11-20
If the action affects the personal status of the plaintiff
What is the effect of the death of a party upon a pending
action?
1. Purely personal action the death of either of the parties
extinguishes the claim and the action is dismissed.
2. Action that is not purely personal claim is not
extinguished and the party should be substituted by his
heirs, executor or administrator. In case of minor heirs,
the court may appoint a guardian ad litem for them.
3. Action for recovery of money arising from contract and the
defendant dies before entry of final judgment it shall not
be dismissed but shall instead be allowed to continue
until entry of judgment. A favorable judgment obtained
by the plaintiff shall be enforced in the manner provided
in the rules for prosecuting claims against the estate of a
deceased person (Sec. 20, Rule 3). (1999 Bar)
Is there a need to summon the substitute defendant?
No, he need not be summoned. The order of substitution shall
be served upon the parties substituted for the court to
acquire jurisdiction over the substitute party (Riano, 2014). If
there is notice of death, the court should await the
appointment of legal representative; otherwise, subsequent
proceedings are void. However, formal substitution of the
heirs in place of the deceased is no longer necessary if the
heirs continued to appear and participated in the proceedings
of the case (Cardenas vs. Heirs of the Late Spouses Aguilar, G.R.
No. 191079, March 2, 2016).
---
Under OCA Circular No. 42-2005 and Rule 141 of the Rules
of Court, indigent litigants are exempted from the payment
of legal fees. Because of the aforementioned rule, Good
Shepherd Foundation avails of said exemption on the
ground that it is an association who works with and for
the indigents since 1985. Can the Court grant to the
Foundation who works for indigent and underprivileged
people the same option granted to indigent people?
NO. The clear intent and precise language of the Sec. 21, Rule
3, Rules of Court, and Sec. 19, Rule 141, Rules of Court
indicate that only a natural party litigant may be regarded as
an indigent litigant. The Good Shepherd Foundation, Inc.,
being a corporation vested by the State with a juridical
personality separate and distinct from that of its members, is
a juridical person. Among others, it has the power to acquire
and possess property of all kinds as well as incur obligations
and bring civil or criminal actions, in conformity with the
laws and regulations of their organization. As a juridical
person, therefore, it cannot be accorded the exemption from
legal and filing fees granted to indigent litigants. (Re: Query of
Mr. Roger C. Prioreschi Re Exemption from Legal and Filing
Fees of the Good Shepherd Foundation, Inc., AM. No. 09-6-9-SC,
August 19, 2009, Bersamin, J.)
---
VENUE
If the non-resident defendant does not reside but is found
in the Philippines, where is the venue of the action filed
against him?
1. Personal actions the venue is where the plaintiff or any
of the principal plaintiffs resides, or where the non-
resident defendant may be found, at the election of the
plaintiff. (Riano, 2014, citing Sec. 2, Rule 4, Rules of Court).
2. Real actions shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the
real property involved, or a portion thereof, is situated.
(Id. citing Sec. 1, Rule 4, Rules of Court).
How about if he does not reside and is not found in the
Philippines?
1.
the action may be commenced and tried in the court of
the place where the plaintiff resides.
2. If it involves any property of the non-resident defendant
the action may be commenced and tried where the
property or any portion thereof is situated (Sec. 3, Rule
4).
What is the effect of a stipulation on venue agreed upon by
parties?
The mere stipulation on the venue of an action is not enough
to preclude parties from bringing the case in other venue. In
the absence of restrictive words, the stipulation should be
deemed as merely an agreement on an additional forum, not
as limiting venue. While they are considered valid and
enforceable, venue stipulations in a contract do not, as a rule,
supersede the general rule set forth in Rule 4 in the absence
of qualifying or restrictive words. If the language is
restrictive, the suit may be filed only in the place agreed upon
by the parties (Spouses Lantin v. Lantion, G.R. No. 160053,
August 28, 2006).
---
BPI Family Bank (BPI) filed with the RTC of Makati an
action to recover deficiency against the real estate
mortgagors after the extrajudicial foreclosure sale had
resulted in deficiency. The subject realty mortgage was
located in Manila while BPI has its main office in Makati.
The mortgagors filed a motion to dismiss on the grounds
of failure to state a cause of action and res judicata.
However, the RTC denied the motion. Consequently,
the mortgagors filed a motion for reconsideration wherein
they reiterated the previous grounds and added the
ground of improper venue, contending that the action for
deficiency was a real action which should have been filed
in Manila. Said motion for reconsideration was denied. The
mortgagors went up to the Court of Appeals (CA) via
petition for certiorari. The CA granted the same and
ordered the dismissal of the action on the ground of
improper venue as the case is a real action that should
have been filed in Manila. Was the CAs decision correct?
NO. First, an action for recovery of deficiency after
extrajudicial foreclosure of a real estate mortgage is a
personal action since it does not affect the title to or
possession of real property or any interest therein. Hence, the
action was properly brought in Makati where the mortgagee
has its main office. Second, assuming arguendo that there was
improper venue, the ground was waived by the mortgagors
since they did not timely raise it in their motion to dismiss.
Here, the ground for improper venue was raised belatedly in
the motion for reconsideration, not in the motion to dismiss.
Hence, the objection is waived in pursuant to Section, 1, Rule
9 (BPI Family Bank v. Yujuico, July 22, 2015, Bersamin J.)
PLEADINGS
Plaintiff sued defendant corporation for non- payment of
hospital equipment delivered to it. The allegations in the
complaint stated that the defendants total obligation as of
February 15, 2009 was P123,901,650 but was reduced to
P54,654,195.54 as it already paid 67,357,683.23 to the
plaintiff. The defendant, in its answer, denied said
allegations for lack of knowledge or information sufficient
to form a belief as to the truth or falsity thereof, inasmuch
as the alleged transaction were undertaken during the
term of the office of the past officers of defendant
corporation, subject to its special and affirmative defenses.
Moreover, he raised the special and affirmative defenses of
lack of personal jurisdiction, improper venue, lis pendens,
and forum shopping. Was the manner of denial effective as
a specific denial?
NO. Considering that the allegations in the complaint
contained matters that the defendant ought to know or could
have easily known, the answer did not specifically deny such
material averments. It is settled that denials based on lack of preference to have his counterclaim resolved in the same
knowledge or information on matters clearly known to the action (Sec. 2, Rule 17).
pleader, or ought to be known by him, or could have been 3. When the complaint is dismissed through the fault of the
easily known by him are insufficient, and constitute plaintiff and at a time when a counterclaim has already
ineffective or sham denials. The fact that the defendant been set up, the dismissal is without prejudice to the
qualified its admissions and denials by subjecting them to its right of the defendant to prosecute his counterclaim in
special and affirmative defenses of lack of jurisdiction over its the same or separate action (Sec. 3, Rule 17; Riano, 2014).
person, improper venue, litis pendentia and forum shopping
was of no moment because these affirmative defenses, by ---
their nature, involved matters extrinsic to the merits of the
plaintiffs claim and thus, did not negate the material Pilipinas Shell (Shell) filed a petition for extrajudicial
averments of the complaint. (Fernando Medical Enterprises v. foreclosure against petitioners, who are the mortgagors in
Wesleyan University Philippines, 20 January 2016, Bersamin J.) the case. After the foreclosure sale, Shell filed an action for
deficiency against the petitioners in the RTC of Manila. The
--- petitioners, in the meantime, commenced an action to
Compulsory Counterclaim vs. Permissive Counterclaim annul the extrajudicial foreclosure sale with the RTC of
Makati. The RTC of Manila ruled in favor of Shell and said
Compulsory Counterclaim Permissive Counterclaim judgment became final and executory. Subsequently, the
One which arises out of or is It does not arise out of nor is RTC of Makati ruled in favor of the petitioners and
necessarily connected with it necessarily connected annulled the said sale as no auction sale was actually
the transaction or with the subject matter of conducted. May the judgment of the RTC of Makati be set
occurrence that is the the opposing partys claim. aside and if so, on what ground?
subject matter of the
opposing partys claim The RTC of Makati should have been earlier disallowed to
(Sec.7, Rule 6) proceed on the ground of litis pendentia, or, once the decision
Barred if not set up in the Not barred even if not set up in the Manila case became final, should have been dismissed
action (Sec. 2, Rule 9) in the action on the ground of res judicata. In the Manila case, the
Need not be answered; No It must be answered, petitioners filed a compulsory counterclaim asserting that the
default otherwise, the party may be extrajudicial foreclosure of mortgage had been devoid of
declared in default basis in fact and in law; and that the foreclosure and the filing
Not an initiatory pleading. Initiatory pleading. of action had been made in bad faith, and in wanton violation
The court has jurisdiction Must be within the of his rights. His pleading thereby showed that the cause of
to entertain both as to the jurisdiction of the court action he later pleaded in the Makati case, (ie., annulment of
amount and nature (Sec. 7, where the case is pending foreclosure sale) was identical to the compulsory
Rule 6; Ibid.). and cognizable by regular counterclaim he had set up in the RTC of Manila (Mendiola v.
courts of justice, otherwise, Court of Appeals, July 18, 2012, Bersamin J.)
defendant will have to file
it in separate proceeding ---
which requires payment of Third-party complaint vs. Rules on bringing in new parties
docket fee.
Third-party complaint Rules on bringing in new
Test in determining whether a counterclaim is parties
compulsory. It is proper when not one If one or more of the
of the third-party defendants in a
1. Issues of fact and law - Are the issues of fact and law defendants therein is a counterclaim or cross-
raised by the claim and by the counterclaim largely party to the main action claim is already a party to
the same? (Riano, 2011). the action, then the other
2. Res judicata - Would res judicata bar a subsequent necessary parties may be
suit on defendants claims, absent the compulsory brought in under the rules
counterclaim rule? on bringing in new
3. Evidence - Will substantially the same evidence parties.
support or refute plaintiffs claim as well as the
defendants counterclaim? and When should a third party complaint be admitted?
4. Logical relation - Is there any logical relation
between the claim and the counterclaim? The soundness of admitting a third-party complaint hinges
on causal connection between the claim of the plaintiff in
A positive answer to all four questions would indicate that his complaint and a claim for contribution, indemnity or
the counterclaim is compulsory. (Alba, Jr. vs. Malapajo, et al, other relief of the defendant against the third- party
G.R. No. 198752, January 13, 2016) defendant. (Paramount Life and General Insurance Corp vs.
Castro, et al., G.R. No. 195728, April 19, 2016)
Effects of the dismissal of the complaint?
---
1. If no motion to dismiss has been filed, any of the grounds
for dismissal under Rule 16 may be pleaded as an Paras was a passenger of a bus operated by Inland. The
affirmative defense in the answer, and in the discretion Inland bus was bumped by Philtranco bus negligently
of the court, a preliminary hearing may be had thereon driven by its employee. Paras suffered injuries and
as if a motion to dismiss has been filed (Sec. 6, Rule 16). incurred substantial hospitalization and medical
After hearing, when the complaint is dismissed, the expenses. As a result, Paras filed with the RTC a complaint
counterclaim, whether compulsory or permissive, is not against Inland based on contract of carriage. Inland, with
dismissed. leave of court, filed a third-party complaint against
2. When the plaintiff himself files a motion to dismiss his Philtranco based on quasi-delict. The RTC rendered a
complaint after the defendant has pleaded his answer with judgment absolving Inland from the liability and finding
a counterclaim. If the court grants the motion, the that the collision was due to the negligence of the
dismissal shall be limited to the complaint. It shall be Philtranco driver and ordering Philtranco to pay damages
without prejudice to the right of the defendant to to Paras. On appeal, Philtranco challenged the decision
prosecute his counterclaim in a separate action unless contending that it cannot be held liable directly to Paras
within 15 days from notice of the motion, manifests his since Paras' suit is against Inland and is based on culpa
contractual while Inlands the third party complaint
against it is based on quasi-delict. Moreover, Philtranco
argues that since it was merely subrogated to Inland,
there should first be a finding of Inland's liability to Paras
before Philtranco can be held liable. Is Philtranco's
argument correct?
3. A declaration of default is not an admission of the truth
or the validity of the plaintiffs claims (Monarch
Insurance v. CA, G.R. No. 92735, June 8, 2000).
Remedies from an order of default

