ACCUSED IS PROTECTED
AGAINST FROM WHAT OFFENSE?
Assuming the accused has already been convicted, acquitted or the case is dismissed without his express consent, and all the
requisites of double jeopardy are present, the accused cannot be convicted for:
1. for the same offense; or
2. for an attempt to commit the same offense. [If you are convicted or acquitted for a consummated offense, you cannot
be charged or convicted or acquitted for the lesser stage;] or
3. for frustration or attempt thereof; [The acquittal, conviction or dismissal of the consummated crimes carries
automatically the frustrated or attempted stage of the same crime.] or
4. for any other offense which necessarily includes or is necessarily included in the offense charged in the former
complaint.
BEING PROSECUTED FOR THE SAME OFFENSE
What is troublesome here is being prosecuted for the same offense. This has been the subject of so many decided cases,
whether it is the same offense or not.
Q: While in a public place, Maya fired a machine gun, thereby causing panic and physical injuries to certain persons. She was
charged with serious physical injuries through reckless imprudence for firing the gun in public. Subsequently, she was charged with
serious public disturbance in a public place. Is there double jeopardy?
A. NONE. While there was only a single act, two distinct offenses resulted therefrom namely: (1) physical injuries which is a
crime against persons, and (2) public disturbance which is a crime against public peace and order. (People vs. Bacolod, 89 Phil.
621)
Q: Accused was caught fishing with explosives. He was first prosecuted for illegal fishing and subsequently, for illegal
possession of explosives. Is there DOUBLE JEOPARDY?
A: NONE. These are two (2) distinct offenses, the same being punished by two different laws. There is a law for illegal fishing
and another for illegal possession of explosives. (People vs. Tinamisan, L- 4081, January 29, 1952)
Q: A complaint for adultery was filed against Miriam and Cholo covering the period from the year 1946 to March 14, 1947.
Pleading guilty, the two were accordingly sentenced. On September 17, 1948, a second complaint for adultery was filed against
Miriam and Cholo covering the period of March 15, 1947 to the date of the filing of the second complaint. The two moved to quash
the second complaint on the ground of double jeopardy. Is there double jeopardy?
A: NONE. Adultery is a crime of result and not of tendency; it is an instantaneous crime which is consummated at the moment
of the carnal union. Each sexual intercourse constitutes a crime of adultery, so that there may be as many complaints for adultery
as there are adulterous acts committed. It is only one relationship but every carnal act is one crime. (People vs. Zapata, 88 Phil.
688)
Q: An accused stole a revolver, tinago niya. It turned out to be unlicensed. He was first prosecuted for theft of firearm and he
was convicted. He was subsequently prosecuted for illegal possession of firearm. Is there double jeopardy?
A: NONE. The offenses are different. Theft is consummated upon the taking, while illegal possession involves not only the
taking but also the possession and intent to use the firearm. (People vs. Remerata, 98 Phil. 413)
Q: The accused, without a license, drove his jeep recklessly such that it turned turtle resulting into the death of four of its
passengers. Prosecuted for multiple homicide through reckless imprudence; he was convicted. Subsequently, he was prosecuted
for driving without a license under the Land Transportation Law. Is there DOUBLE JEOPARDY?
A: NONE. The two offenses are distinct: one is punished by the Penal Code and the other by special law. (People vs. Guanco,
83 Phil. 639)
Q: The accused married twice and lived with the second woman as husband and wife for quite some time. Prosecuted for
bigamy, he was convicted. Subsequently, he was prosecuted for concubinage. Is there DOUBLE JEOPARDY?
A: NONE. The two offenses are distinct. In bigamy, marriage is an essential element. You can only commit bigamy if you are
married and you marry another. But in concubinage, marriage is not an essential element – mere living together as husband and
wife is sufficient. (People vs. Schneckenburger, 72 Phil. 413) If you are a married man and you live as husband and wife with
another woman, that is concubinage even if you will not marry her.
534
PEREZ vs. COURT OF APPEALS
168 SCRA 236
FACTS: Accused was charged with consented abduction. He was acquitted. The court said that it was qualified
seduction pala, and not consented abduction. So, another complaint for seduction was filed against the accused.
The accused pleaded double jeopardy. Is there double jeopardy?
HELD: NONE. Although they may have arisen from the same set of facts, [and they are both crimes against
chastity] they are not identical offenses as would make applicable the rule on double jeopardy.
There are similar elements between Consented Abduction and Qualified Seduction, namely: (1) that the offended
party is a virgin, and, (2) that she must be over twelve (12) and under eighteen (18) years of age. However, two
elements differentiate the two crimes. Consented Abduction, in addition to the two common elements, requires that:
(1) the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender, and,
(2) the taking away of the offended party must be with lewd designs. On the other hand, an information for Qualified
Seduction also requires that: (1) the crime be committed by abuse of authority, confidence or relationship, and, (2) the
offender has sexual intercourse with the woman [which is not required in abduction].
NIERRA vs. DACUYCUY

181 SCRA 1
FACTS: A check bounced. Two cases were filed: (1) Estafa, under Article 315, RPC, and (2) BP 22. Is there
DOUBLE JEOPARDY?
HELD: NONE. The two crimes are distinct. While, in filing of the two sets of information may refer to identical
acts, the prosecution cannot be limited to one offense because a single criminal act may give rise to a multiplicity of
offenses with different elements. Prosecution for the same act is not prohibited. What is forbidden is prosecution for
the same offense.
However under the Constitution, if the same act is punished by a national law and an ordinance, iba na yan!
Conviction or acquittal in either one will constitute double jeopardy – that is the exception. But, if you are violating two
national laws, e.g. BP 22 and Estafa, then there is no double jeopardy.
Those are examples of NO double jeopardy.
HOWEVER, there are cases where the crimes are not identical but double jeopardy can be applied. The best example is delito
continuado because the SC said the protection against double jeopardy may be extended to a case of a single criminal act impelled
by a single criminal intent, resulting into two or more juridically identical offenses.
Q: Give examples of the rule mentioned above.

A: The following:
1. Mr. Cadungog stole two (2) fighting cocks in the same place. He was prosecuted for stealing one cock. He cannot be
prosecuted anymore for stealing the other cock. Although there are two acts of taking but there is only one criminal
intent – that is where double jeopardy will arise. (People vs. De Leon);
2. A person was charged with illegal importation of blasting caps – a device for preparing explosives – cannot be
subsequently prosecuted for illegal possession of the same, for there can hardly be importation without possession.
(People vs. Elkanish, 90 Phil. 53);
3. A person charged with reckless driving under the LTO Law cannot be subsequently charged with damage to property
through reckless imprudence because reckless driving is the essential element of both offenses. (People vs. Diaz,
94 Phil. 714; People vs. Belga, 100 Phil. 996);
4. A person convicted of illegal possession of opium cannot be subsequently prosecuted for illegal possession of opium
pipe found together with the opium. (U.S. vs. Pho Chi, 20 Phil. 104);
5. Possession of two or more unlicensed firearms in one place constitutes but one offense so that conviction for illegal
possession of one firearm is a bar to a subsequent prosecution for possession of the other or others. (U.S. vs.
Gustilo, 19 Phil. 208)
MALLARI vs. PEOPLE

168 SCRA 422
FACTS: The accused wanted to mortgage two (2) lots to the victims, let us say for P3,000, at P1,500 each. Sabi
ng victim, “Kulang man ang kwarta ko. I will only lend you P1,500, good for one lot lang. You ask my mother-in-law
baka may pera siya.” Meron man din. So hinati – the other lot was mortgaged to the mother-in-law of the victim for
P1,500. It turned out that all those deed of mortgage were falsified. Two cases were filed against the accused
because there were two victims.

535
HELD: YES. There is only one crime committed. There is only one intent to defraud. It is just accidental that the
intended victim only got one-half. There is a similar crime consisting of a series of acts, but all arising from one
criminal resolution.
ENRILE vs. AMIN

September 13, 1990
FACTS: Enrile was charged for rebellion during the coup d’ etat during the time of President Aquino for
conspiring with Honasan. During the highlight of the coup attempt, nandun si Honasan sa birthday party ni Enrile.
While the case for rebellion was pending, another case was file against him under PD No. 1829 for harboring or
concealing fugitives. The prosecution contended that harboring, concealing a fugitive is punishable under a special
law, while rebellion is punishable under the Penal Code.
HELD: The prosecution is wrong. In the light of the absorption doctrine, the prosecution must fail. All crimes
which are mere components of rebellion or are committed in furtherance thereof are absorbed in rebellion. “The
theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special
laws which are perpetrated in furtherance of the political offense.” And yet, the two crimes are punishable by two
different statutes. Technically, they are not the same offense and yet one absorbs the other because when you are in
conspiracy with the rebels, necessarily you harbor each other. You cannot be expected to be a traitor to each other.
So, how can you separate one crime from the others?
Alright. And both of them were among the senators – Honasan and Enrile. Now, we will go to the third senator – Miriam
Santiago.

228 SCRA 214
FACTS: Miriam Santiago was charged criminally with violation of Anti-Graft and Corrupt Practices Act allegedly
committed by her by favoring unqualified aliens when she was still the Immigration Commissioner. Later, the
prosecution sought to change the charge by filing thirty-two (32) amended information since 32 aliens were benefited.
So, 32 cases were filed.
HELD: The prosecution is directed to consolidate the 32 informations into 1 information charging only 1 offense.
“The concept of delito continuado, although an outcrop of the Spanish Penal Code, has been applied to crimes
penalized under special laws citing Article 10 of the RPC. The 32 Amended Informations aver that the offenses were
committed on the same period of time, i.e., on or about October 17, 1988. The strong probability even exists that the
approval of the application for the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as
when the approval was embodied in the same document.”
FOR ANY OTHER OFFENSE WHICH NECESSARILY INCLUDES OR IS NECESSARILY INCLUDED IN THE OFFENSE
CHARGED IN THE FORMER COMPLAINT
Thus, a charge of Murder, double jeopardy for Homicide; a charge for Homicide, double jeopardy for murder. Either one eh,
baliktaran! Basta one offense is included in the other. Robbery includes theft; serious physical injuries includes less serious
physical injuries and slight physical injuries. (People vs. Martinez, 55 Phil. 6; People vs. Belga, 100 Phil. 996) Sama-sama lahat
‘yan. That is covered by the protection against double jeopardy.
Kaya nga in the plea-bargaining, when the accused pleads guilty to a lesser offense included in the crime charged with
consent of the prosecution and the offended party, there is double jeopardy already. You cannot be charged anymore for a lighter
offense. That is covered by double jeopardy rule.
PEOPLE vs. RELOVA, supra
HELD: “The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses
which though different from one another are nonetheless each constituted by a common set or overlapping sets of
technical elements. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the
ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission by
simply adding or subtracting essential elements. Under the theory of appellant the crime of rape may be converted
into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from
remaining a virgin.”
EXCEPTIONS TO THE DOUBLE JEOPARDY RULE
Q: What are the exceptions to the double jeopardy rule?

536
A: There are three (3) exceptions, under Section 7:
1. the graver offense developed due to supervening facts arising from the same act or omission constituting the
former charge; (Section 7 [a])
2. the facts constituting the graver charge became known or were discovered only after a plea was entered in
the former complaint or information; (Section 7 [b]) or
3. the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended
party except as provided in section 1(f) of Rule 116. (Section 7[c])
THE GRAVER OFFENSE DEVELOPED DUE TO SUPERVENING FACTS ARISING FROM THE SAME ACT OR OMISSION
CONSTITUTING THE FORMER CHARGE
This is also known as the supervening fact doctrine, also known as the Melo Doctrine because this rule was laid down in the
case of Melo vs. People, 45 Phil. 766.
EXAMPLE: Mortz stabbed Kim. Kim was confined in the hospital. Mortz was charged with frustrated homicide. He pleaded
guilty. After 2 days, Kim died. So the fiscal amended the information to consumated homicide. Mortz pleaded guilty double
jeopardy. Under the Melo doctrine, there is no double jeopardy because of the supervening fact of death of the victim arising from
the same act or omission constituting the former charge – the graver offense developed due to the supervening fact.
The reasoning in Melo is that, when the accused was charged with frustrated homicide, the crime of consummated homicide
was not yet in existence because the victim is still alive. So the crime of consummated homicide started to come out after the
arraignment. Therefore, the information can be changed to consummated homicide.
THE FACTS CONSTITUTING THE GRAVER CHARGE BECAME KNOWN OR WERE DISCOVERED ONLY AFTER A PLEA
WAS ENTERED IN THE FORMER COMPLAINT OR INFORMATION
Now, the Melo doctrine had one flaw which the SC observed in other cases. For example we will change the facts:
Mortz shot Kim. Kim was confined in the hospital. Mortz was charged with frustrated homicide. Let’s say Mortz
will be arraigned tomorrow, but tonight Kim died. The following morning, nobody knew about it. So the arraignment
continued and Mortz pleaded guilty to frustrated homicide. After Mortz was sentenced to frustrated homicide, that is
the time the prosecutor learned that Kim died. He now wants to change to consummated homicide.
Can he change the information? The SC said, no more. The Melo doctrine does not apply there because you cannot say that
the death of the victim supervenes after the arraignment – even before the arraignment, the victim was already dead. The crime of
consummated homicide was already in existence. Mortz could have been charged already when he was arraigned. “Pero hindi
man namin alam?” Ah pasensya, that is your risk. So that is where the Melo doctrine cannot apply.
This creates unfairness eh. There were cases where that really happens. Like in one case where the accused was charged
with physical injuries in the arm of the victim. Less serious physical injuries, because the doctor said it would heal in two weeks. He
was charged, pleaded guilty, sentenced to less serious physical injuries – arresto mayor. Then after one month, wala pa man
naayo, the injury was still there. The victim went to the doctor. Ini-x-ray, bali pala ang buto! Meaning, the crime all along was
serious. The trouble is, the fracture was not detected by the doctor. So they sought to change the charge to serous physical
injuries. The SC said, NO, the fracture did not supervene after the arraignment. It was there all along. Only, it was discovered after.
You cannot change the information because double jeopardy applies.
What is worse is the case of PEOPLE VS. CITY COURT OF MANILA, where the victim was charged with physical injuries
through reckless imprudence and then arraigned kaagad ang accused. Yon pala, patay na ang victim. The fiscal move to postpone
the arraignment to verify the status of the victim. HELD: Ah walang postponement! Tuloy!
So it was really unfair. It is not covered by the Melo Doctrine. You cannot say tha the greater injury came after. It was already
there all along. Only it was discovered after the plea.
NGAYON, para wala ng gulo meron ng paragraph [b]:
“the facts constituting the graver charge became known or were discovered only after a plea was
entered in the former complaint or information;”
So even if the graver offense was already existing before the arraignment but it became known only after the plea, there is no
more double jeopardy. This amendment created another exception not covered by the Melo doctrine.
THE PLEA OF GUILTY TO THE LESSER OFFENSE WAS MADE WITHOUT

THE CONSENT OF THE PROSECUTOR AND OF THE OFFENDED
PARTY EXCEPT AS PROVIDED IN SECTION 1(F) OF RULE 116.
You know this – plea-bargaining, plea of guilty to a lesser offense – it must be wit the consent of the prosecutor and the
offended party. And remember, once there is a plea-bargaining, you cannot be charged anymore for the graver offense except as
provided in Section 1 [f], Rule 116 – when during the plea-bargaining the offended party will not show up, in which case, the
consent of the prosecutor alone is required. This is a provision which compels the offended party to appear in the plea-bargaining.
537
Otherwise, the accused may offer to plea guilty to a lesser offense and the prosecutor will say, “OK” – you are bound because you
did not appear.
Q: But suppose Mortz has already started serving his sentence for frustrated homicide?
A: There is no problem because under the last paragraph of Section 7, “In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver
offense.”
SEC. 8. Provisional dismissal. – A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the
case having been revived. With respect to offenses punishable by imprisonment of more than six (6)
years, their provisional dismissal shall become permanent two (2) years after issuance of the order
without the case having been revived. (n)
Section 8 is an entirely new provision.
The concept of provisional dismissal means there is no double jeopardy – the case is temporarily dismissed. So obviously the
element of double jeopardy are not around. So, there is a way for the case to be revived in the future. The 1985 rules has no direct
provision governing provisional dismissal. The guidelines are not clear. You can re-file because there is no double jeopardy. The
problem is, can that be case be re-filed 5 years after?
Q: Under the new rules there is now a deadline. The case is provisionally dismissed, up to when?
A: MTC cases – within one (1) year to revive.
RTC cases – within two (2) years to revive.
After 1 or 2 years, as the case maybe, the provisional dismissal becomes permanent. So meron ng deadline so that the
prosecutor or the offended party will not buy his time, “ah provisional! Puwede yan anytime!” Before kasi noon, ganun eh. So there
must be a deadline.
SEC. 9. Failure to move to quash or to allege any ground therefore. – The failure of the accused to assert
any ground of a motion to quash before he pleads to the complaint or information, either because he did
not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any
objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3
of this Rule. (8a)
Q: What is the effect if the person does not file any motion to quash?
A: He is WAIVING the grounds for the motion to quash, EXCEPT:
1. lack of jurisdiction over the subject matter; (Section 3 [a])
2. the information does not charge any offense; (Section 3 [b])
3. the criminal liability has already been extinguished; (Section 3 [g])
4. double jeopardy. (Section 3 [i])
Meaning, even if you did not raised it in the beginning, you can still raised it during the trial. The rule is similar to civil
procedure – defenses and objections not raised in a motion to dismiss are deemed waived, except 1.) lack of jurisdiction over the
subject matter; 2.) res adjudicata; 3.) litis pendentia; 4.) statute of limitations.
Rule 118
PRE-TRIAL
SECTION 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days
from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is
provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider
the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense;
and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the
case. (secs. 2 and 3, cir. 38-98)
One thing you have to remember, pre-trial in criminal cases is now MANDATORY as compared to the 1985 rules. In the prior
rules, “if the accused and his lawyer will agree.” Ngayon parang civil case na rin – mandatory in all cases cognizable by the
Sandiganbayan, RTC, MTC, etc. after arraignment and within 30 days from the date the court acquires jurisdiction over the person
of the accused.
538
That is why there was a bar question before – how do you distinguish a pre-trial in a criminal case from a pre-trial in a civil
case? And one of the answers there is that pre-trial in a criminal cases is not mandatory, in civil case it is mandatory. But now, wala
na yan. Palitan mo na yan. That answer is obsolete because of this amendment. You must always see to it that the answers are
valid under the new law. Do not stick to answers given by the UP Law Center – tama man yon at that time. But now they are
changed.
[A] PLEA BARGAINING
Plea Bargaining. That is Section 2 of Rule 116 is all about – yung tawaran tayo, plea of a lesser offense with the consent of
the prosecutor and the offended party.
Now, there is only one EXCEPTION: plea bargaining seems to be prohibited under the Dangerous Drugs Act, Section 20-A –
when you are charged with the violation of the Dangerous Drugs Act and the imposable penalty is reclusion perpetua to death – no
plea bargaining! Bawal!
[B] STIPULATION OF FACTS – meaning, if we can agree on certain facts, so that during the trial we do not have to prove
them anymore.
[C] MARKING FOR IDENTIFICATION OF EVIDENCE OF THE PARTIES – showing of the evidence already so that during the
trial, they can easily be identified.
[D] WAIVER OF OBJECTIONS TO ADMISSIBILITY OF EVIDENCE – we will agree beforehand whether the evidence is
admissible or not.
[E] MODIFICATION OF THE ORDER OF TRIAL IF THE ACCUSED ADMITS THE CHARGE BUT INTERPOSES A LAWFUL
DEFENSE
Paragraph [e] is new – Modification of the order of trial if the accused admits the charge but interposes a lawful
defense. Meaning, “I am accused of homicide. I admit I killed him but I acted in self-defense.” Ganun ba? Palitan natin,
mauna ka. The prosecution will not present evidence ahead because anyway you admitted ikaw ang pumatay. This is
what we call trial in reverse.
This is because in relation to Section 11[e], Rule 119:
(e) When the accused admits the act or omission charged in the complaint or information
but interposes a lawful defense, the order of trial may be modified.
[F] SUCH MATTERS AS WILL PROMOTE A FAIR AND EXPEDITIOUS TRIAL OF THE CRIMINAL AND CIVIL ASPECTS OF
THE CASE.
Q: Can we discuss in a pre-trial of a criminal case settlement or compromise?

A: Yes – sa civil aspect lang because we know the rule that compromise in the criminal aspect is not allowed. But if we talk
about how to promote a fair and expeditious trial of the criminal aspect, ah puwede yan. Anyway it has nothing to do with areglo.
SEC. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot
be used against the accused. The agreements covering the matters referred to in section 1 of this Rule
shall be approved by the court. (sec. 4 cir. 38-98)
Take note, pre-trial agreements or admissions made or entered into the pre-trial conference must be in writing and signed by
the accused and his counsel, otherwise, they cannot be used against the accused. There is no such provision in civil procedure to
that effect.
Q: Now, is this requirement mandatory?

A: YES.
FULE vs. COURT OF APPEALS

162 SCRA 446
FACTS: There were some stipulations made during the trial: Is this your check? “Yes, that is my check.” Did you
issue it to the complainant? “Ah yes – admitted!” You knew it was not funded? “Yes, I know!” That the check
bounced? “Yes – admitted!” Ganun? OK, convicted ka!
HELD: The conviction is not valid because the accused did not sign his admissions.
Do not confuse the case of Fule with the case of
PEOPLE vs. HERNANDEZ

260 SCRA 25, July 30, 1996
539
ISSUE: Are the agreements or stipulations made during the trial (not pre-trial) without being signed by the party
binding on the accused?
HELD: YES because iba ang rules sa trial compared sa pre-trial. If the lawyer makes an admissions during the
trial we follow the general rule – you are bound. The lawyer represents the client. There is no need for the client to
agree or sign anything.
“An attorney who is employed to manage a party's conduct of a lawsuit has prima facie authority to make relevant
admissions by pleadings, by oral or written stipulation, which unless allowed to be withdrawn are conclusive. In fact,
judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the
agent of his client. When such admissions are made for the purpose of dispensing with proof of some fact, they bind
the client, whether made during, or even after, the trial."
“The foregoing find basis in the general rule that a client bound by the acts of his counsel who represents him.
For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client.”
The last sentence is new: “The agreements covering the matters referred to in section 1 of this Rule shall be approved by the
court.”
SEC. 3. Non-appearance at pre-trial conference. – 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. 5, cir. 38-98)
Section 3, bago rin ito. Here, it is not the party who is penalized, but the lawyer – if the counsel of the accused or the
prosecutor does not appear in the pre-trial conference and there is no offer.
SEC. 4. Pre-trial order. – After the pre-trial conference, the court shall issue an order reciting the
actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial
to matters not disposed of, and control the course f the action during the trial, unless modified by the
court to prevent manifest injustice. (3)
So after the trial, the court will issue a pre-trial order where it will summarize what matter had been agreed upon; what are the
issues; the elements that had been established; facts stipulated; and exhibits that had been marked.
Now, before we leave this rule, please review the provisions on Katarungang Pambarangay Law on the provisions of
conciliation in the barangay of criminal cases – penalty not more than one year. MANDATORY man yan ba!
In other words, that is one way of saying indirectly, compromise in criminal cases is now allowed. That is an instance where an
offer of a compromise in a criminal case is not an implied admission of guilt.
[The following discussions on the Katarungang Pambaranggay are taken in 1996 Criminal Procedure Transcription:]
In connection with Rule 118, you must be aware of another law which is closely related to the subject matter of Pre-Trial. What
we will discuss is the Katarungang Pambarangay Law which is applicable to both criminal and civil cases. This law used to be PD
1508 which was already repealed. The new law on Katarungang Pambaranggay is from Section 399 to Section 422 of the Local
Government Code of 1991 [R.A. 7160] which took effect last January 1, 1992.
Under this law, you cannot file the case directly in court or with the fiscal’s office without first trying to settle things with the
Lupong Tagapamayapa which is headed by the Barangay Captain. If thee case is not settled at this level, that is the time the
Barangay Captain would say, “We will bring this matter to court.”
The law applies only to the following instances:
1) When the case is between natural persons; (does not apply to corporations and the like)
2)
3) When the offended party and the accused reside in the same city or municipality; (not necessarily in the same barangay)
Example: B is from Bunawan and he sued T who is from Toril. The barangays are from one end to the other.
Is there are need for B to comply with the Barangay Law? YES because they are of the same city, and under the
law, the venue is the residence of the respondent or accused.
3) When the crime is punishable by imprisonment NOT EXCEEDING ONE YEAR or fine otrexceeding P5,000. (case is
cognizable by the MTC)
The Katarungang Pambarangay does not apply to the following cases:
1) Where there is no private offended party (e.g. illegal possession of firearms)

2) In criminal cases where the accused is under police custody or detention (This is the so-called inquest, after a valid
warrantless arrest.)
In these two latter instances, the case can be filed directly in court without going through the conciliation process. Where these
rules apply, there must be a certification that you have first tried to settle matters in the barangay.
The Supreme Court has issued a circular on the applicability of the Barangay Law: Administrative Circular No. 14-93 dated
July 15, 1993 where the SC laid down all the guidelines for the implementation of the Katarungang Pambarangay Law.
540
[End of the 1996 transcription. The following notes are taken from A Laymen’s Guide To Court Procedure, A Handbook On
Lawsuits by Neomi T. Olivares and Justice Jose Y. Feria, pp.63-65]:
KATARUNGANG PAMBARANGAY
Katarungang Pambarangay is the system which promotes and implements t he amicable settlement of disputes at the
barangay level before resorting to filing cases in court or in any other government office. It was first established by Presidential
Decree 1508 (signed into law on June 1978, now superseded by sections 399 to 422 of R.A. 7160, otherwise known as the Local
Government Code of 1991.)
Only individuals actually residing in the same barangay, city or municipality can be parties to the proceedings. Corporations,
partnerships, and other juridical entities are not covered by R.A. 7160.
Each barangay constitutes a body know as LUPONG TAGAPAMAYAPA (hereinafter referred to as LUPON) which administers
the conciliation or arbitration process. A Lupon is composed of 10 to 20 members chosen from the community and is headed by
the Barangay Captain. Disputes brought before the Lupon are resolved by a conciliation panel known as PANGKAT NG
TAGAPAGKASUNDO (hereinafter referred to as PANGKAT), consisting of 3 members chosen by agreement between the
disputing parties from the list of the membership of the LUPON.
In all proceedings, parties appear in person without the assistance of counsel or representative, with the exception of minors
and physically or mentally handicapped people who may be assisted by their nest of kin (who are not lawyers). Refusal or willful
failure to appear in compliance with the barangay summons may result in barring:
 The complainant from seeking recourse in the courts for the same cause of action; or
 The respondent from filing any counterclaim connected therewith.
Proceedings are public and informal, except for those cases which require the exclusion of the public in the interest of public
decency or morals.
CASES NOT SUBJECT TO AMICABLE SETTLEMENT AT THE KATARUNGANG

PAMBARANGAY:
1) Where one party is the government or a subdivision or instrumentality thereof;

2) Where one party is a public officer or employee, and the dispute relates to the performance of his official function;
3) Offenses punishable by imprisonment exceeding one year or a fine exceeding PhP 5,000;
4) Offenses where there is no private offended party.
DISPUTES NOT COVERED BY THE AUTHORITY OF THE LUPON
1) Those involving parties who reside in barangays of different cities or municipalities unless their barangays are
adjoining.
2) Those involving real property located in different cities or municipalities.
In both cases, the parties may agree to submit their differences for amicable settlement by an appropriate Lupon.
Conciliation proceedings at the barangay level are a pre-condition to filing an action in court or a government office. Non-
compliance with this requisite may result in the dismissal of the complaint.
PARTIES MAY FOREGO THE BARANGAY CONCILIATION PROCESS AND GO DIRECTLY TO THE
COURT WHEN:
1) The accused is under detention.

