NOTES IN CIVIL PROCEDURE Dean Willard Riano (SSC-R Institute of Law)
- Lawsuits are neither inventions of the court nor of the judicial system. The system is in reality a passive entity. A court for example, while having jurisdiction over certain subject matters, does not on its own accord call on the parties to litigate between or among themselves. Even the rules of procedure on their own are mere mishmash of letters and words. They are just assortments of sentences and paragraphs, dormant and virtually lifeless. - Lawsuits actually originate from an individual, from one who feels aggrieved by the acts of another. A litigation arises because someone goes to court and seeks redress from it for a perceived wrong against his person or property. It is the individual who decides to start the litigation process and breaths life into the rules of procedure by invoking the jurisdiction of the court and when a lawsuit is commenced, the judicial machinery is activated, is infused with life and continues to grind until the dispute is resolved and the decision executed. - The material that follows presents the most basic aspects of the civil litigation process and does not pretend to be an exhaustive treatise of all the issues which may arise in all litigations. There are certain matters in the litigation process which suddenly occur in the course of the proceedings and which cannot be reasonably foreseen. Besides, there are topics which due to the demands of both scope and priorities have to be intentionally left out not being indispensable to the acquisition of the core knowledge required to pass the bar examinations and to start a career in trial practice. The other more complicated situations in remedial law would later automatically present themselves to the new lawyer as he acquires experience in the field. - Care has been taken to avoid the use of impenetrable legalese because emphasis has been made in bringing civil procedure to a more understandable and workable level. Topics in the Rules of Court have been rearranged to help the reader break free from an overly technical approach to the subject, release the mind from the "book mode" developed in law school and to approximate the application of procedural rules in both the bar examinations and the real world. Experience has told us fairly well that it is the ability to conceptualize the relationships among procedural rules,
- Whenever necessary, principles in substantive law have been included in the discussion of the topics found in this work so the reader may see the rules from a better perspective. Substantive law after all, constitutes the foundation of procedural law. - The concepts that follow represent the most fundamental stages in the civil litigation process. The mastery of these concepts will enable the reader to grasp the most essential procedural principles, to proceed to a higher level of understanding of those principles and consequently to help him demystify important aspects of remedial law, a subject traditionally but quite erroneously regarded as both abstract and difficult. I. Complaint - Both experience and common reason have taught us that before a person learns to walk, he should learn how to crawl and before he learns to run, he should learn how to walk. - Similarly, before one could appreciate the intricacies of remedial law, one has to start with its basics. These so-called basics are actually the elementary processes of ordinary civil actions. The student of remedial law has to know that an overwhelming majority of bar concepts most frequently tested during the past thirty years of bar examinations, involve the operations of ordinary civil actions. - As a starting point it must be emphasized that the rules of civil procedure will come into play only with the filing of a complaint or in some actions, a petition. Without a complaint being filed, said rules would simply be meaningless. It is the filing of a complaint that gives life to procedural rules and triggers their application. - The complaint is the first pleading filed with the court by a party called the plaintiff. The primary purpose of this pleading is to apprise the adverse party, called the defendant of the nature and the basis of the claim. A. Right of action and cause of action 1. A complaint is filed not because one simply wants to file a complaint. Also, the litigation process involves much more than the mere mechanical act of the drafting of a complaint and the filing of the same with the court. Before filing the complaint, the lawyer initially determines whether or not his client, the plaintiff has a cause of action against the defendant in accordance with the provisions of substantive law. An inquiry into substantive law is imperative because such law is the very basis of procedural law. This cause of action involves a right on the part of the plaintiff and a violation of this right by the defendant. Without a right and a violation of this right, there can be no cause of action.
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I. THE BASICS OF THE CIVIL LITIGATION PROCESS - A significant element of the Philippine judicial process is its employment of the adversarial system as an indispensable tool in dispute resolution. Under this system, the contending parties present before a court their conflicting versions of an occurrence by shaping both the facts, the issues and even the evidence to suit their perspectives, designs and strategies in accordance with a body of rules that provides the framework for the entire litigation process. This body of rules likewise not only guides the court in its determination of legal controversies but also prevents it from rendering arbitrary orders, resolutions and decisions. In this jurisdiction, these rules have been collectively called the Rules of Court.
which enables one to respond with ease to even the most cerebrally formulated questions in the bar. Although there are aspects of the Rules, in fact a substantial number of them, which have to be committed to memory, route memory has never been the key to success in the examinations in procedural law.
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CHAP. 1: FUNDAMENTAL CONCEPTS
B. Jurisdiction, venue and parties, prescription and conditions precedent 1. If a cause of action exists, the lawyer may now start considering the preparation of the complaint. But before doing so, he proceeds to determine the court that should take cognizance of the action. This involves an inquiry into the rules on jurisdiction because the plaintiff is left with no choice but to file his complaint in the court upon which the law has conferred jurisdiction over the subject matter of the action. Filing the complaint in the wrong court is a ground for a motu proprio dismissal of the same. - The counsel then goes on to determine the place where the action is to be filed. In procedural terms, this place is called the venue of the action. A complaint filed in the court with the appropriate jurisdiction runs the risk of being dismissed on motion if lodged in the wrong geographical area. - Counsel likewise ascertains whether or not his client, the plaintiff is a real party in interest. A plaintiff who claims to be one must sufficiently allege ownership of a right violated by the adverse party. Then he expands his analysis by determining those who are to be impleaded as defendants. This determination is vital because as a rule, a suit can be commenced only against one averred to have violated the plaintiff's rights. All these determinations mean that he sees to it that the rules on parties are complied with. In short, as a starting point, the lawyer meticulously pours over the principles governing actions, right of action, causes of action, jurisdiction, venue and parties. 2. The plaintiff, normally through his chosen counsel, thoroughly and carefully verifies from the substantive laws whether or not there still exists a sustainable cause of action by confronting himself with a fundamental question: Is the action barred by the statute of limitations? If it is, then the right of action has ceased. It has ceased because it has prescribed and prescription is one of the well-recognized grounds for the dismissal of a complaint, the same being a mode of extinguishment of a legal obligation. For example, under Art. 1144 of the Civil Code of the Philippines an action upon a written contract prescribes after ten (10) years from the accrual of the cause of action. Under Art. 1147 of the same Code, actions for forcible entry and unlawful detainer must be commenced within one (1) year from the accrual of the cause of action. Enshrined in the Rules is the dictum that when it appears from the pleadings or from the evidence on record that the action has prescribed, the court is mandated by the Rules to dismiss the claim. 3. If the action requires the performance of conditions precedent, then compliance with these conditions is imperative and cannot be conveniently ignored. Compliance is not sufficient. The compliance must likewise be alleged in the complaint. For instance, an action between or among individuals residing in the same barangay are generally
required to avail of the barangay conciliation proceedings before invoking judicial intervention. - There are also conditions precedents which actually constitute elements of the plaintiff's cause of action. An action for collection of a sum of money for example, must be preceded by a demand to pay pursuant to Art. 1169 of the Civil Code of the Philippines. An action for unlawful detainer predicated upon the non-payment of rentals must likewise come only after a demand upon the defendant to pay and to vacate the premises and such demand is not heeded by the latter. By virtue of the provisions of Art. 151 of the Family Code of the Philippines, actions between members of the same family must be preceded by attempts to have the controversy settled and compromised. Also, when there is a need to exhaust administrative remedies before judicial intervention is sought, then the plaintiff should allege and show compliance with this condition. C. Preparation of the complaint 1. The preparation of a complaint requires recognition and a mastery of certain principles. Most prominent among these is the rule that the complaint or any other pleading is not designed to be a narration of evidentiary matters but a statement only of the ultimate facts which constitute a party's claim or defense and which must be set forth in a methodical and logical form. Evidence has its own place in the trial, not in a pleading. 2. The complaint must specify the relief sought although the rule allows the addition of a general prayer for such other reliefs as the court may deem just or equitable. Although part of the complaint, the relief or prayer is not a part of the cause of action. The nature of the cause of action is determined by the allegations in the body of the complaint and not by the prayer. 3. The complaint must be dated. It must likewise be signed by the party or by the counsel representing him. Signing the complaint is mandatory because an unsigned pleading produces no legal effect. 4. When it is counsel who signs the pleading, this signature constitutes a certificate by him that he has read the pleading, that to the best of his knowledge, information and belief, there are good grounds to support it and that it is not interposed for delay. 5. The complaint must designate the address of the party or his counsel. This address cannot be a post-office box. 6. Should a complaint or any other pleading be verified or be under an oath? The general rule on the matter is that a pleading need not be verified unless a verification is specifically mandated by law or by a particular rule. For example, all pleadings under the Rules on Summary Procedure have to be verified.
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Without this cause of action there would be no right to file a suit against the defendant. This right to file a suit is called a right of action. The right of action which is procedural in character is the consequence of the violation of the right of the plaintiff. Hence, the rule: There is no right of action where there is no cause of action.
8. Depending upon the nature of the action, the plaintiff may avail of any of the provisional remedies provided for under the rules like preliminary attachment, preliminary injunction, receivership, replevin or support pendente lite. In an action for forcible entry for example, the plaintiff may ask for a writ of preliminary mandatory injunction to restore him in his possession during the pendency of the main case. - For example, in an action for collection of a sum of money, the plaintiff may, at the commencement of the action, apply for the issuance of a writ of preliminary attachment of the defendant's properties where it is shown that the defendant is about to depart from the Philippines with the intention of defrauding the plaintiff-creditor. This attachment is obtained to secure the judgment to avoid the sad spectacle of a winning party literally holding an empty bag because the sheriff cannot find properties of the obligor to satisfy the judgment. In an action for support, the resolution of which may possibly come only after a protracted litigation, the plaintiff may ask the court to order the defendant to give support to the plaintiff during the pendency of the action. This support is known in the Rules its support pendente lite. In an action for damages against an electric company which wrongly cut off the power supply to the plaintiff's factory, the latter may ask the court to issue a writ of preliminary mandatory injunction to restore power in the meantime that litigation on the damage suit is in progress. D. Filing of the complaint 1. After all those mentioned above have been considered and duly complied with, the complaint shall now be filed. The filing of the complaint is the act of presenting the same before the clerk of court. 2. The rule in this jurisdiction is that when an action is filed, the filing must be accompanied by the payment of the requisite docket and filing fees. The fees must be paid because as a rule, the court acquires jurisdiction over the case only upon payment of the prescribed fees. Without payment, the general rule is that the complaint is not considered filed. Payment of the full amount of the docket fee is mandatory and jurisdictional. This rule was however, relaxed by the Supreme Court when in one case, it allowed the payment of the fee within a reasonable time but not beyond the prescriptive period. If the fees are not paid at the time of the filing, the court acquires jurisdiction only upon full payment of the fees within a reasonable time as the court may grant, barring prescription. 3. Even on appeal, the general rule is that payment of docket fees within the prescribed period is mandatory for the perfection of the appeal although there are instances when the rule has been applied with liberality. It is wellestablished that the payment of docket fees within the prescribed period is mandatory for the perfection of an
appeal. This is so because a court acquires jurisdiction over the subject matter of the action only upon the payment of the correct amount of docket fees regardless of the actual date of filing of the case in court. 4. When the complaint is filed and the prescribed fees are paid, the action is deemed commenced. The court then acquires jurisdiction over the person of the plaintiff and the running of the prescriptive period for the action is tolled. E. Dismissal of the action by the plaintiff 1. Sometimes after filing the action, the plaintiff may have second thoughts over the filing of the complaint. For reasons personal or otherwise, he may entertain doubts as to the propriety of the filing of the action. In this case, he may dismiss his own complaint. If the dismissal is before the adverse party had served an answer or a motion for summary judgment, he may have his own complaint dismissed by the mere filing of a notice of dismissal. Upon such notice, the court shall issue an order confirming the dismissal. The dismissal by notice of dismissal is without prejudice to its being refiled, unless otherwise stated in the notice of dismissal or when the refiling is barred by what jurisprudence calls `the two-dismissal' rule. 2. After service of the answer or a motion for summary judgment, the plaintiff can no longer have his action dismissed by mere notice. The plaintiff must now file a motion to dismiss his complaint. The granting or the denial of the motion to dismiss is now a matter addressed to sound judicial discretion because this type of dismissal is no longer a matter of right. If the court allows the dismissal of the complaint, only the complaint is dismissed. A counterclaim already pleaded prior to the service upon the defendant of the motion for dismissal, is not affected and is without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. A dismissal under this rule, is deemed a dismissal without prejudice, unless otherwise stated in the order of the court. F. Amendment of the complaint 1. Instead of dismissing his complaint as explained in the immediately preceding paragraphs, it frequently happens that the plaintiff finds the need to amend his complaint. Amendment of his pleading is a matter of right as long as the said amendment is made before the other party has served a responsive pleading. So if the plaintiff desires to amend his complaint before the defendant serves his answer, the amendment may be done as a matter of right and the court has no discretion on the matter. In such a case, the amendment has to be accepted. If the court refuses to accept an amendment made as a matter of right, the court may be compelled to do so through the special civil action of mandamus. Note that an amendment made as a matter of right may, by the terms of the Rules, be made only once. 2. May the plaintiff amend his complaint as a matter of right even after a motion to dismiss has been served? He may. This is because a motion to dismiss is not a responsive pleading. Thus, his right to amend his complaint is not affected by the filing of the motion to dismiss. After a responsive pleading has been served, amendment must be by leave of court. This means that after the answer has been served, an amendment may be done only with the approval of the court. Example: A
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7. The complaint and other initiatory pleading must contain or be accompanied by a certification against forum shopping where the plaintiff or principal party certifies, among others, that he has not commenced any action or filed any claim involving the same issues in any other tribunal. Failure to comply with this requirement is a ground for the dismissal of the complaint upon motion and after a hearing.