NO. Under Section 11, Rule 3, a third-party complaint is a Remedies from an order of default
claim that a defending party may, with leave of court, file After notice of order Motion under oath to set aside the
against a person not a party to the action for contribution, and before judgment order of default on the grounds of
indemnity, subrogation or any other relief, in respect of his FAME and he has meritorious
opponents claim. Under this rule, a person not a party to the defense
action may be impleaded by the defendant either (a) on an
allegation of liability to the latter; b) direct liability to the If denied he may move for
plaintiff, or (c) both (a) and (b). The first situation is covered reconsideration; Grounds: FAME
by the phrase "for contribution indemnity or subrogation"
while the second and third are subsumed under the catch-all If denied -Petition for certiorari
"or any other relief in respect of his opponent's claim." It is under Rule 65
worth adding that allowing the recovery of damages by Paras
based on quasi-delict despite his complaint being upon Remedies from an order of default
contractual breach served the judicial policy of avoiding
multiplicity of suits and circuity of actions by disposing of the After judgment before 1. New Trial (Rule 37)
entire subject matter in a single litigation. (Philtranco Service judgment becomes 2. Appeal (Rule 40 or 41) Commented [m1]: On certain grounds only (Otero v. Tan)
Enterprises v. Paras, April 25, 2012, Bersamin, J.) final and executory Grounds:
1. Failure of the plaintiff to
What happens once a party files a Motion for Intervention, prove the material allegations
and the same was denied but he did not appeal such of the complaint;
denial? 2. Decision is contrary to law;
3. The amount of judgment is
Such party has no standing to appeal the courts decision. A excessive or different in kind
prospective intervenors right to appeal applies only to the from that prayed for (Otero v.
denial of his intervention. Not being a party to the case, a Tan, G.R. No. 200134, August 15,
person whose intervention the court denied has no standing 2012).
to question the decision of the court , but only the trial court's After judgment has 1. Petition for Relief from
orders denying his intervention, not the decision itself. become final and judgment (Rule 38).
(Republic vs. Heirs of Diego Lim, et al., G.R. No. 195611, April executory 2. Annulment of Judgment (Rule
18, 2016). 47)
Defendant has been He may avail of the special civil
Forum Shopping wrongly or action of certiorari under Rule 65.
improvidently
It is an act of a party against whom an adverse judgment has declared in default
been rendered in one forum of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or When is an amendment a matter of right?
the special civil action of certiorari (Sps. Carpio v. Rural Bank
of Sto. Tomas Batangas, G.R. No. 153171, May 4, 2006). (2006 Amendment is considered as a matter of right at any time
Bar) before a responsive pleading is served or, in the case of a
reply, at any time within 10 days after it is served (Sec. 2, Rule
Elements: 10).It is settled that a motion to dismiss is not the responsive
1. Identity of the parties or, at least, of the parties who pleading contemplated by the Rule. A plaintiff may file an
represent the same interest in both actions; amended complaint even after the original complaint was
2. Identity of the rights asserted and relief prayed for, ordered dismissed, provided that the order of dismissal is not
as the latter is founded on the same set of facts; and yet final (Riano, 2014, citing Bautista v. Maya-Maya Cottages,
3. Identity of the two preceding particulars such that Inc., G.R. No. 148411, November 29, 2005).
any judgment rendered in the other action will
amount to res judicata in the action under When are amendments required to be with leave of court?
consideration or will constitute litis pendentia.
(Commissioner of Customs, et al. vs. PSCP, et al., G.R. 1. If the amendment is substantial (Sec. 3, Rule 10);
No. 205002, April 20, 2016) 2. A responsive pleading had already been served (Siasoco
v. CA, G.R. No. 132753, February 15, 1999).
Consequence of forum shopping
What are the instances when an amendment may be made
If the forum shopping is not considered willful and deliberate, to conform to or authorize presentation of evidence?
the subsequent case shall be dismissed without prejudice on
the ground of either litis pendentia or res judicata. However, if 1. When issues not raised by the pleadings are tried with
the forum shopping is willful and deliberate, both (or all, if the express or implied consent of the parties;
there are more than two) actions shall be dismissed with
prejudice (Chua v. Metropolitan Bank & Trust Co., G.R. No. NOTE: Failure to amend does not affect the result of the
182311, August 19, 2009). trial of said issue.

Effect of an order of default 2. Amendment may also be made to authorize presentation

1. The party declared in default loses his standing in court
and prevents him from taking part in the trial (Sec. 3(a),
Rule 9);
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings (Sec. 3(a), Rule 9). It is submitted that he
may participate in the trial, not as a party but as a
witness; and
of evidence if evidence is objected to at the trial on the
ground that it is not within the issues made by the
pleadings, if the presentation of the merits of the action
and the ends of substantial justice will be subserved
thereby (Sec. 5, Rule 10).
Amended Pleading vs. Supplemental Pleading
Amended Pleading Supplemental Pleading
 Refers to the facts existing
at the time of filing of
original pleading
Supersedes the original
May be amended without
leave of court before a
responsive pleading is
filed.
When does a specific denial require an oath?
Refers to facts occurring
after the filing of the
original pleading
Merely supplements the
original pleading
Always with leave of court
2. The sheriff must describe in the Return of Summons the
facts and circumstances surrounding the attempted
personal service;
3. If the substituted service will be effected at defendants
house or residence, it should be left with a person of
suitable age and discretion residing therein and must
have the relation of confidence to the defendant;
4. If the substituted service will be done at defendants
office or regular place of business, then it should be
served on a competent person in charge of the place
(Manotoc v. CA, G.R. No. 130974, August 16, 2006).

1. A denial of an actionable document except when he is not a
party to the document (Sec. 8, Rule 8) (2000 Bar) (Riano,
2014);
2. A denial of allegations of usury in a complaint to recover
usurious interest (Sec. 11, Rule 8).
FILING AND SERVICE OF PLEADINGS. JUDGMENTS AND
OTHER PAPERS
Fortune Life filed its petition for money claim in the COA,
however, on November 15, 2012, the latter denied said
petition. The petitioner received a copy of the COA decision
on December 14, 2012, and filed its motion for
reconsideration on January 14, 2013, believing that fresh
period rule applies because its Rule 64 petition is akin to a
petition for review brought under Rule 42. However, the
COA denied the motion, the denial being received by the
petitioner on July 14, 2014. Hence, the petitioner filed the
petition for certiorari carrying only the affidavit of service
executed by one Pascua, Jr., who declared that he had
served copies of the petition by registered mail. Did the
petitioner comply with the rule on proof of service?
NO. The petition for certiorari only carried the affidavit of
service executed by one Pascua, Jr., who declared that he had
served copies of the petition by registered mail with
registered receipts attached. The petition only bore, however,
the cut print-outs of what appeared to be the registry receipt
numbers of the registered matters, not the registry receipts
themselves. Section 13, Rule 13 of the Rules of Court requires
to be appended the registry receipts, not their reproductions.
Hence, the cut print-outs did not substantially comply with
the rule. (Fortune Life Insurance Company, Inc. vs. Commission
On Audit (COA) Proper, GR No. 213525, January 27, 2015,
Bersamin, J.)
What is the implication of a defendants voluntary
appearance in relation to summons? Commented [m2]: Please verify this.
The defendants voluntary appearance shall be equivalent to
service of summons and the consequent submission of ones
person to the jurisdiction of the court (Sec. 20, Rule 14).
Voluntary appearance cures the defect in the service of
summons. (Guy vs. Atty. Gacott, G.R. No. 206147, Jnuary 13,
2016)
Personal service of summons proper
It is proper only if the suit is one strictly in personam.
Requisites of extra-territorial service of summons (2009
Bar)
1. The defendant is a non-resident;
2. He is not found in the Philippines; and,
3. The action against him is either in rem or quasi in rem.
If the action is in personam, this mode of service will not be
available. There is no extraterritorial service of summons in
an action in personam. Hence, extraterritorial service upon a
non-resident in an action for injunction which is in personam
is not proper (Kawasaki Port Service Corp. vs. Amores, G.R. No.
58340, July 16, 1991); (Banco Do Brasil vs. CA, G.R. No. 121576-
78, June 16, 2000).
How is summons served upon prisoners and minors?
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 (Sec. 9, Rule
14).

SUMMONS Service shall be made upon him personally and on his legal
guardian if he has one, or if none, upon his guardian ad litem
What is considered a reasonable time? whose appointment shall be applied for by the plaintiff. In the
case of a minor, service may also be made on his father or
Alias Summons mother (Sec. 10, Rule 14).