2) Habeas corpus proceedings are called for.
3) Actions are accompanied by provisional remedies such as preliminary injunction, attachment, delivery of personal
property, etc.
4) Legal action is barred by the Statute of Limitations (the law that bars the institution of an action after the lapse of a
prescribed period.)
== end ==
July 15, 1993

ADMINISTRATIVE CIRCULAR NO. 14-93
Subject : Guidelines on the Katarungang Pambarangay conciliation procedure to prevent

circumvention of the Revised Katarungang Pambarangay Law (Sections 399-422,
chapter VII, Title I, Book III, R.A. 7160, otherwise known as the Local Government Code
of 1991).
To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts
The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local
Government Code of 1991, effective on January 1, 1992, and which repealed P.D. 1508, introduced
541
substantial changes not only in the authority granted to the Lupon Tagapamayapa but also in the
procedure to be observed in the settlement of disputes within the authority of the Lupon. cd i
In order that the laudable purpose of the law may not subverted and its effectiveness undermined by
indiscriminate, improper and/or premature issuance of certifications to file actions in court by the Lupon
or Pangkat Secretaries, attested by the Lupon/Pangkat Chairmen, respectively, the following guidelines
are hereby issued for the information of trial court judges in cases brought before them coming from the
Barangays:
I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang
Pambarangay Law (formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter VII, Title I,
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government Code of
1991), and prior recourse thereto is a pre-condition before filing a complaint in court or any
government offices, EXCEPT in the following disputes:
1. Where one party is the government, or any subdivision or instrumentality thereof;

2. Where one party is a public officer or employee, and the dispute relates to the performance
of his official functions;
3. Where the dispute involves real properties located in different cities and municipalities,
unless the parties thereto agree to submit their difference to amicable settlement by an
appropriate Lupon;
4. Any complaint by or against corporations, partnerships or juridical entities, since only
individuals shall be parties to Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
NOTE: Only natural persons can undergo barangay conciliation.
5. Disputes involving parties who actually reside in barangays of different cities or

municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one
(1) year or a fine over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being committed
or further continued, specifically the following:
NOTE: “Urgently.” A good example in civil action is where the action is coupled with a provisional
remedy such as preliminary injunction, attachment, replevin or support. Or, actions which may be barred
by the statute of limitations.
a) Criminal cases where accused is under police custody or detention (See Sec. 412 (b)(1),
Revised Katarungang Pambarangay Law);
b) Petitions for habeas corpus by a person illegally deprived of his rightful custody over
another or a person illegally deprived of his liberty or one acting in his behalf;
c) Actions coupled with provisional remedies such as preliminary injunction, attachment,
delivery of personal property and support during the pendency of the action; and
d) Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46
& 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations (Montoya vs.
Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems
to certain offices of the Department of Labor and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation there is in
the Department of Labor.
12. Actions to annul judgment upon a compromise, which may be filed directly in court (See
Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as implemented
by the Katarungang Pambarangay Rules and Regulations promulgated by the Secretary of Justice, the
certification for filing a complaint in court or any government office shall be issued by Barangay
authorities only upon compliance with the following requirements: aisa dc
1) Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong Barangay),
certifying that a confrontation of the parties has taken place and that a conciliation or
settlement has been reached, but the same has been subsequently repudiated (Sec. 412,
Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay
Rules);
2) Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying that:
542
a. a confrontation of the parties took place but no conciliation/settlement has been
reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat through no fault of the
complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules).
3) Issued by the Punong Barangay, as requested by the proper party on the ground of failure
of settlement where the dispute involves members of the same indigenous cultural
community, which shall be settled in accordance with the customs and traditions of that
particular cultural community, or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there has been no settlement as certified
by the datu or tribal leader or elder to the Punong Barangay of the place of settlement
(Secs. 1, 4, & 5, Rule IX, Katarungang Pambarangay Rules); and
4) If mediation or conciliation efforts before the Punong Barangay proved unsuccessful, there
having been no agreement to arbitrate (Sec. 410 [b], Revised Rule Katarungang
Pambarangay Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the
respondent fails to appear at the mediation proceeding before the Punong Barangay (3rd
par. Sec. 8, a, Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall not
cause the issuance of this stage of a certification to file action, because it is now
mandatory for him to constitute the Pangkat before whom mediation, conciliation, or
arbitration proceedings shall be held.
III. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial Court,
Metropolitan Trial Court or Municipal Trial Court shall be carefully read and scrutinized to determine if
there has been compliance with prior Barangay conciliation procedure under the Revised Katarungang
Pambarangay Law and its Implementing Rules and Regulations, as a pre-condition to judicial action,
particularly whether the certification to file action attached to the records of the case comply with the
requirements hereinabove enumerated in par. II;
IV. A case filed in court without compliance with prior Barangay conciliation which is a pre-
condition for formal adjudication (Sec. 412[a] of the Revised Katarungang Pambarangay Law)
1) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of the court but for
failure to state a cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs.
CA, 151 SCRA 289), or
2) the court may suspend proceedings upon petition of any party under Sec. 1, Rule 21 of the
Rules of Court; and refer the case motu propio to the appropriate Barangay authority, applying
by analogy Sec. 408[g], 2nd par., of the Revised Katarungang Pambarangay Law which reads
as follows:
"The Court in which non-criminal cases not falling within the authority of the Lupon
under this Code are filed may at any time before trial, motu proprio refer the case to the
Lupon concerned for amicable settlement.
Strict observance of these guidelines is enjoined. This Administrative Circular shall be effective
immediately.
Manila, Philippines. July 15, 1993.
(Sgd.) ANDRES R. NARVASA

Chief Justice
A friend and I were shopping for dresses for her three-year-old girls to wear
to a wedding. In the shop, another girl staring intently at Sarah and Becky asked,
“Are those girls twins?”
“Actually they’re triplets,” I explained. “They have a brother at home.”
“Wow,” she replied. “They sure look like twins to me.”
Source: Reader’s Digest, November 2000
Rule 119
TRIAL
SECTION 1. Time to prepare for trial. – After a plea of not guilty is entered, the accused shall have at
least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of
the pre-trial order. (sec. 6, cir. 38-98)
SEC. 2. Continuous trial until terminated; postponements. – Trial once commenced shall continue from
day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for
good cause. (2a)
543
The court shall, after consultation with the prosecutor and defense counsel, set the case for
continuous trail on a weekly or other short-term trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the
first day of trial, except as otherwise authorized by the Supreme Court. (sec. 8, cir. 38-98).
The time limitations provided under this section and the preceding section shall not apply where
special laws or circulars of the Supreme Court provide for a shorter period of trial. (n)
After the accused is arraigned, there is a minimum of 15 days to prepared for the trial. And then continuous trial until
terminated. The trial period shall not exceed 180 days, taken from the Speedy Trial Act and SC Circulars. They are now
incorporated in the new rules.
There are many provisions here which are new in the sense that they are found in the rules for the first time. However, even
before the new rules took effect, they were considered as already existing provisions because of the Speedy Trial Act and SC
Circular 38-98. Ngayon, nandito na. So we will not go over them one by one. I will just point them out.
The new provisions are Section 3 up to Section 10:
SEC. 3. Exclusions.- The following periods of delay shall be excluded in computing the time within
which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the accused, including but not
limited to the following:
(1) Delay resulting from an examination of the physical and mental condition of the accused;
(2) Delay resulting from proceedings with respect to other criminal charges against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory orders;
(4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30)
days;
(5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or
transfer from other courts;
(6) Delay resulting from a finding of existence of a prejudicial question; and
(7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any
proceeding concerning the accused is actually under advisement.
(b) Any period of delay resulting from the absence or unavailability of an essential witness.
For purposes of this subparagraph, an essential witness shall be considered absent when his
whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be
considered unavailable whenever his whereabouts are known but his presence for trial cannot be
obtained by due diligence.
(c) Any period of delay resulting from the mental incompetence or physical inability of the accused
to stand trial.
(d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed
against the accused for the same offense, any period of delay from the date the charge was dismissed to
the date the time limitation would commence to run as to the subsequent charge had there been no
previous charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom
the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for
separate trial has been granted.
(f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion
of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis
of its findings set forth in the order that the ends of justice served by taking such action outweigh the
best interestof the public and the accused in a speedy trial. (sec. 9, cir. 38-98)
SEC. 4. Factors for granting continuance. – The following factors, among others, shall be considered by
a court in determining whether to grant a continuance under section 3(f) of this Rule.
(a) Whether or not the failure to grant a continuance in the proceeding would likely make a
continuation of such proceeding impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of
accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within
the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of
the court’s calendar or lack of diligent preparation or failure to obtain available witnesses on the part of
the prosecutor. (sec. 10, cir. 38-98)
SEC. 5. Time limit following an order for new trial. – If the accused is to be tried again pursuant to an
order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided
that if the period becomes impractical due to unavailability of witnesses and other factors, the court may
extend but not to exceed one hundred eighty (180) days. For the second twelve-month period, the time
limit shall be one hundred eighty (180) days from notice of said order for new trial. (sec 11, cir. 38-98)
SEC. 6. Extended time limit.- Notwithstanding the provisions of section 1(g), Rule 116 and the
preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15,
1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall
be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one
hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days.
(sec. 7, cir. 38-98)
544
SEC. 7. Public attorney’s duties where accused is imprisoned. – If the public attorney assigned to defend
a person charged with a crime knows that he latter is preventively detained, either because he is charged
with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is
serving a term of imprisonment in any penal institution, it shall be his duty to do the following:
(a) Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be
served on the person having custody of the prisoner requiring such person to so advise the prisoner of
his right and demand trial.
(b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the
charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he
demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney.
(c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the
prisoner for trial.
(d) When the custodian of the prisoner receives from the public attorney a properly supported
request for the availability of the prisoner for purpose of trial, the prisoner shall be made available
accordingly. (sec. 12, cir. 38-98)
SEC. 8. Sanctions. – In any case in which private counsel for the accused, the public attorney, or the
prosecutor:
(a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be
unavailable for trial;
(b) Files a motion solely for delay which he knows is totally frivolous and without merit;
(c) Makes a statement for the purpose of obtaining continuance which he knows to be false and
which is material to the granting of a continuance; or
(d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the
court may punish such counsel, attorney, or prosecutor, as follows:
(1) By imposing on a counsel privately retained in connection with the defense o fan accused, a fine
not exceeding twenty thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not
exceeding five thousand pesos (P5,000.00); and
(3) By denying any defense counsel or prosecutor the right to practice before the court trying the
case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be
without prejudice to any appropriate criminal action or other sanction authorized under these rules. (sec.
13, cir. 38-98)
There is something here in Section 8 that I want to bring out – mga kastigo, sanctions ba! Alam mo ang kawawa dito, mga
abogado eh – fiscals, defense counsels, even the PAO lawyers – if they are responsible for delaying the trial of the criminal case.
Just imagine, P20,000 if it is the private defense lawyer. That is the maximum of course. Ang PAO naman, P5,000 – 75%
discount! Ma-suspend ka pa.
SEC. 9. Remedy where accused is not brought to trial within the time limit. – If the accused is not brought
to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of
this rule, the information may be dismissed on motion of the accused on the ground of denial of his right
to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have
the burden of going forward with the evidence to establish the exclusion of time under section 3 of this
rule. The dismissal shall be subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to
dismiss under this section. (sec. 14, cir. 38-98)
SEC. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. – No provision of
law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of
denial of the right to speedy trial guaranteed by section 14(2), article III, of the 1987 Constitution. (sec. 15,
cir. 38-98)
Take note of Section 9 and 10. Please correlate this on the rights of the accused to speedy trial as mention in Section 1[h] of
Rule 115 on the rights of the accused.
SEC. 11. Order of trial. – The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil
liability.
(b) The accused may present evidence to prove his defense and damages, if any, arising, from the
issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence
unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the
main issue.
(d) Upon admission of evidence of the parties, the case shall be deemed submitted for decision
unless the court directs them to argue orally or to submit written memoranda.
(e) When the accused admits the act or omission charged in the complaint or information but
interposes a lawful defense, the order of trial may be modified. (3a)
The order of the trial in the criminal case is almost the same pattern as in civil cases.
545
Q: Who presents evidence first?
A: The prosecution. Under Section 11 [a], “The prosecution shall present evidence to prove the charge and, in the proper case,
the civil liability.” So you prove the charge and the civil liability.
Q: Ano yung “in the proper case”?

A: That is because if the civil liability has already been reserved, ah wala na – forget evidence of civil liability where there is
already reservation. Pero kung hindi, then it is deemed instituted with the criminal case.
Under paragraph [b], provisional remedies are allowed in criminal cases, like attachments, etc. in the same way if the civil
action is deem instituted, the offended party can ask a preliminary attachment of the property under Rule 127.
Paragraph [e] refers to “trial in reverse.” The best example is when the accused raises self-defense. The burden of proof is
automatically shifted to the accused. But this should be included during the pre-trial as provided under Rule 118, Section 1 [e]:
SECTION 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days
from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is
provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider
the following:
xxxxxxx
(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense;
xxxxxxx
Q: Is there such a thing as deposition-taking in criminal cases?

SEC. 12. Application for examination of witness for accused before trial. – When the accused has been
held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses
conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness;
(b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable
ground for believing that the will not be able to attend the trial, or resides more than one hundred (100)
kilometers from the place of trial and has no means to attend the same, or that other similar
circumstances exist that would make him unavailable or prevent him from attending the trial. The motion
shall be supported by an affidavit of the accused and such other evidence as the court may require. (4a)
Q: How is deposition in criminal cases being done?

A: Read Section 13:
SEC. 13. Examination of defense witness; how made. – If the court is satisfied that the examination of a
witness for the accused is necessary, an order shall be made directing that the witness be examined at a
specific date, time and place and that a copy of the order be served on the prosecutor at least three (3)
days before the scheduled examination. The examination shall be taken before a judge, or, if not
practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order
be made by a court of superior jurisdiction, before an inferior court to be designated therein. The
examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified
of the hearing. A written record of the testimony shall be taken. (5a)
The grounds are almost identical. This is deposition actually. Only, it is called conditional examination. That is the term used
here.
Take note, connect this with Section 1[f], Rule 115 – rights of the accused. Section 12 is an exception to the right to confront
and cross-examine because you cannot insist during the trial to confront and cross-examine the witness under Rule 115 Section
1[f] when we was already examined under Section 12.
Q: Is the remedy of deposition-taking also available to the prosecution?

SEC. 15. Examination of witness for the prosecution. – When it is satisfactorily appears that a witness
for the prosecution is too sick or infirm to appear at the trial as directed by the court, of has to leave the
Philippines with no definite date of returning, he may forthwith be conditionally examined before the
court where the case is pending. Such examination, in the presence of the accused, or in his absence
after reasonable notice to attend the examination has been served on him, shall be conducted in the
same manner as an examination at the trial. Failure or refusal of the accused to attend the examination at
the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a
waiver. The statement taken may be admitted in behalf of or against the accused. (7a)
Let us try to compare Section 13 (defense) and Section 15 (prosecution): Let’s go to the defense witness under Section 13:
Q: Before whom will the examination of the witness be taken?

A: It DEPENDS – before the judge, or if not practicable, a member of the bar in good standing designated by the judge in the
order.
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Now, you compare that with Section 15. In Section 15, you will notice: “he may forthwith be conditionally examined before the
court where the case is pending.” Unlike in Section 13 – before the judge, or if not practicable, a member of the bar in good
standing… it is more lenient no?
Q: What is the reason why the law is more generous to the defense witness?
A: According to one case through Justice Feria, this is because the government has the resources to get he testimony of its
witnesses. Pero ang defense may have a hard time lalo na kapag pobre.
SEC. 14. Bail to secure appearance of material witness. – When the court is satisfied, upon proof of
oath, that a material witness will not testify when required, it may, upon motion of either party, order the
witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall
commit him to prison until he complies or is legally discharged after his testimony has been taken. (6a)
It seems that the prosecution here is under the mercy of his witnesses. Meaning, kung ayaw ng testigo, wala kang magawa.
But under Section 14, you can ask the court to order the witness to post bail. And if he refuses to post bail, he can be arrested.
This is an instance where a witness can be jailed ahead of the accused.
But actually the truth is in most cases, prosecution witnesses do not appear not because ayaw but because takot! They are
afraid of what will happen like the accused might harass them. And the law knows that. That is why there is also another alternative
– RA 6981, The Witness Protection Program which took effect last April of 1991. You read that so you will have an idea.
SEC. 16. Trial of several accused. – When two or more accused are jointly charged with an offense,
they shall be tried jointly unless the court, in its discretion and upon motion of the prosecutor or any
accused, orders separate trial for one or more accused. (8a)
Remember that there can be a joint trial of two or more criminal cases if they arose of the same incident like Judee fired her
AK-47 and killed two or more people one after the other. But you cannot file one information because that will be duplicitous. There
must be one information for every one homicide and then you move for a joint trial.
Q: Now, how do you compare this rule with civil cases?

A: In civil cases, when there is a common question of fact or law involving two or more parties, there is such a thing as filing
only one complaint – joinder of causes of action or parties. But in criminal cases, that is not allowed. Consolidation in criminal cases
in only for the purpose of joint trial lang and you cannot have one information charging more than one offense.
DISCHARGE OF AN ACCUSED TO BE STATE WITNESS
SEC. 17. Discharge of accused to be state witness. – When two or more persons are jointly charged
with the commission of any offense, upon motion of the prosecution before resting its case, the court
may direct one or more of the accused to be discharged with their consent so that they may be witnesses
for the state when, after requiring the prosecution to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense committed,
except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
Evidence adduced in support of the discharge shall automatically form part of the trial. If the court
denies the motion for discharge of the accused as state witness, his sworn statement shall be
inadmissible in evidence. (9a)
SEC. 18. Discharge of accused operates as acquittal. – The order indicated in the preceding section
shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the
same offense, unless the accused fails or refuses to testify against his co-accused in accordance with
his sworn statement constituting the basis for his discharge. (10a)
Let’s take Section 17 and Section 18 together. Discharge of an accused to be state witness means that you will convert an
accused to become “Hudas,” save his neck but hang them all!
Under Section 18, once the witness is discharged under Section 17, he is now CONSIDERED ACQUITTED and there is no
way for him to be brought back in the case EXCEPT when he changes his mind and ayaw na niyang mag-testify. That is the only
exception.
Q: What are the requirements before a witness can be discharged?

A: Section 17 enumerates the requirements.
“SAID ACCUSED DOES NOT APPEAR TO BE THE MOST GUILTY.”
Let’s comment on some of the requirements. One of the most important requirements for the discharge of an accused is the
fourth one – “Said accused does not appear to be the most guilty.” Based from what I read from time to time, even lawyers have
been commenting on this. It seems they are misquoting this eh, like 2 days ago, a lawyer said that we must discharge the accused
because he is the least guilty.
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That is not what the law says! What the law says is, HE DOES NOT APPEAR TO BE THE MOST GUILTY. And it is not the
same with HE IS THE LEAST GUILTY.
EXAMPLE: Mortz, Pao and Jet. Mortz – principal; Pao – accomplice; Jet – accessory. Pag-sinabi mong “the least guilty,” hindi
mo puwedeng gamitin si Pao. Si Jet dapat ang gamitin mo because he is the least guilty. [Tsk! tsk! Ginamit si Jet. Ginamit!] PERO,
pag-sinabi mong “he does not appear to be the most guilty”, you can use Pao, although there is somebody to be less guilty. Basta
ang importante, hindi si Mortz. So, there is a difference between the two phrases.
Q: What do you mean by the phrase “does not appear to be the most guilty’”?
A: There are cases:
PEOPLE vs. OCIMAR

August 17, 1992
FACTS: This case involved a hold-upping incident, committed in a bus in Manila while traveling in the North
Express Way. There were four (4) hold-uppers who rode in the bus. When they reach a certain point, they stood up
and pulled to their guns and robbed the passengers. And they placed themselves strategically: One of them stood
behind the driver, “o, wag kang kikilos, drive ka lang.” Yung iba namang dito. Kanya-kanyang silang role eh. The
others were the ones who divested the passengers, “mga pitaka ninyo, relo… lahat!”
Now, there was one passenger there who was a military man wearing civilian clothes and may baril siya. So he
wanted to fight back but one of them saw him. Pag-bunot niya, inunahan siya! So accused A shot that passenger.
Accused D naman saw A shoot the victim. And of course all of them were charged with Robbery with Homicide in
conspiracy - the act of one is the act of all.
The prosecution wants to utilize D – the one who is behind the driver – as state witness. The other accused
objected claiming conspiracy – “we are all co-principal – the act of one is the act of all. So why do you say you are not
the most guilty? Pare-pareho lang tayo. Same penalty.”
ISSUE: Will accused D be qualified under the phrase “does not appear to be the most guilty”?
HELD: YES. When you say “he does not appear to be the most guilty”, you do not apply the rule on conspiracy.
But you apply the rule on individual acts. In reality, who is more guilty? The one who really shot the victim or the one
who is just behind the driver? The reality is, the most guilty is the one who shot, although for purposes of the RPC
both of you are co-principal. So, you look at it that way. Do not apply the principle of the act-of-the-one-is-the-act-of-
all. You consider the most guilty in terms of the participation.
“By ‘most guilty’ means the highest degree of culpability in terms of participation in the commission of the offense
and not the severity of the penalty imposed. While all the accused maybe given the same penalty but by reason of
culpability one may be least guilty if we take into account his degree of participation in the perpetuation of the
offense.”
Q: Generally, when the fiscal, after criminal investigation, believes that one of them can be a state witness, therefore he will not
include his name in the information. Is it allowed?
A: NO, you have to include him first before he can be a state witness. Let the court decide whether he will be a state witness or
not. You cannot discharge on your own. Remember under the Rules, the prosecutor is bound to file the information against ALL
those who appear to be responsible including this guy who you want to use as state witness. But when you reach the court, you file
a motion to discharge and let the court who will do it.
And under the New Rules, there must be a HEARING to determine whether there should be discharge or not. That’s why the
rule said, “the trial court must require the prosecution to present evidence and the sworn statement of each proposed state witness
at a hearing in support of the discharge.” So, there must be an affidavit and there must be a hearing.
In the 1985 Rules, there was no need of a hearing. No need for the prosecution to present evidence. Normally the fiscal will
just file a motion that we would like to use this witness and the court will discharge. Now, hindi na pwede yan because in most
cases in the past, a person is discharge and it turns out that he is the most guilty. To avoid that possibility, there is now need to
present affidavit, etc. and there must be a hearing. The court will require presentation of evidence and it will decide whether or not
to discharge.
Now, sabi ng court in the hearing for the discharge of the accused, “There is no need to discharge him. Motion to discharge,
denied!” So sabi ng accused, “Kawawa na ako nito because I already admitted the crime in my affidavit! Tapos, hindi pala ako
qualified! [‘nak ng pating naman o!].” What will happened to you now? You Look at the last paragraph of Section 17:
“Evidence adduced in support of the discharge shall automatically form part of the trial. If the court
denies the motion for discharge of the accused as state witness, his sworn statement shall be
inadmissible in evidence.”
So that is fair enough because the affidavit which is practically an admission of his participation, then if he is not discharged, do
not use it against him. It is inadmissible as evidence against him. The leading case in this issue is the 1993 case of
PEOPLE vs. CA AND INSPECTOR JOE PRING

223 SCRA 475
FACTS: Pring was involved in kidnapping and one policeman testified against him – Nonilo Arile. There was a
motion to discharge Arile to testify against Pring. Then the prosecution gave the defense the affidavit of Arile. Based
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on that, the court ordered the discharge of Arile. Pring questioned the procedure. This is the first case where the SC
applied this rule on hearing on the discharge of an accused. Sabi ni Pring, “Where is the hearing?” Prosecution: “Yon
palang motion to discharge na binigay namin sa inyo?” Pring: “Ah, hindi naman hearing yun! Hearing means, ilagay
mo si Arile sa witness stand subject to cross-examination because even under Section 17, evidence adduced to
support the discharge shall automatically form part of the trial. Meaning, the state witness will not testify again. So
what is contemplated here is personal testimony and not the affidavit.”
ISSUE: Is the argument of Pring correct?
HELD: NO. Hearing means, you have the opportunity to read what he will say and the opportunity to object. Yan
ang ibig sabihin ng hearing. Hindi kailangan na he will be questioned personally in court. That satisfies the
requirement of hearing.
“Hence, in resolving the issue in this petition, the proper question we should address is: Was there a failure to
observe the spirit and intent of Section 17, Rule 119 in the case at bar? We rule in the NEGATIVE. The prosecution
has submitted the sworn statement of accused Nonilo Arile and its evidence showing that the conditions for discharge
have been met. Neither can it be denied that the defense was able to oppose the motion to discharge Nonilo Arile.
With both litigants able to present their side, the lack of actual hearing was not fatal enough to undermine the court's
ability to determine whether the conditions prescribed under Section 17, Rule 119 were satisfied.”
So there is already substantial compliance with the hearing. And that was the first case interpreting this new provision after the
1985 Rules. But for the merits, later na-acquit man si Pring ba which is a different issue. Yung dito, discharge lang ang issue eh.
On the merits, he was acquitted. But after one year from his acquittal, pinatay naman siya ng ABB. Sabi nila (ABB), kung nakaligtas
ka sa court, sa amin hindi ka makaligtas. That’s what happened there.
Q: Normally, when is an accused discharged?

A: He is discharged before he testifies. You will use him. That’s why he is going to be discharged. However, in the 1992 case
of
ROSALES vs. COURT OF APPEALS

215 SCRA 102
FACTS: The prosecution wants to use an accused as a witness and he was willing. Sabi ng prosecution, “We will
file a motion to discharge you to be state witness.” The accused said, “Hwag! Hwag!.. if you will do that patay ako!
Patayin talaga nila ako. They will not allow me to testify.” But still the prosecution used him. He took a stand and he
pointed to all his companions. So he testified first bago nag-file ng motion to discharge ang prosecution.
ISSUE: Is that correct? Can the testimony come ahead before the discharge?
HELD: YES because of the peculiar fact – his life is in danger eh. Anyway according to the law, should the
discharge be made, is should be made by the prosecution before resting its case (Section 17). In the case at bar, at
that moment, the prosecution has not rested its case. So puwede.
“While it is the usual practice of the prosecution to present the accused who turns state witness only after his
discharge, the trial court may nevertheless sanction his discharge after his testimony if circumstances so warrant. In
the case before Us, the imminent risk to his life justified the deviation from the normal course of procedure as a
measure to protect him while at the same time ensuring his undaunted cooperation with the prosecution. Indeed, as is
explicit from the Rule, as long as the motion for discharge of an accused to be utilized as a state witness is filed
before the prosecution rests, the trial court should, if warranted, grant it.”
Q: What happens if an accused who is the most guilty is erroneously discharged – ang mga naiwan, yung mga pipitsugin? Is
the erroneous discharge valid? Is he deemed acquitted?
A: The SC said YES. Even if there is a mistake, he is now acquitted once he is discharged. His testimony is admissible. In the
case of
BOGO-MEDELLIN CO. vs. JUDGE PEDRO SON

209 SCRA 329 (May 27, 1992)
HELD: “Any witting or unwitting error of the prosecution in asking for the discharge of an accused and of the trial
court in granting the petition for discharge, so long as no question of jurisdiction is involved, would not deprive the
discharged accused of the acquittal that is specified in Section 10 of Rule 119 and of the constitutional guarantee
against double jeopardy. It is also relevant to note that the improper or mistaken discharge of an accused would not
affect his competency as a witness or render inadmissible his testimony.”
Q: Let’s go back to Evidence. He is the most guilty. His discharge was wrong. Is his testimony admissible?
A: YES, because he can perceive and perceiving and he can make known his perception to others. That is the only
qualification. There is no violation of marital disqualification or attorney-client confidentiality, etc. Wala man! So you go back to
Evidence. The testimony of the witness is qualified although it might be polluted and he did it to save his game – that is not enough
to make his testimony inadmissible.
Q: One thing more, who can discharge the witness?

A: The court where the very case is pending. That’s the rule – the court where the case is pending.
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BAR QUESTION: What happens when an accused is discharged, and after he is discharged, sabi ng prosecution, “Teka muna
nagkamali ako, di pala kita kailangan. Balik ka!” Can it be done?
A: Sabi ng SC, NO, acquitted na yan! The only reason for him to come back is, he is asked to testify pero ayaw niya.
Prosecution: “But I don’t need him.” SC: that is your fault because first, why did you ask for his discharge? So once he is
discharged, he is deemed acquitted whether you use him or do not use him. The only way for him to come back is, you want to use
him but he does not want to testify because he is double-crossing the Government.
Lets go further. There is another law, about this witness. You try to compare this principle with the provision of RA 6981 – The
Witness Protection Act. Under RA 6981, the fiscal would not even include you in the charge anymore, for as long as the DOJ will
say that he is qualified, he is covered by the Witness Protection Program. Under the law, the fiscal should not include him anymore.
Unlike in criminal procedure kailangan isali ka muna bago ka i-discharge. Sa RA 6981 naman, hindi ka na kasali. That is why
the constitutionality of the law was challenged in the case of
WEBB vs. DE LEON

August 23, 1995
FACTS: State witness Alfaro admitted that she was with them. She admitted kasama siyang nagpunta sa bahay
ng mga Vizconde. And then she was placed in the Witness Protection Program and was used against Hubert Webb.
And according to Webb, the provision of the Witness Protection Act – which authorizes the DOJ to place somebody in
the Witness Protection Program, and once he certifies that she is covered, the fiscal is no longer allowed to file a
case against her (state witness) – is violative of the judicial prerogative to discharge a witness because you jumping
the gun on the court.
According to Webb, it should be the court that will discharge and not the DOJ. The law is not valid because it is
an encroachment of a judicial prerogative. It is an intrusion for it is only the court which has the power under the rules
on criminal procedure to discharge an accused as state witness.
ISSUE #1: Is Webb’s argument valid?