3. Although existing jurisprudence adopts a liberal policy on amendments, the amendment may be refused if it appears to the court that the amendment is intended for delay. It may also be denied if the amendment is no longer a matter of right and the proposed amendment would result in a drastic change in the cause of action or defense or a change in the theory of the case. Also, when the court has no jurisdiction over the subject matter of the action and the amendment is for the purpose of conferring jurisdiction upon the court where the amendment is no longer a matter of right, the amendment shall not be allowed. In the latter case, since the court is without jurisdiction over the action, it has no jurisdiction to act on the motion for leave to amend. 4. An amendment may also arise by implication when issues not raised in the pleadings are tried with the express or implied consent of the parties as when no objection is interjected on the evidence offered on a matter not raised in the pleadings. When this occurs, the issues tried with the consent of the parties shall be treated as if they had been raised in the pleadings. The pleadings may then be amended to conform to the evidence although an actual amendment need not be made because failure to so amend the pleadings will not affect the result of the trial on said issues. II. Summons 1. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall issue the corresponding summons to the defendant directing him to file an answer to the complaint and that unless he does so, the court may render a judgment against him by default and grant to the plaintiff the relief applied for. Attached to the summons is a copy of the complaint. - The summons and a copy of the complaint are to be served upon the defendant in person but if the defendant cannot be served despite efforts to serve him in person, summons may be served by an alternative mode called substituted service. This consists in serving the summons at the residence of the defendant or his regular place of business with a person qualified to so receive the summons in accordance with the Rules. Subject to certain exceptions, the long standing rule is that summons by publication is not a recognized mode of service for the purpose of acquiring jurisdiction over the person of the defendant. 2. Recall that the filing of the complaint enables the court to acquire jurisdiction over the person of the plaintiff. This jurisdiction however, does not extend to the person of the defendant. It is the service of summons in actions requiring jurisdiction over the person of the defendant (in personam actions) which enables the court to acquire jurisdiction over the person of said defendant. The summons is a coercive process which places the person, even of the unwilling defendant, under the jurisdiction of the court. Service of summons likewise represents a compliance with the rule on notice, an essential element of constitutional due process.
3. Although the summons directs the defendant to file tin answer to the complaint, the defendant need not file an answer. There are other procedural options available to the defendant. For instance, if after reading the complaint, the defendant finds that because of the ambiguity in certain material allegations of the complaint he cannot possibly file an intelligent answer, he need not file his answer unless and until the alleged ambiguities are clarified by the plaintiff. These ambiguities may be sought to be clarified through a bill of particulars submitted by the plaintiff upon order of the court and procured by the adverse party by his filing of a motion for bill of particulars. It must be clarified that a motion for.bill of particulars is not solely directed to the complaint. Any other pleading may be the object of a motion for bill of particulars. 4. After the plaintifl'submits a bill of particulars which clarifies the ambiguities in the complaint, the defendant may now file his answer. If however, from the reading of the complaint, a solid basis exists for the immediate dismissal of the action, the defendant, instead of filing his answer, may opt to file a motion to dismiss. 5. There are numerous grounds for a motion to dismiss and these grounds must be invoked by filing the requisite motion. Normally, a court will wait for a party to file a motion to dismiss even if the ground for dismissal is known to it. For instance, unless the case is covered by the Rules on Summary Procedure, the court will and ought to refrain from dismissing a complaint on the ground of improper venue even if the venue is blatantly defective. Venue is a matter designed for the convenience of the parties and if no party complains about the venue, it is not for the court to take up the cudgels for them. There are however, grounds for dismissal which the court will recognize on its own motion. Lack ofjurisdiction over the subject matter of the action, litis pendencia, res judicata and prescription are reasons for the court to effect a motu proprio dismissal of the complaint whenever any of these grounds appears from the pleadings or from the evidence on record. III. Answer 1. If there exists no ground for a motion to dismiss or if the motion is rightfully denied, the defendant has to file his answer. The answer is the pleading which is the responsive pleading to the complaint. The answer gives notice to the plaintiff as to which allegations in the complaint he decides to contest and thus, put in issue. The answer contains both the negative and affirmative defenses of the defendant. 2. The filing of an answer is important. Failure of the defendant to file an answer will entitle the plaintiff to file a motion to declare the defendant in default. When he is declared in default the defendant loses his standing in court and the court may proceed to render judgment granting the plaintiff the relief as his complaint may warrant, unless in its discretion, the court requires the plaintiff to submit evidence on his claim. 3. The answer to the complaint must specifically deny the material averments of the complaint because material averments not specifically denied are deemed admitted. If the answer admits the material averments of the complaint,
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complaint was filed. The defendant served an answer to the complaint. The plaintiff now decides to amend his complaint. The amendment is no longer a matter of right because an answer has already been served by the defendant. The amendment would now require leave of court and the amendment has become a matter of judicial discretion.
the answer is deemed to have failed to tender an issue. Since there are no triable issues, a trial is completely unnecessary. The plaintiff may then file a motion for a judgment on the pleadings and the court may direct a judgment based on the pleadings already filed.
file a reply does not have the same consequence. The failure to file a reply will not likewise result in the implied admission of the material allegations in the answer because allegations of new matters in the answer even if not replied to, are deemed controverted or denied.
4. A judgment on the pleadings is not to be confused with a summary judgment. A judgment on the pleadings is rendered because, as disclosed by the pleadings, there is no issue in the case either because the answer fails to tender an issue or because it admits the material allegations of the complaint. A judgment on the pleadings is based, just as the name tells us, on the pleadings of the parties. A summary judgment is based not only on the pleadings of the parties but also on their affidavits, depositions or admissions. The basis of a summary judgment is not the absence of an issue but the absence of a genuine issue in the case. Where there is an issue in the case but the issue does not concern any material fact, as when the issue is merely the amount of damages, there is no genuine issue and a summary judgment is proper.
9. Recall also that a person not a party to the original action may be impleaded by an original party and brought into the action through a pleading called a third-party complaint. Now, what if a person not a party to the complaint, on his own accord and volition wants to be a party to the action, with no party impleading him as a defendant through a thirdparty complaint? How could this be procedurally possible? There are provisions in the Rules that adequately meet this kind of situation. This is made possible through a process called intervention. Under the Rules, if at any time before judgment, a person not a party to the action believes that he has a legal interest in the matter in litigation in a case in which he is not a party, he may, with leave of court, file a complaint-inintervention in the action if he asserts a claim against one or all of the parties. On the other hand, if he unites with the defending party in resisting a claim against said party, he may file an answer-in-intervention.
6. There are instances when two or more defendants are named in a complaint. It also happens that one defendant has a claim against his co-defendant, a claim arising out of the transaction or occurrence which is the subject matter of the complaint. The claiming defendant may then in his answer, interpose a pleading against his co-defendant. This pleading is known as a cross-claim. This is a pleading containing the claim by one party against a co-party. Thus, if P files an action for a sum of money against A and B,A may file a cross-claim against B, his co-defendant. If A files a claim against P, such claim is called a counterclaim, not a cross-claim. 7. There are also cases when a defendant named in the complaint, has a cause of action against one who is not a party to the action. This cause of action is a claim against the third person either for contribution, indemnity, subrogation or any other relief in respect of the plaintiff's claim. The defendant may bring in the third person into the suit and implead him as a party by filing, with leave of court, a third-party complaint against him, thus making him a party to the action. 8. Recall that the defendant files an answer to the complaint. This answer is the responsive pleading to the complaint. May the plaintiff likewise make his own response to the answer? The plaintiff' can. Upon receipt of the answer of the defendant, the plaintiff may respond to the answer. This response is done through a pleading called a reply. The purpose of a reply is to deny or allege facts in denial or avoidance of new matters alleged in the answer. It is the plaintiff's responsive pleading to the answer of the defendant to the complaint. Note however, that a reply, unlike the answer is not a compulsory pleading. While the failure to file an answer may lead to a declaration of default, the failure to
IV. Pre-trial 1. After the last pleading has been served and filed, it is the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. A pre-trial is mandatory and failure to appear by either party will result in adverse consequences for the absent party. In a pre-trial, the parties shall, among others, consider the possibility of an amicable settlement or submission of the case to alternative modes of dispute resolution. 2. During the pre-trial stage and generally at any time before trial, the parties may obtain information from each other through the employment of devices collectively known as discovery procedures. Thus, a party may avail of the various modes of discovery like depositions, interrogatories to parties, request for admission, production and inspection of documents, and physical and mental examinations of persons. V. Trial - Should there be no amicable settlement or a compromise forged between the parties, the case will be set for trial. During the trial, the parties present their evidences on their claims and defenses. The plaintiff presents his evidence first. After he rests his case the defendant will present his own evidence. However, if the defendant believes that upon the facts and the law, the plaintiff' is not entitled to relief, he may, instead of presenting his own evidence, move for the dismissal of the case. He does so by way of a demurrer to evidence. If the demurrer is denied, the defendant still has the right to present his evidence. If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence. VI. Judgment 1. A judgment is rendered after the submission of the evidences of the parties has been concluded. It is the decision of the court and represents its official determination
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5. It happens frequently enough that the defendant has his own claim against the plaintiff. When the defendant files his answer to the complaint, said answer may be coupled with a counterclaim, which is a pleading in its own right. It is a pleading which sets forth a claim which a defending party may have against an opposing party. A counterclaim is always directed against an opposing party.
2. There is no oral judgment under the Rules. It has to be in writing personally and directly prepared by the judge, stating clearly the facts and the law on which it is based, signed by him, and filed with the clerk of court. 3. Central to the concept of a judgment is the date of entry of the judgment which under current procedure should also be the date of the finality of the judgment. The date of entry of the judgment finds relevance when the judgment is to be executed or when later on a litigant files a petition for relief from judgment. VII. Post judgment remedies 1. The judgment will declare inevitably that a party wins and a party loses the litigation. The judgment is not the end for the losing party because he is afforded remedies against the adverse judgment. These remedies may be categorized into (a) remedies before the judgment becomes final and executory, and (b) remedies after the judgment becomes final and executory.
- The following limitations are imposed by the constitution on the rule-making power of the Supreme Court: (a) The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases; (b) The rules shall be uniform for courts of the same grade; and (c) The rules shall not diminish, increase, or modify substantive rights (Sec. 5[5], Art. VIII, Constitution of the Philippines). III. Legislative power and the rule-making power of the Supreme Court 1. The 1973 Constitution empowered the then Batasang Pambansa to repeal, alter or supplement the Rules promulgated by the Supreme Court concerning pleading, practice and procedure (Sec. 5[51, Art. X, 1973 Constitution). This provision however, no longer appears in the 1987 Constitution. Should the silence of the 1987 Constitution on the subject be construed as a bar on Congress to exercise the power it had under the 1973 Constitution?
2. Before the judgment becomes final and executory the aggrieved party may file (a) a motion for reconsideration, (b) a motion for new trial, or (c) an appeal.
2. Arguments that weigh in favor of the congressional power to repeal, alter, or supplement existing procedural rules laid down by the Supreme Court normally invoke the plenary power of Congress to legislate which accordingly must include the power to legislate on pleading, practice and procedure.
3. After the judgment becomes final and executory, a party may no longer appeal because the period for appeal has already lapsed. The judgment has become final and executory and the prevailing party may, at anytime within five years from its entry, file a motion for the execution of the judgment rendered in his favor. The losing partypay however, avail of extraordinary remedies at this stage like (a) a petition for relief, (b) an action to annul the judgment, or even (c) certiorari. Depending upon the circumstances as when the nullity of the judgment is plain and evident on its face, he may be allowed to attack the judgment collaterally.
3. Reference is often made to the Transitory Provisions of the 1987 Constitution (Sec. 10, Art. XVIII) to support the opinion that the power to promulgate rules of procedure is not intended by the fundamental law to be the sole prerogative of the Supreme Court but is a power shared with Congress. The provision reads: " * * * The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with the Constitution shall remain operative unless amended or repealed by the Supreme Court or Congress" (Italics supplied).
VIII. Execution - When all the remedies available to a party have been exhausted and the case is finally decided, the judgment of the court shall then be subject to execution. This is the remedy afforded by procedural rules for the enforcement of the judgment. It is the fruit as well as the end of the action.
4. It has been observed that Congress has not inhibited itself from enacting laws involving matters of procedure even after the effectivity of the 1987 Constitution. For example, Republic Act 7438 (Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation), provides procedural rules on the conduct of custodial investigation, on the waiver of the right to counsel and on the making of extrajudicial confessions. Republic Act 6981 (Witness Protection, Security and Benefit Act) lays down the procedure for admission into the program. Republic Act 8493 (Speedy Trial Act of 1998) contains rules on criminal procedure which have the effect of either amending or supplementing existing rules. Pursuant to said law and in order to accelerate the disposition of criminal cases, the Supreme Court subsequently issued Circular No. 39-38 which took effect on September 15, 1998.
- Postscript: At the end of this material is a discussion on actions known under the Rules as special civil actions and are socalled because although they are governed by the rules for ordinary civil actions, there are special rules applicable only to them. II. POWERS OF THE SUPREME COURT I. Rule-making power of the Supreme Court - The Supreme Court has the constitutional power to promulgate rules concerning pleading, practice and procedure (Sec. 5[5], Art. VIII, Constitution of the Philippines). II. Limitations on the rule-making power of the Supreme Court
5. It is of interest to note that the Supreme Court has gravitated towards an interpretation favoring the view that the rule-making power of the Court concerning pleading, practice and procedure is no longer shared with Congress. Although it may be argued that the pronouncements by the Court on the subject are mere obiter dicta and thus, have no doctrinal value, the same unmistakably disclose the Court's
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of the respective rights and obligations of the parties to the case.