Summons issued by the court when the original summons ---

cannot be served or when wrongfully served.
Purposes of summons
1. Actions in personam
a. To acquire jurisdiction over the person of the
defendant; and
b. To give notice to the defendant that an action has
been commenced against him (Umandap v. Sabio, Jr.,
G.R. No. 140244, August 29, 2000).
2. Actions in rem and quasi in rem not to acquire
jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process (Gomez v. CA,
G.R. No. 127692, March 10, 2004).
Requirements of substituted service of summons
1. The party relying on substituted service or the sheriff
must show that defendant cannot be served promptly or
there is impossibility of prompt service;
Co filed a libel case against Abante Tonite including its
editors and reporters. The sheriff went to the office of
Abante Tonite in the morning but was informed by the
secretary that the editors were always out and
unavailable and that the reporters were always roving
outside and gathering news. Consequently, the sheriff went
to said office in the afternoon but was again informed by
the secretary with the same reason. Because of said
instance, he left a copy of the summons and complaint with
the secretary. Was there a valid substituted service of
summons?
YES. If, for justifiable reasons, the defendant cannot be served
in person within a reasonable time, substituted service of
summons may be effected. Given the circumstance that the
defendants were always out of office, it was clear that
personal service could not be made within a reasonable time.
Substituted service was, thus, justified. (Macasaet v. Co, June
5, 2013, Bersamin J.)
MOTIONS
Contents of a motion 1. Those cases where the court may dismiss a case motu
proprio (i.e. lack of jurisdiction over the subject matter;
1. The relief sought to be obtained; litis pendentia; res judicata; and prescription) (Sec. 1,
2. The ground upon which it is based; and, Rule 9);
3. If required by the Rules or necessary to prove facts 2. Failure to prosecute for an unreasonable length of time
alleged therein, shall be accompanied by supporting (Sec. 3, Rule 17); and
affidavits and other papers (Sec. 3, Rule 15). 3. Rule on Summary Procedure (Sec. 4, 1991, Revised Rule
on Summary Procedure).
Notice of hearing
Requisites of Res Judicata
A seasonable service of a copy of the motion on the adverse
party with a notice of hearing indicating the time and place of 1. The former judgment must be final;
hearing is a mandatory requirement that cannot be dispensed 2. The court which rendered it has jurisdiction over the
with. A motion that does not contain a notice of hearing is a subject matter and the parties;
mere scrap of paper and presents no question which merits 3. It is a judgment must be on the merits; and,
the attention and consideration of the court. It is not even a 4. There is, between the first and second actins, an identity
motion for it does not comply with the rules, and, hence, even of parties, subject matter and causes of action.
the clerk has no right to receive it. (Mendez vs. Sharia District
Court, G.R. No. 201614, January 12, 2016).It is intended to Res Judicata as a ground for dismissal
prevent surprise and to afford the adverse party a chance to
be heard before the motion is resolved by the court. (Ibid.) It is based on two grounds, namely: (1) public policy and
necessity, which makes it to the interest of the State that
Omnibus Motion Rule there should be an end to litigation republicae ut sit litium;
and (2) the hardship on the individual of being vexed twice
All available grounds for objection then available in attacking for the same cause neme debet bis vexari et eadem causa
a pleading, order, judgment, or proceeding should be invoked, (Fels, Inc. v. Prov. of Batangas, G.R. No. 168557, February 19,
otherwise, they shall be deemed waived (Sec. 8, Rule 15) 2007).
except when the grounds include:
1. Lack of jurisdiction over the subject matter; Motion to Dismiss vs. Demurrer to Evidence in Civil Cases
2. Litis pendentia;
3. Res judicata; and Rule 16 (Motion to Dismiss) Rule 33 (Demurrer to
4. Prescription (Sec. 1, Rule 9) Evidence in Civil Cases)
Grounded on preliminary Based on insufficiency of
Litigated motion objections evidence
May be filed by any May be filed only by the
It is a motion which affects the substantial rights of the defending party against defendant against the
parties and is one made with notice to the adverse party to whom a claim is asserted complaint of the plaintiff
give an opportunity to oppose before a ruling on the motion in the action
is made by the court. A hearing is required (Sec. 4, Rule 15). Should be filed within the May be filed only after the
Examples are motion to dismiss; a motion for judgment on time for but prior to the plaintiff has completed
the pleadings and a summary judgment. filing of the answer of the the presentation of his
defending party to the evidence (Riano, 2014).
Ex-parte motion pleading asserting the
claim Commented [m4]: Verify this! Yes, Number 2 of Bar 2007
It is one which does not require that the parties be heard and If denied, defendant If denied, defendant may
which the court may act upon without prejudging the rights answers, or else he may present evidence.
of the other party. This kind of motion is not covered by the be declared in default.
hearing requirement of the Rules (Riano, 2014, citing Sec. 4, Denial is not appealable
Rule 15; Republic v. Diaz-Enriquez, G.R. No. 181458, March 20, If granted, plaintiff may because the order is
2013). appeal or if subsequent interlocutory (Riano,
case is not barred, he may 2014).
It is made to the court in behalf of one or the other of the re-file the case. It depends Commented [m5]: Check on this!
parties to the action, in the absence and usually without on the ground if it is with If granted, but on appeal
knowledge of the other party or parties. (Riano, 2014). or without prejudice the order of dismissal is
(Rule 41, Sec 1). reversed, the defendant
NOTE: They are usually permissible in procedural matters loses his right to present
and also in situations and under circumstances of emergency; evidence (Riano, 2014).
and an exception to a rule requiring notice is sometimes
made where notice of the resulting delay might tend to defeat DISMISSAL OF ACTIONS
the objective of the motion (Sarmiento v. Zaratan, G.R No.
167471, February 5, 2007). An example is a motion to set the Two Dismissal Rule applicable
case for a pre-trial.
It applies when the plaintiff has:
Pro-forma motion 1. Twice dismissed the actions by filing a second notice of
dismissal
It is that which does not comply with the rules on motion and 2. Based on or including the same claim; and
is considered as one filed merely to delay the proceedings 3. In a court of competent jurisdiction (Riano, 2014).
(Marikina Development Corp., v. Flojo, G.R. No. 110801,
December 8, 1995). Such motion, if filed, is not entitled to The second notice of dismissal will bar the re-filing of the
judicial cognizance, and does not stop the running of the action because it will operate as an adjudication of the claim
period for filing the requisite pleading (Cruz v. CA, G.R. No. upon the merits.
123340, August 29, 2002).
PRE-TRIAL Commented [m3]: Add notes on this.
MOTION TO DISMISS
Nature of a Pre-trial
Who shall file a motion to dismiss?
It is mandatory. (Sec. 2, Rule 18).
A motion must be filed by a party thereto except:
Effect of non-compliance with service of notice of pre-trial 2(a), Rule 18). liability as one of its
purposes (Ibid.).
If no notice of pre-trial is served, all the proceedings at the Requires the proceeding All agreements or admissions
pre-trial are null and void. Hence, the absence of the requisite during the preliminary made or entered during the
notice of pre-trial to the defendants counsel, or to the conference to be recorded in pre-trial conference shall be
defendant himself, in case he has no counsel, nullifies the the minutes of preliminary reduced in writing and
order allowing the plaintiff to present his evidence ex parte conference to be signed by signed by both the accused
(Sec. 3, Rule 18.). both parties and/or counsel. and counsel, otherwise, they
The rule allows either the cannot be used against the
Effect of failure to appear during pre-trial party or his counsel to sign accused (Sec. 2, Rule 118).
the minutes (A.M. No. 03-1-
Plaintiffs failure to appear during the pre-trial shall be a 09-SC).
cause for dismissal of the action, with prejudice, unless Sanctions for non- The sanctions in a criminal
otherwise ordered by the court. On the other hand, appearance in a pre-trial are case are imposed upon the
Defendants non-attendance during the pre-trial shall be a imposed upon the plaintiff counsel for the accused or
cause to allow the plaintiff to present evidence ex parte and and the defendant in a civil the prosecutor (Sec. 3, Rule
the court to render judgment on the basis thereof (Sec. 5, Rule case (Sec. 4, Rule 18). 118).
18). It is specifically required to It is not specifically required
be submitted in a civil case in a criminal case.
The legal ramification of defendant's failure to appear for pre- (Sec. 6, Rule 18).
trial is still detrimental to him while beneficial to the plaintiff.
The plaintiff is given the privilege to present his evidence INTERVENTION
without objection from the defendant, the likelihood being
that the court will decide in favor of the plaintiff, the It is a legal proceeding by which a third person is permitted
defendant having forfeited the opportunity to rebut or by the court to become a party by intervening in a pending
present its own evidence. (Metropolitan Bank and Trust action after meeting the conditions and requirement set by
Company vs. Fadcor, Inc., et al., G.R. No. 197970, January 25, the Rules of Court. This person who intervenes is one who is
2016) not originally impleaded in the action (First Philippine
Holdings Corp. v. Sandiganbayan, G.R. No. 88345, February 1,
The plaintiff can appeal from the order of dismissal. 1996).
Accordingly, it is only when the order of dismissal is without
prejudice that the remedy is to re-file the complaint (Sec. 1(g), The motion to intervene may be filed any time before
Rule 41). rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and
The defendant may move for the reconsideration of the order served on the original parties (Sec. 2, Rule 19).
and if the denial is tainted with grave abuse of discretion, he
may file a petition for certiorari under Rule 65 (Riano, 2014).
Is intervention an independent proceeding? (2000 Bar)
In certain instances, however, the non-appearance of a party
may be excused if a valid cause is shown. What constitutes a It is not an independent proceeding but is ancillary and
valid ground to excuse litigants and their counsels at the pre- supplemental to an existing litigation (Saw v. CA, G.R. No.
trial is subject to the sound discretion of a judge. Unless and 90580, April 8, 1991). Its purpose is to enable a stranger to an
until a clear and manifest abuse of discretion is committed by action to become a party to protect his interest (Santiago
the judge, his appreciation of a partys reasons for his Land Development Corporation v. CA, G.R. No. 106194, August
nonappearance will not be disturbed (Clodualda D. Daaco V. 7, 1997).
Valeriana Rosaldo YuG.R. No. 183398 June 22, 2015).
Denial of a motion to intervene does not constitute res
Effect of failure to file a pre-trial brief judicata. The remedy of the intervenor is to file a separate
action.
It shall have the same effect as failure to appear at the pre-
trial (A.M. No. 03-1-09-SC, July 13, 2004). Hence, if it is the Can an intervention alter the nature of action?
plaintiff who fails to file a pre-trial brief, such failure shall be
a cause for dismissal of the action. If it is the defendant who An intervention cannot alter the nature of the action, and the
fails to do so, such failure shall be a cause to allow the issues are already joined (Castro v. David, G.R. No. L-8508,
plaintiff to present his evidence ex parte. November 29, 1956; (2011 Bar).