HELD: “Webb’s argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is
a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the
prosecution of crimes appertains to the executive department of government whose principal power and responsibility
is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to
prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion
of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best
appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No.
6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and
who shall be granted immunity from prosecution.”
ISSUE #2: How do you reconcile this ruling with the rule that only the court has the power to discharge?
HELD: Simple! In the Witness Protection Program, the accused is NOT even accused in any case yet. Wala pa!
But once he is accused, you need the consent of the court to discharge, that is kapag kasali na! Pero kung hindi pa
kasali, there is no need for the court’s consent to decide because that is an executive function.
ISSUE #3: And why is the court’s consent necessary once the accused is charged in court?
HELD: This is because the court has already acquired jurisdiction over the person of the accused. So the SC
said, “Section 17 of Rule 119 does not support the proposition that the power to choose who shall be a state witness
is an inherent judicial prerogative. Under this provision the court is given the power to discharge as state witness only
because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of
the exercise of jurisdiction but is not a recognition of an inherent judicial function.”
ISSUE #4: Is it wise for Congress to enact this law? Why will Congress enact this kind of law that will determine
that the witness will not be included in the information?
HELD: YES. It is a wise legislation. “Moreover, the Rules of Court have never been interpreted to be beyond
change by legislation designed to improve the administration of our justice system. The Witness Protection Act is one
of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which
is the reticence of witnesses to testify.”
SEC. 19. When mistake has been made in charging the proper offense. – When it becomes manifest at
any time before judgment that a mistake has been made in charging the proper offense and the accused
cannot be convicted of the offense charged or any other offense necessarily included therein, the
accused shall not be discharged if there appears good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and dismiss the original case upon the filing of the
proper information. (11a)
You co-relate Section 19 with the last paragraph of Section 14, Rule 110:
trial.
550
So the same ‘no? The accused shall be discharge because of a wrong information upon filing of the correct one. So Section 14
of Rule 110 and Section 19 of Rule 119 talk of the same thing.
QUESTION: how will you distinguish the two provisions? Kung tingnan mo mukang pareho eh. But for academic purposes,
there are differences made by Justice Regalado in the 1994 case of GALVEZ VS. CA (237 SCRA 685) Alam mo itong si Regalado,
siya din ang nag-distinguish ng amendment and substitution of information under Rule 110 which was asked in the bar and
thoroughly discussed in the case of TEEHANKEE VS. MADAYAG. In the case of Galvez naman, gi-distinguish naman niya ang
Section 14 Rule 110 and Section 19 Rule 119.
Q: Distinguish Section 14 of Rule 110 and Section 19 of Rule 119.

A: For academic purposes, the following are the distinctions:
1. Rule 119 is the rule specifically governing the trial stage; whereas
Rule 110 provides the procedural governance for the prosecution of offenses;
2. Rule 119 is more directly and principally directed to the trial court to invest it with the requisite authority to direct by
itself the dismissal and re-filing of the informations therein contemplated; whereas
Rule 110 is directed to the prosecutor who can and should institute remedial measures for the dismissal of the original
information and the re-filing of the correct one, otherwise he would be recreant to his duties;
3. In Rule 119, evidence is necessarily being presented, hence the trial court is now in a better position to conclude that
manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes;
whereas
In Rule 110, since no evidence has been presented at that stage, the error would appear or be discoverable from a
review of the records of the preliminary investigation; and
4. In Rule 119, the permissible stage for effecting that substitution is “at any time before judgment”; whereas
In Rule 110, it is sufficient that “it appears…that a mistake has been made in charging the proper offense…” which
situation contemplates a longer time span, inclusive of the period from the filing of the information up to and
before trial.
So after I read the case of Galvez, I said Regalado has a very sharp mind. Masyadong matalas and utak ba! A very small
distinction, makita niya eh. And it takes pain to analyze. That is the product of a sharp mind. But no wonder because pag-kuha niya
ng bar, 96.70% gud ang average niyan! He is the highest for the record. Sabi nila si Marcos. Yes, but that is not official. Istorya
lang yun. Si Marcos nag oral examination before the SC pero binabaan ang average. But on record, it is Regalado who is the
highest in the bar. Nobody has beaten that. Makita ninyo man ba sa decisions niya. Masyadong matalas, very sharp!
SEC. 20. Appointment of acting prosecutor. – When a prosecutor, his assistant or deputy is disqualified
to act due to any of the grounds stated in section 1 of Rule 137 or for any other reason, the judge or the
prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting
prosecutor. (12a)
SEC. 21. Exclusion of the public. – The judge may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He
may also, on motion of the accused, exclude the public from the trial except court personnel and the
counsel of the parties. (13a)
Section 21 is an exception to the rule found in Rule 115 about the right of the accused to a public trial. There are some
exceptions to that right. And under Section 21:
1. the court may, moto propio, exclude the public from the courtroom if the evidence to be produced during the trial is
offensive to decency or public morals. Normally this applies in trial for the crime of rape or in crimes against chastity,
where the nature of the evidence is such that the public may want to go there because they only want to listen to these
sadiscious details of the testimony. The public can be excluded. Only the lawyers, the parties are allowed inside. Yaan!
2. on motion of the accused, the court may exclude the public. That is his right to speedy trial. Kung ayaw niya, e di okey
lang!
Aside from the two exceptions, the other grounds where the public can be excluded, based on American Jurisprudence are:
1. To prevent disorder;
2. To prevent embarrassment to a witness;
3. To limit attendance to seating capacity.
This is the very issue now. I’ve been reading current newspaper reports that everybody is anticipating that the case against
Erap will be filed in the Sandiganbayan. The DOJ wants everything to be televised all over again. They are filing a petition before
the Supreme Court. There is a standing order of the Supreme Court prohibiting it. It should not be televised because of what
happened in the Aquino libel case [Aquino vs. Beltran]. Because of that, ayaw na ng SC na i-televised. It becomes a sarswela –
show ba! – rather than an a public trial.
Now, they want to justify it on the ground that this involves public interest so the SC should relax the rules. I cannot anticipate
how the SC will resolve the matter because everybody has gotten used to the impeachment trial so everybody wants to hear what
is happening, especially if the person involved is Erap. Such a standing memorandum was not applied to the impeachment trial
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because it was not a judicial trial but a political trial. It is the Senate which controls the rules, not the courts. This is the difference.
But this case is before the Sandiganbayan which is a different story.
Because definitely many people would like to go there but how do you get a seat them all in the Sandiganbayan? You will
have to exclude hundreds, if not thousands and allow only the entry of a few. But if it is televised, then everybody can watch again.
SEC. 22. Consolidation of trials of related offenses. – Charges for offenses founded on the same facts or
forming part of a series of offenses of similar character may be tried jointly at the discretion of the court.
(14a)
Do not confuse this consolidation here in Rule 119 with the consolidation in Rule 111.
In Rule 111, you are consolidating the criminal case and the civil case – the civil case which is brought separately will be
consolidated with the criminal case. Here in Rule 119, you are consolidating two or more criminal cases which are identical,
founded on the same facts or forming part of the same series of offense of similar character. This is similar to consolidation in Rule
31 on civil cases.
But in civil cases, we can allow related cases to be filed together eh – joinder of parties, which is not allowed in criminal cases.
The only practice allowed in criminal cases is consolidation. But there could be no such thing as joinder of accused in one
information.
Let’s go to Section 23 on Demurrer – one of the most important provisions in Rule 119.
SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action
on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of
court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce
evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused
waives the right to present evidence and submits the case for judgment on the basis of the evidence for
the prosecution. (15a)
Demurrer is a motion to dismiss. After the prosecution has rested its case, based on the order of trial, the accused now
presents his case. But sabi ng accused, “Well, I will present evidence on the assumption that the prosecution has proven prima
facie the crime and my guilt. [meaning the presumption of innocence has already been disputively rebutted ba!].” But suppose the
prosecution has not proven the facts or not proven the crime or my guilt, “why will I present evidence? Why will I prove my
innocence when I’m still presumed innocent?” Yaan! Yan ang demurrer. The same thing in civil cases – why will you prove your
defense when the plaintiff failed to prove his cause of action? So instead of presenting evidence, he will file a demurrer. Actually
it’s a motion to dismiss.
Now of course, it is now emphasized in paragraph 1 that a demurrer may be filed with or without leave of court. Leave of court
means before your demurrer, you file muna a motion for permission to file the demurrer. The court grants permission, you file the
demurrer. You can still file the demurrer even without the permission of the court. If you file demurrer with or without leave and it is
granted, then you have no problem because the accused will be acquitted.
The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence to prove at least the guilt of
the accused. If the demurrer was filed with prior leave of court and it is subsequently denied, the accused is allowed to present
But if you filed the demurrer without prior leave of court and the demurrer is denied, then you are already convicted because
the accused has forfeited his right to present evidence. It is practically equivalent to a waiver of his right to present evidence. So
conviction automatically follows. This is what the rules say.
What is the rationale behind this? The 1997 case of
PEOPLE vs. TURINGAN

282 SCRA 424
HELD: “The rationale for the rule is that when the accused moves for dismissal on the ground of insufficiency
of the prosecution evidence, he does so in the belief that said evidence is insufficient to convict and, therefore,
any need for him to present any evidence is negated. It is said that an accused cannot be allowed to wager on
the outcome of judicial proceedings by espousing inconsistent viewpoints whenever dictated by convenience.
The purpose behind the rule is also to avoid the dilatory practice of filing motions for dismissal as a demurrer to
the evidence of the prosecution and, after denial thereof, the defense would then claim the right to present its
evidence.”
552
So, there is an inconsistency in saying that the prosecution’s evidence is not sufficient, and yet when it is denied, “OK, I will
present evidence.” Ahh di puwede yan! And many defense counsels in the past have filed demurrer just to delay the presentation of
evidence when there is no chance for said demurrer to be granted.
BERNARDO vs. COURT OF APPEALS

278 SCRA 782
HELD: “The power to grant leave to the accused to file a demurrer is addressed to the sound discretion of the
trial court. The purpose is to determine whether the accused in filing his demurrer is merely stalling the proceedings.
[Is he really serious or is only delaying the proceedings?] Judicial action to grant prior leave to file demurrer to
evidence is discretionary upon the trial court. But to allow the accused to present evidence after he was denied prior
leave to file demurrer is not discretionary.”[Meaning, when you file a demurrer without prior leave, you assume the risk
eh because once your demurrer is denied, you no longer have a chance to present evidence.]
“Once prior leave is denied and the accused still files his demurrer to evidence or motion to dismiss, the court no
longer has discretion to allow the accused to present evidence. The only recourse left for the court is to decide the
case on the basis of the evidence presented by the prosecution. And, unless there is grave abuse thereof amounting
to lack or excess of jurisdiction, the trial court's denial of prior leave to file demurrer to evidence or motion to dismiss
may not be disturbed. However, any judgment of conviction by a trial court may still be elevated by the accused to the
appellate court.” [You cannot question the order of denial of prior leave, this is discretionary but you can appeal the
judgment of conviction itself.]
BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases with the rule of demurrer in criminal
cases?
4. In civil cases when the demurrer is denied, the defendant will now present his evidence to prove his defense because
the defendant does not waive his right to present in the event the demurrer is denied; whereas
In criminal cases, if the demurrer of the accused is denied the accused is no longer allowed to present evidence if he
had no prior leave;
5. In civil cases, if the defendant’s demurrer is granted and the case is dismissed and the plaintiff appeals to the
appellate court and on appeal the court reverses the order of dismissal, the appellate court renders judgment
immediately against the defendant. Goodbye! – talo na ang defendant. There is no more remanding; whereas
In criminal cases, if the demurrer is granted, there is no more appeal by the prosecution because the accused has
already been acquitted. Otherwise, there will be a case of double jeopardy;
6. In civil cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests without any demurrer by
the defendant. There is no such thing as motu propio demurrer; whereas
In criminal cases, the court may dismiss the action on its own initiative after giving the prosecution the chance to
present its evidence.
Demurrer used to composed only of two paragraphs. Under the new rules, there are three (3) new additional paragraphs. The
additional provisions are:
These deadlines were not found before. If you want to file leave, pag-rest, 5 days lang, you file a motion for leave. The
prosecution may oppose the leave of within 5 days. After the court grants leave, you file the demurrer within 10 days lang. The
obvious purpose here is not to delay the trial.
When the court denies the motion for leave or the demurrer itself, as a rule, it is not reviewable. You cannot review it. The
remedy is to go to trial and if you are convicted, appeal on the judgment of conviction. But as a general rule, when a demurrer is
denied, you cannot go on certiorari. I’m not saying that this is 100% but there are some instances when the court, based on equity,
allows it.
Take note that when you file a leave of court to file a demurrer, the accused must specifically state the grounds.
The 1985 Rules just says you get prior leave. This is what I noticed here among trial courts: after the prosecution rests,
sometimes the defense counsel will say, “Your honor, we will file a demurrer. May we ask for leave of court to file the demurrer?”
And I noticed that the courts will say “Alright, leave granted, file your demurrer.” Parang naging automatic ba! Pag-hingi mo ng
leave, bigay kaagad!
553
I was watching that and I do not seem to agree with that kind of set-up and I had the opportunity once in a criminal case where
I was the private prosecutor where after we rested, the defense, in open court said, “Your honor, we would like to ask permission
for demurrer.” And the court said, “Granted!”. I said “Your honor, this is not the correct procedure because he doesn’t even say
what are his grounds for demurrer. The court should not grant the permission immediately without those grounds.” To my mind,
when you file a motion for leave, you must state the grounds to give the court a synopsis or an idea of what you are going to raise
so that the court will be attracted to grant. The reason behind this leave is to put a stop to the old practice. The old pra ctice was of
granting demurrer immediately and in most cases the demurrer is really without merit. This is why this was placed in the Rules of
Court so that the court will weigh whether “ano ba? Pagbigyan ko ba ito o hindi?” Otherwise, we would be going back to the old
system.
And the judge told me, “Your arguments are sound, but the trouble is there is nothing in the rules which support you so, we’l l
just grant leave.” Wala din. Of course, there was a leave, there was a demurrer, and I opposed and it was denied. But ang issue
ko, I’ve been harping on that point for so long. You cannot just say leave, you must tell the court what you will raise. Gi ve us an
idea so that the court will be convinced to grant leave. If the court will deny the leave, you file it at your own risk.
Now, the 2000 Rules states, “The motion for leave of court to file demurrer to evidence shall specifically state its grounds.”
Hindi na puwede yung “we intend to file a demurrer, may we ask for leave” without stating the grounds. At least, sabi ko, I have
been correct all along in advocating this. So when I read this in the new rules, I said, “Ay salamat! Tama pala ako all along!” Once
you know the philosophy of the law, hindi ka man mawala ba! You can always argue from that point.
SEC. 24. Reopening. – At any time before finality of the judgment of conviction, the judge may, motu
proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of
justice. The proceedings shall be terminated within thirty (30) days from the order granting it. (n)
Section 24 is a new provision. The judge may motu propio or upon motion reopen the proceedings.
Actually, reopening of trial is a remedy which is recognized but not found in the rules. Even the rules on civil procedure, there
are motions for new trials but you cannot find a rule for the re-opening of trial. But the SC has always recognized that there is such
a remedy.
EXAMPLE: I will rest my case, the trial is finished and the next step is the decision. But after you rest, you have additional
evidence discovered for the first time and therefore could not have been presented beforehand.
Q: What will you do? Will you file a motion for new trial based on the newly discovered evidence?
A: NO, you cannot – wala pang decision! Motion for new trial based on new evidence is proper only after a decision has been
made and the same is not yet final and executory.
Q: In the example, wala pang decision eh. What is the proper remedy?
A: The correct remedy is motion to reopen the trial because there is no judgment yet.
Q: On what grounds?
A: Justice and equity. This is the only ground for re-opening because there is no specific ground.
Q: Now can the court on its own, re-open a trial, civil or criminal?
A: YES. This has happened several times. The case has already been submitted for trial, this happened to me several years
ago. The court said “before the court renders a decision, the court would like to conduct an ocular inspection and re-enactment of
the alleged crime in the place where the crime was committed.” Motu propio, the court ordered the re-enactment. This is an
instance of re-opening the trial. This is allowed because this is an inherent power of the court, if it really wants to find out the truth.
You cannot find any provision in the rules regulating that kind of remedy. This is allowed without any specific rule except justice
and equity.
For the first time, reopening of trial in a criminal case is now found in Section 24 of the 2000 Rules. But there is something
wrong here. In reopening of trial, you do it before the case is decided. Dito naman, you do it “at any time before the finality of the
judgment of conviction.” Anong klase ito?! How can this be? There is already a judgment of conviction and then, you reopen?? I
think the correct motion is a new trial.
I remember when Galvez was here to lecture on the Rules on Criminal Procedure. He said that somebody in the Supreme
Court nakialam dito eh. The original draft was “anytime before judgment there can be re-opening upon motu propio or motion.” But
when the new rules came out, it said “at any time before finality of the judgment of conviction.” – dinagdagan ba! The person who
changed it must have thought the committee had erred but the change made it even worse. That’s why the committee wrote a letter
to the SC to amend this mistake.
Now, there are some special laws that are related to the subject of trial and they are considered as part and parcel of the
criminal procedure. I am referring to RA 4908, RA 6033, RA 6034 and RA 6035. RA’s 6033, 6034 and 6035 are also known as the
Laurel Laws because the author of these laws is Senator Laurel in the 70’s.
RA 4908 – AN ACT REQUIRING JUDGES OF COURTS TO SPEEDILY TRY CRIMINAL CASES WHEREIN THE OFFENDED
PARTY IS A PERSON ABOUT TO DEPART FROM THE PHILIPPINES WITH NO DEFINITE DATE OF
RETURN
RA 6033 – AN ACT REQUIRING COURTS TO GIVE PREFERENCE TO CRIMINAL CASES WHERE THE PARTY OR
PARTIES INVOLVE ARE INDIGENTS
554
RA 6034 – AN ACT PROVIDING TRANSPORTATION AND OTHER ALLOWANCES FOR INDIGENT LITIGANTS.
RA 6035 – AN ACT REQUIRING STENOGRAPHERS TO GIVE FREE TRANSCRIPT OF NOTES TO INDIGENT AND LOW
INCOME LITIGANTS AND PROVIDING A PENALTY FOR THE VIOLATION THEREOF
So that takes care of Rule 119.
Rule 120
JUDGMENT
Q: What is the definition of judgment in criminal cases?

A: Section 1:
SECTION 1. Judgment; definition and form. – Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and
civil liability, if any. It must be written in the official language, personally and directly prepared by the
judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law
upon which it is based. (1a)
Q: What does it contain?

A: Section 2:
SEC. 2. Contents of the judgment. – If the judgment is of conviction, it shall state (1) the legal
qualification of the offense constituted by the acts committed by the accused and the aggravating or
mitigating circumstances which attended its commission; (2) the participation of the accused in the
offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the
accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered
from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a
separate civil action has been reserved or waived.
In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In
either case, the judgment shall determine if the act or omission from which the civil liability might arise
did not exist. (2a)
There is something wrong in convicting somebody without even a clear statement of why he is guilty. According to the SC,
why is it that the law requires, especially in criminal cases, the judge should be careful in rendering a judgment? Why must it be
clearly stated why you are guilty under Section 1 & 2. Why is it that under Sections 1 and 2, the judgment must clearly state why
you are guilty? In the following cases of
PEOPLE vs. CAYAGO

312 SCRA 623 [1999]
HELD: “A strict compliance with the mandate of the said provision is imperative in the writing of every decision.
Otherwise, the rule would simply a tool for speculations, which this Court will not countenance specifically in criminal
cases involving the possible deprivation of human life.”
PEOPLE vs. BUGARIN

273 SCRA 384 [1997] J. Mendoza
HELD: “The requirement that the decisions of courts must be in writing and that they must set forth clearly and
distinctly the facts and the law on which they are based serves many functions. It is intended, among other things, to
inform the parties of the reason or reasons for the decision so that if any of them appeals, he can point out to the
appellate court the findings of facts or the rulings on points of law with which he disagrees. More than that, the
requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal
reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing him from deciding by ipse dixit [by
instinct]. Vouchsafed neither the sword nor the purse by the Constitution but nonetheless vested with the sovereign
prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge must ultimately depend on
the power of reason for sustained public confidence in the justness of his decision. The decision of the trial court in
this case disrespects the judicial function.”
In other words, among the three branches of government, the judiciary is the weakest. It has no power of the purse or the
sword. Purse – congress holds the budget. Sword – the judiciary has no army to enforce decisions unlike the executive where the
executive is already the commander-in-chief of the AFP. So how can the judiciary command the respect of the people? There is
only one way – the force of its decisions – that its decisions are well argued and logical. This is the only way to have the people
believe in the judiciary. If it cannot cope with this, it is an insult, an attack to judges who do not know how to write decisions,
because this is how the judiciary earns the respect of the people. Otherwise, baka wala ng maniwala sa korte. That is how the SC
explained that idea in the case of Bugarin.
One interesting case in relation to Section 2 which dealt with the double jeopardy rule was the case of
ABAY, SR. vs. GARCIA
162 SCRA 665
555
FACTS: On the day of trial, the accused was there with his lawyer. The offended party was not in court. The
judge asked the fiscal what action he wanted to proceed with. The fiscal said, “We will look at the records, whether
the offended party were properly informed.” Finding that the offended party was properly informed, the fiscal said
[oral motion], “In that case your honor, we are moving for the dismissal of the criminal case for lack of evidence now
upon us – wala ang offended party eh.” The judge dictated in open court, “Alright, the case is dismissed for failure to
prosecute.” With that, the accused went home happy.
After the accused left and shortly thereafter, the offended party arrived with his lawyer. After they learned of the
dismissal they explained that they had to travel far, had a flat tire and got caught in traffic. The judge found their
earlier non-appearance as justified and ordered the revocation or reconsidered the earlier decision of dismissal,
consequently resetting the trial.
The accused learned of the succeeding events and protested that this was a case of double jeopardy. He
contends that all the necessary elements of double jeopardy are present: valid complaint, valid information filed in a
competent court; had an arraignment; and the case was dismissed without his express consent.
HELD: The order of dismissal was equivalent to an acquittal but a judgment of acquittal under Rule 120 must be
in writing. The order dismissing the case was not in writing but was dictated in open court. It was never reduced into
writing. What was reduced to writing was the second order which revoked the first order. Since it was never in writing,
there was no judgment of acquittal. Therefore, there is no double jeopardy.
“However, this order of dismissal must be written in the official language, personally and directly prepared by the
judge and signed by him conformably with the provisions of Rule 120, section 2 of the Rules of Court. In the instant
case, it is very clear that the order was merely dictated in open court by the trial judge. There is now showing that this
verbal order of dismissal was ever reduced to writing and duly signed by him. Thus, it did not yet attain the effect of a
judgment of acquittal, so that it was still within the powers of the judge to set it aside and enter another order, now in
writing and duly signed by him, reinstating the case.”
This is how the Supreme Court skirted the double jeopardy rule by applying Rule 120, Sections 1 and 2.
The 2nd paragraph of Section 2 is new and it radically changed the language of the previous rule. Section 2, second
paragraph:
In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In
either case, the judgment shall determine if the act or omission from which the civil liability might arise
did not exist. (2a)
This is just a repetition of Rule 111, Section 2 [last paragraph] when the judgment acquits the accused, the judgment should
state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise
does not exist. Because generally if you are acquitted on reasonable doubt, it will not bar the filing of a separate civil a ction. But if
the fact from which the civil liability might arise does not exist, then the acquittal is already a bar to a future civil liability.
Compare this with the language of the 1985 Rules, Rule 120, Section 2, last paragraph:
In case of acquittal, unless there is a clear showing that the act from which the civil liability might
arise did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the
offended party.
According to the 1985 Rules, if the accused is acquitted based on reasonable doubt, the court may order the accused to satisfy
civil liability because the cause of action in the civil case is already proven although the accused is acquitted. It is possible for the
accused to be acquitted and yet is found to be civilly liable based on the 85 Rules.
The rule under the 1985 Rules was taken from decided cases such as the case of METROBANK VS. CA (188 SCRA 259). In
this case, the accused was charged with estafa. After trial, the court said that there was no estafa. It is only a simple loan – so
there is no crime. Normally, the next step is to let the offended party file a civil case to demand payment of the loan. But in the
case of Metrobank, the SC said that it is a double effort. The Supreme Court said, “While it is true that petitioner Metrobank can no
longer collect private respondent's civil liability on the basis of the criminal case filed, it could nonetheless collect the said civil
liability prayed for on the basis of the non-payment of the loan contracted by respondent spouses from the bank. There appear to
be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have
already been established in the criminal proceedings where the accused was acquitted. To require a separate civil action simply
because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with
all its attendant loss of time, effort, and money on the part of all concerned.” This was the 1985 Rules.
Q: Now, is that rule still valid under the 2000 Rules?

A: The new rule is silent. There is nothing here that says that the accused may be acquitted but found civilly liable unlike the
1985 Rules. It only says that in case of acquittal, the judgment should state whether the acquittal is based merely on reasonable
doubt or the prosecution absolutely failed to prove the guilt of the accused. In either case, the judgment shall determine if the act or
omission from which the civil liability might arise does not exist. But as it is worded now, it would seem, you should file a separate
civil case. And the practice of holding the accused liable civilly in a criminal case where he is acquitted, seems to be no longer
possible.
Under the new rules, just acquit – let him file a separate civil case. The old rule is simplier: No need! Dun na mismo sa criminal
case – acquit him but make him civilly liable. But now, the language is different. It is a radical departure from the 1985 rules.
556
SEC. 3. Judgment for two or more offenses. – When two or more offenses are charged in a single
complaint or information but the accused fails to object to it before trial, the court may convict him of as
many offenses as are charged and proved, and impose on him the penalty for each offense, setting out
separately the findings of fact and law in each offense. (3a)
Let’s go back to Rule 110 on duplicitous complaint or information. Under Section 3 of Rule 110, this is defined as a complaint
or information which charges more than one offense. This is not allowed. And the remedy here is you file a Motion to Quash under
Section 3 [f], Rule 117.
But the defect is waivable because if you do not file a Motion to Quash, the trial can proceed and if you are found guilty for
committing 2 or more crimes, then there will be 2 or more penalties. Under Section 3, the court may convict the accused of as
many offenses as are charged and proved and impose on him the penalty for each offense if the accused fails to object the
duplicitous complaint before the trial.
SEC. 4. Judgment in case of variance between allegation and proof. – When there is variance between
the offense charged in the complaint or information and that proved, and the offense as charged is
included in or necessarily includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged which is included in the
offense proved. (4a)
We will go to this basic principle:
Mr. Calizo is charged in an information of committing one crime. However, during the trial, what was proven is another crime.
What will happen now? Well, we will have to ask this question –
Q: Is the offense proven included in the offense charged or does the offense proven includes the offense charged?
A: If YES, then apply Section 4. You convict the accused of the offense proved which is included in the offense charged, or of
the offense charged which is included in the offense proved.
Q: What if kung malayong-malayo? The crime proved is different from the crime charged like for example: The crime charged is
homicide and what is proved is robbery. What will happen? Will you apply Section 14 of Rule 110 on substitution of information?
A: No, you will not apply Rule 110 Section 14 because we are already through with that stage. We are now in the trial stage
where the crime proved is different from the crime charged. Therefore, the proper remedy here is Section 19 of Rule 119, last
paragraph:
RULE 119, SEC. 19. When mistake has been made in charging the proper offense. – When it becomes
manifest at any time before judgment that a mistake has been made in charging the proper offense and
the accused cannot be convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the
court shall commit the accused to answer for the proper offense and dismiss the original case upon the
filing of the proper information. (11a)
[Editor: Try to correlate this with Section 14, Rule 110. They are similar. But for clearer understanding, please go back to
Section 19, Rule 119 in the case of GALVEZ on the distinctions between these two provisions. Thanks!]
SEC. 5. When an offense includes or is included in another. – An offense charged necessarily includes
the offense proved when some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is necessarily included in the
offense proved, when the essential ingredients of the former constitute or form part of those constituting
the latter. (5a)
Q: When does an offense include another, or when is it included in the other?

A: Section 5, Rule 120.
For example, Mr. Tiamzon is charged with MURDER and what is established is HOMICIDE. Homicide is included in the crime of
murder. The elements are identical. The only difference is that there are no qualifying circumstances in homicide. Or, THEFT is
included in ROBBERY. The only missing element in theft is violence or intimidation. Or, LESS PHYSICAL INJURY is included in
SERIOUS PHYSICAL INJURY.
In that case, the case will not be dismissed. Just convict the accused of the crime proven which is included in the crime
charged. Such that if you are charged with murder, you can be convicted for homicide.
Q: Suppose the accused is charged with homicide and what was proven is murder. So it is the other way around. What is the
correct procedure?
A: Convict him for the crime charged. Do not dismiss the case. Although the crime proved (murder) includes that which is
charged (homicide), a person cannot be convicted of a more serious offense than that charged. The accused can only be convicted
for homicide and the qualifying circumstances of murder should be treated only as an ordinary aggravating circumstances. The
same is true with theft and robbery. [c.f. discussions on Section 8, Rule 110]
We will now go to some important cases.