- In a case of more recent vintage, the Court, in describing its rule-making power opined: "It has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases (Neypes vs.Court ofAppeals, 469 SCRA 633, 643-644; Italics supplied). IV. Liberal construction of the Rules of Court (Bar 1998) 1. The Rules of Court are to be liberally construed ii order to promote their objective of securing a just, speedy, an( inexpensive disposition of every action or proceeding (Sec. 6 Rule 1, Rules of Court). The emerging trend in the rulings o the Supreme Court is to afford every party litigant the amples opportunity for the proper and just determination of his cause free from the constraints of technicalities. Time and again, the Highest Tribunal has consistently held that rules must not be applied rigidly so as not to override substantial justice because rules of procedure must be used to facilitate, not to frustrate justice. 2. Liberal construction of the rules has been allowed by the Supreme Court in cases (1) where a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein; (2) where the interest of substantial justice will be served; (3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate to the degree of his thoughtlessness in not complying with the procedure prescribed. 3. The rigid application of the Rules may be relaxed so that the ends of justice may be better served. However, such liberality may not be invoked if it would result in the wanton disregard of the rules, and cause needless delay. Save for the most persuasive of reasons, strict compliance with the Rules is enjoined to facilitate the orderly administration of justice.
4. The rule on liberal construction does not mean that procedural rules are to be ignored or disdained at will to suit the convenience of a party. Procedural law has its own rationale in the orderly administration of justice, namely, to ensure the effective enforcement of substantive rights by providing for a system that obviates arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes. 5. "The `liberal construction rule' is not a license to violate procedural requirements. Procedural rules are designed to facilitate the adjudication of cases. Courts and litigants alike are enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this, we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.” Concomitant to a procedure adopting a liberal application of the rules should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules. Illustration (Bar 1998) 1. xxx 2. How shall the Rules of Court be construed? Suggested answer: The Rules of Court shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding (Sec. 6, Rule 1, Rules of Court). V. Power of the Supreme Court to suspend its own rules 1. The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts. 2. There are, indeed, reasons which would warrant the suspension of the Rules: (a) the existence of special or compelling circumstances; (b) the merits of the case; (c) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of rules; (d) a lack of any showing that the review sought is merely frivolous and dilatory; and (e) the other party will not be unjustly prejudiced thereby. 3. While the rules may be relaxed or even suspended by the Supreme Court, it will only do so for persuasive and weighty reasons as to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure and the mere invocation of substantial justice is not a magical incantation that will automatically compel the Court to suspend procedural rules.
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leanings. The following pronouncements of the Court are instructive: " * * * The rule-making power of this Court has expanded. This Court for the first time, was given the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most important, the 1987 Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the executive * * *" (Echegaray us. Secretary of Justice, 301 SCRA 96, 112; Italics supplied).
5. Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to the parties' substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons as when "transcendental matters" of life, liberty or state security are involved. Litigation is not a game of technicalities. It is equally true, however, that every case must be presented in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice. 6. The rule on suspension of the rules of procedure is aptly described in one case, thus: " * * * compliance with the procedural rules is the general rule, and abandonment thereof should only be done in the most exceptional circumstances" VI. Power to amend the rules - The constitutional power of the Supreme Court to promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. Power to stay proceedings and control its processes 1. The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its dockets, considering its time and effort, and that of counsel and the litigants. But if proceedings must be stayed, it must be done in order to avoid multiplicity of suits and prevent vexatious litigations, conflicting judgments, confusion between litigants and courts 2. The inherent power of a court to amend and control its processes and orders includes the right to reverse itself if only to make its findings and conclusions conformable to law and justice. Every court has the power and the corresponding duty to review, amend or reverse its findings and conclusions whenever its attention is seasonably called to any error or defect that it may have committed. III. THE RULES OF COURT I. The procedural rules under the Rules of Court are not laws - The Rules of Court as a whole, constitutes the body of rules governing pleading, practice and procedure. As they do not originate from the legislature, they cannot be called laws in the strict sense of the word. However, since they are promulgated by authority of law, they have the force and effect of law if not in conflict with positive law. The Rules are subordinate to statute, and in case of conflict, the statute will prevail. II. Substantive law distinguished from remedial law (Bar 2005)
- Substantive law creates, defines and regulates rights and duties concerning life, liberty or property which when violated gives rise to a cause of action. - Remedial law prescribes the methods of enforcing those rights and obligations created by substantive law by providing a procedural system for obtaining redress for the invasion of rights and violations of duties and by prescribing rules as to how suits are filed, tried and decided upon by the courts. III. Prospective effect of the Rules of Court - The Rules of Court are not penal laws and are not to be given retroactive effect and are to govern cases brought after they take effect, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former rule shall apply (Rule 144, Rules of Court). IV. Applicability to pending actions; retroactivity 1. Rules of procedure however, may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. As a general rule, the retroactive application of procedural laws cannot be considered violative of any personal rights because no vested right may attach to nor arise therefrom. The rules are retroactive only in this sense. 2. For example, the Court applied to pending actions, a new rule, promulgated through a case which standardized the period for appeal by allowing a `fresh period' of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Said the Court: "xxx In the light of this decision, a party litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent" (First Aqua Traders, Inc. vs. Bank of the Philippine Islands, GR. No. 154034, February 5, 2007). V. When procedural rules do not apply to pending actions - While a procedural rule may be made applicable to actions pending and undetermined at the time of their passage and is retroactive in that sense, the rule does not apply: (a) where the statute itself or by necessary implication provides that pending actions are excepted from its operation; (b) if applying the rule to pending proceedings would impair vested rights; (c) when to do so would not be feasible or would work injustice; or (d) if doing so would involve intricate problems of due process or impair the independence of the courts. VI. Applicable actions or proceedings - The Rules apply to civil actions, criminal actions and special proceedings (Sec. 3, Rule 1, Rules of Court). The Rules shall also apply in all courts, except as otherwise provided by the Supreme Court (Sec. 2, Rule 1, Rules of Court).
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4. Technical rules may be suspended whenever the purposes of justice warrant it, such as where substantial and important issues await resolution because the courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts.
2. As a rule, affidavits are hearsay but the argument that the affidavits attached to the case are hearsay because the affiants were not presented in court for cross-examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only. Rules that prevail in judicial proceedings are not controlling before the labor arbiter and the NLRC. Technicalities have no room in labor cases where the Rules of Court are applied only in a suppletory manner and only to effectuate the objectives of the Labor Code and not to defeat them. - Labor disputes are not governed by the strict and technical rules of evidence and procedure observed in the regular courts of] aw. Technical rules of procedure are not applicable in labor cases, but may apply only by analogy or in a suppletory character, for instance, when there is a need to attain substantial justice and an expeditious, practical and convenient solution to a labor problem. - A reliance on the technical rules of evidence in labor cases is misplaced. To apply the concept of judicial admissions in such cases is to exact compliance with technicalities contrary to the demands of substantial justice. 3. In one case, the petitioner contends that under Sec. 34, Rule 132 of the Rules of Court, only evidence which has been formally offered shall be considered by the court. Under this rule, a formal-offer of evidence is made in the trial court and not for the first time in the appellate court. The contention however, of the petitioner that the Court of Appeals erred in deciding against his petition on the basis of documentary evidences presented only for the first time on appeal and which do not form part of the records of the trial court, is not tenable. The rule on formal offer of evidence is not applicable to a case involving a petition for naturalization. 4. In one case, the petitioner contended that under Sec. 34, Rule 132 of the Rules of Court, only evidence which has been formally offered shall be considered by the court. Under this rule, a formal offer of evidence is made in the trial court and not for the first time in the appellate court. The contention however, of the petitioner that the Court of Appeals erred in deciding against his petition on the basis of documentary evidences presented only for the first time on appeal and which do not form part of the records of the trial court, was ruled by the Supreme Court as bereft of merit. The rule on formal offer of evidence is not applicable to a case involving a petition for naturalization. 5. Administrative bodies are not bound by the technical niceties of the rules obtaining in a court of law. Hence,
administrative due process cannot be fully equated with due process in strict judicial terms. It is settled that rules of procedure are, as a matter of course, construed liberally in proceedings before administrative bodies. Thus, technical rules of procedure imposed in judicial proceedings are unavailing in cases before administrative bodies. Administrative bodies are not bound by the technical niceties of law and procedure and the rules obtaining in the courts of law. Rules of procedure are not to be applied in a very rigid and technical manner, as they are used only to help secure and not to override substantial justice. VIII. Scope of civil procedure - Civil procedure includes: (a) ordinary civil actions (Rules 1-56); (b) provisional remedies (Rules 57-61); and (c) special civil actions (Rules 62-71). IV. NATURE OF PHILIPPINE COURTS I. Courts of law and equity - Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal. II. Application of equity; equity jurisdiction 1. Equity administers justice according to the basic tenets of fairness. Equity denotes a concept of fairness, justness and right dealing among men (Blacks, 5th Ed., 540). Equity seeks to reach and to do complete justice where the courts of law are incompetent to do so because of the inflexibility of the rules and the lack of power to adapt their judgments to the special circumstances of cases. Equity regards the spirit of the law and not its letter, the intent and not the form, the substance rather than the circumstance. 2. Equity however, is not to be applied in all cases. Equity does not apply when there is a law applicable to a given case. For all its conceded merits, equity is available only in the absence of law and not as replacement. It cannot supplant, although it may, as it often happens, supplement the law. It is availed of only in the absence of a law and is never availed of against statutory law or judicial pronouncements. 3. In one case, the petitioner, upon sensing the inadequacy of her legal arguments pleaded that "those who have less in life should have more in law" She also sought the application of the Filipino values of pakikisama and pakikipagkapwa tao in resolving her case. In reaction to her plea, the Court declared: "Such appeal of petitioner is based on equity which has been aptly described as `justice outside legality'. However, equity is applied only in the absence of, and never against, statutory law or judicial rules of procedure. As found by respondent court * * * such equitable arguments cannot prevail over the legal findings" 4. In an action to annul a contract of sale of a land, the buyer moved for the court to order the seller to deposit in court the amount initially given to the seller as consideration for the land to prevent the dissipation of the amount paid. The seller opposed the motion arguing that a deposit is not
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VII. Inapplicable actions or proceedings 1. The Rules of Court shall not apply to: (a) election cases, (b) land registration cases, (c) cadastral cases, (d) naturalization cases, and (e) insolvency proceedings except by analogy or in a suppletory character and whenever practicable and convenient (Sec. 4, Rule 1, Rules of Court).
5. The various rulings of the court indicate that the term equity jurisdiction is used to describe the power of the court to resolve issues presented in a case in accordance with the natural rules of fairness and justice in the absence of a clear, positive law governing such issues. III. Principle of judicial hierarchy 1. The judicial system follows a ladderized scheme which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Specifically, under a judicial policy recognizing the hierarchy of courts, a higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. Thus, while it is true that the issuance of a writ of prohibition under Rule 65 of the Rules of Court is within the jurisdiction of the Supreme Court, a petitioner cannot seek relief from the Supreme Court where the issuance of such writ is also within the competence of the Regional Trial Court or the Court of Appeals. The Supreme Court is a court of last resort. It cannot and should not be burdened with the task of deciding cases in the first instance. Its jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist. 2. This is an established policy necessary to avoid inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court's docket. 3. The following rulings are enlightening: "The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefore. Where the issuance of an extraordinary writ is also within the competence of the Court ofAppeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ's procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. "This concurrence of jurisdiction among the Supreme Court, Court of Appeals and Regional Trial Courts in certain cases should not be construed as giving to parties
unrestrained freedom of choice of the court to which application therefore will be directed. There is a principle of hierarchy of courts to be followed. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket." IV. When the doctrine of hierarchy of courts may be disregarded - The Supreme Court however, may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations. Under the principle of liberal interpretation, it may, for example, take cognizance of a petition for certiorari directly filed before it. The Supreme Court has, in not a few cases, suspended its own rules and excepted a particular case from their operation whenever the interests of justice so require (Declarador vs. Bansales, G.R. No. 159208, August 18, 2006). But a direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition (Lim vs. Vianzon, G.R. No. 137187, August 3, 2006) such as cases of national interest and of serious implications, justify the availment of the extraordinary remedy of writ of certiorari, prohibition, or mandamus calling for the exercise of its primary jurisdiction. - The following pronouncements emphatically sum up the rule: A direct recourse of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. V. Doctrine of non-interference or doctrine of judicial stability 1. This principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other's orders. Hence, a Regional Trial Court has no power or authority to nullify or enjoin the enforcement of a writ of possession issued by another Regional Trial Court. The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review. 2. The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an ` appeal from the decision of an administrative body to the Supreme Court or Court of Appeals, it means that such body is co-equal with the Regional Trial Court in terms of rank and stature, and logically beyond the control of the latter. VI. Constitutional and statutory courts
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among the provisional remedies enumerated in the Rules of Court. The Court nevertheless granted the motion. The Court considered the case as one that clearly showed a hiatus in the Rules of Court and in the law because deposit is not so provided under the Rules as a provisional remedy. If the hiatus is left alone, it will result in unjust enrichment in favor of the seller at the expense of the buyer. It may also imperil the obligation of restitution, a precondition to the annulment of a contract. This is a case of insufficiency of the law and Article 9 of the Civil Code mandates a ruling despite the "silence, obscurity or insufficiency of the laws." This calls for the application of equity, which fills the open spaces of the law. In ordering the deposit, the court accordingly exercised its "equity jurisdiction"
2. A statutory court is one created by a law other than the Constitution. All courts in the Philippines except the Supreme Court, are statutory courts. They have been created by statutory enactments. The Sandiganbayan is not a constitutionally created court. It was not directly created by the Constitution but was created by law pursuant to a constitutional mandate. The 1973 constitution required the then Batasang Pambansa to create a special court to be known as the Sandiganbayan (Sec. 5, Art. XIII, 1973 Constitution) and its existence continues to be recognized by the 1987 Constitution. While its existence is mandated by the Constitution, its creation was through and by Presidential Decree 1486, issued by President Ferdinand E. Marcos pursuant to his legislative powers under Amendment No. 6 of the 1973 Philippine Constitution. VII. Civil and criminal courts 1. Civil courts are those which determine controversies between private persons. Criminal courts are those which adjudicate offenses alleged to have been committed against the state. 2. Philippine courts exercise both civil and criminal jurisdictions. VIII. Courts of record and courts not of record 1. `Courts of record' are those which keep a written account of its proceedings. Those courts which are not bound to keep such records are `courts not of record'. 2. One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collateraly attacked except for fraud.