The dismissal of the complaint for failure to file pre-trial brief ---
is discretionary on the part of the trial court (Ramos v.
Spouses Lavendia, G.R. No. 176706, October 8, 2008). May a lawyer intervene in a case in order to protect his
rights under a contingent fee agreement?
Pre-trial in civil case vs. Pre-trial in criminal case
YES. The lawyer has right to protect his interests pursuant to
Pre-trial in civil case Pre-trial in criminal case Section 26, Rule 38 (Malvar v. Kraft Foods Phils. Inc., 9
It is set when the plaintiff It is ordered by the court and September 2013, Bersamin J.) In this case, a client, entering
moves ex parte to set the no motion to set the case for into a compromise with the adverse party, filed a motion to
case for pre-trial (Sec. 1, Rule pre-trial is required from withdraw its case and terminated the services of the law firm.
18). either the prosecution or the
defense (Sec. 1, Rule 118). ---

The motion to set the case The pre-trial is ordered by SUBPOENA

for pre-trial is made after the
last pleading has been served
and filed (Ibid.)
It considers the possibility of
an amicable settlement as an
important objective (Sec
the court after arraignment
and within 30 days from the Subpoena duces tecum
date the court acquires
jurisdiction over the person A process directed to a person requiring him to bring with
of the accused (Ibid.). him any books, documents, or other things under his control.
It does not include the (Sec. 1, Rule 21)
possibility of amicable
settlement of criminal Subpoena ad testificandum
 (Sec. 4, Rule 21)
It 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 MODES OF DISCOVERY
investigation conducted by competent authority or for the
taking of his deposition. (Sec. 1, Rule 21) What is the purpose of the modes of discovery?

How is a subpoena quashed?
Subpoena duces tecum: Upon motion promptly made and, in
any event, at or before the time specified therein:
1. If it is unreasonable and oppressive;
2. The relevancy of the books, documents or things does not
appear;
3. If the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof; (Sec. 4,
Rule 21) or,
4. That the witness fees and kilometrage allowed by the Rules
were not tendered when the subpoena was served.
Subpoena ad testificandum:
1. That the witness is not bound thereby; or
2. That the witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was served.
The modes of discovery are designed to serve as an additional
device aside from a pre-trial, to narrow and clarify the basic
issues between the parties, to ascertain the facts relative to
the issues, and to enable the parties to obtain the fullest
possible knowledge of the issues and facts before civil trials
and thus prevent the said trials to be carried on in the dark. It
is intended to make certain that all issues necessary to the
disposition of a case are properly raised (Tinio v. Manzano,
G.R. No. 132102, May 19, 1999).As contemplated by the Rules,
the device may be used by all the parties to the case.
What are the limitations?
1. Those matters which are privileged;
2. Those under protection order;
3. The modes of discovery must not be conducted in bad
faith.

Deposition Pending By leave of court after jurisdiction has been obtained over any defendant or over property which is the
Action subject of the action, or without such leave after an answer has been served, the testimony of any person,
(Rule 23)/ Deposition whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination
de benne esse or written interrogatories. (2010 Bar)

Note: The attendance of witnesses may be compelled by the use of subpoena.

Depositions before Aperson who desires to perpetuate his own testimony or that of another person regarding any matter
action or pending that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place
appeal of the residence of any expected adverse party. If the court finds that the perpetuation of the testimony is
(Rule 24)/Deposition in proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken
perpetuam rei (Sec. 7, Rule 24).
memoriam
Written interrogatories Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit material and relevant
to adverse parties facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered
(Rule 25) by the party served or, if the party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf.
Admission by adverse At any time after issues have been joined, a party may file and serve upon any other party a written
party request for the admission by the latter of the genuineness of any material and relevant document or of
(Rule 26) the truth of any material and relevant matter of fact.

NOTES:

There is an implied admission unless, within a period designated in the request, which shall not be less
than 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 has not 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 (Sec. 2, Rule 26).

The court may allow the party making the admission to withdraw or amend the admission upon such
terms as may be just (Sec. 4, Rule 26).

Any admission made by a party pursuant to such request is for the purpose of the pending action only
and shall not constitute an admission by him for any other purpose nor may the same be used against
him in any other proceeding (Sec. 3, Rule 26).

Production or Upon motion of any party showing good cause therefor, the court in which an action is pending may
inspection of documents order any party to produce and permit the inspection and copying of any designated documents or order
or things any party to permit entry upon designated land or other property in his possession or control for the
(Rule 27) purpose of inspecting or photographing the property or any designated relevant object or operation
thereon. (2002, 2009 Bar).
Physical and mental In an action in which the mental or physical condition of a party is in controversy, the court in which the
examination of persons. action is pending may in its discretion order him to submit to a physical or mental examination by a
(Rule 28) physician.(2005 Bar)
Are the modes of discovery cumulative?

YES, they are cumulative. They are neither alternative nor mutually exclusive.

Do the rules apply to special proceedings?

YES, Rules of Discovery also apply to special proceedings (Sec. 2 Rule 72). (2008 Bar)

What is the effect of substitution of parties?

It 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 (Sec. 5, Rule 23).
Commented [m6]: Decide if we can remove this. Is this that
How are objections to evidence treated under this rule? important? Okay, we can remove

A deposition officer has no authority to rule on the objection. Evidence objected to shall be taken subject to the
objection, which will be ruled upon by the court when the deposition is offered in evidence (Feria & Noche,
2013).
Commented [m7]: Verify this. And is this that important? We
What is the purpose of interrogatories to parties? can remove

The framers of the new court rules intended that the rules should provide ample facilities for discovery of facts
before trial so that surprise at the trial and possible miscarriage of justice might be avoided. A purpose of this
rule was to obtain admissions and thus limit subjects of controversy at trial and avoid unnecessary testimony
and waste of time in preparation (Feria & Noche, 2013).

Can the answers in the interrogatories be treated as judicial admissions?

YES, the answers may now be used as judicial admissions of the adverse party (Ibid.).

Depositions Upon Written Interrogatories to Parties (Sec. 25, Rule 23) vs. Interrogatories to Parties (Rule
25)

Depositions Upon Written Interrogatories to Parties (Rule

Interrogatories to Parties (Sec. 25, Rule 25)
23)
Deponent Party or ordinary witness Party only
Procedure With intervention of the officer authorized No intervention
by the court to take deposition
Served directly upon the adverse
Not served upon the adverse party directly party (Sec. 1, Rule 25).
They are instead delivered to the officer
before whom the deposition is to be taken
(Sec. 26, Rule 23).
Scope Direct, cross, redirect, re-cross examination Only one set of interrogatories
Interrogato-ries No fixed time 15 days to answer unless extended
or reduced by the court
Binding Effect Binding to anyone who is present during Binding only to the parties.
the deposition.

Production or Inspection of Documents or Things vs. Subpoena Duces Tecum

Production or Inspection of Documents or Things Subpoena Duces Tecum

Essentially a mode of discovery Means of compelling production of evidence

Limited to the parties to the action. It may be directed to any person whether a party or
not.
Issued only upon motion with notice to the adverse Issued upon an ex parte application.
party.

In production or inspections of documents or things, can the articles be distrained? Can the person who
produced the same be deprived of its possession?

This mode of discovery does not authorize the opposing party or the clerk of court or other functionaries of the
court to distrain the articles or deprive the person who produced the same of their possession, even temporarily
(Tanda v. Aldaya, G.R. No. L-13423, November 23, 1959).

Limitations on the request for production or inspection of documents or things

1. Should not be privileged;

2. Should constitute or contain evidence material to any matter involved in the action and which are in his
(the party ordered) possession, custody, or control (Sec. 1, Rule 27);
3. In the petition, the papers and documents to be produced must be sufficiently described.

---

Petitioners filed a complaint against respondents Abra Valley Colleges, Inc. (Abra Valley) and its officers
for inspection of corporate books and records. Respondents filed an answer raising the affirmative defense
that petitioners are not stockholders-of-record of Abra Valley. Petitioners filed a motion for
production/inspection of documents to compel the respondents to produce the stock-and-transfer book
(STB), but the RTC denied the same on the ground that STB may be examined only by a stockholder-of-
record. Was the denial proper?

NO, the rules of discovery, including Section 2, Rule 27, are to be accorded with broad and liberal interpretation.
The RTC should have favorably acted on the petitioners motion for production/inspection of documents in
order to enable the petitioners to obtain the fullest possible knowledge of the issues and facts to be determined
in the case and thereby prevent the trial from being carried on in the dark. Doing so would not have caused any
prejudice to the respondents, after all, even the petitioners had not filed the motion for production/inspection of
documents, the respondents would themselves also be expected to produce the STB in court in order to
substantiate their affirmative defense that the petitioners were not stockholders-of-record. Verily, the fact that
there was no entry or record in the STB showing that the petitioners be stockholders of Abra Valley is not a valid
justification for the respondents not to produce the same. Otherwise, the disputable presumption under Section
3(e) Rule 131 that evidence willfully suppressed would be adverse if produced could arise against them.
(Insigne v. Abra Valley Colleges, Inc., 29 July 2015, Bersamin J.)

PHYSICAL AND MENTAL

EXAMINATION OF PERSONS

What is the effect if the party examined requests and obtains a report on the results of the examination?

1. He has to furnish the other party a copy of the report of any previous or subsequent examination of the
same physical and mental condition (Sec. 3, Rule 28);
2. He 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 so examined or may thereafter examine him (Sec. 4, Rule 28).

What are the consequences of refusal to comply with modes of discovery?

Refusal to answer any question

upon oral examination

1. Order to compel an answer;

2. Contempt;
3. Require payment of reasonable fees incurred by the proponent;
4. 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.
5. Dismiss the action or the proceeding;
6. Render a judgment by default against the disobedient party;
 7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed; or
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing

1. 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;
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
3. Strike out all or any part of the pleading of the disobedient party;
4. Dismiss the action or the proceeding;
5. Render a judgment by default against the disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a judgment by default against the disobedient party; or
8. Order the arrest of the refusing party.
Refusal to submit to
physical or mental examination

1. 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;
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
3. Strike out all or any part of the pleading of the disobedient party;
4. Dismiss the action or the proceeding;
5. Render a Judgment by default against the disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a Judgment by default against the disobedient party
Refusal to the request for
admission by adverse party

1. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).
2. Require payment of reasonable fees incurred by the proponent (Secs. 1-4).

NOTE: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied
admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission
since its materiality has not been affected by the amendment.

TRIAL

It is a judicial process of investigating and determining the legal controversies starting with the production of
evidence by the plaintiff and ending with his closing arguments. Should there be no amicable settlement or a
compromise forged between the parties, the case will be set for trial. (Riano, 2011)

Requisites of motion to postpone trial

FOR ABSENCE OF EVIDENCE

1. A motion for postponement must be filed;

2. The motion must be supported by an affidavit or sworn certification showing:
a. The evidence is material or relevant; and
b. That due diligence has been used to procure it.
(Sec. 3, Rule 30)

NOTE: If the adverse party admits the facts sought to be given in evidence, the trial shall not be postponed even
if he objects or reserves the right to their admissibility.