557
VINO vs. PEOPLE OF THE PHILIPPINES
178 SCRA 626
FACTS: Mr. Acelar is accused of murder as principal by direct participation. After trial, it was established that Mr.
Acelar is only an accessory.
ISSUE: Can a person accused of murder as a principal may be convicted as an accessory?
HELD: YES, a person charged with an offense as principal maybe convicted as an accessory because the
greater responsibility includes the lesser responsibility. Accessory is a lesser degree of participation.
This is not a case of a variance between the offense charged and the offense proved. Here, the accused was
charged with murder and what was established by evidence was also murder. There is here no mistake in charging
the proper offense. The variance is in the participation of the accused in the commission of the crime which is not
covered by any specific provision. What is covered by the rules is when there is a mistake in charging the proper
offense, or when there is a total mistake because the crime was never committed.
Q: What is the difference between malversation and technical malversation?

A: Although both crimes are committed by public officers, malversation is punishable under Article 217 of the RPC, whereas,
technical malversation is not referred as such in the RPC. Technical malversation is denominated as Illegal Use of Public Funds
under Article 220 of the RPC.
EXAMPLE: Technical malversation/Illegal Use of Public Fund is when a public officer uses funds appropriated for a certain
public purpose (let’s say, for the construction of a school building) for another public purpose (like widening or cementing of roads.)
PARUNGAO vs. SANDIGANBAYAN

197 SCRA 173
FACTS: A public officer was charged with technical malversation of public funds or property. The trial court found
that the crime committed is not technical malversation. It is more of malversation.
ISSUE: May a person, charged with technical malversation under Article 220 of the RPC, be found guilty of
malversation under Article 217?
HELD: NO. He cannot be convicted of malversation because there is no similarity between these two crimes. “In
malversation of public funds, the offender misappropriates public funds for his own personal use or allows any other
person to take such public funds for the latter's personal use. In technical malversation, the public officer applies
public funds under his administration not for his or another’s personal use, but to a public use other than that for which
the fund was appropriated by law or ordinance.”
“Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of
public funds charged in the information.”
“The Sandiganbayan therefore erred in not ordering the filing of the proper information against the petitioner, and
in convicting him of technical malversation in the original case for malversation of public funds. Ordinarily, the court’s
recourse would be to acquit the petitioner of the crime of illegal use of public funds without prejudice, but subject to
the laws on prescription, to the filing of a new information for such offense.”
“Considering however that all the evidence given during the trial in the malversation case is the same evidence
that will be presented and evaluated to determine his guilt or innocence in the technical malversation case in the
event that one is filed and in order to spare the petitioner from the rigors and harshness compounded by another trial,
not to mention the unnecessary burden on our overloaded judicial system, the Court is acquitted the accused of the
crime of illegal use of public funds.”
But Justice Feliciano dissented, “Why question the procedure used for violation the law?” Anong klaseng decision ito? Even
before filing the correct information, the SC already ruled that you are innocent? According to him, the correct procedure is not to
dismiss both cases but to acquit the accused of the original complaint of technical malversation and require the filing of a new
information charging the proper offense (malversation). So this is one of the rare cases where the SC decided not to be very
technical and went straight to the decision. Siguro the SC would like to save time.
Q: If a person is charged with rape, can he be convicted of qualified seduction? Is qualified seduction included in rape?
A: It seems that the elements are different. In rape, there is no consent in the sexual intercourse. But in seduction, there is
consent although there is abuse of authority, relationship or there is deceit. But in the 1993 case of
PEOPLE vs. SUBING-SUBING
228 SCRA 168
HELD: “A person charged with rape can be convicted of qualified seduction if the latter though not alleged in the
complaint, appears in the victim’s affidavit.”
It seems that there is something wrong here; the complaint says rape, but the victim’s affidavit says qualified seduction.
However the SC says it is fine. It is tantamount to the same thing: not found in the complaint but found in the victim’s affidavit. This
is another queer decision of the SC.
PECHO vs. SANDIGANBAYAN

238 SCRA 116
558
FACTS: There was somebody who imported highly taxable items. Obviously, he had some connections with the
Bureau of Customs. He declared his items different form which he brought, so the taxes are less. The obvious
intention it to cheat the government of the correct amount of taxes. He prepared the import entry declaring false
information or entries. However, the Collector of Customs ordered a spot inspection. So the attempt did not succeed.
The importer, together with the Customs people were charged with attempted violation of the Anti-Graft Act. So,
there was an attempt to cause undue injury to the government by depriving it of its proper taxes.
ISSUE: Can a person charged with a crime punishable under a special law be found guilty instead of a felony in
the RPC? Can a crime under the RPC be considered as included in the crime under a special law?
HELD: There is no such thing as attempted violation of the Anti-Graft Act. The attempted, frustrated and
consummated stages only apply to felonies in the RPC. Under crimes punishable by a special law, you only punish
the consummated stage. You do not punish the attempted and frustrated stages unless the special law says so. Since
there was no injury caused to the government due to the time discovery, there was no violation of the Anti-Graft Act.
However, they made false entries, thereby committing falsification. Therefore, they can be convicted of falsification
of public or commercial documents.
So in this case, it started as attempted violation of the Anti-Graft Act (special law) and ended up as a conviction for falsification
under the RPC. A crime under the RPC was considered as included in the crime malum prohibitum
PEOPLE vs. VERZOSA

294 SCRA 466 [1998]
FACTS: Appellants were charged for violating PD 532 – Anti-Piracy And Anti-Highway Robbery Law Of 1974.
ISSUE: Can a person charged for violating a special law be found guilty for a crime of robbery with homicide under
the RPC?
HELD: YES. What appellants committed is the crime of robbery with homicide, which is distinct from the offense
covered by P.D. 532 which punishes, among others, indiscriminate highway robbery.
“Nonetheless, the designation of the crime in the information as “highway robbery with homicide (Violation of PD
532)” does not preclude conviction of the appellants of the crime of robbery with homicide (Article 294 [1] of the RPC).
In the interpretation of an information, what controls is not the designation but the description of the offense charged.
The crime of robbery with homicide is clearly alleged in the information notwithstanding its erroneous caption. It is an
offense necessarily included in that with which they were charged.”
SEC. 6. Promulgation of judgment.– The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered. However, if the conviction is for a light
offense, the judgment may be pronounced in the presence of his counsel or representative. When the
judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may be promulgated
by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or
detention upon request of the court which rendered the judgment. The court promulgating the judgment
shall have authority to accept the notice of appeal and to approve the bail bond pending appeal;
provided, that if the decision of the trial court convicting the accused changed the nature of the offense
from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate
court.
The proper clerk of court shall give notice to the accused personally or through his bondsman or
warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was
tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his
last known address.
In case the accused fails to appear at the scheduled date of promulgation of judgment despite
notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him
a copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable
cause, he shall lose the remedies available in these rules against the judgment and the court shall order
his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender
and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence
at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15) days from notice. (6a)
Alright. Promulgation is where the accused is parusahan na or acquitted. It consists of the reading of the decision in the
presence of the accused. This is one stage of the criminal proceeding where the presence of the accused is generally required. The
other instance is during the arraignment.
It is not necessary that the promulgation be made before the very same judge who rendered the decision. Example: The RTC
of Davao has many branches. Suppose the promulgation will be made in the RTC Branch 8, but on the date of promulgation, the
judge thereof got sick.
Q: Can the decision of RTC Branch 8 be promulgated before the judge of RTC Branch 9?
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A: YES, a decision rendered by one branch of a court may be promulgated before another branch of the same court precisely
because it is the same court although of different branches. Section 6, reads: “The judgment is promulgated xxx in the presence of
xxx ANY JUDGE of the court in which it was rendered.”
Do not confuse this on what happened in the 1993 case of
PEOPLE vs. CFI OF QUEZON BRANCH 10

227 SCRA 457
FACTS: Accused was charged criminally in the RTC Branch 10 presided by Judge A who tried the case but retired
without deciding the case. Meanwhile, Judge B, presiding judge of Branch 3 was designated temporarily to take over
Branch 10 and among the cases submitted to him for decision was the undecided case of the accused. So, he read
the records and he wrote the decision on May 22. On June 9, Judge C was appointed presiding judge of Branch 10.
He took his oath of office the following day, June 10, terminating automatically the designation of Judge B. With the
appointment of Judge C, Judge B was only left with his original sala – Branch 3. On June 20, the deputy clerk of court
promulgated the decision of Judge B made on May 22.
ISSUE: Was the judgment penned by Judge B, detailed to the vacant branch of the court, but promulgated after
the permanent judge has been duly appointed to the vacancy, valid?
HELD: YES. It is valid. Judge B did not retire. He is still in the SAME court although in another branch.
“It is not necessary that Judge B be the presiding judge of Branch 10 at the time his decision was promulgated
since even after the expiration of his temporary designation at Branch 10 he continued to be an incumbent of Branch
3. After all, the RTC is divided into several branches, each of the branches is not a court distinct and separate from
the others. Jurisdiction is vested in the court, not in the judges, so that when a complaint or information is filed before
one branch or judge, jurisdiction does not attach to said branch of the judge alone, to the exclusion of the others.”
“Indeed, it would have been different altogether if the judge whose decision was promulgated had, prior to its
promulgation, died, resigned, retired, been dismissed, promoted to a higher court, or appointed to another office with
inconsistent functions. Then, he would no longer be an incumbent member of a court of equal jurisdiction, and his
decisions written thereafter would be invalid.”
Q: In places where there is only one branch of the RTC, no other sala, who promulgates the decision in case of the absence of
the judge?
A: The clerk of court. Under Section 6, “When the judge is absent or outside the province or city, the judgment may be
promulgated by the CLERK OF COURT.”
Q: Suppose the accused has several cases in different places. Like for example he has a case in Davao and another in Cebu.
After the trial in Davao, he was sent to Cebu for another trial. In the meantime, tapos na yung sa Davao, promulgation na lang, but
the accused is in Cebu. What will happen if there will be a promulgation in the Davao case?
A: Under Section 6, the Davao court will send the decision to the RTC Executive Judge of Cebu and let it be promulgated there
in the presence of the accused.
Now, a new clause is inserted in Section 6 which provides that “if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court.”
So in the previous example, if the accused is charged (in Davao) of murder but later convicted for homicide, the RTC Executive
Judge of Cebu has no power to entertain any application for bail if the accused wanted to appeal the conviction. Such application
can only be filed and resolved by the appellate court. This is similar to Section 5 of Rule 114 on Bail –
x x x x However, if the decision of the trial court convicting the accused changed the nature of the
offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the
appellate court.
The above provision was taken and modified in the case of OMOSA vs. CA (266 SCRA 281 [1997])
Q: Is there such a thing as promulgation by proxy?

A: YES. A decision may be promulgated even without the presence of the accused but ONLY if the conviction is for a light
offense. Generally, promulgation is by personal appearance. However under the Section 6, “if the conviction is for a light offense,
the judgment may be pronounced in the presence of his COUNSEL or REPRESENTATIVE.”
PEOPLE vs. PRADES

July 30, 1998
HELD: “In the Supreme Court and the Court of Appeals, the judgment is promulgated by merely filing the signed
copy thereof with the Clerk of Court who causes true copies of the same to be served upon the parties, hence the
appearance of the accused is not even required there as his presence is necessary only in the promulgation of the
judgments of trial courts.”
Q: Is the presence of the complainant required during the promulgation?

A: NO. There is no rule requiring a judge to notify the complainant of the date of promulgation of judgment in criminal cases.
What the Rules of Court particularly Section 6, Rule 120 requires is that the promulgation be made in the presence of the accused.
(Ramirez vs. Macandog, 144 SCRA 462)
560
Q: Is the presence of the counsel of the accused required during the promulgation?
A: NO. The Rules of Court does not require the presence of counsel for the validity of the promulgation. The accused is not
required to be present at the promulgation if the conviction is for light offense, in which case, his counsel or representative may
appear in his behalf. But definitely, in any case, the promulgation is valid even the counsel does not appear thereat. (Pangilano vs.
Nuevas, 152 SCRA 158)
Q: What happens if the accused was tried in absentia? Or before the promulgation he escaped or jumped bail?
A: Under Section 6, the proper clerk of court shall give notice to the accused personally or through his bondsman or warden
and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he
jumped bail or escaped from prison, the notice to him shall be served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be
made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or through his
counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the
remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from
promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He
shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause,
he shall be allowed to avail of said remedies within fifteen (15) days from notice.
So there are six (6) types of promulgation of judgment under Section 6:
1.) Ordinary judgment - promulgated by reading it in the presence of the accused and any judge of the court in which it
was rendered. This applies only to trial courts (People vs. Prades, supra);
2.) Promulgation by the Clerk of Court - when the judge is absent or outside the province or city;
3.) Promulgation by the Executive Judge - If the accused is confined or detained in another province or city, the judgment
may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of
confinement or detention upon request of the court which rendered the judgment;
4.) Promulgation in absentia - If the accused was tried in absentia because he jumped bail or escaped from prison, the
notice to him shall be served at his last known address;
5.) Promulgation by recording the judgment – in case the accused fails to appear at the scheduled date of promulgation
of judgment despite notice.
SEC. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or
when the sentence has been partially or totally satisfied or served, or when the accused has waived in
writing his right to appeal, or has applied for probation. (7a)
Q: May judgement of conviction be modified or set aside?

A: YES, for as long as:
a. the judgement has not yet become final, or
b. appeal has not been perfected
Take note that only a judgment of conviction can be modified. A judgment of acquittal cannot be modified. It is only upon
motion of the accused.
Q: How about upon motion of the prosecution?

A: It would seem under the rules, that it is only the accused who is given that privilege of moving to modify the judgement and
set it aside.
There is an identical provision here that we have already taken up before – about the judgment of conviction which may be set
aside before it becomes final. Read Section 5, Rule 116 on Arraignment and Plea:
Withdrawal of improvident plea of guilty. – At any time before the judgment of conviction becomes final,
the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not
guilty. (5)
So even if you plead guilty, and it is not a capital offense and there is now a judgment sentencing you because of your plea,
you can still change your mind by changing your plea from guilty to not guilty. But you have to file a motion to set aside before the
judgment of conviction becomes final.
Q: When does the judgement in a criminal case become final?

A: It DEPENDS:
a. If it is a judgement of ACQUITTAL – immediately executory after promulgation of judgment because it cannot be

changed anymore.
b. If it is a judgment for CONVICTION:
1. After the lapse of the period for perfecting an appeal (2nd part of Section 7). So 15 days generally. EXCEPT
when the DEATH penalty is imposed. That is now inserted in the new Rules because even if the accused will not
561
appeal, there is an automatic review. So the rule that when the period to appeal has expired, the judgment will
become final, will NOT apply in death penalty cases. However, the lapse of the period to appeal and no appeal is
perfected, is not the only instance where the judgment of conviction becomes final;
2. Even within the period to appeal, that is when the sentence has been partially or totally satisfied or served. For
example Charles has been sentenced to 10 days of Arresto Menor and he has already served it. Or Charles has
been sentenced to pay a fine of P100 and he pays it. Wala na! Final na iyan! Because he has decided to serve
his sentence, it has become final. We do not have to wait for 15 days;
3. When the accused has waived in writing his right to appeal;
4. When after conviction, the accused applies for probation (this is based on the probation law). When Charles
applies for probation, he is waiving his right to appeal and he is accepting the judgement of conviction.
Take note, however, that in these instances, when the judgment of conviction becomes final, even before the lapse of 15 days,
what the law means is that what has become final is the criminal aspect. The civil aspect of the case does NOT become final after
the lapse of 15 days. And these instances do not apply when the penalty imposed is death because of the automatic review of the
Supreme Court.
I met this problem before where the judgment convicted the accused and the trouble is that judgment forgot to impose civil
liability. Nalimutan talaga! And there was no reservation or waiver so that the court should have imposed the civil aspect. The
trouble is, after the promulgation, the accused started to serve his sentence the following day.
But within the period of 15 days, we filed a motion for reconsideration to complete the judgment because under Section 1 of
this Rule, the imposition of the proper civil liability must be included. And Section 2 also provides that the civil liability should be
enforced unless the enforcement of civil liability in a separate civil action has been reserved or waived.
The judge acknowledged and admitted that he overlooked the civil liability. He said that he is ready to modify the judgment to
include the civil liability which he forgot. But the judge said, the trouble is that he can no longer do it because the accused has
already started serving his sentence after promulgation, and from that moment, the judgment has become final. So he said, “how
can I amend my judgment kung final na?”
I told him, what became final was the criminal aspect, the civil aspect cannot become final until after the lapse of 15 days. Sabi
ng judge, “Are you sure? Can you sight a case which says so? Because my researcher said na hindi pwede.”
Yes, according to the SC in one case, “…as long as the period for appeal has not yet expired, even if the judgment has
become final by service of sentence or waiver of appeal, the trial court may still modify its judgment as to its civil aspect.” So what is
final is the criminal aspect and NOT the civil aspect. Because if the offended party cannot claim civil liability kasi inunahan ng
accused ng pag-serve ng sentence, there is something unfair there no.
SEC. 8. Entry of judgment. – After a judgment has become final, it shall be entered in accordance with
Rule 36. (8)
Rule 36 is entitled, “Judgments, Final Orders and Entry Thereof.” While Rule 36 falls under the subject of Civil Procedure,
some of its provisions may be applied in criminal procedure.
SEC. 9. Existing provisions governing suspension of sentence, probation and parole not affected by this
Rule. – Nothing in this rule shall affect any existing provisions in the laws governing suspension of
sentence, probation or parole. (9a)
The suspension of sentence, probation or parole are governed by substantive law such as the Indeterminate Sentence Law
and the Probation law. These laws have never been modified or affected by the Rules of Court.
Jesus, Moses and an old bearded man were playing golf. On the first tee, Moses shanked
his ball into a lake. He parted the water and hit his ball onto the green.
Jesus teed off next, hitting his ball into another water hazard. But he walked on the water
and stroked his ball just short of the cup.
The old bearded man stepped up and hit the ball with tremendous force, but hooked it badly.
The ball bounced off the clubhouse roof, rolled down a hill into a pond and came to rest on a lily
pad.
A frog hopped over to the ball and picked it up. Then an eagle swooped down, snatched the
frog and flew over the green. The frog dropped the ball and it rolled into the cup for a hole-in-one.
Moses turned to Jesus and said, “I hate playing golf with your dad!”
Rule 121
NEW TRIAL OR RECONSIDERATION
SECTION 1. New trial or reconsideration. – At any time before a judgment of conviction becomes final,
the court may, on motion of the accused or at its own instance but with the consent of the accused, grant
a new trial or reconsideration. (1a)
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NEW TRIAL
Q: What is the effect of the filing of a motion for new trial on the double jeopardy rule?
A: An accused who files a motion for new trial WAIVES the protection of double jeopardy, so that if the motion is granted, he
can be tried and convicted of the graver offense charged in the complaint or information. (Trono vs. U.S. 11 Phil. 726; Santos vs.
People, 64 Phil. 10)
Actually, it is like an appeal eh – when an accused appeals the judgment against him, he is waiving his right against double
jeopardy. And it has happened several times in the past where the accused was charged with murder and convicted of homicide.
He was not contented. When he filed an appeal, he was convicted of murder. Sometimes, appeal can give you a worse situation.
It happened here in Davao where a lawyer was charged as a principal for falsification of documents that he notarized. The
judge convicted him of falsification but merely as an accomplice. Binabaan ba! But I think the intention of the judge was to allow the
lawyer to ask for probation. Pero hindi nakuntento ang lawyer. He appealed to the CA. Naloko na! Nasamot gyud! The CA
convicted him as principal. And what was worse, the CA said that since the accused was a lawyer, let a copy of the decision be
brought to the SC for disbarment proceedings. Na disbarred pa! That’s what happens for appealing!
Alright, and take note, at any time before a judgment of conviction become final. Now this is one provision which you have to
compare with Rule 120, Section 7 on Modification of Judgment.
Q: Compare and Distinguish New Trial from Modification of Judgment.

A: Similarity: Both may be resorted to before the judgment of conviction becomes final.
Distinctions:
1. In new trial, by the very nature of its purpose and what is to be done, both parties intervene; whereas, in
modification of judgment, the court moto propio may act provided the consent of the accused is required;
2. In new trial, if the motion is granted, the original judgment is vacated and a new judgement shall be rendered;
whereas, in modification of judgment, the integrity of the decision already rendered is unaffected, except for the
proposed changes, although the entire decision may have to be rewritten. (People vs. Tamayo, 86 Phil. 209)
Now, there is a new section in the New Rules which created confusion – Rule 119 Section 24.
SEC. 24. Reopening.– At any time before finality of the judgment of conviction, the judge may, motu
proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of
justice. The proceedings shall be terminated within thirty (30) days from the order granting it. (n)
When do you make the motion for reopening? At anytime before the judgment of conviction becomes final? Pareho di ba! The
language of the 3 provisions are identical, motion for: (1) reopening of trial; (2) modification of judgment of conviction; and (3) new
trial or reconsideration
That is a new provision. So that when I looked at the new Rules, talagang nalito ako. Ano ba itong reopening of trial. How is
this different from the others?
That is why, during the seminar in Men Seng last November 30 on the New Rules, I brought this out, eh. Would somebody be
kind enough to tell the difference between the three? Everything kasi is done before the judgment of conviction becomes final! Of
course, nobody stood up there to tell me the difference.
Kaya nalito ako. Former Solicitor General Galvez, when he was here, told me that “typographical error man yung Rule 119 ba,
hindi man ganyan ang aming recommendation.” Why nga naman will you reopen after judgment of conviction? Reopenning is done
before judgment is rendered. Ito naman, paglabas! Naloko na! It created a lot of confusion. So if we believe Galvez, the confusion
is caused by a typographical error, which according to him is not the language of the Rules submitted to the SC and somebody
tinkered with that provision.
563
There is also a rule on New Trial in civil cases under Rule 37, you know the grounds: FAME, NDE, etc. And there are some
rules there to follow such as the motion for new trial must be supported by affidavits of merits, or the motion for reconsideration
must point out specifically the error committed by the trial court, and the portion of the decision not supported by the evidence.
Otherwise, if you do not comply with these requisites, what is the name of your motion? PRO FORMA. Pro Forma, meaning the
filing of your motion for new trial or reconsideration will NOT interrupt the period to appeal. That is the effect.
This is now the question:
Q: Is there such a thing as pro forma motion for new trial or reconsideration in criminal cases? Where your motion is obviously
dilatory? Your grounds are too general, too vague, too ambiguous? No affidavit of merits? And therefore if it is denied, there is no
more right to appeal by the accused applying the pro forma rule?
A: The SC ruled in the past that the pro forma rule in civil cases DOES NOT apply to criminal cases. In criminal cases, a
general statement of the grounds for new trial is sufficient. (People vs. Colmenares, 57 O.G. 3714) Even if you do not go into
details because you expect your motion to be denied, but the filing will still interrupt the period. It is too harsh if the remedy of
appeal will be removed from the accused simply because of a motion for new trial which is not prepared properly. So the pro forma
rule will not apply in criminal cases. The filing of a motion for new trial or reconsideration will always interrupt the running of the
period to appeal.
Q: Alright, what are the grounds for new trial?
A: Section 2:
SEC. 2. Grounds for a new trial. – The court shall grant a new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been
committed during the trial;
(b) That new and material evidence has been discovered which the accused could not with
reasonable diligence have discovered and produced at the trial and which if introduced and admitted
would probably change the judgment.
Q: What are the grounds for a new trial?

A: Under Section, the following are the grounds:
1. Errors of law;
Example: In one case, during the trial, the trial court excluded a defense witness from testifying based on an
erroneous interpretation of the rules of evidence. The judge disqualified him. But it turned out that the witness was not
disqualified. That is an error of law. For all you know, if his testimony will be given, the accused will be acquitted.
Therefore, a new trial should be granted where he should be allowed to testify. (People vs. Estefa, 86 Phil. 104)
2. irregularities prejudicial to the substantial rights of the accused;
Example: In one case, the trial court compelled the accused, over his objection, to submit to trial without the
assistance of his counsel. (People vs. Enriquez, L-4934, November 28, 1951) If the accused is convicted because of such
irregularity, this is a valid ground for new trial. Besides, why should the judge punish the accused? He should punish the
lawyer.
3. Newly discovered evidence; this is similar to civil cases, newly discovered evidence. The requisites are the same:
564
a.) discovered after trial;
b.) it could not have been discovered before trial even with the use of reasonable diligence
c.) and if introduced and admitted would probably change the decision
Q: May a new trial be granted on the ground of loss of stenographic notes?

A: NO. The loss of stenographic notes after trial is NOT such an irregularity as would justify a new trial. The remedy of the
accused is to have the missing evidence reconstituted. (People vs. Castelo, L-10774, February 16, 1961)
There is a case, the trial is concluded, and the accused is convicted. Within the period of 15 days from promulgation, here
comes the accused filing a motion for new trial on the ground that the prosecution witness has executed an affidavit recanting his
testimony. The prosecution witness, in effect, is saying that what he said during the trial is not true.
Q: May a new trial be granted on the ground of loss of recantation of prosecution witnesses?
A: As a GENERAL RULE, recantation is NOT a ground for new trial, otherwise there would never be an end to criminal
litigation. “The Court has looked with disfavor upon retraction of testimonies previously given in court. Thus, the Court has ruled
against the grant of a new trial on the basis of a retraction by a witness. The rationale for the rule is obvious: Affidavits of retraction
can easily be secured from poor and ignorant witnesses usually for a monetary consideration. Recanted testimony is exceedingly
unreliable. There is always the probability that it may later be repudiated. So courts are wary or reluctant to allow a new trial based
on retracted testimony.” (People vs. Clamor, July 1, 1991; People vs. Soria, October 4, 1996)
Q: Is there an EXCEPTION?
A: YES, when it is made to appear that there is no evidence sustaining the judgment of conviction other than the testimony of
the recanting witness. (U.S. vs. Dacir, 26 Phil. 503) When aside from the testimonies of the retracting witness or witnesses there is
no other evidence to support a judgment of conviction, a new trial may be granted. (People vs. Clamor, July 1, 1991)
GOMEZ vs. IAC

April 9, 1985
HELD: “It is conceded that the State has the sovereign right to prosecute criminal offenses under the full control
of the fiscal and that the dismissal of criminal cases by the execution of an affidavit of desistance by the complainant
is not looked upon with favor. However, it is also true that an affidavit of desistance may create serious doubts as to
the liability of the accused. At the very least, it calls for a second hard look at the records of the case and the basis for
the judgment of conviction. Jurisprudence on the effect of desistance notwithstanding, the affidavit should not be
peremptorily dismissed as a useless scrap of paper.”
Sometimes I have seen affidavits of recantation made by the complainant, alam mo kung anong nakalagay? – “I have lost
interest in continuing the case.” Pero tapos na, naka-testify na siya. And on the basis of that, a new trial was granted. Mali man iyan
ba. Para mag-new trial, dapat na sabihin niya, “Mali ang mga sinabi ko!” If you say that you are not interested, you are not really
repudiating what you said. That is what the SC emphasized in the 1998 case of
PEOPLE vs. GARCIA

288 SCRA 382 [1998]
HELD: “To warrant a new trial, the affidavit of desistance must constitute a recantation and not a mere withdrawal
from the prosecution of the case. The complainant's affidavit of desistance did not constitute a recantation, because
she did not deny the truth of her complaint but merely sought to be allowed to withdraw and discontinue the case
because she wished to start life anew and live normally again. She never absolved or exculpated the accused. In
other words, a recantation of a prior statement or testimony must necessarily renounce the said statement or
testimony and withdraw it formally and publicly.”
Parang ganito ba: “Yung sabi ko noon na ni-rape niya ako, di man na tinood ba, pumayag man ako ba!” Yan, baliktarin mo
lahat ang sinabi mo. Hindi yung: “I am not interested, kapoy na, ayoko na.” Hindi pwede yan, that is not recantation because you
are not disowning what you said earlier.
Now we will go to one last point.
PROBLEM: Let us assume that Sheriff was convicted purely because of the testimony of the complainant, Thaddeus. Now,
Thaddeus makes an affidavit stating that everything he said is not true. Meaning he is really recanting – binabawi niya lahat ng
sinabi niya.
Q: Is this a ground for new trial?

A: Following jurisprudence, YES. It becomes now an exceptional case. There will be a new trial.
Q: What do you mean new trial?

A: We will now restart the case.
Q: Who will testify?