all cases, civil and criminal, of a particular nature. Courts of special (limited) jurisdiction are those which have only a special jurisdiction for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind. 2. A court may also be considered `general' if it has the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions (Sec. 19[6], Sec. 20, BP 129, Judiciary Reorganization Act of 1980). It is in this context that the Regional Trial Court is considered a court of general jurisdiction. XI. Courts of original and appellate jurisdiction 1. A court is one with original jurisdiction when actions or proceedings are original filed with it. A court is one with appellate jurisdiction when it has the power of review over the decisions or orders of a lower court. 2. Metropolitan Trial Courts, Municipal Circuit Trial Courts and Municipal Trial Courts are courts of original jurisdiction. These courts have no appellate jurisdiction. The Regional Trial Court is likewise a court of original jurisdiction with respect to cases originally filed with it. It is also a court of appellate jurisdiction with respect to cases decided by the Municipal Trial Courts within its territorial jurisdiction (Sec. 22, BP 129). 3. The Court of Appeals is primarily a court of appellate jurisdiction with competence to review judgments of the Regional Trial Courts and specified quasi judicial agencies (Sec.9[3], BP 129). It also is a court of original jurisdiction with respect to cases filed before it involving issuance of writs of certiorari, mandamus, quo warranto, habeas corpus, and prohibition. It is also a court of original jurisdiction (and exclusive) over notions for annulment of judgments of Regional trial Courts (Sec. 9111(2_1, BP 129).
4. All Philippine courts, including inferior courts, are now courts of record (R.A. 2613).
4. The Supreme Court is also fundamentally a court of appellate jurisdiction but it may also be a court of original jurisdiction over cases affecting ambassadors, public ministers and consuls, and in cases involving petitions for certiorari, prohibition and mandamus (Sec. 5[11, Art. VIII, Constitution of the Philippines). Note: The Supreme Court en banc is not an appellate court to which decisions or resolutions of a division of the Supreme Court may be appealed (Bar 1990).
IX. Superior and inferior courts 1. In the general sense, a court is `superior or `inferior' in relation to another court. Hence, a Municipal Trial Court is inferior to a Regional Trial Court while the latter is inferior to the Court of Appeals. All courts in the Philippines are inferior to the Supreme Court.
XII. Original and exclusive jurisdiction distinguished 1. Original jurisdiction means jurisdiction to take cognizance of a cause at its inception, try it and pass judgment upon the law and facts, while exclusive jurisdiction precludes the idea of co-existence and refers to jurisdiction possessed to the exclusion of others.
2. A superior court is one with controlling authority over other courts, and with an original jurisdiction of its own. An inferior court is one which is subordinate to another court the judgment of which may be reviewed by a higher tribunal.
2. A court may be conferred both original and exclusive jurisdiction over a particular subject matter. Examples: (a) The Municipal Trial Court has exclusive original jurisdiction over cases of forcible entry and unlawful detainer (Sec. 33[21, BP 129, as amended); (b) The Regional Trial Court has exclusive original jurisdiction over all civil actions in which the subject matter of the litigation is incapable of pecuniary estimation (Sec. 19[1], BP 129, as amended); (c) The Court of
3. The test that is entitled to considerable weight in determining whether or not a court is one of record is whether the legislature creating the court has or has not declared it to be a court of record.
X. Courts of general and special jurisdiction 1. Courts of general jurisdiction are those with competence to decide on their own jurisdiction and to take cognizance of
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1. A constitutional court is one created by a direct Constitutional provision. Example of this court is the Supreme Court of the Philippines. It owes its creation from the Constitution itself (Sec. 1, Art. VIII, Constitution of the Philippines). In the Philippines, only the Supreme Court is a constitutional court.
XIII. Concurrent jurisdiction 1. This type of jurisdiction also called `coordinate' jurisdiction, is the power of different courts to take cognizance of the same subject matter. Where there is concurrent jurisdiction, the court first taking cognizance of the case assumes jurisdiction to the exclusion of the other courts. - Examples: (a) The Supreme Court has concurrent original jurisdiction with Regional Trial Courts in cases affecting ambassadors, other public ministers and consuls (Art. VIII, Sec. 5, Constitution of the Philippines; Sec. 21[21, BP 129); (b) The Supreme Court has concurrent original jurisdiction with the Court ofAppeals in petitions for certiorari, prohibition and mandamus against the Regional Trial Courts (Art. VIII, Sec. 5, Constitution of the Philippines; Sec. 9[11, BP 129); (c) The Supreme Court has concurrent original jurisdiction with the Court of Appeals and the Regional Trial Courts in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto and habeas corpus (Art. VIII, Sec. 5, Constitution of the Philippines; Sec. 9[11, BP 129; Sec. 21[21, BP 129). 2. The concurrent jurisdiction among courts of different ranks is subject to the doctrine of hierarchy of courts. For example, while it is true that the original jurisdiction of the Supreme Court to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction is concurrent with or shared by the Supreme Court with the Regional Trial Courts and the Court of Appeals, a direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition (Lim vs. Vianzon, G.R. No. 137187, August 3, 2006). The rule simply means that the petition must, as a rule, be filed first with the court of the lowest rank unless there are special countervailing reasons justifying its filing in the first instance with a higher court. XIV. Meaning of `court' > court - an organ of government belonging to the judicial department the function of which is the application of the laws to controversies brought before it as well as the public administration of justice (Black's, 5th Edition, 356). A court is called upon and authorized to administer justice. Sometimes it refers to the place where justice is administered XV. Court distinguished from a judge - Although the terms have often been erroneously used interchangeably, they have the following marked distinctions: Court Judge a. a tribunal officially a. simply an officer of such assembled under authority of tribunal
law; b. an organ of the government (Black's, 5th Edition 318) with a personality separate and distinct from the person or judge who sits on it c. a being in imagination c. a physical person. comparable to a corporation d. may be considered an d. a public officer office. e. The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge my resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court. XVI. Katarungang :Pambarangay Law (Sacs. 399-422, Chapter 7, Title One, Book III, R.A. 7160) 1. The proceedings before the Lupong Tagapamayapa or the Pangkat ng Tagapagkasundo of the Barangay are not judicial proceedings. Legally, there is no barangay court. The Lupon and the Pangkat do not have inherent adjudicatory powers. They resolve disputes or attempt to do so through mediation and conciliation. Any adjudicatory power exercised by any of these bodies must be agreed upon by the parties in writing. Such agreement may involve their willingness to abide by any arbitral award given by the Lupon or the Pangkat (Sec. 413, Chapter 7, Title One, Book III, R.A 7160). 2. The primordial aim of the Katarungang Pambarangay Law is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. XVII. Initiation of proceedings 1. Upon payment of the appropriate filing fee, any individual who has a cause of action against another individual involving any matter within the authority of the Lupon may complain, orally or in writing to the chairman of the Lupon (Sec. 410[a], R.A. 7160). The chairman of the Lupon is the Punong Barangay (Sec. 399, R.A. 7160). The fact that the complaint was addressed to the barangay captain is of no moment because he is the chairman of the Lupong Tagapamayapa. 2. Upon receipt of the complaint, the chairman shall summon the respondents within the next working day to appear. If the chairman fails in his mediation efforts within fifteen (15) days from the first meeting, he shall set a date to constitute the Pangkat Tagapagkasundo (Sec. 410[b], R.A. 7160). XVIII. Personal appearance of parties - The parties must appear in person in all Katarungang Pambarangay proceedings and without the assistance of counsel or representatives, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers (Sec. 415, R.A. 7160; Magno vs. VelaascoJacoba, 475 SCRA 584; Bar 1999). XIX. Parties to the proceedings - Only individuals shall be parties to the proceedings either as complainants and respondents. Hence, no complaint by or against corporations, partnerships or other juridical entities
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Appeals has exclusive original jurisdiction over actions for annulment of judgments of the Regional Trial Court (Sec. 9[2], BP 129, as amended).
XX. Subject matters for settlement - The general rule declares that all disputes may be the subject of the barangay proceedings for amicable settlement, except the following: (a) Where one party is the government, or any subdivision or instrumentality thereof; (b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; (c) Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine exceeding five thousand pesos (P5,000.00); (d) Offenses where there is no private offended party; (e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; (f) Disputes involving parties who actually reside in different barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon. Note: Where the parties are not actual residents in the same city or municipality or adjoining Barangays, there is no mandatory requirement for them to submit their dispute to the Lupon. (g) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. XXI. Referral to the Lupon by the court - The court in which a non-criminal case is filed may motu proprio refer the case, at any time before trial, to the Lupon concerned for amicable settlement, the foregoing rules notwithstanding and even if the case does not fall within the authority of the Lupon (Sec. 1, Rule VI, Katarungang Pambarangay Rules, Sec. 408, R.A. 7160). XXII. Form of settlement - All amicable settlements shall be in writing, in a language or dialect known to the parties, signed by them and attested to by the lupon chairman or the pangkat chairman, as the case may be (Sec. 411, R.A. 7160). XXIII. Effect of amicable settlement and award 1. The amicable settlement and arbitration award shall have the effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court (Sec. 416, R.A. 7160). 2. Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence or intimidation (Sec. 419, R.A. 7160). Failure to repudiate the settlement within the ten-day period shall be deemed a waiver of the right to challenge the settlement on said grounds (Sec. 14, Rule VI, Katarungang Pambarangay Rules). XXIV. Execution of award or settlement
1. Execution shall issue upon the expiration of ten (10) days from date of settlement or receipt of award (Sec. 1, Rule VII, Katarungang Pambarangay Rules). 2. The amicable settlement or award may be enforced by execution by the Lupon within six (6) months from date of the settlement of the settlement or date of receipt of the award or from the date the obligation stipulated or adjudged in the settlement becomes due and demandable. After the lapse of such time, the settlement or award may be enforced by the appropriate local court pursuant to the applicable provisions of the Rules of Court (Sec. 1, Rule VII, Katarungang Pambarangay Rules). The time line of six months should be computed from the date of settlement. 3. The disputants may file a motion with the Punong Barangay, copy furnished to the other disputants, for the execution of a final settlement or award which has not been complied with (Sec. 3, Rule VII, Katarungang Pambarangay Rules). XXV. Importance of barangay conciliation proceedings 1. The absence of a prior recourse to the barangay mediation and conciliation machinery when required by law, bars the filing of the criminal or civil action in court. 2. "No complaint, petition, action, or proceeding involving any matter within the authority of the Lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the Lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the Lupon secretary or pangkat secretary as attested to by the Lupon or Pangkat chairman or unless the settlement has been repudiated" (Sec. 412, R.A. 7160; Zamora vs. Heirs of lzquierdo, 443 SCRA 224). - The repudiation shall be sufficient basis for the issuance of the certification for filing a complaint (Sec. 418, R.A. 7160). 3. Under the Rules on Summary Procedure, a motion to dismiss may be filed on the ground of the failure to undergo the barangay conciliation proceedings (Sec. 19[a], Rules on Summary Procedure). Under Sec. 18 of the same Rule, "Cases requiring referral to the Lupon for conciliation * * * where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with * * *." - Under Sec. 1(j) of Rule 16 a motion to dismiss a civil complaint may likewise be filed if a condition precedent to the filing of an action is not complied with. 4. The conciliation proceedings required is not a jurisdictional requirement because the failure to have prior recourse to it does not deprive the court of its jurisdiction. Prior to the amendment of the Rules, the ground for dismissal of a civil complaint is not lack of jurisdiction but failure to state a cause of action or prematurity. The proper ground to be invoked since July 1, 1997, the date when the amendment to the Rules took effect, should be: "That a condition precedent for filing the claim has not been complied with" (Sec. 101, Rule 16, Rules of Court).
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shall be filed, received or acted upon (Sec. 1, Rule VI, Katarungang Pambarangay Rules).