FOR ILLNESS OF PARTY OR COUNSEL

1. A motion for postponement must be filed;

2. The motion must be supported by an affidavit or sworn certification showing:
a. The presence of the party or counsel at the trial is indispensable; and
b. That the character of his illness is such as to render his non-attendance excusable.
(Sec. 4, Rule 30)

When does a reverse order of trial occur?

Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place.
Since the defendant admits the plaintiffs claim but seeks to avoid liability based on his affirmative defense he
shall proceed first to prove his exemption. (Yu v. Mapayo, G.R. No. L-29742, March 29, 1972)

Consolidation vs. Severance

Consolidation
Involves several actions having a common question of
law or fact which may be jointly tried (Sec.1, Rule 31).
Severance
Contemplates a single action having a number of
claims, counterclaims, cross-claims, third-party
complaints, or issues which may be separately tried
(Sec. 2, Rule 31).

---

Doris filed a complaint for ejectment in the MTC on the ground of non-payment of rentals against Minda.
After 2 days, Minda filed in the RTC a complaint against Doris for specific performance to enforce the
option to purchase the parcel of land subject of the ejectment case. What is the effect of Minda's action on
Doris' complaint? Explain. (2000 Bar Question)

There is no effect. The ejectment case involves possession de facto only. The action to enforce the option to
purchase will not suspend the action of ejectment for non-payment of rentals. (Wilmon Auto Supply Corp. v. CA,
G.R. No. 97637, April 10, 1992)

---

Delegation to Clerk of Court vs. Trial by Commissioner

Delegation to Clerk of Court Trial by Commissioner

Delegation is made during trial. Commissioner can be appointed even after the case
has become final and executory.

Clerk of court must be a lawyer. Commissioner need not be a lawyer.

Clerk of court cannot rule on objections or on the Commissioner can rule on objections or on
admissibility of evidence. admissibility of evidence.

DEMURRER TO EVIDENCE (Civil Case)

After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to relief. (Sec. 1, Rule 33).

What is the effect of the denial of the said motion to dismiss?

1. The defendant shall have the right to present his evidence (Sec. 1, Rule 33). This means that the denial of the
demurrer to evidence does not deprive the defendant the opportunity to adduce evidence in his behalf;
2. The court shall set the date for the reception of the defendants evidence-in-chief. It should not proceed to
grant the relief demanded by the plaintiff (Northwest Airlines, Inc. v.CA, G.R. No. 112573, February 9, 1995);
3. An order denying a demurrer to evidence is not appealable because it is interlocutory;

NOTE: It can be subject to petition for certiorari in case of grave abuse of discretion or an oppressive
exercise of judicial authority (Katigbak v. Sandiganbayan, G.R. No. 140183 July 10, 2003).

4. In election cases, when a party who files a demurrer to evidence is subsequently denied, he cannot insist on
the right to present evidence because the provision of the Rules governing demurrer to evidence does not
 apply to an election case (Gementiza v. COMELEC G.R. No. 140884, March 6, 2001). The Rules, under the
express dictum in Sec. 4 of Rule 1, provides that it shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceeding (Riano, 2014).

What is the effect of its grant?

1. The case shall be dismissed;

NOTE: The plaintiff may file an appeal and if the appeal was granted (reversed the order of dismissal), the
defendant loses his right to present evidence (Sec. 1, Rule 33; Republic v. Tuvera, G.R. No. 148246, February
16, 2007).

2. Upon appeal, the appellate court reversing the order granting the demurrer should not remand the case to
the trial court. Instead, it should render judgment based on the evidence submitted by the plaintiff
(Radiowealth Finance Corporation v. Del Rosario, G.R. No. 138739, July 6, 2000).

Demurrer to evidence in a Civil Case v. Demurrer to evidence in a Criminal Case

Civil Case Criminal Case

How filed After the plaintiff has completed the
presentation of his evidence, the
defendant may move for dismissal on the
ground that upon the facts and the law
the plaintiff has shown no right to relief
(Sec. 1, Rule 33).
Leave of court Not required
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 (Sec. 23, Rule 119).
With or Without (Sec. 23, Rule 119)

If granted The plaintiff may appeal from the order
of dismissal of the case (Sec. 1, Rule 33).
If denied The defendant may proceed to adduce
his evidence.
The plaintiff cannot make an appeal from
the order of dismissal due to the
constitutional prohibition against double
jeopardy.
The defendant may adduce his evidence
only if the demurrer is filed with leave of
court.

If there was no leave of court, accused

can no longer present his evidence and
submits the case for decision based on
the prosecutions evidence (Sec. 23, Rule
119)

JUDGMENTS AND FINALS ORDERS

Doctrine of Immutability of Judgment or Finality of Judgment.

Settled is the rule that when a judgment is final and executory, it becomes immutable and unalterable. It may no
longer be modified in any respect, except to correct clerical errors or to make nunc pro tunc entries, or when it is
a void judgment. Outside of these exceptions, the court which rendered judgment only has the ministerial duty
to issue a writ of execution. A decision that has attained finality becomes the law of the case regardless of any
claim that it is erroneous. An order of execution which varies the tenor of the judgment or exceeds the terms
thereof is a nullity (Mayor Marcial Vargas and Engr. Raymundo Del Rosario v. Fortunato Cajucom G.R. No. 171095,
June 22, 2015). The doctrine is founded on considerations of public policy and sound practice that, at the risk of
occasional errors, judgments must become final at some definite point in time. However, the same is not
applicable in order to serve substantial justice considering:
a. matters of life, liberty, honor or property,
b. the existence of special or compelling circumstances,
c. the merits of the case,
d. a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the
rules,
e. a lack of any showing that the review sought is merely frivolous and dilatory, and
f. the other party will not be unjustly prejudiced thereby (Pinewood Marine Inc. v. EMCO Plywood Corporation,
G.R. No. 179789, June 17, 2015).

What is Rendition of Judgment? (2004 Bar)

Rendition of judgment is the filing of the same with the clerk of court. Even if the judgment has already been put
in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court. Hence,
before its filing, it does not yet constitute the real judgment of the court (Ago v. CA, G.R. No. L-17898, October 31,
1962).

Could there be a rendition of a judgment based on issues not raised?

Generally, a judgment must conform to the pleading. Therefore, a judgment going outside the issues and
purporting to adjudicate something on which the parties were not heard is invalid. Where a court enters a
judgment or awards relief beyond the prayer of the complaint or the scope of its allegations, the excessive relief
is not merely irregular but is void for want of jurisdiction, and is open to collateral attack However, there could
be such rendition when such issues were tried with the express or implied consent of the parties.

When can there be a judgment without a trial?

1. Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by
the court (Rule 34);
2. Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35);
3. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or
while the trial is in progress (Rule 18; Art. 2028, NCC);
4. Where the parties agree in writing, upon the facts involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the introduction of evidence. If, however, there is no agreement
as to all the facts in the case, trial may be held only as to the disputed facts (Sec. 6, Rule 30);
5. Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par.; Sec. 5, Rule
7);
6. Where the civil case falls under the operation of the Rules on Summary Procedure (Rule 17);
7. When the case falls under the Rule on Small Claims.

Judgment

Judgment may be understood in 2 senses:

1. Judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect
thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally
terminate or dispose of the case. It has also the effect of ending the litigation, and an aggrieved party may
then appeal from the judgment;

35-42

1. Order to defendant to pay said amount within a period of not less than 90 days nor more than 120 days
from entry of judgment; and,
2. If the defendant defaults, the court should order the sale at public auction of the mortgaged property (Sec. 2,
Rule 68).

Cause of action in a foreclosure suit

Generally, non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant
the foreclosure, such as the violation of some of other conditions therein (Regalado, 2010).

How is the deficiency recovered?

If there is 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 balance for which, by the record of the case, he may be
personally liable to the plaintiff. Execution may issue immediately if the balance is all due at the time of the
rendition of the judgment. If not due, 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 (Sec.
6, Rule 68; Riano, 2009).

Liability of a third party mortgagor in case of deficiency judgment

If such third person did not assume personal liability for the payment of the debt, the extent of recovery in the
judgment of foreclosure shall be limited to the purchase price at the foreclosure sale and no deficiency judgment
can be recovered against said person (Phil. Trust Co. v. Tan Suisa, 52 Phil 852).

Instances when court cannot render deficiency judgment

1. Case is covered by the Recto Law (Art. 1484, NCC);

2. Mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the
pendency of the proceedings was outside the Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and,
4. Mortgagee is a third person but not solidarily liable with the debtor.

Judicial Foreclosure vs. Extrajudicial Foreclosure

Judicial Foreclosure Extrajudicial Foreclosure

Requires court intervention No court intervention necessary

There is only an equity of redemption except when the Right of redemption exists
mortgagee is a bank

Governed by Rule 68 Governed by Act 3135

NOTE: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case,
he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding (Movido
v. RFC, G.R. No. L-11990, May 29, 1959).

Equity of Redemption vs. Right of Redemption

Equity of Redemption Right of Redemption

Right of the defendant mortgagor to extinguish the
mortgage and retain ownership of the property by
paying the debt within a period of not less than 90 nor
more than 120 days from the entry of judgment or
even after the foreclosure sale but prior to
confirmation
Governed by Rule 68
Right of the debtor, his successor in interest or any
judicial creditor or judgment creditor of said debtor or
any person having a lien on the property subsequent
to the mortgage or deed of trust under which the
property is sold to redeem the property within 1 year
from the registration of the sheriffs certificate of
foreclosure sale
Governed by Secs. 29-31, Rule 39

NOTE: In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the
registration of the deed of sale. However, Sec. 47 of the General Banking Act provides that in case of extrajudicial
foreclosure, juridical persons shall have the right to redeem the property until, but not after, the registration of
the certificate of foreclosure sale which in no case shall be more than three (3) months after foreclosure,
whichever is earlier. The pendency of the action stops the running of the right of redemption. Said right
continues after perfection of an appeal until the decision of the appeal (Consolidated Bank and Trust Corp. v. IAC,
G.R. No. 73341, August 21, 1987).

PARTITION

Requisites of a valid partition

1. Right to compel the partition;

2. Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which
partition is demanded; and,
3. All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69).

Instances when a co-owner may not demand partition

1. There is an agreement among the co-owners to keep the property undivided for a certain period of time but
not exceeding ten years (Art. 494, NCC);
2. When partition is prohibited by the donor or testator for a period not exceeding 20 years (Art. 494; Art.
1083, NCC);
3. When partition is prohibited by law (Art. 494, NCC);
4. When property is not subject to physical division and to do so would render it unserviceable for the use for
which it is intended (Art. 495, NCC);
5. When the condition imposed upon voluntary heirs before they can demand partition has not yet been
fulfilled (Art. 1094, NCC).