A: Eh di si Thaddeus! – yung complainant, who will be asked: “During the trial this is what you said, what are you saying
now?” As he answers, Thaddeus must say under oath that he lied before and this is the truth… [amen!]
565
Q: After that, can the court say that the accused is now acquitted because now Thaddeus is telling the truth when before
Thaddeus was not telling the truth? Is this what will happen?
A: The SC said NO. The only thing that will happen is that a new trial will be granted. But this does not mean that the
accused shall be acquitted. When we say new trial, this means that the court should hear the testimony of the complainant again.
BUT after testifying, the court may say, “You say you were lying before and you are telling the truth now, but the court does not
believe you because as far as the court is concerned, you were telling the truth before and you are lying now.” Therefore the
conviction stands. That is possible.
Because some lawyers believe that if a new trial is granted, sigurado na acquitted na ang accused. NO, the SC never
guaranteed that. It will only be a ground for new trial without a guarantee whether the decision will be reversed or not. But in
practice, lutong Macau lahat iyan. Usapan nalang iyan between the lawyer and the fiscal tapos kasali pa ang judge. That is what is
happening, I know that.
But if you follow the rules, there is no guarantee that if new trial is granted, the accused will be acquitted. There is no rule that
says that when a witness testifies twice, the court will always believe the latest testimony. And the SC has emphasized that in many
cases, one of them is the case of
PEOPLE vs. CLAMOR

July 01, 1991
HELD: “Where a witness testifies for the prosecution and retracts his or her testimony and subsequently testifies
for the defense, the test in determining which testimony to believe is one of comparison coupled with the application
of the general rules in evidence.” So you apply what you know about evidence, about credibility, appreciation of
evidence.
“The rule should be that a testimony solemnly given in court should not be lightly set aside and that before this
can be done, both the previous testimony and the subsequent one be carefully compared, the circumstances under
which each given carefully scrutinized, the reasons or motives for the change carefully scrutinized — in other words,
all the expedients devised by man to determine the credibility of witnesses should be utilized to determine which of
the contradictory testimonies represents the truth.”
Of course, if the court believes that the second testimony is accurate and the witness lied during the first, then acquit! But if the
court believes that the witness was telling the truth in the first testimony, the conviction stands.
So take note of that because these are misunderstood concepts eh.
RECONSIDERATION
Now, ano naman ang Reconsideration? The same as in civil cases.
SEC. 3. Ground for reconsideration.– The court shall grant reconsideration on the ground of errors of
law or fact in the judgment, which requires no further proceedings. (3a)
SEC. 4. Form of motion and notice to the prosecutor. – The motion for new trial or reconsideration shall
be in writing and shall state the grounds on which it is based. If based on a newly-discovered evidence,
the motion must be supported by affidavits of witnesses by whom such evidence is expected to be given
or by duly authenticated copies of documents which are proposed to be introduced in evidence. Notice
of the motion for new trial or reconsideration shall be given to the prosecutor. (4a)
SEC. 5. Hearing on motion. – Where a motion for new trial calls for resolution of any question of fact,
the court may hear evidence thereon by affidavits or otherwise. (5a)
Q: Is there an instance when a MOTION for reconsideration or new trial is PROHIBITED?

A: YES – when the case is tried in the MTC under the Summary Rules. Bawal man iyan ba! That’s a prohibited motion. Now
you just take note of that. Under Section 19[c] of the Revised Summary Rules, a motion for reconsideration or new trial of a final
judgment is prohibited.
Q: Of course, what are the effects of granting the motion for new trial or reconsideration.
A: You have Section 6:
SEC. 6. Effects of granting a new trial or reconsideration. – The effects of granting a new trial or
reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or irregularities committed during the
trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may,
in the interest of justice, allow the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already
adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest
of justice, allow to be introduced shall be taken and considered together with the evidence already in the
record.
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(c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered accordingly. (6a)
Q: Will there be really a trial de novo or will there just be a reopening of the trial to introduce the newly discovered evidence?
A: Under paragraph [c] which we already discussed: “In all cases, when the court grants new trial or reconsideration, the
original judgment shall be set aside or vacated and a new judgment rendered accordingly.”
Q: Suppose after new trial, the court still finds the accused guilty?
A: There will be another judgment but definitely the original judgment is already set aside. When the court grants the motion,
wala na iyon! Regardless of whether the new judgment will be the same or not.
So with that, we are now through with Rule 121.
A friend and I were shopping for dresses for her three-year-old girls to
wear to a wedding. In the shop, another girl staring intently at Sarah and
Becky asked, “Are those girls twins?”
“Actually they’re triplets,” I explained. “They have a brother at home.”
“Wow,” she replied. “They sure look like twins to me.”
Rule 122
APPEAL
SECTION 1. Who may appeal. – Any party may appeal from a judgment or final order, unless the
accused will be placed in double jeopardy. (2a)
Q: What is appeal?
A: Appeal means a review of a decision of a lower court by a higher court. The higher court will determine whether the
decision of the lower court is correct, just, etc.
Q: May an accused appeal from a judgement of acquittal?

A: Normally, NO, because a judgement of acquittal becomes final immediately upon promulgation, so why will you appeal?
And why are you appealing if you are acquitted? You mean to tell me, you are praying to be convicted? [sira!] However in the old
case of
PEOPLE vs. MENDOZA

74 Phil. 119
FACTS: The accused was acquitted but the decision contained some harsh remarks against the accused which
the accused feels are irrelevant. So he decided to appeal from the judgement of acquittal, not for the purpose of
reversing it, but for the purpose of removing all those harsh, irrelevant remarks against him in the decision.
HELD: The accused may appeal from a judgement of acquittal if it contains statements that are irrelevant and
should be expunged from the record, for the purpose of striking out those statements.
Q: Can the People of the Philippines or the prosecution appeal in a criminal case?
A: It depends. If you read Section 1, it would seem so, for as long as the accused will not be placed in double jeopardy. BUT if
the appeal of the prosecution will place the accused in double jeopardy, then he cannot appeal.
Q: Suppose the accused filed a Motion to Quash the information on this or that ground and the court quashed the information
but the quashing is wrong. Can the prosecution appeal from the judgement of the court quashing the information?
A: YES, because the elements of double jeopardy would not be present. First, the dismissal is with his express consent. And
normally, a dismissal on a technicality is not considered as an acquittal. It is just a dismissal where there is no trial. So puwede.
However, according to the Supreme Court, if the Motion to Quash is based on the grounds of extinction of criminal liability, or
double jeopardy, then the prosecution cannot appeal because that would place the accused under double jeopardy. (Bandoy vs.
CFI, 13 Phil. 157)
Q: How about an appeal by the prosecution because the penalty is wrong? The accused is convicted but the penalty is very
low. The penalty should be higher. So the prosecution is appealing for the purpose of correcting the penalty. It should be higher.
Can the prosecution do that?
A: NO, because that will place the accused in double jeopardy. (People vs. Cabarles, 54 O.G. 7051; People vs. Pomeroy, 97
Phil. 927; People vs. Flores, April 28, 1958) In other words, the error will remain as it is.
HOWEVER, based on jurisprudence, which you already knew, even if the accused is acquitted, but the judgement of acquittal
is NULL and VOID, then the prosecution is allowed to appeal because a void judgement does not give rise to double jeopardy.
(People vs. Balisacan, August 31, 1966)
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Q: Now give an example of a case where the prosecution was allowed to appeal from a judgement of acquittal, because the
SC said the acquittal is null and void.
A: A good example is what happened in the old case of People vs. Balisacan. This was already asked in the BAR.
PEOPLE vs. BALISACAN

August 31, 1966
FACTS: The accused was charged with a certain crime which is not a capital offense. Maybe the penalty is only
reclusion temporal or prision mayor. And then during the arraignment, the accused pleaded guilty. And sabi ng
accused: “Your Honor, may we be allowed to present evidence to prove mitigating circumstance?” You are guilty but
you may still present evidence to prove mitigating circumstances for purposes of reducing the penalty. Do you know
during the presentation of the evidence for the accused to prove mitigating, he attempted to prove self-defense? And
the court, after trial, said: self defense? After the hearing, self defense pala. Okay, the accused is hereby acquitted.
Nagreklamo ang prosecution, “Why will you acquit him when he already pled guilty?”
ISSUE: Can the prosecution appeal the judgment of acquittal in the case at bar?
HELD: YES, the prosecution can appeal because the judgement of acquittal is NULL and VOID. In the first
place, the hearing is not for the purpose of proving his innocence. The hearing is for the purpose only of proving
mitigating circumstance so why will you give him the benefit of justifying circumstance? Now what should be the
correct procedure? You just say mitigating and tapos you are proving self defense? Pag ganyan, the court will say:
“Okay, self defense ba? The plea of guilty is hereby erased. Let’s go to trial.” Ayan. And then the prosecution will
present evidence.
But here, he pled guilty, mitigating, he proved self defense, ako (prosecution) hindi. What happens now to the
prosecution’s right to prove the crime? Well at least the prosecution should be given the right to prove the crime
before acquitting him immediately. So the SC said, the judgement of acquittal is null and void. Therefore, the
prosecution can appeal under Section 1 of Rule 122. It will not place the accused in double jeopardy because of the
void judgement.
Q: Aside from the accused, People of the Philippines unless there is double jeopardy, who can appeal?
A: The offended party may appeal from any judgement, order or ruling which is adverse to his civil rights or to the civil liability,
or on pure questions of law (e.g. whether or not the information charges no offense). Provided, he has not waived or reserved the
right to file a separate civil action and the civil action is deemed instituted, because the civil aspect is different from the criminal
aspect. So the offended party can appeal from that portion of judgement adverse to his civil liability.
Q: Who else can appeal?

A: The bondsmen can appeal in case of judgement against the bond in a forfeiture case. In bail, what happens when the
accused failed to appear? The court may order the confiscation or forfeiture of the bond. And if the bondsman cannot satisfactorily
explain why he failed to present the accused, then judgement may be rendered, holding the bondsman/bonding company liable.
Can he appeal? Ah yes. He can appeal from the judgement making him liable for his bond.
Q: Who else can appeal?

A: The employer of the accused can also appeal from any order of the court making him subsidiarily liable for the civil liability of
the accused under Article 103 of the Revised Penal Code.
So these are the people who can appeal in criminal cases. Alright.
SEC. 2. Where to appeal. – The appeal may be taken as follows:

(a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court;
(b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases
decided by the Regional Trial Court; and
(c) To the Supreme Court, in cases decided by the Court of Appeals. (1a)
SEC. 3. How appeal taken.– (a) The appeal to the Regional Trial Court, or to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by
filing a notice of appeal with the court which rendered the judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of
its appellate jurisdiction shall be by petition for review under Rule 42.
(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court
is death, reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses
committed on the same occasion or which arose out of the same occurrence that gave rise to the more
serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall
be by filing a notice of appeal in accordance with paragraph (a) of this section.
(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional
Trial Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of
this Rule.
Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme
Court shall be by petition for review on certiorari under Rule 45. (3a)
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Now the next question is where to appeal and how to appeal. We have Section 2. You have Section 3. Alright, let us try to
outline. Actually it’s the same in civil cases.
Q: From the MTC , where will you appeal? What is the mode of appeal?
A: RTC, the mode of appeal is Ordinary appeal by a notice of appeal (Rule 40).
Q: How about MTC to RTC and then you are still convicted? Where will you appeal?
A: Court of Appeals by Petition for review (Rule 42).
Q: Now how about a case tried by the RTC (pursuant to its original jurisdiction)? The accused is convicted, he wants to appeal
to the CA? What is the correct mode of appeal?
A: Ordinary appeal by notice of appeal to the Court of Appeals (Rule 41)
NOTE: If it is RTC to CA, pursuant to the appellate jurisdiction of the RTC, the mode of appeal is petition for review (Rule 42).
If the case was tried by the RTC pursuant to its original jurisdiction, it is ordinary appeal by notice of appeal to the CA (Rule 41).
Q: However, suppose the penalty imposed by the RTC is death, what is the mode of appeal and where?
A: To the Supreme Court, no need to appeal, automatic review. Well, if you want to appeal, okay lang. But even if you do no t
appeal, there is automatic review.
Q: Suppose the RTC convicted the accused and sentenced him to reclusion perpetua or life imprisonment (not Death), where
will you appeal?
A: You appeal directly to the Supreme Court (Ordinary Appeal, Rule 41) because under the Constitution, Supreme Court yan
e.
Q: In such case, is there an automatic review?

A: NO! You must appeal.
That is the common error ‘no? Many lawyers believe there is automatic review. No! Automatic review is only for death
penalty. You are confused, sabi ko sa kanila noon. “Hindi ba, Death sa SC yan, reclusion perpeuta sa SC din?” Under the
Constitution, yes. “O, di automatic review!” No! The automatic review is for the death penalty only. Kapag perpetua, you must file
your notice of appeal. Otherwise, madisgrasya ka niyan. The only similarity is the appeal is to the Supreme Court. But there is no
automatic review for reclusion perpetua. You must file a notice of appeal, that is what I said. Because na-confuse, eh. Kay alam
nila sa Constitution, Supreme Court, akala nila na automatic na rin.
GARCIA vs. PEOPLE

318 SCRA 434 [1999]
FACTS: The accused were sentenced to reclusion perpetua. Their lawyer believed that there is automatic review
of the case so he did not do anything. The prosecution now moves to enforce the judgment. The accused contended
that there can be execution yet because of the automatic review.
ISSUE: Must the SC automatically review a trial court’s decision convicting an accused of a capital offense and
sentencing him to reclusion perpetua? In other words, is the accused not required to interpose an appeal from a trial
court’s decision sentencing him to reclusion perpetua to SC because the latter’s review of the sentence is automatic?
HELD: The issue is not new. We have consistently ruled that it is only in cases where the penlty actually
imposed is death that the trial court must forward the records of the case to the SC for automatic review of the
conviction.
As the petitioners did not file a notice of appeal or otherwise indicate their desire to appeal from the decision
convicting them of murder and sentencing each of them to reclusion perpetua, the decision became final and
unappealable.
Q: Now, how about CA to SC?

A: That is appeal by certiorari. That is paragraph [e] – Except as provided in the last paragraph, Section 13, Rule 124, all other
appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. “All other appeals,” Ano yang “all other
appeals?” All other appeals, not mentioned in a, b, c, d. Ano yon? That is CA to SC. Or, RTC direct to the Supreme Court on
questions of law only, because normally pag RTC, dapat CA yan eh. But pure questions of law, diretso na iyan. Or, from
Sandiganbayan to the Supreme Court. In case the Sandiganbayan convicts an accused, the appeal is direct to the Supreme Court
by petition for review.
Now let’s go to some interesting cases on appeal. Take note, when an accused is sentenced by the RTC to death, he can
appeal to the SC. But even if he will not appeal, there will be an automatic review. Now if he is sentenced to perpetua, he must
appeal to the SC. Otherwise, the judgement will become final. However, there was an interesting EXCEPTION which happened in
the case of
PEOPLE vs. PANGANIBAN

125 SCRA 595
FACTS: The accused was charged in three (3) informations for murder and the three cases were tried together.
And there were three (3) decisions. He was convicted in all the three murders. In the three cases for murder, he was
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sentenced to reclusion perpetua in one and death for the other two. He did not appeal. Now of course, the cases
where he was sentenced to death, akyat yan sa SC.
ISSUE: How about the other case where he was he was sentenced to reclusion perpetua? Should the SC also
review the other one?
HELD: YES. Normally, hindi dapat eh, because he did not appeal. However, since these 3 cases were tried
together, he committed murder allegedly on the same occasion, We might as well review also the other one. So that
is one instance where nakalusot ‘no?
“Where a criminal case for murder where accused was sentenced to perpetua, arose out of the same occasion
as two other criminal cases for murder where the same accused was sentenced to death in a joint decision. The
former shall be deemed appealed automatically jointly with the latter two cases, even if the accused did not appeal
from the court sentence of reclusion perpetua in the first case. It would be absurd to require accused, under the
peculiar circumstances, to file a separate appeal because the three criminal cases of which he was convicted by the
trial court in a single decision are so intertwined with each other, the three cases having arisen on the same occasion.
Although there was a justice who dissented, “Hindi pwede yan.” He did not agree with the majority ruling. “We stick to the rule:
kapag perpetua, you appeal. If you will not, hindi pwede.” So dissenting justice Aquino says, “We cannot set aside that portion of
the judgment imposing reclusion perpetua because it is not under review. It has long become final and executory because there
was no appeal from that portion of the judgment. It should have been appealed in order to be reviewed by this Court.”
That is the general rule. You cannot expect an automatic review in a penalty of reclusion perpetua. Now another interesting
case on death penalty was the case of PEOPLE VS. ENCISO, infra, which was also controversial decision. The Supreme Court
was not unanimous, no. Alright, what happened here?
PEOPLE vs. ENCISO

160 SCRA 728
FACTS: Two accused were charged with the crime of robbery with homicide which is punishable by death. They
pleaded guilty. Considering the gravity of the crime, the trial court ordered a mandatory presentation of evidence by
the prosecutor.
After hearing, the court found them guilty beyond reasonable doubt and imposed the death penalty. They did not
appeal but the case was elevated to the Supreme Court on automatic review. However, on appeal, the SC found the
evidence insufficient.
HELD: “Despite accused’s pleas of guilty, We believe the pleas must not be taken against them, for as clearly
borne out by the evidence presented, said guilt has not actually been proved beyond reasonable doubt. The fact that
they did not appeal is of no consequence, for after all, this case is before Us on automatic review (that is whether
appeal was made or not), for after all, this case is before Us on automatic review, accused are acquitted on
reasonable doubt.”
Again, there were four (4) justices who refused to concur. Ang kanila, of course there is presentation of evidence, they argued,
guilty. Tapos ni-review natin but diskumpiyado tayo, then just impose perpetua, huwag mong i-acquit! Because they pled guilty na.
But the majority, “We will acquit.” [palag?] Another interesting case on appeal is the 1996 case of
MANUEL vs. ALFECHE, JR.

259 SCRA 475
FACTS: The petitioner here, Delia Manuel, filed a criminal case for libel against the editor-in-chief, associate
editor and asst. editor of a regional newspaper in the Western Visayas, known as Panay News, which has
considerable circulation in Panay Island and throughout Western Visayas. After trial, Judge Alfeche found the
accused guilty, so all the accused were convicted, but Manuel’s claim for damages was dismissed.
Of course, both parties were aggrieved! The accused were aggrieved because they were convicted. The
offended party, Manuel, was also aggrieved because her claim for civil liability was dismissed. So, the accused
appealed the conviction to the CA because that is where the appeal should go. Si Manuel naman raised the
correctness of the judgement depriving her of civil liability, on pure question of law, to the SC by way of appeal by
certiorari.
ISSUE: Is that procedure correct? Because nahati eh – the offended party going to the SC and the other party to
the CA. Magkagulo na yan eh because that would practically be splitting the appeal in two parts, ‘no?
HELD: While normally on questions of law, from the RTC to the SC should be by petition for review. Now,
because of this situation, everybody should go to CA. That is the ruling in this case.
“In view of the factual environment of this case, particularly that private respondents herein had already taken an
appeal to the Court of Appeals to question the trial court's judgment of conviction, the proper remedy for petitioner is
simply ordinary appeal to the said tribunal.
This is so because the award of moral and exemplary damages by the trial court is inextricably linked to and
necessarily dependent upon the factual finding of basis therefor, namely, the existence of the crime of libel. Inasmuch
as the very same Decision herein assailed is already pending review by the Court of Appeals, there is a distinct
possibility that said court may, if the facts and the law warrant, reverse the trial court and acquit the accused. In such
event, the appellate court's action could collide with a ruling finding merit in petitioner's contentions before this Court.
Such a situation would lead to absurdity and confusion in the ultimate disposition of the case. Obviously, this
possibility must be avoided at all cost. This is at least the reason for the rule against forum-shopping. Clearly, then,
570
petitioner ought to have brought her challenge in the Court of Appeals” although she is appealing on pure questions of
law. Nandoon na yong accused, eh. Sumama ka na lang doon. Let one court decide the whole thing.
APPEAL FROM THE SANDIGANBAYAN
Q: If you are tried in the Sandiganbayan for, let’s say, graft, you are a grade 27 employee of the government or higher. If you
are convicted, where will you appeal?
A: You appeal to the Supreme Court by way of appeal by certiorari under Rule 45.
Now, the constitutionality or validity of that procedure was attacked in the case of :
NUÑEZ vs. SANDIGANBAYAN

111 SCRA 433
FACTS: The challenge in this case is that the Sandiganbayan law, at least on that portion on appeal, is
unconstitutional because what is violated is equal protection of the law. Because for example: An employee
who is below Grade 27 is tried for Anti-Graft, where will case be filed? It should be filed in RTC. In case he is
convicted, where will he appeal? He will appeal in the Sandiganbayan. And then from Sandiganbayan to SC.
Or, in case he is a civilian, or the case is not Anti-Graft, that would be from the RTC to CA, and CA to SC. If you
notice in both examples, there are two levels of appeals, eh. Now, if you are tried in the Sandiganbayan and you are
Grade 27 or higher and you are convicted, you appeal will be to the SC – so, isang level lang. Bakit siya dalawa, ako
isa lang? So, the law is unconstitutional. It violates the equal protection of the law. It is discriminatory – that was the
challenge.
HELD: The majority still sustained the validity. But there were three senior members of the Supreme Court at
that time who dissented. They believe that the law is unconstitutional - bakit all the rest dalawa ang appeal, ako isa
lang? Among those who dissented were Justice Teehankee, Makasiar and Fernandez. These were very influential in
the Supreme Court and they were the ones who voted to declare the law unconstitutional. But the majority said it is
valid.
Starting with that, the SC adopted the policy that if you are convicted by the Sandiganbayan and you go to the Supreme Court
on appeal by certiorari, we will carefully review the petition for review because precisely, you are placed at a disadvantage. You
have only one level, one appeal lang eh. And therefore, it is our obligation to really review everything to see to it that you were
correctly convicted. I think that is what happened to Imelda Marcos, no? So the court said in the case of
CESAR vs. SANDIGANBAYAN

134 SCRA 105
HELD: “Considering further that no less than three senior members of this Court, Justices Teehankee, Makasiar,
and Fernandez dissented from the Court's opinion in Nuñez vs. Sandiganbayan partly because of the absence of an
intermediate appeal from Sandiganbayan decisions, where questions of fact could be fully threshed out, this Court
has been most consistent in carefully examining all petitions seeking the review of the special court's decisions to
ascertain that the fundamental right to be presumed innocent is not disregarded. This task has added a heavy burden
to the workload of this Court but it is a task we steadfastly discharge.”
In other words, it has become cumbersome, no? Because we have to be very careful. We have to be very meticulous. Kaya it
has become an added burden. We have no choice because the accused is deprived of a second chance. This is his last chance,
so we have to be very sure that he is really guilty.
SEC. 4. Service of notice of appeal. – If personal service of the copy of the notice of appeal can not be
made upon the adverse party or his counsel, service may be done by registered mail or by substituted
service pursuant to sections 7 and 8 of Rule 13. (4a)
SEC. 5. Waiver of notice. – The appellee may waive his right to a notice that an appeal has been taken.
The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice
if the interests of justice so require. (5a)
Q: Who is the appellant?

A: If you are convicted in the lower court and you appealed, you are the appellant.
Q: Who is the appellee?

A: People of the Philippines.
SEC. 6. When appeal to be taken. – An appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the final order appealed from. This period for perfecting
an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice
of the order overruling the motion has been served upon the accused or his counsel at which time the
balance of the period begins to run. (6a)
Q: When do you appeal?

A: Under Section 6, fifteen (15) days from promulgation of the judgement or from notice of the order appealed from.
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Q: What happens if you filed a motion for new trial or reconsideration within the 15-day period?
A: The same as in civil cases – the filing of the motion for reconsideration will suspend the running of the 15-day period to
appeal until notice of the order overruling the motion has been served upon the accused or his counsel, at which time, the balance
of the period begins to run. That phrase was added in the new rules – “At which time, the balance of the period begins to run.” That
is only emphasizing what the rule should be.
So, the 15-day period does not start to run all over again. But you can still apply the balance if the motion for reconsideration is
denied. Now, itong tanong ko:
Q: Suppose the motion for new trial is granted. After new trial, convicted ka pa rin. So there will be a second judgement. What
is your period to appeal? Is it 15 days all over again? Or we count the 15-day period from the first judgement, deducting the period
during which the motion for new trial was pending?
A: The SC said, the counting of the 15-day period starts all over again from the time you received the second decision.
(Obugan vs. People, May 22, 1995)
Q: Now how do you reconcile that principle with Section 6?

A: Section 6 is different because here, the motion for new trial is denied but in the above example, the motion for new trial was
granted. But after new trial, convicted ka pa rin. So you start counting the period to appeal all over again from the time you
received the second judgement. And the SC cited Section 6[c] of Rule 121.
Rule 121, SEC. 6. Effects of granting a new trial or reconsideration. – The effects of granting a new trial
or reconsideration are the following:
xxxxx
(c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered accordingly. (6a)
Q: What is the effect of a motion for new trial if it is granted?

A: Under Rule 121, the judgement is vacated. Meaning, it doesn’t exist anymore. After new trial, convicted – all over, start na
naman tayo. That was the ruling in the case of:
OBUGAN vs. PEOPLE

May 22, 1995
HELD: If a motion for new trial is granted, and after new trial, the accused is still convicted, he has 15 days all
over again to file an appeal because under Rule 121, the previous judgement of conviction was already vacated. It
does not exist anymore.
“Thus the rule provides for the interruption of the appeal period in the event the motion for new trial or
reconsideration is overruled. The implication is that if the motion for new trial is granted, as in the case at bar, and a
new judgment is rendered after the new trial was conducted, the period within which to perfect an appeal is fifteen
days from receipt of the new judgment.”
Alright, let’s go to another issue. You have two choices if you are convicted – 1) File a motion for reconsideration. 2) If denied,
you appeal. Now, I will file a motion for reconsideration. And then while it is still pending, there is still no order, I changed my mind,
“Appeal na lang ako diretso. I will not anymore insist. Wala nang mangyayari diyan.”
Q: Can I say, “I’m withdrawing my motion for reconsideration and I am instead substituting it with a notice of appeal?”
A: YES, because that is your choice. You can abandon your motion for reconsideration, withdraw it and then file a notice of
appeal. No problem about that.
Q: But I will now reverse the situation: Within 15 days after promulgation, I will file an appeal. And then after 1 or 2 or 3 days,
“Teka muna. I will file muna pala a motion for reconsideration. Huwag muna yang appeal, baka sakali pala.” So I say, “I’m
withdrawing my notice of appeal, and instead file a motion for reconsideration.” Can I still do that?
A: In the case of PEOPLE VS. DE LA CRUZ (201 SCRA 632), The SC said, NO, you cannot because the moment you file your
notice of appeal, the appeal is already perfected and the court has lost jurisdiction already over the case and can no longer change
its own decision.
So baliktad ‘no? – motion for reconsideration-withdraw-appeal, pwede. Appeal, and then withdraw – motion for
reconsideration, hindi pwede! because the court has no more jurisdiction over the case.
Now let’s go to Section 11, one of the most important provisions. Let us go to Section 11, no. Effect of appeal by several
accused.
SEC. 11. Effect of appeal by any of several accused. – (a) An appeal taken by one or more of several
accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court
is favorable and applicable to the latter.
(b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the
judgment or order appealed from.
(c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be
stayed as to the appealing party. (11a)
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paragraph [a]: An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as
the judgment of the appellate court is favorable and applicable to the latter.
Q: There are 2 accused. Both of them are convicted. One will appeal, the other will not appeal. Suppose, the one who
appealed, nanalo. Will it favor then other accused who did not appeal?
A: The GENERAL RULE is NO because if you do not appeal, the judgement of conviction will become final as far as you are
concerned.
However, there is an EXCEPTION – if the ruling in the appeal also applies to you, you will be favored.
For example: Two accused were convicted. One appealed, the other one did not appeal. On the appeal sabi ng court, “No.
The victim was not killed. He committed suicide.” Naloko na! Acquitted yun! “Paano na ako? Nakulong ako!” It will also benefit you
because the judgement of the appellate court is also favorable and applicable to you. BUT if the ruling is only applicable to the
appealing accused, pasensya ka.
Like for example, both of you are convicted. You will not appeal, he will appeal. He will appeal tapos sabi niya, “Minor man
ako! Minor!” Tapos sabi ng appellate court , “Ah, minor! He did not act with discernment. Ok! Acquitted!” So, paano ka? Maiwan ka,
hindi ka man minor! The defense of minority is not applicable to you.
Now, this provision has been applied already several times. Among the first cases where this was applied was the case of:
PEOPLE vs. FERNANDEZ

186 SCRA 830
FACTS: There were two accused charged for selling marijuana, under the Dangerous Drugs Act. Both of them
were convicted. Accused No. 1 appealed, but Accused No. 2 jumped bail and remained at large. On appeal, the
Supreme Court acquitted Accused No. 1 because of material discrepancies in the testimony of the star prosecution
witness.
ISSUE: What happens now to the conviction of Accused No. 2, who escaped and did not appeal his conviction?
HELD: It applies to the Accused No. 2. “While, in effect, he committed an act of defiance of the law by escaping,
we are not without other prior incidents where such undesirable conduct, which should not be condoned, has
sometimes been ascribed to a sense of desperation of those who believe they are guiltless but fear that they cannot
prove their innocence. While we castigate and reprove his jumping bail and remaining at large up to now, we have to
concede, however, that our disquisition in this case is applicable and favorable to him, hence he is affected by and
shall benefit from the acquittal that we hand down in this appeal.”
So acquitted kahit na nag-jump bail, because of this provision…So with that, he can come out openly. And the ruling happened
again. The same thing happened in the 1996 case of PEOPLE VS. PEREZ (263 SCRA 206). And one of the latest where this
happened again is the 1998 case of
PEOPLE vs. RUGAY

291 SCRA 692
HELD: “Finally, the Court notes that the conviction of appellant's co-accused, Arvil Villalon, rests on the same
evidence used to convict appellant. The Court finds that such evidence does not prove beyond reasonable doubt
either of the accused's guilt. The acquittal of Ricolito Rugay should also benefit Arvil Villalon, the withdrawal of the
latter's appeal notwithstanding.”
Now let’s go to [b]:
(b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the
judgment or order appealed from.
This is what I told you earlier that the civil aspect is different from the criminal aspect. It is possible that the accused is
acquitted but the offended party may appeal insofar as the civil aspect of the case is concerned. It shall not affect the criminal
aspect of the judgement or order appealed from.
Q: Normally, who will handle the appeal in criminal cases?