I. Nature of pleadings - Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6, Rules of Court). Under the Rules of Court, pleadings cannot be oral because they are clearly described as "written" statements. II. Necessity and purpose of pleadings 1. Pleadings are necessary to invoke the jurisdiction of the court. It is necessary, in order to confer jurisdiction on a court, that the subject matter be presented for its consideration in a mode sanctioned by law and this is done by the filing of a complaint or other pleading. Unless a complaint or other pleading is filed, the judgment of a court of record is void and subject to collateral attack even though it may be a court which has jurisdiction over the subject matter referred to in the judgment. 2. Pleadings are intended to secure a method by which the issues may be properly laid before the court. Pleadings are designed to present, define and narrow the issues, to limit the proof to be submitted in the trial, to advise the court and the adverse party of the issues and what are relied upon as the causes of action or defense. The pleadings of the parties present the issue to be tried and determine whether such issue is of law or of fact. III. Construction of pleadings 1. In this jurisdiction, all pleadings shall be liberally construed so as to do substantial justice. Pleadings should receive a fair and reasonable construction in accordance with the natural intendment of the words and language used and the subject matter involved. The intention of the pleader is the controlling factor in construing a pleading and should be read in accordance with its substance, not its form. 2. While it is the rule that pleadings should be liberally construed, it has also been ruled that a party is strictly bound by the allegations, statements or admissions made in his pleadings and cannot be permitted to take a contradictory position. IV. Construction of ambiguous allegations in pleadings - In case there are ambiguities in pleadings, the same must be construed most strongly against the pleader and that no presumptions in his favor are to be indulged in. This rule proceeds from the theory that it is the pleader who selects the language used and if his pleading is open to different constructions, such ambiguities must be at the pleader's peril. V. System of pleading in the Philippines - The system of pleading used in the Philippines is Code Pleading following the system observed in some states of the United States like California and New York. This system is based on codified rules or written set of procedure as distinguished from common law procedure. VI. Pleadings allowed by the Rules of Court (Bar 1996) - The following are the pleadings allowed by the Rules of Court: (a) complaint;
(b) answer; (c) counterclaim; (d) crossclaim; (e) third (fourth, etc.) -party complaint; (f) complaint-in-intervention; and (g) reply (Sec. 2, Rule 6, Rules of Court). VII. Pleadings allowed under the Rules on Summary Procedure - Note however, that when a case falls under the Rules on Summary Procedure, the only pleadings allowed to be filed are: (a) complaint; (b) compulsory counterclaim; (c) cross-claim pleaded in the answer; and (d) answers thereto (Sec. 3/A] II, Rules on Summary Procedure). Permissive counterclaims, third-party complaints:, replies and pleadings-in-intervention are prohibited under the Rules on Summary Procedure (Sec. 9, IV, Rules on Summary Procedure). VIII. Caption of the pleading - The caption contains the following: (a) the name of the court; (b) the title of the action; and (c) the docket number, if assigned (Sec. 1, Rule 7, Rules of Court). IX. Title of the action - The title of the action contains the names of the parties whose participation in the case shall be indicated. This means the parties shall be indicated as either plaintiff or defendant. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication whether there are other parties. Example: Pedro Reyes, et al. (Sec. 1, Rule 7, Rules of Court). X. Variance between caption and allegations in the pleading 1. It is not the caption of the pleading but the allegations therein which determine the nature of the action and the court shall grant relief warranted by the allegations and proof even if' no such relief is prayed for. Thus, a complaint captioned as unlawful detainer is actually an action for forcible entry where the allegations show that the possessor of the land was deprived of the same by force, intimidation, strategy, threat or stealth. Likewise, a complaint for unlawful detainer is actually an action for collection of a sum of money where the allegations of the complaint do not disclose that the plaintiff demanded upon the defendant to vacate the property but merely demanded to pay the rentals in arrears. 2. In one case, while the complaint was denominated as one for specific performance, the allegations of the complaint and the relief prayed for actually and ultimately sought for the execution of a deed of conveyance to effect a transfer of ownership of the property in question. The action therefore, is a real action. Also, although the complaint was denominated as one for reformation of the instrument, the allegations of the complaint did not preclude the court from passing upon the real issue of whether or not the transfer between the parties was a sale or an equitable mortgage as the said issue has
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V. PLEADINGS IN CIVIL CASES
been squarely raised in the complaint and had been the subject of arguments and evidence of the parties.
include a "general prayer for such further or other relief as may be deemed just or equitable."
3. If the petitioner filed before the Supreme Court a petition captioned "Petition for Certiorari" based on Rule 65 but the allegations show that the issues raised are pure questions of law, the cause of action is not one based on Rule 65 which raises issues of jurisdiction, but on Rule 45 which raises pure questions of law. The allegations of the pleading determine the cause of action and not the title of the pleading.
2. The relief or prayer, although part of the complaint, does not constitute a part of the statement of the cause of action. It does not also serve to limit or narrow the issues presented.
XI. Body of the pleading 1. The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading (Sec. 2, Rule 7, Rules of Court).
4. It is important to remember that the court may grant a relief not prayed for as long as the relief is warranted by the allegations of the complaint and the proof.
XII. Designation of causes of actions joined in one complaint - When two or more causes of action are joined, the first cause of action shall be prefaced with the words, "first cause of action," of the second cause of action by the words, "second cause of action," and so on for the others (Sec. 2, Rule 7, Rules of Court). XIII. Allegations of ultimate facts 1. Every pleading, including the complaint, is not supposed to allege conclusions. A pleading must only aver facts because conclusions are for the court to make. 2. Not all facts may be allowed as averments in a pleading. Under Sec. 1 of Rule 6, every pleading shall omit from its allegations statements of mere evidentiary facts. The rule prohibiting allegations of evidentiary facts in a pleading is not difficult to understand. Evidentiary matters are to be presented during the trial of the case, not in the pleadings of the parties. The conclusions and evidentiary matters contained in a pleading may be the subject of a motion to strike. 3. The rule requires that a pleading should contain only allegations of "ultimate facts,"i.e., the facts essential to a party's cause of action or defense (Sec. 1, Rule 6, Rules of Court). These ultimate facts are to be stated in a logical form and in a plain and concise manner (Sec. 1, Rule 6, Rules of Court). XIV. Relief 1. Following the averments of the cause of action of the plaintiff, the complaint must contain a statement of the relief sought from the court and to which he believes he is entitled. This portion of the complaint is oftentimes referred to as the "prayer" or sometimes called the "Wherefore" clause. The Rules of Court (Sec. 2[c], Rule 7) requires that the relief sought be specified, although the statement may
XV. Signature and address 1. The complaint must be signed by the plaintiff or counsel representing him indicating his address. This address should not be a post office box (Sec. 3, Rule 7). A party who is not represented by counsel must sign his own pleading. - In the absence of a proper notice to the court of a change of address, service upon the parties must be made at the last address of their counsel of record. 2. A signed pleading is one that is signed either by the party himself or his counsel. Section 3, Rule 7 is clear on this matter. It requires that a pleading must be signed by the party or counsel representing him. Therefore, only the signature of either the party himself or his counsel operates to validly convert a pleading from one that is unsigned to one that is signed. XVI. Effect of an unsigned pleading - The signature in a pleading is important for it to have a legal effect. Under the Rules of Court (Sec. 3, Rule 7), "an unsigned pleading produces no legal effect." The court however, is authorized to allow the pleader to correct the deficiency if the pleader shows to the satisfaction of the court, that the failure to sign the pleading was due to mere inadvertence and not to delay the proceedings (Sec. 3, Rule 7, Rules of Court). XVII. Significance of the signature of counsel (Bar 1996) 1. The signature of a counsel in a pleading is significant. His signature constitutes a certificate by him that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief there is good ground to support it, and (c) that it is not interposed for delay (Sec. 3, Rule 7, Rules of Court,). 2. A counsel who deliberately files an unsigned pleading shall be subject to an appropriate disciplinary action. A disciplinary action will likewise be taken against him if he signs II pleading in violation of the Rules, when he alleges scandalous or indecent matter in his pleading, or when he fails to promptly report to the court a change in his address (Sec. 3, Rule 7, Rules f Court). 3. "It has been held that counsel's authority and duty to sign a pleading are personal to him." He may not delegate it to ,just any person because the signature of counsel constitutes an assurance by him that he has read the pleading; that to the best of his knowledge, information and belief, there is a
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2. The allegations in the body of the pleading shall be divided into paragraphs and shall be so numbered for ready identification. This numbering scheme is significant because in subsequent pleadings, a paragraph may be referred to only by its number without need for repeating the entire allegations in the paragraph. Each paragraph shall contain a statement of a single set of circumstances so far as that can be done with convenience (Sec. 2, Rule 7, Rules of Court).
3. It is the material allegations of the complaint, not the legal conclusions made therein or the prayer that determines the relief to which the plaintiff is entitled.
- "The preparation and signing of a pleading constitute legal work involving practice of law which is reserved exclusively for the members of the legal profession. Accordingly however, counsel may delegate the signing of a pleading to another lawyer but cannot do so in favor of one who is not. In so ruling the Court cites The Code of Professional Responsibility, the pertinent provision on which provides: Rule 9.01 - A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. - "A signature by agents of a lawyer amounts to signing by unqualified persons, something the law strongly proscribes. Therefore, the blanket authority entrusted to just anyone is void. Any act taken pursuant to that authority is likewise void. hence, there is no way it could be cured or ratified by counsel." XVIII. When counsel is subject to disciplinary action - A counsel shall be subject to disciplinary action in the following cases: (a) when he deliberately files an unsigned pleading; (b) when he signs a pleading in violation of the Rules; (c) when he alleges in the pleading scandalous or indecent matter; or (d) when he fails to promptly report to the court a change of his address (Sec. 3, Rule 7, Rules of Court). XIX. Verification in a pleading - The pleading need not be under oath. This means that a pleading need not be verified. This is the general rule. A pleading will be verified only when a verification is required by a law or by a rule (Sec. 4, Rule 7, Rules of Court). XX. How a pleading is verified - A pleading is verified by an affidavit. This affidavit declares that: (a) the affiant has read the pleading, and (b) that the allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7, Rules of Court as amended by A.M. No. 00-2-10, May 1, 2000). XXI. Significance of a verification - The verification requirement is significant, as it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible. The purpose of requiring a verification is to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct, not merely speculative. XXII. Effect of lack of a verification 1. A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. 4, Rule 7, Rules of'Court). Hence, it produces no legal effect (Sec. 3, Rule 7, Rules of Court).
2. It has however, been held that the absence of a verification or the non-compliance with the verification requirement does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading and non-compliance therewith does not necessarily render it fatally defective. 3. The absence of a verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases. The court may order the correction of the pleading or act on an unverified pleading if the attending circumstances are such that strict compliance would not fully serve substantial justice, which after all, is the basic aim for the rules of procedure. XXIII. Certification against forum shopping 1. The certification against forum shopping is a sworn statement certifying to the following matters: (a) that the party has not commenced or filed any claim involving the same issues in any court, tribunal, or quasi judicial agency and, to the best of his knowledge, no such other action or claim is pending; (b) that if there is such other pending action or claim, a complete statement of the present status thereof; and (c) that if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule 7, Rules of Court). 2. The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional. XXIV. Meaning of forum shopping 1. There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by appeal or certiorari in another. There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or action. 2. It is an act of a party against whom an adverse judgment has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. 3. Forum shopping is an act of malpractice, as the litigants trifle with the courts and abuse their processes. It is improper conduct and degrades the administration of justice. If the act of the party or its counsel clearly constitutes willful and deliberate forum-shopping, the same shall constitute direct contempt, and a cause for administrative sanctions, as
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good ground to support it; and that it is not interposed for delay. Under the Rules of Court, it is counsel alone, by affixing his signature, who can certify to these matters.
XXV. Rationale against forum shopping - The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. Thus, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue. XXVI. How to determine existence of forum shopping 1. To determine whether a party violated the rule against forum shopping, the most important question to ask is whether the elements of litis pendentia are present or whether a final judgment in one case will result to res judicata in another. Otherwise stated, to determine forum shopping, the test is to see whether in the two or more cases pending, there is: (a) identity of parties, (b) identity of rights or causes of action, and (c) identity of reliefs sought. 2. Forum-shopping exists when the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another. Litis pendentia requires the concurrence of the following requisites: (1) identity of parties, or at least such parties as those representing the same interests in both actions; (2) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and (3) identity with respect to the two preceding particulars in the two cases, such that any judgment that may be rendered in the pending case, regardless of which party is successful would amount to res adjudicata in the other case. 3. What is pivotal in determining whether forumshopping exists or not is the vexation caused the courts and partieslitigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating possibility of conflicting decisions being rendered by the different courts and/or administrative agencies upon the same issues. 4. Where the reliefs sought in the two actions are different, there is no forum shopping even if the parties in the actions are the same. Where one action is for a permanent injunction and the other is a petition for certiorari, there is no identity of reliefs. 5. Where the reliefs sought in two courts involving the same parties is to restrain a government official from implementing the same order, there is forum shopping because there is identity of reliefs.
6. The filing of six appeals, complaints or petitions to frustrate the execution of as judgment is a clear case of forum shopping. 7. The concept of forum shopping applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling. XXVII. Who executes the certification against forum shopping (Bar 2000) 1. It is the plaintiff or principal party who executes the certification under oath (Sec. 5, Rule 7, Rules of Court). The certification must be executed by the party, not the attorney. It must be signed by the party himself and cannot be signed by his counsels. - It is the petitioner and not the counsel who is in the best position to know whether he or it actually filed or caused the filing of a petition. A certification signed by counsel is a defective certification and is a valid cause for dismissal. This is the general rule and the prevailing rule. 2. Thus, in a fairly recent case, Go vs. Rico, petitioners admitted that neither of them signed the certification against forum shopping. Only their counsel did. The Court in this case emphatically stressed that a certification by counsel and not by the principal party himself is no certification at all. The reason for requiring that it must be signed by the principal party himself is that he has actual knowledge, or knows better than anyone else, whether he has initiated similar action/s in other courts, agencies or tribunals. Their lawyer's explanation that they were out-of-town at the time their petition was filed with the Court ofAppeals is bereft of basis. That explanation is an afterthought as it was not alleged by counsel in her certification against forum shopping. XXVIII. Liberal interpretation of the rules on the signing of the certification against forum shopping 1. It has also been held that the rules on forum shopping, which were precisely designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective which is the goal of all rules of procedure - that is, to achieve substantial justice as expeditiously as possible. Hence, the rule is subject to the power of the Supreme Court to suspend procedural rules and to lay down exceptions to the same. - Examples: While a petition for certiorari is flawed where the certificate of non-forum shopping was signed only by counsel and not by the party, this procedural lapse was overlooked by the Court in the interest of justice. In another case, the fact that the parties were abroad at a time when the petition was filed, was considered a reasonable cause to exempt the parties from compliance with the requirement that they personally execute the certification against forum shopping. In De Guia vs. De Guia, the Supreme Court went to the extent of invoking its power to suspend the Rules by
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well as a ground for the summary dismissal of the case with prejudice.