Effect of non-inclusion of a co-owner in an action for partition

1. Before judgment Not a ground for a motion to dismiss. The remedy is to file a motion to include the party.
2. After judgment Makes the judgment therein void because co-owners are indispensable parties.

May creditors or assignees of co-owners intervene?

They may intervene and object to a partition affected without their concurrence. But they cannot impugn a
partition already executed unless there has been fraud or in case it was made notwithstanding a formal
opposition presented to prevent it (Sec. 12, Rule 69).

What is the prescription of the action?

Action to demand partition of a co-owned property does not prescribe. Prescription of action does not run in
favor of a co-owner or co-heir against his co-owner or co-heirs as long as there is a recognition of the co-
ownership expressly or impliedly (Art. 494, NCC).

NOTE: A co-owner may acquire ownership of the property by prescription where there exists a clear
repudiation of the co-ownership and the co-owners are apprised of the claim of adverse and exclusive
ownership (Heirs of Restar v. Heirs of Cichon, 475 SCRA 731; Riano, 2009).

FORCIBLE ENTRY
AND UNLAWFUL DETAINER

Requisites of forcible entry

1. A person is deprived of possession of any land or building;

2. by force, intimidation, threat, strategy, or stealth (FISTS); and,
3. Action is brought within one (1) year from the unlawful deprivation (Sec. 1, Rule 70).

Requisites of unlawful detainer

1. Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person
after the expiration or termination of the right to hold possession by virtue of any contract express or
implied;

NOTE: It has been held that prior physical possession by the plaintiff is not an indispensable requirement in
an unlawful detainer case brought by a vendee or other person against whom the possession of any land is
unlawfully withheld after the expiration or termination of a right to hold possession. (William Go v. Albert
Looyuko, G.R. No. 19652, July 1, 2013, citing Sps. Maninang v. CA, 373 Phil. 304)

2. Action is brought within one (1) year after such unlawful deprivation or withholding of possession; and,
3. Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 1, Rule
70).
NOTE: If the complaint does not allege facts showing compliance with the prescribed one-year period to file an
action for unlawful detainer, then it cannot properly qualify as such action over which the MTC can exercise
jurisdiction. Such allegations are jurisdictional and crucial. It may then be an accion publiciana or accion
reivindicatoria (Estate of Manantan v. Somera, G.R. No. 145867, April 7, 2009).

Is a formal contract a prerequisite in unlawful detainer?

NO. Even if there is no formal contract between the parties, there can still be an unlawful detainer because
implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to
vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259, October 13, 1983).

When can a lessor proceed against a lessee?

Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such
demand upon the person found on the premises if no person be found thereon, and the lessee fails to comply
therewith after 15 days in the case of land or 5 days in the case of buildings (Sec. 2, Rule 70).

What constitutes a demand in unlawful detainer?

1. To pay and to vacate If the suit is based on defendants failure to pay the rentals agreed upon;
2. To comply and to vacate If suit is predicated upon the defendants non-compliance with the conditions of
the lease contract (Riano, 2012).

The notice giving the lessee the alternative either to pay the increased rental or otherwise vacate the land is not
the demand contemplated by the Rules of Court in unlawful detainer cases. When after such notice, the lessee
elects to stay, he thereby merely assumes the new rental and cannot be ejected until he defaults in said
obligation and necessary demand is first made (Peas, Jr. v.Court of Appeals, G.R. No. 112734, July 7, 1994).

What is the form of the demand?

The demand may be in the form of a written notice served upon the person found in the premises. The demand
may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2, Rule 70).
It has been ruled, however, that the demand upon a tenant may be oral (Jakihaca v. Aquino, 181 SCRA 67).

Forcibel Entry vs. Unlawful Detainer

Forcible Entry (Detentacion) Unlawful Detainer (Desahucio)

Demand to vacate is not required before the filing of Demand is jurisdictional if the ground is non-payment
the action because occupancy is illegal from the very of rentals or failure to comply with the lease contract.
beginning (Riano, 2009).
The plaintiff must prove that he was in prior physical The plaintiff need not have been in prior physical
possession of the premises until he was deprived possession.
thereof by the defendant.
GR: The 1 year period is counted from the date of Period is counted from the date of the last demand or
actual entry on the land. last letter of demand in case of non-payment of rentals
or violation of the conditions of the lease (Riano, 2009).
XPN: When entry is by stealth, the period must be
counted from the demand to vacate upon learning of
the stealth (Riano, 2009).

Accion Interdictal vs. Accion Publiciana vs. Accion Reivindicatoria

Accion Interdictal Accion Publiciana Accion Reivindicatoria

Summary action for the recovery of A plenary action for the recovery of An action for the recovery of
physical possession where the the real right of possession when ownership, which necessarily
dispossession has not lasted for
more than 1 year.
(possession de facto)
All cases of forcible entry and
unlawful detainer irrespective of
the amount of damages or unpaid
rentals sought to be recovered
should be brought to the MTC.
the dispossession has lasted for includes the recovery of
more than 1 year. possession.
(possession de jure)
RTC has jurisdiction if the value of RTC has jurisdiction if the value of
the property exceeds Php 20,000 the property exceeds Php 20,000
or Php 50,000 in Metro Manila. or Php 50,000 in Metro Manila.
MTC has jurisdiction if the value of MTC has jurisdiction if the value of
the property does not exceed the the property does not exceed the
above amounts. above amounts.

Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual
possession or right to possession of property.

NOTE: Ejectment suits can be maintained with respect to all kinds of land, but agricultural lands under tenancy
are now subject to the land reform laws, and cases arising thereunder are within the jurisdiction of Regional
Trial Court acting as Special Agrarian Court (Regalado, 2010).

Rule in case of tacita reconduccion in relation to unlawful detainer

Under Art. 1670 of NCC, if at the end of lease, the lessee continues to enjoy the property leased for 15 days with
consent of the lessor, and no notice to the contrary has been given, it is understood that there is an implied new
lease.

When there is tacit reconduccion, the lessee cannot be deemed as unlawfully withholding the property. There is
no unlawful detainer (Riano, 2012).

Is judgment in forcible entry and unlawful detainer cases conclusive as to the title to the property?

NO. The judgment rendered in an action for forcible entry or unlawful detainer is conclusive only as to
possession of the property. Said judgment does not bind the title or affect the ownership of the land or building. A
distinct and separate action between the same parties respecting title to the land or building may be had (Sec.
18, Rule 70).

CONTEMPT

It is disobedience to the court by acting in opposition to its authority, justice and dignity. It signifies not only
willful disregard or disobedience of courts orders, but such conduct as tends to bring the authority of court and
administration of law into disrepute or in some manner to impede the due administration of justice (Regalado v.
Go, G.R. No. 167988, Febraury 6, 2007; Riano, 2012).

Kinds of contempt

1. According to nature (depending on the nature and effect of the contemptuous act)
a. Civil
b. Criminal
2. According to the manner of commission

Direct Contempt vs. Indirect Contempt

Direct Contempt Indirect Contempt

Committed in the
Not committed in the
presence of or so near a
presence of the court.
court.
Summary in nature and no Punished after being
appeal charged and heard
Remedy is certiorari or
Remedy is appeal
prohibition
Certiorari/Prohibition Immediately executory
suspends execution unless a bond is filed
provided there is a bond

What court has jurisdiction?

1. Where the act was committed against the RTC or a court of equivalent or higher rank, or against an officer
appointed by it, the charge may be filed with such court;
2. Where the act was committed against a lower court, the charge may be filed with the RTC in which the
lower court is sitting. It may also be filed in lower court against which the contempt was allegedly
committed. The decision of the lower court is subject to appeal to RTC;
3. Where the act was committed against persons or entities exercising quasi-judicial functions, the charge
shall be filed in RTC of the place wherein the contempt was committed (Sec. 12, Rule 71; Riano, 2009).

What are the acts deemed punishable as indirect contempt?

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:

1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
2. 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;
3. 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;
4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice;
5. Assuming to be an attorney or an officer of a court, and acting as such without authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or
process of a court held by him (Sec. 3, Rule 71).

NOTES:

1. Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the
purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of
justice.

2. If a person charged with indirect contempt fails to appear on that date after due notice without justifiable
reason, the court does not declare the respondent in default. Instead, court shall order his arrest just like the
accused in a criminal case (Riano, 2012).

When shall imprisonment be imposed?

When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent
to perform, he may be imprisoned by order of the court concerned until he performs it (Sec.8, Rule 71).

Does a city council have the power to subpoena witness and to punish non-attendance for contempt?

NO. A city council does not have the power since there is neither a constitutional nor statutory conferment on it
of such powers. Unlike Congress whose contempt power is sui generis and inheres in it as a coordinate branch of
the government, no such power can be implied in the legislative functions delegated to local legislative bodies,
especially since the contempt power is essentially of a judicial nature (Negros Oriental II Electric Cooperative,
Inc., et al., v. Sangguniang Panlungsod of Dumaguete, et al., G.R. No. 72492. November 5, 1987).

Is contempt akin to libel? May the principle of privileged communication be invoked in a contempt
proceeding?

In People v. Castelo, the Court ruled that contempt is akin to libel and that the principle of privileged
communication may be invoked in a contempt proceeding. The Court ruled:
While the present case involves an incident of contempt the same is akin to a case of libel for both constitute
limitations upon freedom of the press or freedom of expression guaranteed by our Constitution. So what is
considered a privilege in one may likewise be considered in the other. The same safeguard should be extended
to one whether anchored in freedom of the press or freedom of expression. Therefore, this principle regarding
privileged communications can also be invoked in favor of the appellant. (Philip Sigrid A. Fortun v. Prima Jesusa
B. Quinsayas, et al.; G.R. No. 194578. February 13, 2013)

SPECIAL PROCEEDINGS

What is a Special Proceeding?

A special proceeding is an action by which a party seeks to establish a status, right, or a particular fact, has one
definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite
adverse party. (Montaer vc CA, G.R. No. 174975, January 20, 2009)

Subject Matter of Special Proceedings

1. Settlement of the estate of deceased persons;

2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas Corpus;
9. Change of name;
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of family home;
13. Declaration of absence and death; and
14. Cancellation or correction of entries in the civil registry (Sec. 1, Rule 72).

NOTE: The list under Rule 72, Section 1 is not exclusive. Any petition which has for its main purpose the
establishment of a status, right or a particular fact may be included as a special proceeding. Other special
proceedings under various laws include: summary proceedings under the Family Code, adoption, liquidation,
writs of amparo, habeas data, kalikasan, etc.