A: Solicitor-General. The Solicitor-General handles the appeal.
BUT the SC said that if the appeal is only about the offended party, walang pakialam ang gobyerno diyan! Let the offended
party handle his own appeal and let him get his own lawyer to handle the appeal. So the Court said in the case of
BERNARDO vs. COURT OF APPEALS

190 SCRA 63
HELD: “The Court has clearly settled the matter by ruling that despite a judgment of acquittal, the offended party,
private respondent in the case at bar, may appeal, only insofar as the civil aspect of the case is concerned.”
“Such an appeal dispenses with the authority and representation of both the fiscal and the Solicitor General,
considering that the subject matter of the action involves solely the interests of the offended party and hence, no
longer concerns the State.”
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Let’s go to paragraph [c]:
(c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be
stayed as to the appealing party. (11a)
Q: What are the effects of a perfected appeal?

A: The following are the effects: parang sa civil procedure din
1. The execution of the sentence is stayed;

2. The trial court loses jurisdiction over the case because it is now transferred to the higher court, the Court of Appeals.
3. Once you appeal, the entire case is open for review and you are waiving your right to double jeopardy.
That’s what I told you. After appeal, baka mapasama ka pa. Ah, it happened several times. I already mentioned what
happened before, Falsification? The lawyer was sentenced to Falsification as an accomplice. Appeal-appeal pa, so naloko na.
Because it was originally charged to the principal. Na-disbar pa! And there was a case where the accused was charged with
murder, after trial, he was convicted of homicide, hindi pa nakuntento. Nag-appeal pa. Ah! nabalik sa murder! Because there is no
more double jeopardy. You are now waiving everything and the whole case is now open for review.
Q: Now finally, can you withdraw an appeal?

A: YES. The procedure for withdrawing an appeal is found in Section 12:
SEC. 12. Withdrawal of appeal- Notwithstanding perfection of the appeal, the Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial
Court, as the case may be, may allow the appellant to withdraw his appeal before the record has been
forwarded by the clerk of court to the proper appellate court as provided in section 8, in which case the
judgment shall become final. The Regional Trial Court may also, in its discretion, allw the appellant from
the judgment of a Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court to withdraw his appeal, provided a motion to that effect is filed before
rendition of the judgment in the case on appeal, in which case the judgment of the court of origin shall
become final and the case shall be remanded to the latter court for execution of the judgment. (12a)
Now there is one interesting case about withdrawing an appeal. Definitely, withdrawal of appeal is your prerogative, eh. If you
are convicted and you appeal and then later on you withdraw, that is your prerogative. You are now accepting the judgement of
conviction. Now let’s see what happened in the 1996 case of
TEODORO vs. COURT OF APPEALS

258 SCRA 643
FACTS: Amado Teodoro was charged with the crime of grave slander by deed before the MTC of Mandaluyong.
He was convicted of the lesser offense of simple slander by deed and sentenced to pay a fine of P110. So mababa.
Hindi pa siya kuntento, Teodoro appealed to the RTC. Of course, what is the procedure pag nasa RTC na? – both
parties will prepare a memorandum.
After Teodoro’s lawyer had received a copy of the appeal memorandum of the prosecution where the prosecution
urged that Teodoro be held guilty of grave slander by deed, not just simple slander as the MTC, pagbasa niya ng
memorandum ng prosecution, “Naku, delikado pala ako dito! Basig masamot ba! So, okay na lang yong simple
slander. Bayad na lang ako ng fine of P110”.
So he filed a motion to withdraw his appeal. Kay nakita niya, delikado pala e! Baka mabalik sa dati, sa original
ba. So he is now accepting the decision. He is now withdrawing his appeal. Apparently, he realized that his appeal
was likely to result in the imposition of a higher penalty and he wanted to avoid that possibility.
HELD: Under Section 12 of Rule 122, the withdrawal of appeal is not a matter of right, but a matter which lies in
the sound discretion of the court and the appellate court. After the parties in this case had been required to file their
memoranda and the memorandum of the prosecution had been filed and a copy served on appellant, it was too late
for Teodoro to move for the withdrawal of the appeal. It was apparent that petitioner's motion was intended to frustrate
a possible adverse decision on his appeal. That is what exactly happened in this case. Withdrawal of the appeal at
that stage would allow an apparent error and possibly an injustice to go uncorrected. Justice is due as much to the
State — the People of the Philippines — as to the accused.
So even if he is accepting already the lower penalty, sabi ng Court, hindi na. Nag-file na yung kabila ng memorandum, eh. So,
tuloy na. I do not know what happened after that but definitely, he was not allowed anymore to withdraw the appeal anymore. Yaan!
That is the risk nga of appealing, sometimes.
SEC. 13. Appointment of counsel de oficio for accused on appeal - It shall be the duty of the clerk of court
of the trial court, upon filing of a notice of appeal to ascertain from the appellant, if confined in prison,
whether he desies the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel
de oficio to defend him and to transmit with the record on a form to be prepared by the clerk of court of
the appellate court, a certificate of compliance with this duty and of the response of the appellate to his
inquiry. (13a)
Now, itong Section 13, it just says about appointment of counsel de oficio for accused on appeal.
Let’s say you are convicted here. Appeal ka sa SC, bigyan ka man ng abogado ba by the SC if you have no counsel. One of
the practitioners in Manila will be appointed. I’ve seen appeal briefs filed by counsel de oficio on appeal. And sometimes, the SC
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gets big lawyers as counsel the oficio. Yes, I have seen their briefs . Although, I believe that these big lawyers in Manila who are
appointed as counsel, mga death penalty cases. They are the ones who prepare the brief, they are the ones who sign. But I think
an associate in their law office will help them especially when they are not handling criminal cases. But you can see, sometimes
they are more effective than a counsel de parte in the provinces. I’ve seen it, beautifully worded, ha. Ganda na pagkagawa ng mga
brief.
Now one interesting case about appointment of counsel de oficio, is what happened in the 1991 case of
PEOPLE vs. RIO

201 SCRA 702
FACTS: The accused was sentenced to reclusion perpetua. He was detained at the National Penitentiary. He
appealed. And then later, he wrote a letter to the SC, “I am withdrawing my appeal. I am no longer continuing my
appeal because I cannot afford it. Poverty prevents me from pursuing the appeal.” The SC got intrigued, ‘no? The SC
issued an order directing the clerk of Court to go to the National Penitentiary and look for this accused to confirm if he
did really send this letter to the Supreme Court.
So hinanap siya. Nakita. You wrote this letter? “Yes.” You affirm what you say? “Yes. Hindi ko kaya. Pobre ako,
eh. I cannot afford the appeal.” So, siya talaga. He is withdrawing his appeal because of poverty. And the SC came
up with this decision:
HELD: “The right to a counsel de oficio does not cease upon the conviction of an accused by a trial court. It
continues, even during appeal, such that the duty of the court to assign a counsel de oficio persists where an accused
interposes an intent to appeal. Even in a case, such as the one at bar, where the accused had signified his intent to
withdraw his appeal, the court is required to inquire into the reason for the withdrawal. Where it finds the sole reason
for the withdrawal to be poverty, as in this case, the court must assign a counsel de oficio, for despite such
withdrawal, the duty to protect the rights of the accused subsists and perhaps, with greater reason. After all, “those
who have less in life must have more in law.” Justice should never be limited to those who have the means. It is for
everyone, whether rich or poor. Its scales should always be balanced and should never equivocate or cogitate in
order to favor one party over another.”
So, sabi ng SC, your desire to withdraw because of poverty, denied! We will continue. We will appoint a lawyer for you. We
will get the best. So, tuloy ang kaso. And then, after reviewing the evidence, sabi ng Court: “You are guilty!” [ha!ha!ha!] Guilty pa
rin! But definitely, you will not be allowed to withdraw. Yes, he was still found guilty in the case of Rio. Akala niya siguro, paboran
siya ng SC because he is poor. Ah, hinde. You are still guilty.
Rule 123
PROCEDURE IN THE
MUNICIPAL TRIAL COURTS
SECTION 1. Uniform Procedure. – The procedure to be observed in the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts shall be the same as in the Regional Trial
Courts, except where a particular provision applies only to either of said courts and in criminal cases
governed by the Revised Rule on Summary Procedure. (1a)
Rule 123 simply says that the procedure to be observed in the MTC, MTCC and MCTC shall be the same as in the RTC. So,
all the rules that we took up applies to both courts EXCEPT:
1.) where a particular provision applies only to either of said courts; and
2.) in criminal cases governed by the Revised Rules on Summary Procedure.
In the first exception, there are certain provisions that are applicable only to the RTC. Example is the provision on bail – how to
apply for bail. If you are denied bail, and you are charged with a capital offense, there will be a hearing to determine whether the
evidence of guilt is strong or not. Hindi man yan mag-apply sa MTC ba because the crime carries the penalty of death which is
exclusive only for the RTC.
The second exception is, you do not apply the regular rules if the case is governed by the Revised Rules on Summary
Procedure. And that is what we are going to review now.
Q: What criminal cases should be tried based on the Revised Rules on Summary Rules?
A: The following:
1.) Violations of traffic laws, rules and regulations;
2.) Violations of the rental law;
3.) Violations of municipal or city ordinances; and
4.) All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six (6) months
imprisonment or a fine of one thousand pesos (P1,000.00) or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom;
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5.) however, that in offenses involving damage to property through criminal negligence, said Rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,000.00). So, if it is above P10,000 it is still MTC but you
follow the regular rules.
Q: What happens if there are 2 cases which are interrelated or the charges are interrelated for they arose from the same
incident? Like for example: One case is penalized by fine and another is penalized by 4 years imprisonment. Once crime is
covered by Summary Rules, the other is covered by the regular rule. Can they be mixed?
A: Where there is a joint trial of two criminal cases, one under the summary rules and the other one is under the regular
rules, we follow the regular rules. Under the last paragraph of Section of the Summary Rules, “These rules shall not apply to a
criminal case where the offense charged is necessarily related to another criminal case subject to another procedure.”
One of the important principles to remember here is the case of Zaldivia and Reodica on when is the running of period of
prescription for a crime deemed interrupted. The ruling in ZALDIVIA vs. REYES (211 SCRA 277) created the impression that as a
general rule, the filing of the case in the prosecutor’s office is sufficient to interrupt the running of the prescriptive period except
when the case is covered by the Rules on Summary Procedure. If it is any crime, you file it in the fiscal’s office, the running of the
prescriptive period is interrupted. But if it is covered by the Summary Rules, the period continues. It must be the filing of the case in
court which will interrupt. That is the ruling in Zaldivia.
That impression in Zaldivia was clarified in the 1998 case of REODICA vs. CA (292 SCRA 87) where the SC said that even if
the case is covered by the Summary Rules for as long as it is a felony under the RPC, the filing in the fiscal’s office is sufficient to
interrupt the running of the prescriptive period.
But according to Zaldivia, if it is covered by the Summary rules, the filing in the fiscal’s office will not interrupt. But according to
the SC in the case of Reodica, NO! because Zaldivia involves a violation of municipal or city ordinance. Therefore, if it is a violation
of an ordinance, the filing in the fiscal’s office does not interrupt the running of the prescriptive period because the law on
prescription for crimes punishable by a special law is governed not by the RPC, but by Act 3326 which is very clear that it is the
filing in court which will interrupt the prescriptive period for crimes punishable by special laws. Pero kapag felony, we will still apply
the general rule that the filing in the fiscal’s office is sufficient to interrupt even if such felony is covered by the Summary Rules.
Now, let’s go to the provisions of the Summary Rules concerning criminal cases.
SEC. 11. How commenced. – The filing of criminal cases falling within the scope of this Rule shall be
either by complaint or information. Provided, however, that in Metropolitan Manila and in chartered cities,
such cases shall be commenced only by information, except when the offense cannot be prosecuted de
oficio.
The complaint or information shall be accompanied by the affidavits of the complainant and of his
witnesses in such number of copies as there are accused plus two (2) copies for the court’s files. If this
requirement is not complied with within five (5) days from date of filing, the cases may be dismissed.
Q: How is a case covered by the Summary Rules commenced?

A: Affidavit is included, affidavit of complainant, his witnesses shall be included and then the court may dismiss the case
outright under Section 12 [a] and [b], otherwise if there is a case, the accused will be sent a copy of the affidavit and then he is
given 10 days to submit also his own affidavit.
Then there will be an arraignment under Section 13; Preliminary conference under Section 14. And Section 15 is important –
during the trial, there is NO DIRECT EXAMINATION. The affidavit already serves as your direct testimony. So puro cross-
examination na lang. Diretso! So, it is shortened ‘no? Rather than asking the witness one by one to tell the story in the affidavit,
yang affidavit na mismo. That will serve as the direct testimony. Iko-cross-examine na lang.
But there is an important rule here – a witness who has not submitted any affidavit cannot testify. So in order to qualify as a
witness, you must have submitted an affidavit beforehand. The EXCEPTION is the 2nd paragraph of Section 15 – except when the
witness is a rebuttal witness or a surrebuttal witness. This is because how can you submit a rebuttal affidavit ahead? You do not
even know what to rebut. ANOTHER EXCEPTION is cited by the SC in the case of
BALAYON, JR. vs. OCAMPO

218 SCRA 13
NOTE: Normally, in physical injuries cases, the medical doctor is required to testify.
FACTS: In this case, the doctor was subpoenaed to testify and the defense objected because they said that the
doctor has no affidavit and under the rules, no person may testify without submitting an affidavit.
HELD: When the doctor is called upon to testify based on the medical certificate, the rule as to the prior
submission of affidavit does not apply. This also applies to the Register of Deeds or the Provincial Assessors in
connection with official documents issued by their office.
Now, if you have a surprise witness and you want to introduce him because his testimony is very important, the remedy is to
file a motion to present additional evidence. The last paragraph of Section 15 gives you the authority to manifest during the
preliminary conference that you are presenting other witnesses, and you are now submitting their affidavits in order that you will not
be barred from presenting them.
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SEC. 16. Arrest of accused. The court shall not order the arrest of the accused except for failure to appear
whenever required. Release of the person arrested shall either be on bail or on recognizance by responsible
citizen acceptable to the court.
Section 16 is also important. As a rule, there is no warrant of arrest if you are tried under the Summary Rules. You are just
notified about the case. However, if you are notified about the case and you will not appear, that is the time when you will be
arrested because of “except for failure to appear whenever required” in which case you must post bail if you are under arrest or on
recognizance by a responsible citizen acceptable to the court. This is one of the cases where recognizance is allowed. But for as
long as you appear in court, there is no warrant to be issued.
Q: Now, what are the PROHIBITED documents, motions, or pleadings under the Summary Rules?
A: The following (Under Section 19):
1.) Motion to quash except when your ground is

a.) lack of jurisdiction over the subject matter; or
b.) failure to comply with the Barangay Conciliation;
2.) Motion for bill of particulars;
3.) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; your remedy here is appeal;
4.) Petition for relief from judgement;
5.) Motion for extension of time to file an affidavit;
6.) Memoranda;
7.) Petition for certiorari, mandamus, or prohibition against any interlocutory orders issued by the court;
8.) Motion to declare the defendant in default;
9.) Dilatory motions postponements;
10.) Reply;
11.) Third-party complaints;
12.) Interventions;
So that will be all on Summary Procedure.
Rule 124
PROCEDURE IN THE
COURT OF APPEALS
SECTION 1. Title of the case. – In all criminal cases appealed to the Court of Appeals, the party
appealing the case shall be called the "appellant" and the adverse party the "appellee," but the title of the
case shall remain as it was in the court of origin. (1a)
SEC. 2. Appointment of counsel de oficio for the accused. – If it appears from the record of the case as
transmitted that (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c)
has signed the notice of appeal himself, ask the clerk of court of the Court of Appeals shall designate a
counsel de oficio.
An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within
ten (10) days from receipt of the notice to file brief and he establishes his right thereto. (2a)
SEC. 3. When brief for appellant to be filed. – Within thirty (30) days from receipt by the appellant or his
counsel of the notice from the clerk of court of the Court of Appeals that the evidence, oral and
documentary, is already attached to the record, the appellant shall file seven (7) copies of his brief with
the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the
appellee.(3a)
SEC. 4. When brief for appellee to be filed; reply brief of the appellant.– Within thirty (30) days from
receipt of the brief of the appellant, the appellee shall file seven (7) copies of the brief of the appellee with
the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the
appellant.
Within twenty (20) days from receipt of the brief of the appellee, the appellant may file a reply brief
traversing matters raised in the former but not covered in the brief of the appellant. (4a)
SEC. 5. Extension of time for filing briefs.– Extension of time for the filing of briefs will not be allowed
except for good and sufficient cause and only if the motion for extension is filed before the expiration of
the time sought to be extended. (5a)
SEC. 6. Form of briefs.– Briefs shall either be printed, encoded or typewritten in double space on legal
size good quality unglazed paper, 330 mm. in length by 216 mm. in width. (6a)
SEC. 7. Contents of brief. – The briefs in criminal cases shall have the same contents as provided in
sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be
appended to the brief of the appellant. (7a)
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The appellant is the tem applied to the party making the appeal. Appellee is the term applied to the party in whose favor the
decision is rendered.
Procedure in the CA. Halos pareho man din. It is almost similar in civil cases. The accused will be required to file his brief
(appellant’s brief), to be followed by the appellee’s brief with the government, and if possible appellant’s reply brief.
Q: Now, who prepares the appellee’s brief?

A: The Solicitor General. This is their mastery.
Normally, the Solicitor General files the brief, maiksi lang masyado. I’ve seen a lot of briefs for the People of the Philippines. If I
can see a brief which does not exceed 15 pages, you are very lucky. Everything is there. Everything is condensed. Yet I wonder it
takes them several extensions to file. I don’t think nahirapan silang mag-file nun. Tamad lang siguro ba. Kaya galit man ang SC.
There are so many SC resolutions berating the Solicitor General for asking for a lot of extensions for a very simple matter. They
always claim pressure of work. That’s why the SC wants also to control the number of extensions of time.
I have seen a brief prepared by the Solicitor General in a criminal case. From 45 days, extension, extension, extension…
umabot na siguro ng 150 days – mga 5 months! Finally, na-file. When I look at it, 8 pages lang. I was looking at the brief and then
for eevry assignment of error by the appellant, sinagot niya ng mga dalawang (2) paragraphs lang. And when I look at the
appellant’s brief, ka-kapal masyado! There are so many things discussed – why the court is wrong, why the court made an error.
Sinagot ng Solicitor General, tag 2 or 3 paragraphs lang!
So the appellant’s brief, mga 30 pages or more. Sinagot ng Solicitor General in 8 pages only. And then after several years I
asked the defense counsel kung tapos na ba ang kaso mo. O ano man? “Affirmed.” Meaning, the conviction was affirmed. That is
where you will see that in order to win a case on appeal, IT IS NOT THE LENGTH OF THE BRIEF WHICH MATTERS. IT IS THE
SUBSTANCE. Substance is more important than length. The CA is not impressed on haba. Mainis pa sila niyan because they have
no time to read. This is a very good lesson: THE LONGER IS YOUR PLEADING, THE LESS CHANCES YOU HAVE. That’s how I
looked at it. Even the SC, that’s how they behave.
And there was somebody two weeks ago, who was asked to prepare a COMMENT. The CA required that lawyer to comment.
“COMMENT… Pwede na ba ito?” Ano ba yang comment mo? Gaano kahaba? “Mga 15 pages.” Eh mahaba eh! Bawat comment
niya may citations of authorities. Sige, paiiksiin natin ha? Tinanggal ko… kadami kong tinanggal. Umabot ng 3 pages na lang.
“Paano yung iba?” Look, when the CA says, “The petition is hereby given due course. You are now required to file
MEMORANDA…” that is now your time. Bombahan mo na! Huwag kang mag-memorandum-memorandum sa comment. Pag
comment, sabihin mo lang na hindi ito puwede. “Puwede ko pala tapusin ito in one day?” Of course! Sabi ko, in the CA or SC, it is
not the length of your pleadings which matters but the substance. Yan! Alright, let’s go to Section 8.
SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. – The Court of Appeals may, upon
motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal
if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.
xxxxx
If the appellant will not file his appellant’s brief, the case is dismissed – same in civil cases – except where the appellant is
represented by counsel de oficio because the counsel de oficio is really a court-appointed lawyer. So why will the accused suffer if
the court-designated lawyer is negligent? But if it is a lawyer of your own choice who failed to file the brief, then you suffer the
consequence.
Although we are talking of criminal cases, if you based it on the guidelines, it would seem that when the CA dismisses the
appeal, it should give a warning to the accused. This is what the SC said in the case of
FAROLAN vs. COURT OF APPEALS
February 07, 1995
HELD: “Under Sec. 8 of Rule 124, the failure to file the appellant's brief on time may cause the dismissal of the
appeal, upon either the motion of the appellee or on the own motion of the appellate court, provided that notice must
be furnished to the appellant to show cause why his appeal should not be dismissed.” At least give him a warning.
“But the exception to this rule has been clearly stated — i.e. when the appellant is represented by a counsel de
oficio.”
The second paragraph of Section 8 is more important:
The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the
pendency of the appeal. (8a)
There is an appeal pending in the CA, the appellant escaped from prison or jumped bail, or flees to a foreign country, under the
2nd paragraph of Section 8, his appeal will be dismissed. Abandoned na! By his act of running away, the judgment of conviction will
become final.
This provision prompted the SC to also apply doon sa promulgation. Under Rule 120, if during the promulgation the accused
disappears, the promulgation will proceed in absentia and then the law says the accused forfeits all his remedies. Why? Kung nag-
appeal siya, and then nag-layas siya, the appeal will be dismissed, lalo na kung di siya nag-appeal! You will also lose your right to
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appeal. The reason according to the SC, once the accused escaped from prison or confinement or jumped bail, he loses his
standing in court and unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek
relief from the court. (Gimenez vs. Nazareno, 160 SCRA 1)
We will now answer the question of Mr. Benito:
Q: When a person who is sentenced to death escaped, can the automatic review still proceed? Or assuming there is already
an automatic review and while he is in jail, naglayas, and the SC learns of his escape, what will happen to the automatic review?
Tuloy or dismissed?
A: This is the question which bugged the SC in the 1996 case of PEOPLE vs. ESPARAS (260 SCRA 539) which was asked in
the 1998 bar in remedial law. The SC here is not unanimous. Six (6) justices dissented from the majority. There are two sections
compared here – Section 8 of Rule 124 and Section 10 of Rule 122.
PEOPLE vs. ESPARAS

260 SCRA 539 [1996]
ISSUE: Will the SC proceed to automatically review the death sentence of an accused who was tried in absentia
and remained at large up to the present time? Or even if he appealed, and while the appeal is pending, he escaped?
HELD: The majority said YES. You cannot apply Rule 124 because of the nature of the death penalty. There are
6 justices who disagreed.
“Section 8 of Rule 124 of the Rules of Court which, inter alia, authorizes the dismissal of an appeal when the
appellant jumps bail, has no application to cases where the death penalty has been imposed. In death penalty cases,
automatic review is mandatory. This is the text and tone of Section 10, Rule 122, which is the more applicable rule.”
Ayun! So there is an applicable rule and not the general rule in Rule 124. Let’s go to the philosophy of the ruling:
“There is more wisdom in our existing jurisprudence mandating our review of all death penalty cases, regardless
of the wish of the convict and regardless of the will of the court. Nothing less than life is at stake and any court
decision authorizing the State to take life must be as error-free as possible. We must strive to realize this objective,
however, elusive it may be, and our efforts must not depend on whether appellant has withdrawn his appeal or has
escaped. Nor should the Court be influenced by the seeming repudiation of its jurisdiction when a convict escapes.
Ours is not only the power but the duty to review all death penalty cases. No litigant can repudiate this power which is
bestowed by the Constitution. The power is more of a sacred duty which we have to discharge to assure the People
that the innocence of a citizen is our concern not only in crimes that slight but even more, in crimes that shock the
conscience. This concern cannot be diluted.”
(Of course, the SC anticipated criticisms – bakit ba masyado kayong (SC) protective of the rights of the accused?
That is the reason why criminality is rampant! But the SC answered that: )
“The Court is not espousing a “soft, bended, approach” to heinous crimes for we have always reviewed the
imposition of the death penalty regardless of the will of the convict. Our unyielding stance is dictated by the policy that
the State should not be given the license to kill without the final determination of this Highest Tribunal whose
collective wisdom is the last; effective hedge against an erroneous judgment of a one-judge trial court. This
enlightened policy ought to continue as our beacon light for the taking of life ends all rights, a matter of societal
concern that transcends the personal interest of a convict. The importance of this societal value should not be blurred
by the escape of a convict which is a problem of law enforcement. Neither should this Court be moved alone by the
outrage of the public in the multiplication of heinous crimes for our decisions should not be directed by the changing
winds of the social weather.”
Meaning, our decision shall not be influenced by the thinking of the people – social weather. And I think that is a very nice
explanation why you should not apply Rule 124.
And the last important portion here to master is the second paragraph of Section 13:
SEC. 13. Quorum of the court; certification or appeal of cases to Supreme Court.
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Whenever the Court of Appeals find that the penalty of death, reclusion perpetua, or life
imprisonment should be imposed in a case, the court, after discussion of the evidence and the law
involved, shall render judgment imposing the penalty of death, reclusion perpetua, or life imprisonment
as the circumstance warrant. However, it shall refrain from entering the judgment and forthwith certify
the case and elevate the entire record thereof to the Supreme Court for review. (13a)
How can this happen that the CA finds the penalty of death, reclusion perpetua or life imprisonment should be imposed? This
happens normally in a situation like this: Mr. Concon is charged with murder and the court convicted him only for homicide – so
temporal yan. Where will he appeal? Sa CA because the penalty imposed is not death or perpetua. The trouble is when the CA
reviews the case and finds that the crime should be murder pala!
Q: What should the CA do?