2. In Dar vs. Alonzo-Legasto, where the petitioners were sued jointly as "Mr. and Mrs." over a property in which they were alleged to have common interest, the signing of the certification against forum shopping by one of the petitioners was held to be a substantial compliance of the rule. In a subsequent ruling in the case of Docena vs. Lapesura, where only the husband signed the certificate against forum shopping in a petition involving the conjugal residence of the spouses, the Supreme Court considered the certification as having substantially complied with the requirements of the Rules of Court. 3. In Ca vile vs. Heirs of Clarita Cavile, a similar ruling was made where the Court held that there was substantial compliance with the Rules where only one petitioner signed the certification against forum shopping in behalf of all the other petitioners being all relatives and co-owners of the properties in dispute, and who shared a common interest in them, had a common defense in the complaint for partition, filed the petition collectively, and raised only one argument to defend their rights over the properties in question. 4. A liberal interpretation of the rule has likewise been adopted in Bases Conversion Authority. While in this case, only one petitioner signed the verification and certification of non-forum shopping, it was held that such fact is not fatal to the petition. The Court ruled that the signature of a principal party in the certification of non-forum shopping satisfies the requirement of the Rules of Court if he is a principal party because accordingly, under the Rules, it is clear that the certification of non-forum shopping may be signed by a principal party. XXIX. Signing the certification when the plaintiff is a juridical entity - A juridical entity, unlike a natural person, can only perform physical acts through properly delegated individuals. The certification against forum shopping where the plaintiff or a principal party is a juridical entity like a corporation, may be executed by properly authorized persons. This person may be the lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification against forum shopping, the certification may be signed by the authorized lawyer. XXX. Pleadings requiring a certification against forum shopping 1. The certification against forum shopping applies to the complaint and other initiatory pleadings asserting a claim (Sec. 5, Rule 7, Rules of Court). This initiatory pleadings include not only the original complaint but also a permissive counterclaim, cross-claim, third (fourth, etc.) -party complaint, complaint-in-intervention, petition or any application in which a party asserts his claim for relief. The rule does not require a certification against forum shopping for a compulsory counterclaim because it cannot be the subject of a separate and independent adjudication. It is therefore, not an initiatory pleading.
2. It bears stressing that the Rule distinctly provides that the required certification against forum shopping is intended to cover an initiatory pleading, meaning an incipient application of a party asserting a claim for relief. The answer with a counterclaim is a responsive pleading, filed merely to counter petitioners' complaint that initiates the civil action and is a claim for relief that is derived only from, or is necessarily connected with, the main action or complaint. It is not an initiatory pleading. XXXI. Effects of non-compliance with the rule on certification against forum shopping (Bar 1996) 1. The failure to comply with the required certification is "not curable by a mere amendment" and shall be a cause for the dismissal of the action (Sec. 5, Rule 7, Rules of Court). 2. The dismissal for failure to comply with the certification requirement is not to be done by the court motu proprio. The rule requires that the dismissal be upon motion and after hearing (Sec. 5, Rule 7, Rules of Court). 3. If the case is dismissed for failure to comply with the certification requirement, the dismissal is, as a rule, "without prejudice," unless the order of dismissal otherwise provides (Sec. 5, Rule 7, Rules of Court). Hence, where the dismissal is silent as to the character of the dismissal, the dismissal is presumed to be without prejudice to its being refiled. XXXII. No appeal from an order of dismissal - May the plaintiff' appeal from the order of the dismissal without prejudice? He cannot appeal from the order. This is because an order dismissing an action without prejudice is not appealable. The remedy provided for under Sec. 1 of Rule 41 is to avail of the special civil action of certiorari under Rule 65 (Sec. 1[h1, Rule 41, Rules of Court). XXXIII. Effect of willful and deliberate forum shopping - If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be a ground for summary dismissal. Here, no motion to dismiss and a hearing are required. The dismissal in this case is also with prejudice and shall constitute direct contempt, as well as cause for administrative sanctions (Sec. 5, Rule 7, Rules of Court). XXXIV. Effect of submission of a false certification - It may happen that the pleading has been filed with the required certification against forum shopping but the allegations therein or the matters certified to therein are false. Under the Rules, the submission of a false certification shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions (Sec. 5, Rule 7, Rules of Court). XXXV. Effect of non-compliance with the undertakings - Failure to comply with the undertakings in the certification against forum shopping has the same effect as the submission of a false certification (Sec. 5, Rule 7, Rules of Court).
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disregarding the absence of the certification against forum shopping in the interest of substantial justice.
I. Meaning of `filing' > Filing - the act of presenting the pleading or other papers to the clerk of court (Sec. 2, Rule 13, Rules of Court). II. Meaning of `service' > Service - the act of providing a party with a copy of the pleading or paper concerned (Sec. 2, Rule 13, Rules of Court). III. Upon whom service shall be made 1. If a party has not appeared by counsel,: then service must be served upon him. 2. If a party has appeared by counsel, then service shall be made upon his counsel or one of them; unless service upon the party himself is ordered by the court (Sec. 2, Rule 13, Rules of Court). The rule is that when a party is represented by counsel in an action in court, notices of all kinds,including motions, pleadings, and orders must be served on said counsel and notice to him is notice to the client. 3. Where one counsel appears for several parties, service shall be made upon said counsel but he shall be entitled only to one copy of any paper served upon him by the opposite side (Sec. 2, Rule 13, Rules of Court). IV. Manner of filing 1. There are two modes of filing, to wit: (a) by presenting the original copy of the pleading, notice, appearance, motion, order or judgment personally to the clerk of court; or (b) by registered mail. 2. In the first mode, the clerk of court shall indicate or endorse on the pleading or paper filed, the date and hour of filing. 3. In the second mode, the date of mailing as shown by the post office stamp on the envelope or registry receipt, shall be considered as the date of filing (Sec 3, Rule 13, Rules of Court). V. How to prove filing 1. The filing of a pleading or paper shall be proved by its existence in the record of the case, if it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court in a copy of the same (Sec 12, Rule 13, Rules of Court). 2. If the pleading or paper is filed by registered mail, proof of filing is by the registry receipt and by the affidavit of the person of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered (Sec. 12, Rule 13, Rules of Court). VI. Papers required to be filed and served - The following papers are required to be filed in court and served upon the parties affected: (a) judgments, (b) resolutions,
(c) orders, (d) pleadings subsequent to the complaint, (e) written motion, (f) notices, (g) appearances, (h) demands, (i) offers of judgment, or (j) similar papers (Sec. 4, Rule 13, Rules of Court). VI. Modes of service - There are two modes of service of pleadings, judgments, motions, notices, orders, judgments and other papers: (a) personally, or by (b) mail. However, if personal service and service by mail cannot be made, service shall be done by `substituted service'. VII. Personal service 1. Personal service is the preferred mode of service (Sec. 11, Rule 13, Rules of Court). If another mode of service is used other than personal service, the service must be accompanied by a written explanation why the service of filing was not done personally. Exempt from this explanation are papers emanating from the court. A violation of this explanation requirement may be cause for the paper to be considered as not having been filed (Sec. 11, Rule 13, Rules of Court). 2. Personal service is made by: (a) delivering a copy of the papers served personally to the party or his counsel, or (b) or by leaving the papers in his office with his clerk or a person having charge thereof. If no person is found in the office, or his office is not known or he has no office, then by leaving a copy of the papers at the party's or counsel's residence, if known, with a person of sufficient age and discretion residing therein between eight in the morning and six in the evening (Sec. 6, Rule 13, Rules of Court). 3. As a rule, personal service of judgments is done by delivering them personally to the party or his counsel, or when they are left in his office, with his clerk or with a person having charge thereof. In case this is not possible, the copy of the judgment may be left at the party's or his counsel's residence with a person of sufficient age or discretion residing therein. - In one case, service of the COA resolution was made to the resident corporate auditor of the petitioner, DBP The auditor holds office in the premises of petitioner DBP and is actually an employee of the COA assigned to DBP by COA. - Respondent COA contends that the service of the COA resolution to petitioner's resident corporate auditor is tantamount to a service upon the petitioner itself. Petitioner, on the other hand, argues that the resident corporate auditor is not its employee but that of the respondent. - The Supreme Court agreed with the contention of DBP that the resident corporate auditor of the DBP is neither an official nor an employee of the DBP He does not come within the definition of "clerk or person having charge" of the office that may be validly served with a copy of the resolution of
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VI. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS IN CIVIL CASES
the respondent as contemplated by the Rules. In fact, the resident corporate auditor is an extension of the respondent COA and no department of the petitioner was actually served with a copy of the resolution.
the notice given by the postmaster to the addressee (Sec. 13, Rule, 13, Rules of Court).
VIII. When personal service is deemed complete - Upon actual delivery following the above procedure, service is deemed complete (Sec. 10, Rule 13, Rules of Court).
I. Definition of a motion > motion - an application for relief other than by a pleading (Sec. 1, Rule 15, Rules of Court).
IX. Service by mail 1. The preferred service by mail is by registered mail. Service by ordinary mail may be done only if no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule 13, Rules of Court).
II. Form of motions 1. All motions must be in writing. Excepted by this written requirement are those motions (a) made in open court, and (b) motions made in the course of a hearing or trial (Sec. 2, Rule 15, Rules of Court).
2. Service by registered mail shall be done by depositing the copy in the, post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, or otherwise' at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered (Sec. 7, Rule 13, Rules of Court).
2. The rules that apply to pleadings shall also apply to written motions so far as concerns caption, designation, signature, and other matters of form (Sec. 10, Rule 15, Rules of Court).
XI. Substituted service 1. This mode is availed of only when there is failure to effect service personally or by mail. This failure occurs when the office and residence of the party or counsel is unknown (Sec. 8, Rule 13, Rules of Court). 2. Substituted service is effected by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13, Rules of Court). XII. When substituted service is complete - Substituted service is complete at the time of delivery of the copy to the clerk of court (Sec. 8, Rule 13, Rules of Court). XIII. How to prove service, 1. Proof of personal service shall consist of the written admission of the party served. It may also be proven by the official return of the server, or the affidavit of the party serving, containing full information of the date, place and manner of service (Sec. 13, Rule 13, Rules of Court). . 2. If the service is by ordinary mail, proof thereof shall consist of the affidavit of the person mailing of the facts showing compliance with Sec. 7 of Rule 13 (Sec. 13, Rule 13, Rules of Court). 3. If service is by registered mail, the proof shall consist of such affidavit and the registry receipt issued by the mailing office. The registry return card is to be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of
III. Contents of a motion - Motions are to contain the following: (a) a statement of the relief sought to be obtained; (b) the grounds upon which the motion is based; and (c) the supporting affidavits and other papers. The last requirement applies only when so mandated by the Rules or when necessary to prove facts stated in the motion (Sec. 3, Rule 15, Rules of Court). IV. Hearing of the motion 1. As a rule, every written motion shall be set for hearing by the applicant (Sec. 4, Rule 15, Rules of Court). This provision therefore, establishes the general rule that every written motion is deemed a litigated motion, i.e., one which requires the parties to be heard before a ruling on the motion is made by the court. An ex parte motion, on the contrary, is one which does not require that the parties be heard. And which the court may act upon without prejudicing the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 2, Rule 15, Rules of Court). - The Court has consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court on hearing and notice of the hearing is a mere scrap of paper, which the clerk of court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective. 2. An ex parte motion, on the contrary, is one which does not require that the parties be heard and which the court may act upon without prejudicing the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 2, Rule 15, Rules of Court). An example of an ex parte motion is that one filed by the plaintiff pursuant to Sec. 1 of Rule 18 in which he moves promptly that the case be set for pre-trial. A motion to dismiss (Rule 16), a motion for judgment on the pleadings (Rule 34) and a summary judgment (Rule 35), on the other hand, are litigated motions. 3. A motion for extension of time is not a litigated motion where notice to the adverse party is necessary to afford the
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X. When service by mail is deemed complete 1. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. 2. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever is earlier (Sec. 10, Rule 13, Rules of Court).