WRIT OF HABEAS CORPUS

Writ of Habeas Corpus

It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at
a certain time and place with the day and the cause of his caption and detention, to do, submit to, and receive
whatsoever, the court or judge awarding the writ shall consider in that behalf.

Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if
such restrain is illegal.

It is regarded as palladium of liberty, a prerogative writ which does not issue as a matter of right but in the
sound discretion of the court or judge. (Mangila v. Judge Pangilinan, G.R. No. 160739, July 17, 2013, Bersamin, J.)

Kinds of writ of habeas corpus

1. Preliminary citation is issued when a government officer has the person in his custody, the illegality of
which is not patent, to show cause why the writ of habeas corpus should not issue.

2. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-
compliance therewith is punishable (Lee Yick Hon v. Collector of Customs, G.R. No. 16779, March 30, 1921).
In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the
hearing of the petition. The respondent must produce the person and explain the cause of his detention.
However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the
remedy. Thus, the Courts order to the CA to conduct a factual hearing was not an affirmation of the propriety of
the remedy of habeas corpus (In the Matter of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No.
160792, August 25, 2005).

NOTE: It must be kept in mind that in both habeas corpus and certiorari proceedings is whether an inferior
court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and reaches the
body but not the record, while the latter assails directly the judgment and reaches the record but not the
body. (Velasco vs. CA G.R.No.118644 July 7, 1995)

What is the scope of the writ?

Habeas corpus extends to:

1. Cases of illegal confinement or detention by which a person is deprived of his liberty; and
2. Cases by which the rightful custody of the person is withheld from the person entitled thereto (Sec. 1, Rule
102).

Ormilla, together with Rivera and Navarro, were convicted of two counts of rape and sentenced to reclusion
perpetua for each count. He is presently confined at the National Penitentiary in Muntinlupa and has
served approximately 17 years of his sentence. Ormilla filed a petition for the issuance of a writ of habeas
corpus so he could apply for pardon or parole. However, the Director of Bureau of Corrections contended
that the penalty imposed under R.A. No. 8353 for rape committed by two or more persons isreclusion
perpetuato death.Under Article 70of the RPC, the duration of perpetual penalties is 30 years.Since
Ormilla was sentenced toreclusion perpetuafor each count of rape, the aggregate of the two penalties is
60 years.Ormilla has yet to complete the service of his first sentence, as he has been in confinement for only
17 years. May the writ of habeas corpus be granted to Ormilla?

NO. The writ of habeas corpus may also be availed of where, as a consequence of a judicial proceeding, (a) there
has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no
jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to
such excess. None of the mentioned circumstances is present in the instant case. (In The Matter Of
TheApplication For The Writ Of Habeas Corpus Reclassifying Sentence To R.A. No. 8353 In Behalf Of, Rogelio
Ormilla, Et. Al v. The Director, Bureau of Corrections, G.R. No. 170497, January 22, 2007)

Anita Mangila and four others were charged with syndicated estafa and the cases were filed in the
Municipal Trial Court in Cities. They were alleged to be recruiting and promising employment without
lawful authority from the POEA. Judge Pangilinan conducted a preliminary investigation on the
complainants. After examining Palayon, one of the complainants, he issued a warrant of arrest of Mangila
and her cohorts. Mangila was arrested and detained in the headquarters of the NBI. Mangila filed in the
Court of Appeals a petition for habeas corpus to obtain her release from detention. Her petition averred
that the remedy was available. Is she correct?

NO. A writ of habeas corpus is a prerogative writ which is issued in the sound discretion of the court or judge.
Judge Pangilinan issued the order of arrest after examining Palayon, one of the complainants, against Mangila
and her cohorts. If he, as the investigating judge, considered Palayons evidence sufficient for finding probable
cause against Mangila and her cohorts wherein the Court justifiably presumes from his act of referring the case
to the Office of the City Prosecutor on the day immediately following the preliminary investigation he conducted,
her petition for habeas corpus could not be the proper remedy by which she could assail the adequacy of the
adverse finding. A restraint that is lawful and pursuant to a court process cannot be inquired through habeas
corpus. (Mangila v. Judge Pangilinan, G.R. No. 160739, July 17, 2013, Bersamin, J.)

What is the purpose of the writ?

The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary and to relieve a person therefrom if such restraint is illegal.

Jurisprudence has laid down additional purposes of the writ, to wit:

1. To obtain relief from illegal confinement;

2. To liberate those who may be imprisoned without sufficient cause; and,
3. To deliver them from unlawful custody. (Villavicencio v. Lukban, G.R. No. L-14639, March 25, 1919)

NOTE: The writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a
competent court acting within the limits of its jurisdiction, but is available only for the purpose relieving from
illegal restraint.

While generally, the writ of habeas corpus will not be granted when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be available in exceptional cases (Herrera, citing 39 C.J.S. Habeas corpus
13, 486-488)

Is the writ of habeas corpus and certiorari ancillary to each other?

Yes. The writ of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the
supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters,
but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may
be used with the writ of certiorari for the purpose of review (Galvez v. CA, G.R. No. 114046, Oct. 24, 1994).

The person released by virtue of habeas corpus may no longer be imprisoned again for the same offense, except
by the lawful order or process of a court having jurisdiction of the cause or offense (Sec. 17, Rule 102).

What kind of restraint is contemplated under the writ?

Actual and effective and not merely nominal or moral restraint is required. (Zagala v. Illustre, G.R. No. 23999
November 21, 1926)

Is actual physical restraint always required?

NO. Actual physical restraint is not always required; any restraint which will prejudice freedom of action is
sufficient. (Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986)

GR: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot.

XPNs:
a. Doctrine of Constructive Restraint Unless there are restraints attached to his release which precludes
freedom of action in which case the Court can still inquire into the nature of his involuntary restraint

The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint. Any restraint which will preclude freedom of action is sufficient. (Villavicencio v. Lukban, G.R. No.
L-14639, March 25, 1919)

b. Violation of freedom from threat by the apparent threat to life, liberty and security of their person from the
following facts:
a. Threat of killing their families if they tried to escape
b. Failure of the military to protect them from abduction
c. Failure of the military to conduct effective investigation (Secretary of Justice v. Manalo, G.R. No. 180906,
October 7, 2008)

May temporary release constitute restraint?

Yes, provided the following elements are present:

a. Where a person is continued to be unlawfully denied one or more of his constitutional rights;
b. Where there is present denial of due process;
c. Where the restraint is not merely involuntary but appear to be unnecessary; and,
d. Where a deprivation of freedom originally valid has in light of subsequent developments become arbitrary
(Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986)

Can the Supreme Court and Court of Appeals take cognizance of a case of habeas corpus with respect to
custody of minors?
Yes. Although the Family Court where the petitioner resides or where the minor may be found has exclusive and
original jurisdiction to hear petitions for habeas corpus with respect to custody of minors, the SC and the CA can
take cognizance of such petition in order that it can be enforceable within the Philippines.

However, the return can be heard in the FC/RTC (if there is no FC in the judicial region), and there is no need to
file a separate petition for custody because the issue can be ventilated in the petition for the writ.

NOTE: The general rule is that parents should have custody over their minor children. But the State has the right
to intervene where the parents, rather than care for such children, treat them cruelly and abusively, impairing
their growth and well-being and leaving them emotional scars that they carry throughout their lives unless they
are liberated from such parents and properly counselled. (In The Matter Of The Petition For Habeas Corpus Of
Minor Shang Ko Vingson Yu Shirly Vingson Shirly Vingson Demaisip V. Jovy Cabcaban. Udk No. 14817, January 13,
2014)

From November 7, 2009 to December 19, 2009, Salibo and other Filipinos were allegedly in Saudi Arabia
for the Haji Pilgrimage. Salibo returned to the Philippines on December 20, 2009. On August 3, 2010, Salibo
learned that police officers of Datu Hofer Police Station in Maguindanao suspected him to be Butukan S.
Malang. Malang was one of the 197 accused of 57 counts of murder for allegedly participating in the
November 23, 2009 Maguindanao Massacre and had a pending warrant of arrest issued by the trial court.

Salibo presented himself before the police officers to clear his name and explain that he was not Malang
and that he could not have participated in the massacre because he was at Saudi Arabia at that time. He
presented his passport, boarding passes and other documents to prove that Salibo was in Saudi from
November 7 to December 19, 2009. However, the police officers apprehended Salibo. Does the writ of
habeas corpus apply in a case of mistaken identity?

YES. Habeas Corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such
cases, the person is not under any lawful process and is continuously being illegally detained. Salibo was not
arrested by virtue of any warrant charging him of an offense. He was not restrained under a lawful process or an
order of the court. He was illegally deprived of liberty and has correctly availed himself of a Petition for Habeas
Corpus. (In the Matter of the Petition for Habeas Corpus of Datukan Malang Salibo v. Warden, Quezon City Jail, G.R.
No. 197597, April 08, 2015)

Who may apply for the petition of the writ?

1. The party for whose relief it is intended; or

2. By some person on his behalf (Rule 102, Sec. 3)
Some person any person who has a legally justified interest in the freedom of the person whose liberty
is restrained or who shows some authorization to make the application (Velasco v. CA, G.R. No. 118644,
July 7, 1995)

NOTE: The writ may also be availed by judicial guardians (Hernandez v. San Juan-Santos, G.R. No. 166470, August
07, 2009).

Who makes the Return and what are its Contents?

It is made by the person or officer in whose custody the prisoner is found, alleging the following:
1. Whether he has or has not the party in his custody or power, or under restraint
2. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause
thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the
party is held
3. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature
and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be
bought before the court or judge

What must be alleged in the Return if the person or officer has custody of the prisoner and transferred the
custody of the latter to another?

If he has the party in his custody or power, or under restraint, and has transferred such custody or restraint to
another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.
(Rule 102, Sec. 10)
NOTE: The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the
prisoner is not produced, and in all other cases, unless the return is made and signed by a sworn public officer in
his official capacity. (Rule 102, Sec. 11)

When is the Return considered as an evidence and when is it considered only a plea?

When the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be
considered prima facie evidence of the cause of restraint.

If he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of
the facts therein set forth, and the party claiming the custody must prove such facts. (Rule 102, Sec. 13)

When is the writ disallowed or discharged?