A: The CA should still decide and lay down the facts and the law as if it is the SC. And then the CA should really impose the
death penalty or reclusion perpetua. But it should not enter judgment. After imposing death or perpetua, itapon sa SC, “Please
review our work and find out whether we are correct.” Yaan!
Automatically, the CA will not enter judgement but should elevate the case. So the SC should have the final say on whether or
not to adopt the findings and conclusions of the CA. But definitely, the CA should not shirk from its responsibility of deciding the
case on its merits imposing the correct penalty of death or perpetua. That is that correct procedure under the new rules.
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Rule 125
PROCEDURE IN THE
SUPREME COURT
SECTION 1. Uniform Procedure. – Unless otherwise provided by the Constitution or by law, the
procedure in the Supreme Court in original and in appealed cases shall be the same as in the Court of
Appeals. (1a)
SEC. 2. Review of decisions of the Court of Appeals. – The procedure for the review by the Supreme
Court of decisions in criminal cases rendered by the Court of Appeals shall be the same as in civil cases.
(2a)
SEC. 3. Decision if opinion is equally divided. – When the Supreme Court en banc is equally divided in
opinion or the necessary majority cannot be had on whether to acquit the appellant, the case shall again
be deliberated upon and if no decision is reached after re-deliberation, the judgment of conviction of
lower court shall be reversed and the accused acquitted. (3a)
Q: When the penalty imposed by the RTC is perpetua for example, and since the appeal is direct to the Supreme Court, then
what procedure will the SC follow? Or when the case was decided by the CA and you appeal to the SC, what procedure will the SC
follow?
A: Under Section 1, “Unless otherwise provided by the Constitution or by law, the procedure in the Supreme Court in original
and in appealed cases shall be the same as in the Court of Appeals.” So there is no problem, you can apply the previous rule –
filing of brief, how many copies – the same.
Now, let’s go to one interesting ISSUE: Can you file a motion for new trial of a criminal case before the SC on the ground of
newly discovered evidence?
In the past, there seems to be conflicting rulings on that issue. Like for example, if you go to the 1965 case of GODUCO VS.
CA (14 SCRA 282), the SC ruled that the SC is not authorized to entertain a motion for reconsideration and/or new trial on the
ground of newly discovered evidence because of the doctrine that the SC is not a trier of facts – only questions of law are supposed
to be raised before the SC.
However, the Goduco ruling seems to be relaxed in other cases subsequently to the case of Goduco. In the case of
HELMUTH, JR. VS. PEOPLE (112 SCRA 573 [1982]), and in PEOPLE VS. AMPARADO (156 SCRA 712 [1987]), the SC allowed
the motion for new trial based on newly discovered evidence.
In 1995, that issue came out again in the case of
CUENCA vs. COURT OF APPEALS

250 SCRA 485
HELD: Although in “Goduco vs. CA” (14 SCRA 282 [1965]), this Court ruled that it is not authorized to entertain a
motion for reconsideration and/or new trial predicated on allegedly newly discovered evidence, the rule now appears
to have been relaxed, if not abandoned, in subsequent cases like “Helmuth, Jr. vs. People” and “People vs.
Amparado.”
“In both cases, the Court, opting to brush aside technicalities and despite the opposition of the Solicitor General,
granted new trial to the convicted accused concerned on the basis of proposed testimonies or affidavits of persons
which the Court considered as newly discovered and probably sufficient evidence to reverse the judgment of
conviction.”
So we follow the later ruling – relaxed. And I think that is fair enough for the accused. All the doubts should be resolved in favor
of the accused.
Rule 126
SEARCH AND SEIZURE
We will now go to Rule 126 – Search and Seizure. This is one of the most controversial rules. This is as confusing sometimes
as the jurisprudence on warrantless arrests in Rule 113 – when may an arrest be made. Ito naman, Rule 126 – when may there be
a valid search and seizure.
Generally, peace officers are not allowed to conduct search and seizures if they have no search warrants. So this is again a
review of Constitutional Law.
Q: How do you define a search warrant?

A: You have Section 1:
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SECTION 1. Search warrant defined. – A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search
for personal property described therein and bring it before the court. (1)
Now let’s go to Section 2 which is an entirely new provision:
SEC. 2. Court where application for search warrant shall be filed.– An application for search warrant shall
be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.
(b) For compelling reasons stated in the application, any court within the judicial region where the
crime was committed if the place of the commission of the crime is known, or any court within the
judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the court
where the criminal action is pending. (n)
This provision was taken from the ruling of the SC in the leading case of MALALOAN vs. CA (232 SCRA 249 [1994]) which
was reiterated in the case of PEOPLE vs. CA (291 SCRA 400).
MALALOAN vs. COURT OF APPEALS

232 SCRA 249
Q: Can a search warrant issued by let’s say, a Davao City court be enforced in any other place outside of Davao
City?
A: YES, because a search warrant is merely a court process. It should not be confused with the correct venue for
the filing of the case. But here, there is no case. We are only talking about search and seizure which is a mere court
process. It has nothing to do with the filing of a criminal case. So you cannot limit the power of the search warrant only
within the place where the crime was committed.
Furthermore, search warrants are usually applied by law enforcement officers and it is too much to require peace
officers to know in advance where is the probable venue of the criminal case. And based on the interim rules, there is
a statement there that “xxx writs of certiorari, prohibition, habeas corpus, etc… of the RTC are enforceable only within
the region. All other writs or processes are enforceable throughout the country.” And a search warrant fall under the
general provision “all other writs xxx”.
Of course, under the last paragraph, when there is already a case filed in court, then all search warrants in connection with a
pending case can only be issued by the court where the case is pending. This was also taken in Malaloan. So that is the history of
that provision.
SEC. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of
personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (2a)
Take note that only personal property may be seized pursuant to a search warrant. lets us connect this with Section 4:
SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable
cause in connection with one specific offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witness he may produce, and particularly describing
the place to be searched and the things to be seized which may be anywhere in the Philippines. (3a)
SEC. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath, the complainant and
the witnesses he may produce on facts personally known to them and attach to the record their sworn
statements, together with the affidavits submitted. (4a)
Q: What are the requisites for the issuance of a search warrant?

A: There are five (5) requisites for the issuance of a search warrant:
1. There must be an application which must be under oath;
2. There must be an affidavit in support of the application. The affidavit must be based on the personal knowledge of the
affiant.
That is why under Section 5, the judge must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath, the complainant and his witnesses to find out what the
affiant really know what he is talking about. And everything must be reduced in writing.
Now, you cannot apply here in Rule 126 the ruling in Lim vs. Felix that a judge can just look at the affidavits and
determine whether to issue or not to issue a warrant of arrest. The ruling in Lim is based on the issuance of warrant of
arrest after preliminary investigation. But we are talking here (Rule 126) of a search warrant. Here, it must be literal –
there must really be a personal examination.
3. The search warrant must particularly describe the place or the person to be searched and the things to be seized;
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4. There is probable cause for its issuance;
Q: What do you mean by probable cause for the purpose of issuing a search warrant?
A: Probable cause refers to such facts and circumstances which could lead a reasonably discreet and prudent
man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection
with said offense or subject to seizure and destruction by law is in the place to be searched. (People vs. Encinada,
October 2, 1997).
In one case, the SC said that probable cause does not mean actual and positive cause, nor does it import
absolute certainty. The requirement is less than certainty or proof, but more than suspicion or possibility. (Columbia
Pictures vs. CA, August 26, 1996)
5. The search warrant shall be issued in connection with but one offense.
So for example, I suspect that in your building, there are many objects there. There are unlicensed firearms.
Meron din diyan shabu. And there are also smuggled goods. So three laws are violated – illegal possession of
firearms, prohibited drugs, and customs law.
So gawa tayo ng isang search warrant lang to seize those objects – shabu, firearms, smuggled goods – ah hindi
puwede yan! because “one search warrant, one offense.” So there must be three different search warrants. Otherwise
the search warrant is a general warrant which is prohibited under the Constitution.
And one of the leading case regarding on that issue is the case of STONEHIILL vs. DIOKNO (20 SCRA 383) where a search
warrant was issued against an American businessman who had a violation daw ng NIRC, RPC, etc. – gi-one time ba! And it was
declared as null and void by the SC because there were so many items which were allegedly seized in connection with violation of
different laws like NIRC, RPC, Central Bank Act. That is a general warrant.
However, if we go by jurisprudence on general warrants, it is not really necessary that in order to be classified as a general
warrant, it was issued for several offenses under different laws. For example in the case of
BURGOS, SR. vs. CHIEF OF STAFF

December 26, 1984 (134 SCRA)
FACTS: A search warrant was issued to raid the editorial offices of Metropolitan Mail and We Forum
(predecessor of Malaya) somewhere in Quezon City. What were going to be confiscated were materials, pamphlets,
printing machines to stop the paper from publishing on the alleged violation of Anti-Subversion Act (PD 885) during
the time of Marcos. Burgos challenged the validity of the search warrant before the SC.
ISSUE #1: According to Burgos, “You cannot seize those things because I am not the owner of those. I am just
leasing them.” Can you only seize from somebody objects which he owned?
HELD: NO, because there is no provision in the law to that effect. And under Section 3, you can seize “stolen or
embezzled and other proceeds, or fruits of the offense.” For example, you can issue a warrant to seize stolen property
from a thief or robber. Is the thief or robber the owner the owner of those stolen property? Of course not! So, there is
no requirement that you can only seize it from its owner. Talo si Burgos sa issue na yan.
ISSUE #2: According to Burgos, you cannot seize the printing equipments because under the law you can only
seize personal property. These printing machines are all attached to the building and under the law on Property, when
a machinery is attached to the immovable, it becomes immovable or real property also. And you cannot seize a real
property.
HELD: You are correct BUT there is an EXCEPTION – if the machine is attached by somebody who is not the
owner of the building, then the machine is still a movable property. So, tinamaan na naman siya dun.
ISSUE #3: Was the search warrant a general warrant?

HELD: YES. What were seized were paraphernalia, pamphlets, printing machines, etc. which, according to the
search warrant, were used in committing the crime of subversion under PD 885. So there is only one law violated
unlike in the case of Stonehill na marami.
But sabi ng SC, the search warrant is a general warrant. It is true that there is only one law violated but there are
many sections in the Decree. You must allege the section violated, otherwise it becomes a general warrant.
So if you just say that the search warrant is for violation of a law, then that is a general warrant. You must point out the section
which was allegedly violated. So in the case of Burgos, the search warrant was declared as a general warrant inspite of the fact
that only one law was violated.
As a matter of fact, the concurring opinion of former Justice Abad Santos was clearer eh. He said, “In the case at bar nothing
specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of
committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of
the decree. It would be legal heresy, of the highest order, to convict anybody of violating the decree without reference to any
determinate provision thereof.
“The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to
make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore,
conclude that the warrants are general warrants which are obnoxious to the Constitution.”
Let’s distinguish Burgos in the case of

OLAES vs. PEOPLE
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155 SCRA 486 [1987]
FACTS: The caption of the search warrant states that it is in connection with “Violation of RA 6425, otherwise
known as the Dangerous Drugs Acts of 1972.” The text of the warrant however says, “There is probable cause to
believe that Olaes has in his possession and control and custody of marijuana dried stalks/leaves/seeds/cigarettes
and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above.”
Olaes argued that the warrant is a general warrant because it does not specifically point to certain provisions in the
Dangerous Drugs Act.
HELD: Olaes is correct BUT there is only once section in marijuana. So what are we talking? So, even if it is not
mentioned, it is understood that it points to marijuana.
PEOPLE vs. DICHOSO

223 SCRA 174
FACTS: A search warrant was issued for the seizure at Dichoso residence of shabu, marijuana, paraphernalia,
etc. Dichoso argued that his illegal possession of shabu, marijuana and paraphernalia are covered by different articles
and sections of the Dangerous Drugs Act. Hence, the warrant is a general warrant.
HELD: Teka muna! Marijuana is regulated, shabu is also prohibited. But they both of them belong to one family –
dangerous drugs. So magkapatid man yan! Pareho na rin iyan!
“The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are
subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are closely
related or which belong to the same class of species. Accordingly, one (1) search warrant may thus be validly issued
for the said violations of the Dangerous Drugs Act.”
PRUDENTE vs. DAYRIT

180 SCRA 69 (1989)
FACTS: The application for search warrant was captioned: “For Violation of PD No. 1866 (Illegal Possession of
Firearms, ETC.)” And what were taken were firearms and explosives. The validity of the search warrant was
questioned on the ground that there are two different violations – firearms and explosives.
HELD: “Such illegal possession of items destructive of life and property are related offenses or belong to the
same species, as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866.”
So the word “etcetera” covers them all.
Another interesting case is the 1988 case of Twentieth Century Fox vs. CA (164 SCRA 655), reiterated in Columbia Pictures
vs. Flores (June 29, 1993). It refers to a violation of PD 49 (otherwise known as the Decree on the Protection of Intellectual
Property) on anti-film piracy during the height of betamax tapes.
TWENTIETH CENTURY FOX vs. COURT OF APPEALS

164 SCRA 655
FACTS: A search warrant was issued for alleged violation of Anti-Piracy Law. The things to be seized were video
tapes, television sets, video cassette recorders, rewinders, tape cleaners, and almost everything.
HELD: The warrant is general. It is void. Why? Of course, if you seize the tapes, puwede pa yan. But why will
you seize television sets, video cassette recorders, rewinders, etc? Are they illegal objects?
“Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be found in a video
tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and
appliances are generally connected with, or related to a legitimate business not necessarily involving piracy of
intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or
particularity that they were really instruments in violating an Anti-Piracy law makes the search warrant too general
which could result in the confiscation of all items found in any video store.”
PEOPLE vs. COURT OF APPEALS

216 SCRA 101
FACTS: The body of the search warrant stated was that the items were “Stolen or Embezzled and proceeds or
fruits of the offense, used or intended to be used as the means of committing the offense.” So, practically, the
policeman copied the whole of Section 3.
HELD: The warrant is void. “The warrant was a scatter-shot warrant that could refer "to robbery, theft, qualified
theft or estafa." On this score alone, the search warrant was totally null and void.”
SEC. 6. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon
which the application is based or that there is probable cause to believe that they exist, he shall issue the
warrant, which must be substantially in the form prescribed by these Rules. (5a)
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SEC. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place
of directed search after giving notice of his purpose and authority, may break open any outer or inner
door or window of a house or any part of a house or anything therein to execute the warrant to liberate
himself or any person lawfully aiding him when unlawfully detained therein.
SEC. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a
house, room, or any other premises shall be made except in the presence of the lawful occupant thereof
or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion
residing in the same locality. (7a)
Remember there is a similar provision in the RPC (violation of domicile). Even if there is a search warrant, you cannot search
the house without the presence of the owner or the occupant of the house. Or if nobody is around, the searching officer must
secure 2 witnesses, 2 members of the neighborhood. They cannot search on their own without any witnesses.
Q: What is the reason?

A: In order that the searching party will not just get anything which is not the subject of the warrant. This usually happens. You
supposed to search for marijuana, but you brought along the refrigerator. One reason also is to prevent the planting of evidence.
One interesting case here is
QUINTERO vs. NBI

162 SCRA 467
FACTS: NBI raiders went to search a house by virtue of a search warrant. What the NBI did, because there were
so many rooms, was they conducted the search simultaneously. One NBI searching the room and the other in
another room.
HELD: That type or procedure is wrong because how can the witnesses be present everytime the search is made
when one is in the other room and the others in another room. “Such a procedure, wherein members of a raiding party
can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed
by law are made to witness a search conducted by the other members of the raiding party in another part of the
house, is held to be violative of both the spirit and the letter of the law, which provides that no search of a house,
room, or any other premises shall be made except in the presence of at least one competent witness, resident of the
neighborhood.”
SEC. 9. Time of making search. – The warrant must direct that it be served in the day time, unless the
affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. (8)
Now, let’s go to a very important provision – Section 10:
SEC. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date.
Thereafter, it shall be void. (9a)
A search warrant has a lifetime only of ten (10) days. Compare that with the lifetime of a warrant of arrest under Section 4 of
Rule 113. Under Rule 113, the 10-day period does not mean to say that the warrant of arrest is only good for 10 days. It is only a
directive that you will enforce it within 10 days. If you cannot arrest, di bayaan mo! Keep it and try to arrest the accused in the
future.
But a search warrant, iba – talagang 10 days lang. Thereafter, it shall be void. Does this mean to say that you can use a
search warrant everyday for 10 days? NO. You can use it once for 10 days. But it does not mean you can use it everyday or for the
next 10 days.
One interesting case on the issue of the 10-day period on search warrants is the 1996 case of
MUSTANG LUMBER, INC. vs. COURT OF APPEALS

257 SCRA 430 [1996]
FACTS: A search warrant was secured on a certain date and enforced the same on the same day. But the
raiding team could not finish the search in one day. So they postponed, “bukas naman ituloy.”
ISSUE: Can you still continue tomorrow? Or must you finish everything today?
HELD: Under the Rules of Court, a search warrant has a lifetime of ten days. Hence, it could be served at any
time within the said period, and if its object or purpose cannot be accomplished in one day, the same may be
continued the following day or days until completed. Thus, when the search under a warrant on one day was
interrupted, it may be continued under the same warrant the following day, provided it is still within the ten-day period.
Yaan! So that is the correct interpretation of the 10-day period. Hindi naman kailangan na you have to finish everything on the
same day. You may still continue tomorrow but be sure that tomorrow is still within the 10-day period. Suppose you cannot finish
naman tomorrow? Continue on the next day? Puydi! – tuloy! basta within the 10-day period.
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SEC. 11. Receipt for the property seized.– The officer seizing the property under the warrant must give
a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and
seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses
of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he
found the seized property. (10a)
SEC. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. – (a) The
officer must forthwith deliver the property seized to the judge who issued the warrant, together with a
true inventory thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return
has been made, and if none, shall summon the person to whom the warrant was issued and require him
to explain why no return was made. If the return has been made, the judge shall ascertain whether
section 11 of this Rule has been complied with and shall require that the property seized be delivered to
him. The judge shall see to it that subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be filed and kept by the custodian of the log book on
search warrants who shall enter therein the date of the return, the result, and other actions of the judge.
A violation of this section shall constitute contempt of court. (11a)
Q: After the search warrant has been implemented, what happens next?
A: Under Section 11, the officer must give a receipt to the owner or person from whom he took it or to the witness. And under
Section 12 [a], the officer must forthwith deliver the properties seized to the judge who issued the warrant together with a true
inventory thereof duly verified under oath. So, receipt and then deliver.
Now, there are two new paragraphs, inserted in Section 12—paragraphs [b] and [c] – that there is a deadline for the officer to
submit this report and to make a return of the warrant. There is a deadline for him to do that. And the last portion of Section 12
says:
“A violation of this section shall constitute contempt of court.”
I do not know the reason behind this amendment. I presume it was inserted by the SC maybe because in other places after the
search warrant has been implemented, the court never knew what happened to the warrant, all the things were appropriated by the
officer, they were not turned over to the court. Maybe because of such experience, the SC decided to give a deadline for the
turnover of all the properties seized and for the report. That’s only my conjecture, ‘noh?
Let’s go to some interesting cases regarding these personal properties subject of a search warrant.
WASHINGTON DISTILLERS INC. vs. COURT OF APPEALS

260 SCRA 821 [1996]
FACTS: This involves a controversy between Washington Distillers and La Tondeña Distillers. Obviously, their
products are spirits and wine. According to La Tondeña Distillers, the bottles that Washington Distillers uses for their
products are actually La Tondeña bottles. They buy empty bottles, lilinisin nila, and they use them to serve their
products. Nagreklamo ang La Tondeña because those are their bottles, of course.
One of the issues here is whether you can still claim the bottles, binayaran na yan eh. When the buyer bought the
product, he already paid for the bottle, so why are you complaining? So that was the issue ‘noh?
So La Tondeña decided to apply for a search warrant to raid the premises of Washington Distillers to recover all
these bottles. And there was really a raid and so many bottles where taken from the premises of Washington
Distillers. All those bottles were turned over to La Tondeña.
Now, Washington Distillers questioned the act of turning over the bottles to La Tondeña. Of course, the issue is
ownership. Admittedly, these are your bottles but when the customers bought those bottles and the contents you can
no longer claim ownership over those bottles. More or less that is the issue. So they were quarreling over the issue of
ownership.
Now, Washington Distillers secured the services of Estelito Mendoza on this issue. Medoza questioned the action
of La Tondeña in trying to get the bottles.
HELD: Estelito Mendoza was sustained in the SC. Why? Because if we are quarreling about the issue of
ownership of the bottles, then there should be another case for replevin. Or, the bottles are in the possession of the
government, the La Tondeña should file action for interpleader to determine who really owns the bottles. But you
cannot use a mere search warrant to resolve the issue of ownership. A search warrant is only to get the property, but
it does not have the same effect as a writ of replevin.
“A search warrant proceeding is not a criminal action, much less a civil action. It is a special criminal process, the
order of issuance of which cannot and does not adjudicate the permanent status or character of the seized property.
It cannot therefore be resorted to, as was done here by La Tondeña Distillers, as a means of acquiring property or of
settling a dispute over the same. The proper remedy is for private respondent or for the Government itself, assuming
the role of a stakeholder, to bring the appropriate action.”
585
So that is a very nice case, ‘noh? There is also another interesting issue in the case of Washington Distillers which was also
raised by Mendoza:
WASHINGTON DISTILLERS INC. vs. CA (supra)
FACTS: According to Mendoza, the application for search warrant is void or it should have been rejected
because when the peace officer applied for the search warrant, there was no certification on non-forum shopping.
Kaya sabi ni Mendoza, “How do we know? You might have also applied for search warrant in another court. So, you
must certify that you have not filed any other application for search warrant before any other court.” That is a very
unique argument.
Sabi ng other party, “No, hindi yan applicable. Hindi man kaso ito. I’m not filing a complaint or a petition where I
will include a certification on non-forum shopping. This is just an application for a search warrant.”
ISSUE: Does the rule on non-forum shopping certification also apply to search warrant?
HELD: YES, because does the law requires parties to certify under oath that they have not “theretofore
commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or
any other tribunal or agency” and that to the best of their knowledge “no such action or proceeding is pending” in said
courts or agencies. Di ba that’s the language of forum shopping?
“Indeed, the policy against multiple court proceedings clearly applies to applications for search warrants. If an
application for search warrant can be filed even where there are other applications pending or denied in other courts,
the situation would become intolerable.” And what is the certification – ‘that I have not filed any other action or
proceeding’. YOOON! ‘PROCEEDING’! An application for a search warrant is a court proceeding which is covered by
the rule on forum shopping.
So that was the ruling of the SC in this case. That’s why you will see how analytical and brilliant Estelito Mendoza is. Makita
niya ang mga ito. In other words, he can really detect these points which normally other lawyers will not be able to detect. Magaling
man talaga yan siya ba. Nasira lang yan siya sa impeachment trial. He’s unpopular…pero he’s really very good. Compared to the
prosecution panel, na outclass talaga yun. Walang laban yun. When I read it, grabeh talaga itong argument niya kung saan niya
pinulot ito. And he has been sustained in the SC. Alright.
Did I tell you about somebody from Davao who wanted to get the services of Mendoza? Wala, ayaw tanggapin. If not for the
recommendation of one of his closest friends in Davao. Sabi niya, we do not accept for the moment because of the impeachment
trial, we’re all busy. He’s busy. “I’m paying!” How much? “Two million? Three Million? I’ll pay na!” No, wala, ayaw tumanggap ni
Mendoza. That’s very small to him. Alright.
Let’s go now to the most controversial provision – Section 13 – The issue on Warrantless Search and Seizure.
SEC. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense
without a search warrant. (12a)
Q: When may a search and seizure be effected without a search warrant?

A: Section 13 - when it is merely incidental to a lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may be used or constitute proof in the commission of an offense without a search warrant.
This is because it’s absurd, ‘noh? if I’m arresting a criminal by virtue of a warrant, or the arrest is valid with no warrant
(because that would be valid arrest without a warrant) he might be holding a gun or a knife. And if you do not search him, he might
stab the arresting officer. And it would be absurd to say, “ok, you can arrest me because of your warrant of arrest, but you cannot
search me because you have no search warrant.” So you ask the policeman to go back to court to get the search warrant. There’s
something wrong there. Yung search, dala na yun! When the arrest is valid or lawful, automatically the search becomes also lawful.
That is why in most cases involving search and seizures, the target of the person against whom something is taken is the
validity of the arrest. Because once he can prove that the arrest is not valid, then automatically the accompanying search is not also
valid. Because, no valid arrest means no valid search and seizure. That is the pattern.
There are so many cases here. I’m just choosing the interesting ones.
UY KHEY TENG vs. VILLAREAL

42 PHIL 886
FACTS: This is a very old case, already asked in the bar. There was a search warrant issued by the court to
search a building somewhere in chinatown in Binondo, Manila on the ground that there was opium or other drugs in
that house. So the raiding party went to the house and announced to the owner that they have a search warrant. So
the owner had no choice but to allow the search. They searched the premises, they did not find any opium. Wala! But,
instead, what they found were firearms – unlicensed firearms. And because they discovered the presence of these
firearms, they arrested the accused for illegal possession of firearms and seized all his firearms.
There were two questions which were asked in the bar—
ISSUE #1: Can the peace officers seized the firearms by virtue of the search warrant?
HELD: NO, Because a search warrant can only issue for one offense. The offense was possession of opium or
586
drugs. It cannot be used to seize firearms. So the firearms cannot be seized by virtue of the warrant.
ISSUE #2: Would you say therefore that the seizure of these firearms is illegal?
HELD: NO. It is valid because in the course of their search for opium, they discovered another crime – illegal
possession of firearms. And since they discovered the commission of another crime, they have the authority THEN
AND THERE to arrest the owner because the crime is being committed in their presence. So there is a valid
warrantless arrest. And since there is a valid warrantless arrest, automatically there is also a valid warrantless
seizure. So, dun nahuli. What gives the peace officers the authority is not the search warrant, but the fact that it
becomes merely incidental to the arrest of the accused.
Let’s go now to other cases. We are concentrating on the question of whether there is a valid seizure. Whether you can say
that the seizure is incidental to an arrest.
PEOPLE vs. CENDAÑA

October 17, 1990
FACTS: Somebody was killed and the accused was arrested the following day. He was arrested on the basis of
information obtained by police officers from unnamed sources. Of course, when they arrested him inside his house
nakita nila yung baril talaga doon. There was really a gun which they believed to be the very gun used to kill the
victim. So they seized it.
ISSUE: Was there a valid seizure? Walang warrant, eh. We go back, we have to determine whether there was
also a valid arrest. Remember wala din silang warrant eh, when they arrested him. You go back to Rule 113. Is there
a valid warrantless arrest?
HELD: No valid arrest. “Accused-appellant was arrested one day after the killing of the victim and only on the
basis of information obtained by the police officers from unnamed sources. These abovementioned circumstances
clearly belie a lawful warrantless arrest.” It is not sanctioned by Rule 113. So kapag bagsak ang arrest, bagsak din
automatically ang seizure.
“Considering that the arrest of accused-appellant herein was unlawful, any search conducted on his person or
place of arrest which is an incident thereof, was also unlawful. Perforce, any evidence recovered during the unlawful
search, being made without a warrant, becomes inadmissible in evidence against accused-appellant and the shotgun
which was allegedly the fatal weapon cannot be presented against him.”
PEOPLE vs. CATAN

205 SCRA 235
FACTS: Rogelio Catan was entrapped by two NARCOM poseur-buyers in a buy-bust operation right inside
Catan’ s house. The NARCOM agents pretended to be addicts. Pagbigay, HULI! After the arrest, the NARCOM
agents searched the premises and recovered more marijuana. Catan asserted that the search of his premises was
illegal.
If you look at the law, what can you search? The search is valid, di ba? He may be search for dangerous
weapons or anything which may constitute proof. What was search was the premises. Dun nakita yung maraming
marijuana, eh. What was taken from him, maliit lang. Dun siya tinamaan ng illegal possession, because of the
quantity.
So Catan was questioning the search because you did not search my body! You searched my premises.
HELD: VALID! When you say search of the person, it INCLUDES the immediate premises because for all you
know, walang baril, pero yung baril pala nasa drawer niya at gagamitin sa iyo. So it includes the surrounding
premises. That is covered by the incidental search.
Catan is wrong. “Appellant was arrested in flagrante delicto in the act of selling and delivering marijuana to the
poseur-buyers. His case therefore falls under the category of a valid warrantless arrest. The subsequent search of his
house which immediately followed yielding other incriminating evidence was a search contemporaneously made and
as an incident to a valid warrantless arrest in the immediate vicinity where the arrest was made. That is a recognized
exception to the general rule that any search and seizure must be supported by a valid warrant.” That is the general
rule.
When you say incidental search, it does not only refer to kapkapan mo yung tao. Pati immediate vicinity is included because
remember, he may have dangerous weapons in his body which he can use against you. But the dangerous weapon may not be in
his body but within the immediate premises. That is what the SC said. The same rule or pattern emerged in the case of:
PEOPLE vs. LI WAY CHUNG

214 SCRA 431 [1992]
FACTS: Search without warrant of the appellant’s dwelling. Appellant’s dwelling is just a single-room unit, which
is around 9 square meters. Maliit lang yung kwarto ng accused. They searched the room and found out evidence.
HELD: “The search without a warrant of appellant’s dwelling, a single room unit with a total area of 9 sq. m. was
a valid as an incident of a lawful warrantless arrest. The search was conducted in a confined place within appellant’s
immediate control, an area where he might gain possession of a weapon.”
587
PEOPLE vs. GERENTE
219 SCRA 756
FACTS: A witness testified that at 7 o’clock in the morning, she saw three persons started drinking liquor and
smoking marijuana and overheard them killing Clarito Blace. Narinig lang niya. Nine hours after, or at 4 P.M., the
police received a report of a mauling incident. So a police investigator went to the hospital where the victim was
brought and was told that the victim died on arrival. Patay na! Police investigator and his companions proceeded to
the scene of the mauling and there they were informed by the witness that she saw the killing and pointed to Gabriel
Gerente, as one of the three men who killed Blace.
The policemen went to the house of Gerente who was then sleeping, asked the latter to come out, and when he
did, he was placed under arrest. He was frisked, the police finding in his pocket a coin purse containing dried leaves
wrapped in a foil. The dried leaves turned out to be marijuana after laboratory examination.
So he was arrested for the killing, ang nakuha sa kanya is a coin purse containing marijuana. So dalawa na kaso
niya.
ISSUE #1: Was the warrantless arrest of Gerente lawful?