VII. MOTIONS IN CIVIL CASES
V. Notice of the motion 1. The motion which contains the notice of hearing shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice (Sec. 4, Rule 15, Rules of Court). 2. The notice of hearing shall be addressed to all the parties concerned (Sec. 5, Rule 15, Rules of Court). 3. The notice of hearing shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion (Sec. 5, Rule 15, Rules of Court). VI. Service of the motion - The motion must be served upon the other party. A motion set for hearing shall not be acted upon by the court without proof of service thereof (Sec. 6, Rule 15, Rules of Court). VII. Motion day - All hearings shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working holiday, in the afternoon of the next working day. This rule does not apply to motions requiring immediate attention (Sec. 7, Rule 15, Rules of Court). Effect of failure to met the motion for hearing, to include a notice of hearing and to serve the motion (Sees. 4, 8, 6 of Rule 18) - The well-settled rule is that a motion which fails to comply with the requirements under Sees. 4, 5 and 6 of Rule 15, is a useless piece of paper. It is pro forma presenting no question which the court could decide. If filed, such motion is not entitled to judicial cognizance and does not stop the running of the period for filing the requisite pleading. A motion which does not comply with the rules on motion is considered pro forma and thus,` will be treated as one filed merely to delay the proceedings. VIII. The omnibus motion rule 1. The rule is a procedural principle which requires that every motion that attacks a pleading, judgment, order or proceeding shall include all grounds then available, and all objections not so included shall be deemed waived (Sec. 8; Rule 15, Rules of Court). Since the rule is subject to the provisions of Sec. 1 of Rule 9, the objections mentioned therein are not deemed waived even if not included in the motion. These objections are: (a) that the court has no jurisdiction over the subject matter; (b) that there is another action pending between the same parties for the same cause (litis pendencia) (c) that the action is barred by a prior judgment (res judicata); and (d) that the action is 'barred by
the `statute of limitations (prescription) (Sec. 1, par. 2, Rule 9, Rules of Court). 2. A motion to dismiss is a typical example of a motion subject to the omnibus motion rule, since a motion to dismiss attacks a complaint which is a pleading. Following the omnibus motion rule,' if a motion to dismiss is filed, then the motion must invoke all objections which are available at the time of the filing of said motion. If the objection which is available at the time is not included in the motion, that, ground is deemed waived. It can no longer be invoked as an affirmative defense in the answer which the movant may file following the denial of his motion to dismiss. 3. To illustrate: In a case filed with the RTC, the defendant filed a motion to dismiss invoking the following as objections: (a) the complaint's failure to state a cause of action, (b) lack of jurisdiction over the person of the defendant, and (c) that the contract violates the statute of frauds. Two objections available at the time the motion is filed, namely, improper venue and prescription were not included in the motion. The motion to dismiss was denied. May the defendant in his answer, filed after the denial of his motion to dismiss, invoke the affirmative defenses of improper venue and prescription, objections which were not included in the motion to dismiss? Answer: Improper venue is deemed waived. It was available as a defense at the time the motion was filed and should have been invoked. Failure to so include the same in the motion is to be construed as waiver of the objection. Prescription, on the other hand, is not waived and can still be interposed as an affirmative defense in the answer. It is a defense that is not deemed waived under the explicit provisions of Sec. l of Rule 9. CHAP. II CAUSE OF ACTION AND ACTIONS I. CAUSE OF ACTION (Rule 2) A. Meaning > cause of action - the act or omission by which a party violates the rights of another (Sec. 2, Rule 2, Rules of Court) B. Elements of a cause of action - The elements of a cause of action are as follows: (a) A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (b) An obligation on the part of the named defendant to respect or not to violate such right; and (c) Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. - Briefly stated, it is the reason why the litigation has come about, it is the act or omission of defendant resulting in the violation of someone's rights. - While the concept of a cause of action is one that is essential to the existence of a civil action, in administrative cases however, the issue is not whether the complainant has a cause of action against the respondent, but whether the
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latter an opportunity to resist the application, but an ex parte motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties. It has been said that ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of emergency; and an exception to a rule requiring notice is sometimes made where notice or the resulting delay might tend to defeat the objective of the motion"
respondent has breached the norms and standards of the office.
cause of action is one for unlawful detainer and should be filed in the Municipal Trial Court."
C. Cause of action in specific cases 1. The cause of action for breach of contract does not require an allegation and proof of the negligence of the defendant. The elements of this cause of action are (a) the existence of a contract, and (b) the breach of the contract. Thus, if a carrier is sued based on a breach of contract of carriage, negligence need not be proved by the plaintiff, negligence not being an element of the cause of action of a suit predicated upon a breach of contract. This is true whether or not the defendant is a public or a private carrier. However, where the defendant is a common carrier there is an additional reason: negligence of the common carrier is presumed (Art. 1735 & Art. 1756, Civil Code of the Philippines).
- If the unlawful detainer case is anchored upon the failure of the defendant to comply with the conditions of the lease, the demand must not be "to comply.. or vacate" but should be "to comply. . . and vacate" (Sec. 2, Rule 70, Rules of Court). The first type of demand is not one for unlawful detainer but one for specific performance.
3. Where the cause of action rests on a promissory note, filing the action before the due date of the obligation would be premature because the obligation is one with a period. Whenever a period is designated in an obligation, the obligation becomes demandable only when the period arrives. Such period is presumed to be for the benefit of both parties and of course, also of the debtor. He cannot be charged before the due date (Art. 1196, Civil Code of the Philippines) unless he loses the right to make use of the period (Art. 1198, Civil Code of the Philippines). Illustration (Bar 1999) A sued B to recover P500,000.00 bayed on a promissory note due and payable on December 5, 1998. The Complaint was filed on November 30, 1998, and summons was served on B on December 7, 1.998. B interposes a motion to dismiss on the ground that the Complaint states no cause of action. If you were the judge, how would you rule on the motion? Suggested answer: The motion must be granted. The complaint states no cause of action for having been filed prematurely. The defect could not be cured by the service of summons on the defendant after the due date of the promissory note. 4. In an unlawful detainer case, the cause of action does not accrue unless there is a demand to vacate and is not complied with. If however, the suit is based on expiration of the lease, notice and demand are not required. - If the unlawful detainer case is predicated upon the defendant's failure to pay the rentals, the demand should not be "to pay or vacate" but should be to pay and vacate (Sec. 2, Rule 70, Rules of Court). The first type of demand does not give rise to an unlawful detainer case since it is in essence an action for a sum of money. Thus, if the amount of rentals to be collected is P900,000.00, the action should be filed with the Regional Trial Court which has jurisdiction over the amount demanded. If the demand is "to pay and vacate, the
Suggested answer. The demurrer to evidence should be denied. A demurrer is to be granted only when under the facts and the law, the plaintiff is not entitled to relief as when the evidence is insufficient to support the claim of the plaintiff. Under the circumstances, the failure to prove the negligence of the defendant does not in any way indicate an insufficiency of evidence. In a suit based on breach of contract, especially a breach of a contract of carriage against a common carrier, the negligence of the defendant is presumed (Art. 1756, Civil Code of the Philippines). Besides, negligence is not an element of a cause of action based on breach of contract. 5. For a malicious prosecution suit to prosper, the plaintiff must prove the following: (1) the prosecution did occur, and the defendant was himself the prosecutor or that he instigated its commencement; (2) the criminal action finally ended with an acquittal; (3) in bringing the action, the prosecutor acted without probable cause; and (4) the prosecution was impelled by legal malice - an improper or a sinister motive. The gravamen of malicious prosecution is not the filing of a complaint based on the wrong provision of law, but the deliberate initiation of an action with the knowledge that the charges were false and groundless. D. Action distinguished from cause of action (Bar 1999) - An action is the suit filed in court for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3[a], Rule 2, Rules of Court). A cause of action is the basis of the action filed because every "...action must be based on a cause of action" (Sec. 1, Rule 2, Rules of Court). E. Failure to state a cause of action
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2. Negligence is an element of a quasi-delict and must be alleged and proved (Art. 2176, Civil Code of the Philippines) but the negligence of those persons under Art. 2 180 is presumed.
Illustration (Bar 2004) AX, a Makati.-bound paying passenger utility bus, died instantly on board the bus on account of the fatal head wounds he sustained as a result of the strong impact of the collision between the bus and a dump truck. The accident happened while the bus was still traveling on EDSA towards Makati. The foregoing facts among others, were duly established on evidence-in-chief by the plaintiff TY, sole heir of AX in TY's action against the subject common carrier for breach of contract of carriage. After TY had rested his case, the common carrier filed a demurrer to evidence contending that plaintiff's evidence is insufficient because it did not show (1) that defendant was negligent, and (2) that such negligence was the proximate cause of the collision. Should the court grant or deny defendant's demurrer to evidence? Discuss briefly.
2. The failure to state a cause of cause of action does not mean that the plaintiff has "no cause of action." It only means that the plaintiff's allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. Thus, even if indeed the plaintiff suffered injury, if the same is not set forth in the complaint, the pleading will state no cause of action even if in reality the plaintiff has a cause of action against the defendant. F. Failure to state a cause of action and lack of a cause of action 1. A fair reading of jurisprudence likewise shows that a failure to state a cause of action is not the same as an absence or a lack of a cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter means the failure to prove or to establish by evidence one's cause of action. 2. In one case the Court was more succinct: "While the former is determined by referring to the allegations of the pleading asserting the claim, the latter is determined by referring to the evidence adduced. Usually, the declaration that a plaintiff failed to establish a cause of action is postponed until after the parties are given the opportunity to present all relevant evidence on questions of fact." 3. Under Rule 16, the ground for dismissal in relation to a cause of action is not "lack of a cause of action" or "no cause of action." The ground is that "the pleading asserting the claim states no cause of action (Sec. 1(g], Rule 16; San Lorenzo Village Association, Inc. vs. Court ofAppeals, 288 SCRA 115 [1998]). The ground for dismissal based on the fact that the pleading asserting the claim states no cause of action is different from the ground that the case of the claimant should be dismissed for lack of a cause of action. The first is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be determined only from the allegations of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim. - A motion to dismiss based on lack of cause of action is filed by the defendant after the plaintiff has presented his
evidence on the ground that the latter has shown no right to the relief sought. While a motion to dismiss under Rule 16 is based on preliminary objections which can be ventilated before the beginning of the trial, a motion to dismiss under Rule 33 is in the nature of a demurrer to evidence on the ground of insufficiency of evidence and is presented only after the plaintiff has rested his case. 4. There is a failure to state a cause of action if allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. - Thus, in actions for forcible entry, three (3) requisites have to be alleged for the municipal trial court to acquire jurisdiction over the case. First, the plaintiff must allege his prior physical possession of the land or building. Second, he must also assert that he was deprived of possession of the property either by (force, intimidation, threat, strategy, or stealth. Third, the action must be filed within one (1) year from the time he learned of his deprivation of physical possession of the property. - Even if in truth he has a cause of action for forcible entry, if the complaint fails to allege an essential element of a forcible entry case, as for instance, the fact that he was, prior to the deprivation, in actual physical possession of the property, there is a failure to state a cause of action. In a similar vein, if in an action for a sum of money arising from a loan, the plaintiff fails to allege that the debt is due and demandable, the complaint asserting the claim states no cause of action even if in truth the plaintiff has a cause of action for collection of the debt. 5. It has been held that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted to the court for determination is the sufficiency of the allegations in the complaint, and to determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others should be. G. Test of the sufficiency of the statement of a cause of action 1. The test of the sufficiency of the facts alleged in the complaint as constituting a cause of action is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint. 2. Jurisprudence likewise tells us that in determining the sufficiency of the cause of action, the truth or the falsity of the allegations are beside the point because the allegations in the complaint are hypothetically admitted. Thus, a motion to dismiss on the ground that the complaint fails to state a cause of action, hypothetically admits the matters alleged in the complaint. The hypothetical admissions however, extend only to the relevant and material facts well pleaded in the complaint as well as to inferences fairly deductible therefrom. The admission does not include conclusions or interpretations of law. H. Allegations of the complaint determine whether or not complaint states a cause of action l. In determining whether an initiatory pleading states a cause of action, "the test is as follows: admitting the truth of
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1. The mere existence of a cause of action is not sufficient for a complaint to prosper. Even if in reality the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the complaint or the pleading asserting the claim "states no cause of action" (Sec. 1[g], Rule 16). This means that the cause of action must unmistakably be stated or alleged in the complaint or that all the elements of the cause of action required by substantive law must clearly appear from the mere reading of the complaint. To avoid an early dismissal of the complaint, the simple dictum to be followed is: "If you have a cause of action, then by all means, state it!" Where there is a defect or an insufficiency in the statement of the cause of action, a complaint may be dismissed not because of an absence or a lack of a cause of action but because the complaint "states no cause of action." The dismissal will therefore, be anchored on a "failure to state a cause of action."
2. Current jurisprudence establishes the rule that the court ought not to consider matters outside of the complaint in determining whether or not a complaint states a cause of action. The court should only consider the allegations of the complaint and there is no need to require the presentation of evidence to determine whether or not the complaint states a cause of action because the allegations of the complaint will disclose the compliance or non-compliance of the required statement of the cause of action. - In determining whether or not a cause of action is sufficiently stated in the complaint, the statements in the complaint may be properly considered. It is error for the court to take cognizance of external facts or to hold preliminary hearings to determine its existence (Diaz vs. Diaz, 331 SCRA 302, 316). The sufficiency of the statement of the cause of action must appear on the face of the complaint and its existence may be determined only by the allegations of the complaint, consideration of other facts being proscribed and any attempt to prove extraneous circumstances not being allowed. However, the annexes to the complaint may be considered in determining whether or not a complaint states a cause of action because such annexes are considered parts of the complaint. - The cause of action in a complaint is not what the designation of the complaint states, but what the allegations in the body of the complaint define and describe. The designation or caption is not controlling, more than the allegations in the complaint themselves are, for it is not even an indispensable part of the complaint. I. Allegations of the complaint also determine the nature of the cause of action 1. The nature of the cause of action is determined by the facts alleged in the complaint and not by the prayer therein 2. A complaint captioned as an unlawful detainer case would actually be an action for forcible entry where the complaint alleges that the plaintiff was deprived of the possession of the premises by force, intimidation, stealth, threat or strategy. 3. In one case, the complaint filed in the Regional Trial Court was captioned "Collection of a Sum of Money with Damages." The complaint alleged that he demanded payment of the rentals in arrears and for the defendant to vacate the premises. The Supreme Court held that the nature of the allegations make out a cause of action for unlawful detainer, not an action for collection of a sum of money. An action for unlawful detainer is one within the jurisdiction of the Municipal Trial Court. The Regional Trial Court therefore, had no jurisdiction over the action even if the action was denominated as an action to collect a sum of money.