1. The person alleged to be restrained of his liberty is in custody of an officer or Under process issued by the
court or judge or By virtue of a judgment or order of a court of record and said court had jurisdiction to
issue the process, render the judgment or make the order; or
2. If jurisdiction appears after the writ is allowed despite any informality or defect in the process, judgment, or
order; or
3. Person is charged with or convicted of an offense in the Philippines; or
4. Suffering from imprisonment under lawful judgment. (Rule 102, Sec. 4)
5. If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant
of commitment with an offense punishable by death (Rule 102, Sec. 14)
6. Even if the arrest of a person is illegal, due to supervening events may bar release:
a. Issuance of a judicial process (Sayo v. Chief of Police of Manila, G.R. No. L-2128, May 12, 1948)
Judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of
law. (Malaloan v. CA, G.R. No. 104879, May 6, 1994)
b. The filing before a trial court a complaint which issued a hold departure order and denied motion to
dismiss and to grant bail (Velasco v. CA, G.R. No. 118644, July 7, 1995)
c. Filing of an information for the offense for which the accused is detained bars the availability of writ of
habeas corpus (Velasco v. CA, G.R. No. 118644, July 7, 1995)

When is habeas corpus not applicable?

Habeas corpus is not applicable when the purpose is to:

1. Enforce a right of service;

2. Determine whether a person has committed a crime;
3. Determine a disputed interstate boundary line;
4. Punish respondent;
5. Recover damages or other money award;
6. Assert or vindicate denial of right to bail (In re: Azucena Garcia, G.R. No. 141443, Nov. 18, 2000);
7. Correct errors in appreciation of facts or law; and,
8. To enforce marital rights including coverture and living in conjugal dwelling (Ilusorio v. Bildner, G.R. No.
139808, May 12, 200).

WRIT OF AMPARO
A.M. NO. 07-9-12-SC

What is a Writ of Amparo?

It is a remedy available to any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The
writ shall cover extralegal killings and enforced disappearances or threats thereof (Sec. 1, A.M. No. 07-9-12-SC).

The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial
evidence to make the appropriate reliefs available to the petitioner. It is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings
(Deliberations of the Committee on the Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007
and September 20, 2008).

Who may file?

1. Aggrieved party; or,

2. Qualified person or entity in the following order:
a. Any member of the immediate family namely: the spouse, children and parents of the aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
c. Any concerned citizen, organization, association or institution if there is no known member of the
immediate family or relative of the aggrieved party

Effect of filing of the writ

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar
petitions. (Sec. 2)

Where should the petition be filed?

1. RTC where the threat, act or omission was committed or any of its element occurred; or
2. Sandiganbayanunlike the writ of habeas corpus, because public officials and employees will be
respondents in amparo petitions; or
3. Court of Appeals; or
4. Supreme Court; or
5. Any justice of such courts (Sec. 3)

NOTE: May be filed on any day, including Saturdays, Sundays, and holidays; from morning until evening.

Where is the writ enforceable?

The writ shall be enforceable anywhere in the Philippines. (Sec. 3)

Are docket fees required to be paid when filing the petition?

No. Petitioner shall be exempted from payment of docket fees and other lawful fees when filing the petition. (Sec.
4)

Contents of the petition

1. The personal circumstances of the petitioner;

2. The name and personal circumstances of the respondent responsible for the threat, actor omission or if the
name is unknown or uncertain, the respondent may be described by an assumed appellation;
3. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
4. The investigation conducted, if any, specifying the names, the personal circumstances and addresses of the
investigating authority or individuals, as well as the manner and conduct of the investigation, together with
any report;
5. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for the threat, act or omission; and,
6. The relief prayed for.
May include a general prayer and equitable reliefs.

When shall the writ be issued?

Upon filing of petition, the writ shall be immediately issued if on its face it ought to issue.

What is the quantum of proof in the application for the issuance of the writ?
For the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are
not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out
by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a
refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with
the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the
petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of
government participation. (Egardo Navia, Ruben Dio and Andrew Buising vs. Virginia Pardico, for and in behalf in
representation of Benhur Pardico., G.R. No. 184467, June 19, 2012)

What are the contents of the return?

1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life,
liberty and security of the aggrieved party, through any act or omission;
2. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party
and the person responsible for the threat, act or omission;
3. All relevant information in the possession of the respondent pertaining to the threat, act or omission
against the aggrieved party; and,
4. If the respondent is a public official or employee the return shall further state the actions that have been or
will still be taken:
a. to verify the identity of the aggrieved party;
b. to recover and preserve evidence related to the death or disappearance of the person identified in the
petition which may aid in the prosecution of the person or persons responsible;
c. to identify witnesses and obtain statements from them concerning the death or disappearance;
d. to determine the cause, manner, location and time of death or disappearance as well as any pattern or
practice that may have brought about the death or disappearance;
e. to identify and apprehend the person or persons involved in the death or disappearance; and
f. to bring the suspected offenders before a competent court.; and
5. The return shall also state matters relevant to the investigation, its resolution and the prosecution of the
case.

When should the Return be filed?

Respondent must file a verified written return within 72 hours after service of writ, together with supporting
affidavits. No general denial allowed. (Sec. 9)

What is the effect of failure to file a return?

In case the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte.
(Sec. 12)

What is the Omnibus Waiver Rule?

The Omnibus Waiver Rule states that all defenses not raised in the return (answer) are deemed waived (Sec. 10,
Ibid.). It is different from the Omnibus Motion Rule which states that defenses not raised in a Motion to Dismiss
are deemed waived.

NOTE: A motion to dismiss is a prohibited pleading in an application for a writ of amparo. The filing of a motion
to dismiss even on the ground of lack of jurisdiction over the subject matter and the parties is proscribed to
avoid undue delay. The grounds of a motion to dismiss should be included in the return and resolved by the
court, using its reasonable discretion as to the time and merit of the motion (Sec. 11, Ibid.).

Return is the proper responsive pleading; memorandum is a prohibited pleading

The insistence on filing an answer was inappropriate. It is the return that serves as the responsive pleading for
petitions for the issuance of Writs of Amparo. The requirement to file an answer is contrary to the intention of
the court to provide a speedy remedy to those whose right to life, liberty and security are violated or are
threatened to be violated (Ibid).

A memorandum, on the other hand, is a synthesis of the claims of the party litigants and is a final pleading
usually required before the case is submitted for decision. One cannot substitute for the other since these
submissions have different functions in facilitating the suit. More importantly, a memorandum is a prohibited
pleading under the Rule on the writ of Amparo (Ibid).

Archiving and Revival of Cases

If the case cannot proceed for valid cause, the court shall not dismiss the petition but shall archive it. If after the
lapse of two (2) years from the notice of archiving, the petition shall be dismissed for failure to prosecute. (Sec.
20)

What are Extralegal killings?

These are killings committed without due process of law, legal safeguards or judicial proceedings (Secretary of
National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008).

What is enforced disappearance? What are its elements?

(1) The arrest, detention, or abduction of persons;

(2) By, or with the authorization, support or acquiescence of, a State or a political organization;
(3) Followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or
whereabouts of those persons;
(4) With the intention of removing from the protection of the law for a prolonged period of time [Section 3(g) of
RA No. 9851; Edgardo Navia vs. Virginia Pardico, G.R. No. 184467, June 19, 2012]

Is a petition for a writ of amparo the proper recourse for obtaining parental authority and custody of a
minor child?

NO. The writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to
threats thereof. (Infant Julian Yusa Y Caram, Represented By His Mother, Ma. Christina Yusa y Caram v. Atty.
Marijoy D. Segui, Atty. Sally D. Escutin, Vilma B. Cabrera, AND Celia C. Yangco, G.R. No. 193652, 05 August 2014)

Distinguish the Privilege of the Writ of Amparo from the Actual Order called the Writ of Amparo

The privilege includes the availment of the entire procedure outlined in the Rule. After examining the petition
and its attached affidavits, the return and the evidence presented in the summary hearing, the judgment should
detail the required acts from the respondent that will mitigate, if not totally eradicate, the violation of or threat
to the petitioners life, liberty or security.

A judgment which simply grants the privilege of the writ cannot be executed. It is tantamount to a failure of the
judge to intervene and grant judicial succour to the petitioner. Petitions filed to avail of the privilege of the writ
of amparo arise out of very real and concrete circumstances. Judicial responses cannot be as tragically symbolic
or ritualistic as granting the privilege of the writ of amparo (Secretary Leila M. De Lima, Director Nonnatus R.
Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528, February 19, 2013).

What is the effect of the Doctrine of Command Responsibility in amparo proceedings?

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is accountable for, and has the duty to address, the
disappearances or harassments complained of, so as to enable the Court to devise remedial measure that may be
appropriate under the premises to protect rights covered by the writ of amparo (Rubrico v. Macapagal-Arroyo,
GR. No. 183871, February 18, 2010).

The doctrine of command responsibility may be used to determine whether respondents are accountable for
and have the duty to address the abduction of petitioner in order to enable the courts to devise remedial
measures to protect his rights (Rodriguez v. Arroyo, GR. No. 191805 and 193160, November 15, 2011).

Is a separate action barred?

NO. The Rule shall neither preclude the filing of separate criminal, civil or administrative actions (Sec. 21)

But a claim for damages should instead be filed in a proper civil action.
Is the amparo proceeding criminal in nature? What step should be taken in case of criminal prosecution?

NO. The amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent.
If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal
prosecution.

Effect of filing a criminal action

When a criminal action has been commenced, no separate petition for the writ shall be filed.

Reliefs under the writ shall be available by motion in a criminal case.

Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. (Sec. 22)

Explain the Rules on Consolidation.

When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated
with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the
latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the
petition. (Sec. 23)

What are the interim reliefs available to the petitioner? When shall it be issued?

1. Temporary Protection Order (TPO). It is issued upon motion or motu proprio.

2. Inspection Order. Issued only upon verified motion and after due hearing.
3. Production Order. Issued only upon verified motion and after due hearing.
4. Witness Protection Order. Issued upon motion or motu proprio.

What are the grounds for opposition on the Production Order?

It is a matter of (1) National Security or (2) Privileged Information.

What are the interim reliefs available to the respondent?

The Inspection Order (Sec. 14) and Production Order (Sec. 15).

WRIT OF HABEAS DATA

(A.M. No. 08-1-16-SC)

What is a Writ of Habeas Data?

It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened
by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home and correspondence of
the aggrieved party (Sec. 1, A.M. No. 08-1-16-SC).

It is an independent and summary remedy designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to enforce ones right to the truth and to
informational privacy. It seeks to protect a persons right to control information regarding oneself, particularly
in instances in which such information is being collected through unlawful means in order to achieve unlawful
ends. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially
the right to informational privacy of individuals. The writ operates to protect a persons right to control
information regarding himself, particularly in the instances where such information is being collected through
unlawful means in order to achieve unlawful ends (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7,
2010).
Who may file the petition?