HELD: YES! The eye witness Edna Edwina Reyes reported the happening to the policemen and pin-pointed her
neighbor Gerente as one of the killers. Since the policemen have personal knowledge (YUN!) of the violent death of
Blace, and of facts indicating that Gerente and two others are guilty. We’re going back to Rule 113 – what do you
mean by personal knowledge or probable cause…they could lawfully arrest Gerente without a warrant. If they had
postponed his arrest until they could obtain a warrant, he would have fled like his companions na nakasibat na.
ISSUE #2: May the marijuana be validly used as evidence in a prosecution for illegal possession of dangerous
drugs? Was the marijuana validly seized?
HELD: YES. The search conducted on Gerente’s person was likewise lawful because it was made as an incident
to a valid arrest. It was in accordance with Section 12, Rule 126, citing the case of Adams vs. Williams, an American
case: “It was ruled that the individual being arrested may be frisked for concealed weapons, that may be used against
the arresting officer, and all unlawful articles found in his person or within his immediate control may be seized.”
PEOPLE vs. QUIZON

256 SCRA 325 [1996]
NOTE: The guideline in order not to be lost is placed here nicely. The guideline given by the SC is this—it is wise
to remember this, because as we said, ang premise natin only the arrest eh.
HELD: “It is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Where a
search first undertaken, then an arrest effected based on evidence produced by the search, both such search and
arrest would be unlawful, for being contrary to law.”
You get that? Unahin muna ang arrest—lawful—and then search. If you will search, and in the process of searching you
discover something and you will arrest him… aba, hindi puwede because how can you say that the search was incidental to a
lawful arrest eh nauna yung search kaysa arrest? So, unlawful pareho. The arrest must precede the search, not the search
preceding the arrest. Do not search him in the hope that you will discover something unlawful.
INSTANCES OF VALID WARRANTLESS SEARCH
Q: Suppose you will be asked this question: What are the instances under the law when there could be a valid seizure without
a search warrant? What are the instances when there could be a valid warrantless search and seizure?
1. When the search is merely incidental to a valid arrest (Section 13);

2. Stop And Frisk Rule;
3. Search of moving vehicles;
4. Evidence in plain view;
5. Customs searches;
6. Consented search;
7. Exigent searches or searches during emergency circumstances
STOP AND FRISK RULE
The Stop and Frisk Rule was taken by the SC from a leading American case, TERRY VS. STATE OF OHIO (392 US 1, 20 L
Ed 2d 889, 88 S Ct 1868) cited in the case of PEOPLE VS. MALMSTEDT (198 SCRA 401) and POSADAS VS. CA (180 SCRA
283)
In the 1995 or 1996 bar, the very first question in Remedial Law was: Explain what is meant by the Terry Search.
Ay, maraming tinamaan dun. Ano ba ito? How do you explain the process of Stop and Frisk which is one of the instances
where the warrantless search may be allowed? If you do not know your constitutional law, patay ka!
588
Now, ano ba itong Terry Search? Alam natin yung Stop and Frisk. There are many factors there to consider. First, that is
normally applied to peace officers. When they see someone acting suspiciously at the wrong time and at the wrong place. For
example, you are patrolling in the middle of the night then you see somebody in the dark. That will invite your attention. And then,
the Terry Search says you must ask questions first – What is your name? Why are you here in the middle of the night? Hindi ka
puwedeng mag-kapkap kaagad. Magtanong ka muna. Find out whether you are satisfied with his answers. Now, if somehow you
doubt his answer—like if he is wearing a big jacket and trying to hide something—ayan na! You can say “I will frisk you”.
The guideline here is the appearance of the person, the time, the occasion of the search. And you have to limit first your
observation on the outer garments. But you have to consider also, according to the SC, the experience of the peace officer.
Because peace officer, somehow, they have sixth sense eh when it comes to shady characters. These are the factors which should
be taken into consideration, then stop and frisk. Kapkapan mo. Now suppose in doing that, firearm is taken, or anything, pwede. He
cannot say inadmissible. Under the second exception ito (Stop and Frisk).
Now we’ll illustrate some cases to demonstrate how this has been applied. Let us start with a case which originated in Davao.
POSADAS vs. COURT OF APPEALS

180 SCRA 283
NOTE: The search was conducted in Magallanes Street, sa may RMC.

FACTS: At about 10 o’clock in the morning, two policemen were conducting a surveillance. Obviously, they were
expecting something to happen, or they were asked to look for somebody. They spotted Posadas carrying a buri bag.
They notice him to be acting suspiciously. (What do you mean by acting suspiciously? Let us leave that to the
judgment of the peace officer.) Both policemen approached Posadas and identified themselves. But when they
introduced themselves, Posadas attempted to flee. “There is something wrong here. Nagpakilala tayong pulis,
tumakbo siya. Why is he running?”
So, they caught him. A check of the buri bag yielded one caliber .38 Smith & Wesson revolver, 2 teargas
grenades and live ammunitions of .32 caliber gun. Posadas was not able to show the necessary license or authority to
possess firearms and ammunitions. So he was prosecuted for illegal possession of firearms and ammunitions.
ISSUE: Was there a valid search and seizure to make a confiscated items admissible evidence?
HELD: YES. “There was a valid search and seizure. At the time the peace officers identified themselves and
apprehended Posadas as he attempted to flee, they did not know what he had committed, or was actually committing
illegal possession of firearms. They did not know that! They just went there and introduced themselves. They just
suspected that he was hiding something in the buri bag. They did not know what its contents were. The said
circumstances did not justify the arrest without the warrant.” – klaro yan – because is there a crime if you walk around
with a buri bag? I don’t think there is a crime, ‘noh?)
“HOWEVER—[yaaan!]—the search, in the case at bar, is reasonable considering that it was effected on the basis
of probable cause.” [So, balik na naman tayo sa probable cause.] The probable cause is that when Posadas acted
suspiciously and attempted to flee with the buri bag, there was a probable cause that he was concealing something
illegal in the bag. It was the right and duty of the police officers to inspect the same, “Why are you running? We’re just
introducing ourselves, ba’t tumakbo ka?” Ayan. It will arouse suspicion.
“It is too much indeed to require the police officers to search the bag in the possession of Posadas only after they
shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too
late.”
So you can see the pattern. Alam niyo ang mga kasong ganito—warrantless searches, warrantless arrests under Rule 113—
ang pag-asa mo lang dito read as many cases as possible. Because if you will be questioned by the examiner, definitely it will be
patterned after one case. If you are familiar with the cases, madaling makilala. It would be easy. As what happened last year, there
was a question in Constitutional Law on stop and frisk. Sabi nila, “Uy! [si Judee na sad!] Nabasa ko man ang kasong ito.” And it
was really the same case. The same facts, eh. Sa sementeryo, inaresto, mapula ang mata, parang hubog maglakad…meaning, he
was suspected to be an addict. The same! We’ll touch the case later. I think that’s the case of Manalili vs Court of Appeals. Alright.
We’ll compare this case of Posadas with a similar case – the case of
PEOPLE vs. MENGOTE

210 SCRA 174
FACTS: Rogelio Mengote was arrested by policemen because he was acting suspiciously. Ayan na naman,
pareho sa Posadas eh. He was looking from side to side while holding his abdomen. When searched, he was found
with a .38 revolver with six live bullets. The incident occurred before noon time – so tanghali! – at the corner of Juan
Luna and North Bay Boulevard, Tondo, Manila. Almost the same with Posadas—ten o’clock in the morning, before
noon. But how come there is a difference in the ruling?
NOTE: Take note ha, in the case of Posadas, tumakbo. In Mengote, hindi man tumakbo. Basta linapitan siya,
nakapkapan ng baril. Mengote was convicted of illegal possession of firearms.
He was convicted. Mengote contends that the weapon was not admissible evidence because it was illegally
seized, and therefore, the fruit of a poisonous tree. Yun man talaga depensa mo, wala mang iba.
The prosecution insists that the revolver was validly received in evidence because its seizure was incidental to an
arrest that was doubtless lawful, even admittedly without warrant.
ISSUE: Is the evidence inadmissible?
HELD: YES. “The evidence is inadmissible. When Mengote was arrested, he was not committing any offense.”
589
The question is, What offense? “What offense could possibly have been suggested by a person ‘looking from
side to side’ and ‘holding his abdomen’ and in a place not exactly forsaken? These are certainly not sinister acts. And
the setting of the arrest made them less so, if at all.” Eto! Kaya nasabi ko, in determining stop and frisk, you have to
look at the time, the place.
“It might have been different if Mengote had been apprehended at an ungodly hour and in a place where he had
no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in
a crowded street shortly after alighting from a passenger jeep with his companion. He was not skulking in the
shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that
busy hour in the blaze of the noonday sun.”
“It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is
holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer-could clamp handcuffs on
any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or
attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty
or, worse, personal malice on the part of the arresting officer may be justified in the name of security.”
So even the SC gave a guideline. Kung alas tres ng umaga, madilim…ahh, puydi!
PEOPLE vs. EVARISTO

December 11, 1992
FACTS: There was somebody who fired a pistol. So, there were 2 policemen who started chasing him. And when
they chased, they found 2 people in the corner and they started asking these 2 people. Now, one of the 2 policemen
saw that the guy’s side is bulging. When they searched him, they found a gun. So he was arrested.
ISSUE: Whether there was a valid warrantless search was valid.
HELD: When the police officers chased after somebody who fired a pistol and they came upon Evaristo, the
visual observation that his side is bulging along with the earlier report of gunfire, as well as the peace officer's
professional instincts, are more than sufficient to pass the test of the Rules. Consequently, under the facts, the
firearms taken from Evaristo can be said to have been seized incidental to a lawful and valid arrest.
So, that is the doctrine of Stop and Frisk.
MALACAT vs. COURT OF APPEALS, December 12, 1997

vis-à-vis MANALILI vs. COURT OF APPEALS, October 9, 1997
HELD: “Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had
sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug
addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.”
MALACAT vs. COURT OF APPEALS

G.R. No. 123595; December 12, 1997
ISSUE: Distinguish stop and frisk from search incidental to a lawful arrest.
HELD: “We note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a
lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they
may be validly effected and in their allowable scope.
“In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance, the law requires that there first be a lawful arrest before a search can
be made — the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the
person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing
violence.
“While probable cause is not required to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a
hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a
"stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself
that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.”
SEARCH OF MOVING VEHICLES
Another instance of a valid warrantless search is the search of moving vehicles. Because if the vehicle is moving or mobile,
and it contains illegal/prohibited objects that is being transported and nandiyan na ang vehicle, it would be absurd if you apply first
for a search warrant because makakalayo na yung vehicle.
590
Now, do you remember the most controversial case of VALMONTE vs. DE VILLA? This is where the SC sustained the
constitutionality of checkpoints. But the guidelines here is that the checkpoints has authority to stop the car and see anything
without opening any compartments of it. So, the inspection is limited to a visual or ocular inspection only. But if the checkpoints
received a tip that there is a passenger, then it is allowed.
PEOPLE vs. MALMSTEDT

198 SCRA 401
FACTS: This happened in the Mountain Province involving a Caucasian. The NARCOM agents received a tip
that a bus will pass from Mt. Province and that there is a Caucasian passenger bringing with him prohibited drugs. So,
they stopped the bus and found a Caucasian inside. So they approached him and asked him: “What is your name?
Can we see your passport?” The Caucasian refused. Then during the inspection, the NARCOM agents opened his
bag and found hashish. The same was found in the teddy bear. So, he was charged with illegal possession of
prohibited drugs. Malmstedt questioned the validity of the search.
HELD: The warrantless search was valid. “The receipt of information by NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession, plus the suspicious failure of Malmstedt to produce his passport,
taken together as a whole, led the NARCOM officers to reasonably believe that he was trying to hide something illegal
from the authorities. From these circumstances arose a probable cause which justified the warrantless search that
was made on the personal effects of Malmstedt. In other words, the acts of the NARCOM officers in requiring him to
open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to
contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them,
were prompted by Malmstedt’s own attempt to hide his identity by refusing to present his passport, and by the
information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession.
To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant,
in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the
detriment of society.”
The case of MALMSTEDT was repeated in the case of
PEOPLE vs. BAGISTA

214 SCRA 53
FACTS: This also happened in Mt. Province. The NARCOM received a tip that a woman riding in a bus from
Baguio City has marijuana. She was described as having curly hair and short. So, when the bus passed through the
checkpoint, they saw the woman which fit the description. The agent searched her and in her bag was found
marijuana. The bag and its contents were seized.
ISSUE: Was there a valid search?
HELD: The search was valid in accordance with the case of Malmstedt. “With regard to the search of moving
vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to
be searched to move out of the locality or jurisdiction in which the warrant must be sought.”
“This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of
automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such
a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or
probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in
the vehicle to be searched.”
“The NARCOM officers in the case at bar had probable cause to stop and search all vehicles coming from the
north at Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a
woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They
likewise have probable cause to search accused-appellant's belongings since she fits the description given by the
NARCOM informant.”
Let’s try to compare the case of Bagista with the earlier case of AMINUDIN. It has a similar set of facts but this time, it
involves marine vessel.
PEOPLE vs. AMINUDIN

163 SCRA 402
FACTS: The NARCOM agenst in Iloilo City received a report that a vessel coming from Mindanao has Mr.
Aminudin carrying with him marijuana. So, the NARCOM agents waited at the port for the vessel to arrive. So they
were looking for the passenger and then they saw a man which fit the description of the suspect. They frisked him and
when the maleta was opened, it contained prohibited drugs. Subsequently, the man was arrested.
HELD: There was no valid search because the NARCOM has enough time to secure a search warrant. There
are still 2 days before the vessel will arrive. They have all the time. In the Malmstedt and Bagista, it was in the bus
and may pass by within 30 minutes or 1 hour.
Another difference is this: if you are the suspect riding in a bus and you knew that there is a checkpoint ahead, you can always
ask the bus to stop and then baba ka. But in the case of ship, you cannot do that! Pagnaka-hearing ka na may checkpoint sa pier,
591
will you ask the vessel to stop and then talon ka dagat? That is absurd ‘no! So when it comes to buses or other by-land vehicles,
mas madaling makataas ang suspect. Unlike sa marine vessel.
Another case where the SC laid down the rule reiterating the case of Valmonte is the 1993 case of:
PEOPLE vs. EXALA

221 SCRA 494
HELD: But visual situation only and if there is an information to excite that something is wrong, then you can
effect a search without warrant. This is the exception: if the vehicle is stopped and extensively searched, it is because
of some probable cause which justifies a reasonable belief that either a motorist of the content of the vehicle is an
instrument in the commission of an offense. The presumption stands that they are regularly performing their duties.
EVIDENCE IN PLAIN VIEW
Another instance of a warrantless search is the search of evidence in plain view know as the plain view doctrine – when you
stumble by accident across an object which is prohibited or illegal. It would be absurd that you still have to require a search warrant,
when it is actually there in front of you. This doctrine complements the other. And one of the cases where the SC explained the
plain view doctrine is the case of
PEOPLE vs. MUSA

217 SCRA 597 [1995]
FACTS: The NARCOM team conducted a buy-bust operation at the appellant’s house who was alleged to be
selling marijuana. After the transaction took placed, the team went inside the house and arrested the appellant but
unable to find the marked money.
Thereafter, 2 agents went to the kitchen and noticed a cellophane colored white and stripe hanging at the corner
of the kitchen. They asked the appellant about its contents, but failing to get a response, they opened it and found
dried marijuana leaves.
At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial
court ruled that they are admissible.
HELD: Search was not valid, objects seized inadmissible in evidence. The SC explained and clarified the
meaning of plain view. Let us say that the plastic bag is apparent and you cannot see what is inside, then you will go
there to see it, that is not plain view.
“The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person
of the one arrested to include the premises or surroundings under his immediate control. Objects in the "plain view"
of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as
evidence.”
“The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures
nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine
is usually applied where a police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object.”
“It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not
justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.”
“In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the
marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in
the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify
its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the
plastic bag.”
“Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue
as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they
opened it and found the marijuana. Even assuming then, that the NARCOM agents inadvertently came across the
plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the
plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately
apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer.”
CUSTOMS SEARCHES
Another instance of a valid warrantless search is a search conducted under the customs and tariff code. When a vessel arrives
from abroad, the customs agents board the vessel to look for smuggled items. Then can conduct warrantless searches for the
enforcement of customs laws.
CONSENTED SEARCH
592
Another instance of a valid warrantless search is a consented search because here, there is a waiver. For example: I will go to
your house and I will tell you that we heard that there are illegal firearms inside your house and I have no warrant. But you let me
in, “Okay lang, sige pasok ka and you search.” That is consented search.
One of the interesting cases in consented search is the case of:
PEOPLE vs. BURGOS

144 SCRA 1
NOTE: Do not confuse this case with the one we discussed in Rule 113.
FACTS: There was a suspected NPA, got arrested and there was an interrogation, “Who are you companions?”
“Mr. so and so.” So they went to this house and said that, “Hoy! NPA ka man daw. We would like to search your
house, pwede?” The wife did not object. They found firearms. When the constitutionality of the search was
challenged, the contention was, it was a consented search.
HELD: It was not a consented search. When a person remains silent, that is not consent. This is a constitutional
right which cannot be lightly waived. There is no presumption that there is a waiver or that the consent was given by
the accused simply because he failed to object. You apply the rule that courts indulge every reasonable presumption
against waiver of constitutional rights. You cannot presume acquiescence in the loss of fundamental constitutional
right.
One last case on consented search also happened in Davao City. The case of
VEROY vs. LAYAGUE

210 SCRA 97
FACTS: Atty. Paul Veroy was formerly regional director of the SSS. He has a house in Skyline. At that time, they
were at Manila. The military received a report that his house is being used by the rebels; that is where they meet. So
they called up Veroy through long distance. Mr. Veroy said, “Sige, bahala na kayo diyan.” The searching team started
opening drawers and they found guns. So Veroy was charged for illegal possession of firearms.
Veroy challenged the validity of the search. The defense was consented search.
HELD: The search was not valid although there was consent from Veroy. The permission was to look for rebels
and not for firearms. If you are looking for rebels, why are you opening the drawers? There are no rebels inside the
drawers! Where the permission to enter a residence was given to search for rebels, it is illegal to search the rooms
therein for firearms without a search warrant.
SEARCHES UNDER EXIGENT/EXTRAORDINARY CIRCUMSTANCES
The last exception to the warrant exception would be searches during exigent or extraordinary circumstances provided
probable cause exists. Just like what happened during the 1987 and 1989 coup where the military made some searches in
suspected places. In that case, there is no need to obtain search warrants considering that during that time all the courts there in
Manila were closed because of the coup de etat. Such period is considered as extraordinary circumstances.
NOTE: This exception is a catch-all category that encompasses a number of diverse situations. What they have in common is
some kind of emergency that makes obtaining a search warrant impractical, useless, dangerous, or unnecessary. Among these
situations are danger of physical harm to the officer or destruction of evidence, danger to a third person, driving while intoxicated,
and searches in hot pursuit. Del Carmen, Rolando V., Criminal Procedure for Law Enforcement Personnel, 1987 Edition p. 150
(Footnote, People vs. Fernandez, 238 SCRA 174, 182)
NOTE: Search based on probable cause under extraordinary circumstances, were upheld in People vs. Posadas, 188 SCRA
288 [1990]; Valmonte vs. Villa, 178 SCRA 211 [1989]; People vs. Maspil, G.R. No. 85177, August 20, 1990, citing Valmonte vs.
Villa; People vs. Malmstedt, G.R. No. 91107, June 19, 1991; People vs. Sucro, G.R. No. 93239, March 18, 1991; People vs.
Montilla, G.R. No. 123872, January, 30, 1998.
SEC. 14. Motion to quash a search warrant or to suppress evidence; where to file. - A motion to quash a
search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the
court where the action has been instituted. If no criminal action has been instituted, the motion may be
filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the
motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the
latter court. (n)
Now, Section 14 is a new provision. It was taken from the case of Malaloan and Bans. (People v. Bans, G.R. No. 104147)
Q: The judge will issue a search warrant. Suppose the search warrant is improper, where will you question the admissibility of
the evidence… in the court which issued the warrant? or in the court where the case is pending?
A: In the case of Malaloan, in either court. But in the case of Bans, if there is already a case, all should be resolved in the court
where the case is pending, otherwise there will be interference among the courts.
When do you question the validity of the search? In illegal arrest, all defects surrounding the arrest should be raised before the
arraignment, otherwise the defects are deemed cured because there was a waiver.
593
But in illegal search, such rule does not apply. You may raise such issue even after arraignment. The waiver only applies on
the illegality of arrest, and does not extend to searches. (People vs. Aruta)
How To Kill An Eel
Little Johnny was 10 years old and like other boys in his age, he was rather curious about everything. He had been hearing
quite a bit about 'courting' from the older boys at school, and he wondered what it was, and how it was done.
One day he took his question to his mother, who became rather flustered. Instead of explaining things to Johnny, she told him
to hide behind the curtains one night, and watch his older sister and her boyfriend, who she explained were "courting."
This he did. The following morning, Johnny described everything to his mother, in great detail.
"Well, Sis and her boyfriend sat and talk for a while, then he turned off most of the lights. Then he started kissing and hugging
her. I figured Sis must be getting sick, because her face started looking funny. He must have thought so too, because he put his
hand inside her blouse to feel her heart, just the way the doctor would. Except he's not as smart as the doctor because he
seemed to have trouble finding her heart and really had to search for it. I guess he was getting sick too, because pretty soon both
of them started panting and getting all out of breath. His other hand must have been cold, because he put it under her skirt to get it
warmed up.
“About this time, Sis got worse, and began to moan and sigh and squirm around and slide down toward the end of the couch.
This was when her fever started. I knew it was a fever, because Sis told him she really felt hot. Finally, I found out what was
making them so sick -- a big eel, about nine inches long, had gotten inside his pants somehow. It just jumped out of his pants, and
it stood up, and he had to keep one hand on it to keep it from getting away. When Sis saw it, she got really scared and her eyes
got big, and her mouth fell open, and she started calling out to God and stuff like that. She said it was the biggest one sh e's ever
seen; I should tell her about the ones down the lake.
“Anyway, Sis got brave and tried to kill the eel by biting its head off. All of a sudden she grabbed it with both hands, and held it
tight while he took a muzzle out of his pocket and slipped it over the eel's head to keep it from biting again.
“Sis lay back and spread her legs, so she could get a scissor –- lock on it and he helped by lying on top of the eel. The eel put
up a hell of a fight. Sis started groaning and squealing and her boyfriend almost upset the couch. I guess they wanted to kill the
eel by squashing it between them.
“After a while they both quit moving and gave a great sigh. Her boyfriend got up, and sure enough, they killed the eel. I knew
it because it just hung there, limp, and some of its sides hanging out.
"Sis and her boyfriend were a little tired from the battle, but they went back to courting anyway. He started hugging and kissing
her again. By golly, the eel wasn't dead! It jumped straight up and started to fight again. I guess eels are like cats –- they have
nine lives or something.
“This time, Sis jumped up and tried to kill it by sitting on it. After about a 35-minute struggle, they finally killed the eel. I knew it
was dead now for sure, because I saw Sis's boyfriend peel it's skin off and flush it down the toilet."
(Probably this Mom answered her son's questions herself after this)
Rule 127
PROVISIONAL REMEDIES
IN CRIMINAL CASES
The most extensive discussion in provisional remedies is when we discuss provisional remedies and special civil actions in civil
procedure. The main rules are from Rule 57 to 61. The concept is, if there are provisional remedies in civil cases, there must also
be provisional remedies in criminal cases.
EXAMPLE: Let’s go first to civil cases: Suppose you borrowed money from me and you refused to pay. So, I’ll file a case
against you.
Q: Can I immediately run against your properties?

A: Not yet because the case is still pending. But if there is still sufficient property of the debtor, there is no problem.
But suppose you start selling your properties everyday. By the time I win the case, you may be as poor as a rat. So I must do
something. Under Rule 57, I can ask the court to issue preliminary attachment. That is provisional remedy. Some of your properties
will be attached to prevent you from disposing. It is now my security.
Q: Is that applicable in criminal cases?

A: Of course. Just remember the rule, when you file a criminal case, there is a civil action which is deemed instituted to recover
civil liability. The victim is interested for the civil liability and so, he has to wait for the criminal case to end. But now even if the case
is going on, the accused is hiding his property one by one. He is trying to dispose. So, I will ask for the remedy of preliminary
attachment in criminal cases.
But in order that Rule 127 will apply, the condition is, the offended party has not waived the civil liability or has not reserved.
SECTION 1. Availability of provisional remedies. – The provisional remedies in civil actions, insofar as they
are applicable, may be availed of in connection with the civil action deemed instituted with the criminal
action. (1a)
The provisional remedies in civil actions are also available in criminal actions. You can find them in Rule 57 to 61. The most
famous of them is the remedy of preliminary attachment. So, if there is attachment in civil cases, there is also in criminal cases.
594
SEC. 2. Attachment.– When the civil action is properly instituted in the criminal action as provided in
Rule 111, the offended party may have the property of the accused attached as security for the
satisfaction of any judgment that may be recovered from the accused in the following cases:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, officer of a corporation,
attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person
in a fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and
(d) When the accused resides outside the Philippines. (2a)
So, you can avail of attachment upon filing of the case or it is pending in court provided there is no waiver or reservation of the
civil action and there should be the presence of any of the four (4) grounds.
Now, you try to compare the grounds in attachment in civil cases with the grounds in criminal cases. If you read Rule 57, the
grounds are almost the same.
In civil cases, the defendant can ask for damages in case of an improper attachment made by the plaintiff, kaya nga may
attachment bond eh to answer for damages.
Q: Now in criminal cases, can the accused claim for damages for illegal or improper attachment under Rule 127?
A: YES, the same in civil cases. And that is confirmed in Rule 119, Section 11 [b]:
RULE 119, SEC. 11. Order of trial. – The trial shall proceed in the following order:
xxxxx
(b) The accused may present evidence to prove his defense and damages, if any, arising, from the
issuance of a provisional remedy in the case.
xxxxx
That is the end of review on criminal procedure.
595

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CIVIL PROCEDURE

Q: Why ‘portion’ only?

Q: Distinguish court from judge.

Q: Classify courts in general.

SUPERIOR COURTS vs. FIRST-LEVEL COURTS

Q: Distinguish superior courts from inferior courts.

ORIGINAL COURT vs. APPELLATE COURT

Q: Distinguish original court from appellate court.

Q: Is the SC an original or appellate court?

Q: Is the CA an original or appellate court?

Q: How about the RTC? Is the RTC an original or appellate court?

Q: How about the MTC? Is the MTC an original or appellate court?

CIVIL COURTS vs. CRIMINAL COURTS

Q: Distinguish civil courts from criminal courts.

COURTS OF LAW vs. COURTS OF EQUITY

Q: Distinguish Courts of Law from Courts of Equity.

ALONZO vs. INTERMEDIATE APPELLATE COURT

CONSTITUTIONAL COURTS vs. STATUTORY COURTS

Q: Distinguish Constitutional Courts from Statutory Courts.

INHERENT POWERS OF THE COURT

Q: What are the inherent powers of the court?

ENFORCEABILITY OF COURT WRITS AND PROCESSES

Under Section 3, Interim Rules:

Sec. 3. Writs and Processes. -

Q: What is the area of enforceability of writs and processes of the courts?

Q: What is the effect if the court has no jurisdiction?

JURISDICTION vs. EXERCISE OF JURISDICTION

Q: Distinguish jurisdiction from exercise of jurisdiction.

Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction?

ERROR OF JURISDICTION vs. ERROR OF JUDGMENT

BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.

2.) ERRORS OF JURISDICTION are reviewable by certiorari; whereas,

Q: What is the use of distinguishing error of jurisdiction from error of judgment?

Q: In whom is jurisdiction is vested?

1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION

3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION

ELEMENTS OF JURISDICTION IN CIVIL CASES

Q: What are the elements of jurisdiction in civil cases?

Q: Now, what happens if in a particular case one of these is missing?

A. JURISDICTION OVER THE SUBJECT MATTER

Q: Define jurisdiction over the subject matter.

Q: How is jurisdiction over the subject matter acquired or conferred?

Q: How is jurisdiction over the subject matter determined?

B. JURISDICTION OVER THE PERSON

Q: Define jurisdiction over the person.

Q: How does the court acquire jurisdiction over the plaintiff?

Q: How does the court acquire jurisdiction over the defendant?

First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS

Q: In criminal cases, how can the warrant of arrest be effected?

Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE

C. JURISDICTION OVER THE RES

RES is the Latin word for “thing.”

Q: Define jurisdiction over the res.

Q: Why is jurisdiction over the res important?

D. JURISDICTION OVER THE ISSUES

Q: Define jurisdiction over the issues.

Q: What are pleadings?

Q: Now what is the issue?

HIERARCHY OF THE COURTS

REGIONAL TRIAL COURTS

MetTC MTCC MTC MCTC

b.) Special courts

We are concerned only of the jurisdiction of the REGULAR COURTS.

JURISDICTION OF THE SUPREME COURT