4. Similarly, a petition denominated as a petition for review on certiorari under Rule 45 may considered by the Court as a petition for certiorari under Rule 65 because the petition alleged grave abuse of discretion amounting to lack of jurisdiction 5. Where from a reading of the allegations of the complaint and the reliefs prayed for, the ultimate objective of the plaintiffs is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof even if the complaint is denominated as an action for reconveyance or an action to annul a deed of sale to real property. The nature of an action is not determined by the caption of the complaint but by the allegations therein together with the reliefs prayed for. 6. Thus, where the allegations of the complaint state that the actual transaction between the parties was not a sale but an equitable mortgage, and that the issues and evidences in the proceedings revolved on the true nature of the transaction, the trial court correctly resolved the issue even if the action was erroneously labeled as an action for reformation. 7. It is settled jurisprudence that what determines the nature of an action as well as which court or body has jurisdiction over it are the allegations of the complaint and the character of the relief sought, whether or not plaintiff is entitled to any and all of the reliefs prayed for. The jurisdiction of the court or tribunal over the nature of the action cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss, for otherwise, the question of jurisdiction would depend almost entirely on defendant. Hence, if the allegations of the complaint make out a case for unlawful detainer, the Municipal Trial Court is not divested of its jurisdiction to take cognizance of the case merely because the defendant claims ownership over the property subject of the action. J. How to state the cause of action 1. The pleading asserting the claim or the cause of action must contain only the ultimate facts. These facts must be stated in a plain, concise, methodical and logical form. Evidentiary facts must be omitted (Sec. 1, Rule 8, Rules of Court). Since the rule requires that pleadings should contain only the ultimate facts, the same should not contain mere conclusions of law because conclusions are not facts. 2. The ultimate facts refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient (Ceroferr Realty Corporation vs. Court of Appeals, 376 SCRA 144). The ultimate facts are the important and substantial facts which form the basis of the primary right of the plaintiff and which make up the wrongful act or omission of the defendant. The ultimate facts do not refer to the details of probative matter or to the particulars of evidence by which the material elements are to be established. They are the principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests. 3. The complaint, in stating the cause of action, should not contain sham, false, redundant, immaterial, impertinent, or scandalous matters. These matters may be stricken out upon
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the facts alleged, can the court render a valid judgment in accordance with the prayer?" To be taken into account are only the material allegations in the complaint; extraneous facts and circumstances or other matters aliunde are not considered but the court, mny consider- in addition to the complaint the trppended annexes or documents, other pleadings of the plaintiff, or admissions in the records.
K. Conditions precedent 1. Common usage refers to conditions precedent as matters which must be complied with before a cause of action arises. When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading. 2. The following are examples of conditions precedents: (a) A tender of payment is required before making a consignation (Art. 1256, Civil Code of the Philippines). (b) Exhaustion of administrative remedies is required in certain cases before resorting to judicial action. (c) Prior resort to barangay conciliation proceedings is necessary in certain cases (Book III, Title I, Chapter 7, Local Government Code of 1991). (d) Earnest efforts toward a compromise must be undertaken when the suit is between members of the same family and if no efforts were in fact made, the case must be dismissed (Art. 151, Family Code of the Philippines). 3. The failure to comply with a condition precedent is an independent ground for a motion to dismiss: that a condition precedent for filing the claim has not been complied with (Sec. 1fj], Rule 16, Rules of Court). L. Pleading a judgment - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision. There is no need to allege matters showing the jurisdiction to render the judgment or decision (Sec. 6, Rule 8, Rules of Court) because under this rule, jurisdiction is presumed. M. Pleading an official document or act - In pleading a document or an act, it is sufficient to aver that the document was issued in compliance with law. With respect to an act, it is likewise sufficient to allege that the act was done also in compliance with law (Sec. 9, Rule 8, Rules of Court). N. Pleading capacity to sue or be sued - Facts showing the capacity of a party to sue or be sued must be averred. If a party is suing or sued in a representative capacity, the same must be averred. If a party is an organized association of persons, its legal existence must likewise be averred (Sec. 4, Rule 8, Rules of Court). O. Pleading, fraud, mistake or condition of the mind 1. When making averments of fraud or mistake, the circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8, Rules of Court). It is not enough therefore, for the complaint to allege that he was defrauded by the defendant. Under this provision, the complaint must state with particularity the fraudulent acts of the adverse party. These particulars would necessarily include the time, place and specific acts of fraud committed against him.
2. Malice, intent, knowledge or other conditions of the mind of a person may be averred generally (Sec. 5, Rule 8, Rules of Court). Unlike in fraud or mistake, they need not be stated with particularity. The rule is borne out of human experience. It is difficult to state the particulars constituting these matters. Hence, a general averment is sufficient. P. Pleading alternative causes of actions or defenses 1. Under Sec. 2 of Rule 8, a party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. 2. This provision recognizes that the liability of the defendant may possibly be based on either one of two causes of action. The plaintiff, may for example, believe that the liability of the carrier may be based either on a breach of contract of carriage or on a quasi delict but he may not be certain which of the causes of action would squarely fit the set of facts alleged in the complaint, although he is certain that he is entitled to relief. He may therefore, state his causes of action in the alternative. This provision in effect, also relieves a party from being compelled to choose only one cause of action. - The landmark case of La Mallorca us. Court ofAppeals illustrates this rule particularly well. Here, the plaintiffs were allowed to sue based upon a quasi- delict theory and in the alternative, upon a breach of contract, where the death of their child occurred when they were no longer on board the bus of the common carrier but at the time the father was in the process of retrieving the family's personal belongings from the bus. Although ultimately the case was ruled to be a breach of contract of carriage, the procedural device of pleading alternative causes of action was strongly reaffirmed in this case. 3. The same provision is similar to the rule (Sec. 13, Rule 3, Rules of Court) which authorizes suing two or more defendants in the alternative. For instance, the plaintiff insurance company, which paid for the loss of the goods insured, may sue in the alternative the shipping company that transported the goods and the warehouse company that stored the goods if the plaintiff is uncertain which between the defendants is responsible for the loss. 4. Pleading alternative causes of action normally leads to inconsistent claims. For instance, the elements of a cause of action based on a contractual theory are inconsistent with those of a cause of action based on a quasi-delict. As previously discussed, a suit based on a breach of contract of carriage for example, does not require an allegation and proof of negligence because it is not an element of a breach of contract suit. On the other hand, negligence, as a rule, is an essential element of a suit based on a quasi-delict (Art. 2176, Civil Code of the Philippines). - Under Sec. 2 of Rule 8, this situation is permissible as long as the allegations pleaded within a particular cause of action are consistent with the cause of action relied upon as an alternative. Thus, if the alternative cause of action is a breach of contract, the allegations therein must support the facts constituting the breach of the contract.
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motion by a party within twenty (20) days after service of the pleading upon him or upon the court's own initiative at any time (Sec. 12, Rule 8, Rules of Court).
5. Sec. 2 of Rule 8 likewise allows a party to interpose alternative defenses even if such defenses are inconsistent with each other. The defendant may therefore, in his answer to the complaint, defend by alleging that the debt has been paid or that it has prescribed.
3. The requirement of a specific denial under oath will not apply in either of the following: (a) when the adverse party does not appear to be a party to the document, or (b) when compliance with an order for an inspection of the original instrument is refused (Sec. 8, Rule 8, Rules of Court).
6. Sec. 2 of Rule 8 does not require that all of the alternative causes of action be sufficient for the plaintiff to be entitled to relief. It is enough that one of them if made independently would be sufficient to support a cause of action. The same principle applies to alternative defenses. "When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements" (Sec. 2, Rule 8, Rules of Court).
- Thus, if a son is sued as a substitute party under a document signed by his deceased father, a specific denial may be made without the same being under oath because the son is not a party to the document. Also, if the court grants a motion filed by a party for the inspection of the original document in the possession of the adverse party, and the latter refuses to comply with the order, the former may deny the document without an oath.
- The document used in such cases is what is commonly termed an "actionable document" and in current usage is referred to as the document relied upon by either the plaintiff and the defendant. For example, in an action for collection of a sum of money, the actionable document would be a promissory note. In an action for foreclosure of a mortgage, the actionable document would be the deed of mortgage. On the other hand, if the defendant defends by alleging that the debt has been paid, the receipt of payment issued by the plaintiff would constitute the actionable document. - Whenever an actionable document' is the' basis of a pleading, the rule specifically directs the pleader to set forth in the pleading the substance of the instrument or the document, (a) and to attach the original or the copy of the document to the pleading as an exhibit and to be part of the pleading; or (b) with like effect, to set forth in the pleading said copy of the instrument or document (Sec. , Rule S, Rules of Court). This manner of pleading a document applies only to one which is the basis of action or a defense. Hence, if the document does not have the character of an actionable document, as when it is merely evidentiary, it need not be pleaded strictly in the manner prescribed by Sec. 7 of Rule 8. R. How to contest an actionable document 1. When the action is founded upon a document pleaded in the manner required by Sec. 7 of Rule 8, the party who has no intent of admitting the genuineness and due execution of the document, must contest the same by (a) specifically denying the genuineness and due execution of the document under oath; and (b) setting forth what he claims to be the facts (Sec. 8, Rule 8, Rules of Court). 2.A mere specific denial of the actionable document is insufficient. The denial must be coupled with an oath. In current usage, this means that the denial must be verified. The absence of an oath will result in the implied admission of the due execution and genuineness of the document (Sec. 8, Rule 8, Rules of Court).
Illustration (Bar 1987) "A"filed suit against "B" and "C" for the recovery of personal property which, according to the complaint, had been sold to him by the defendant's father during the latter's lifetime under a document entitled Bill of Sale. The substance of the bill was pleaded in the complaint and a copy thereof was attached to the complaint as an exhibit. "B" and "C" filed an answer which disclaimed knowledge or information about the Bill of Sale and averred that the signature thereon allegedly belonging to their father \appears to be a forgery. At the trial of the case, "B" and "C" Icommenced through counsel and by means of an expert witness, to adduce evidence to prove that the seller's signature was a forgery. "A" objected, saying that the genuineness and due execution of the Bill of Sale was deemed admitted because the answer was unverified, as a matter of law, inasmuch as the verification was made only on the express basis of best information and belief. Resolve the objection with basis. Suggested answer: The objection should be overruled. "B" and "C" do not have to deny the bill of sale under oath since they are not parties to the Bill of Sale alleged to have been executed by their deceased father. A specific denial of the genuineness and due execution of the document is sufficient. S. Defenses cut-off by the admission of genuineness and due execution - When a party is deemed to have admitted the genuineness and due execution of an actionable document, defenses that are implied from said admission are necessarily waived like the defenses of forgery of the document, lack of authority to execute the document, that the party charged signed the document in some other capacity than that alleged in the pleading, or that the document was never delivered. Also cut off by the admission is the defense that the document was not in words and figures as set out in the pleadings. T. Defenses not cut-off by the admission of genuineness and due execution - The following defenses, among others, on the other hand, may be interposed despite the implied admission of the genuineness and due execution of the document: (a) payment; (b) want of consideration; (c) illegality of consideration;
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Q. Pleading actionable documents 1. A substantial number of complaints reaching the courts shows that the plaintiff's cause of action or the defendant's defense is based upon a written instrument or a document.
Illustration (Bar 2005) In a complaint for recovery of real property, the plaintiff averred, among others, that he is the owner of the said property by virtue of a deed of sale executed by the defendant in his favor. Copy of the deed of sale was appended to their complaint as "Annex A" thereof. In his unverified answer, the defendant denied the allegation concerning the sale of the property in question, as well as the appended deed of sale, for lack of knowledge of information sufficient to form a belief as to the truth thereof. Is it proper for the court to render judgment without trial? Suggested answer. Where no other issue exists in the case, the court may render a judgment without a trial through a judgment on the pleadings. This judgment is rendered by the court, where the answer fails to tender an issue or otherwise admits the material allegations of the adverse party's pleading (Sec. 1, Rule 34, Rules of Court). The deed of sale appended to the complaint is in the nature of an actionable document because it is the basis of the plaintiff's claim. Under the Rules, the genuineness and due execution of the document shall be deemed admitted unless the adverse party denies them under oath (Sec. 8, Rule 8, Rules of Court). The unverified answer therefore, failed to tender an issue. Also, the averment of lack of knowledge is obviously one done in bad faith. A denial that the defendant is without any knowledge of his having signed a deed of mortgage when the facts and the actionable document forming the basis of the claim incontrovertibly show that he so executed the document denied, is a denial in bad faith. This denial Amounts to an admission. While a pleader is allowed to allege that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, this rule shall not apply where the fact as to which a lack of knowledge is asserted is, to the knowledge of the court, so plainly within the defendant's knowledge that his averment of ignorance must be palpably untrue. Illustration (Bar 2004) In his complaint for foreclosure of mortgage to which was duly attached a copy of the mortgage deed, plaintiff PP alleged inter alia as follows: (1) that defendant DD duly executed the mortgage deed, copy of which is attached as Annex "A" of the complaint and made an integral part thereof; and (2) that to prosecute his complaint, plaintiff contracted a lawyer, CC for a fee of P50,000.00 In his answer, defendant alleged, inter alia, that he had no knowledge of the mortgage deed, and he also denied liability for plaintiff's contracting with a lawyer for a fee.
Does defendant's answer as to plaintiff's allegation No. 1 x x x sufficiently raise an issue of fact? Suggested answer: The answer of defendant does not sufficiently raise an issue of fact because the answer admitted the material allegations of the complaint. First, the complaint was based on the mortgage deed, an actionable document. The genuineness and due execution of the deed were all admitted when the defendant failed to make a specific denial under oath (Sec. 8, Rule 8, Rules of Court). Second, the averment of lack of knowledge is obviously one done in bad faith. A denial that the defendant is without any knowledge of his having signed a deed of mortgage when the facts and the actionable document forming the basis of the claim incontrovertibly that he so executed the document denied, is a denial in bad faith. This denial amounts to an admission. While a pleader is allowed to allege that he is without knowledge or information sufficient to form a belief as the truth of a material averment made in the complaint, this rule shall not apply where the fact as to which a lack of knowledge is asserted is, to the knowledge of the court, so plainly within the defendant's knowledge that his averment of ignorance must be palpably untrue. Illustration (Bar 1991) In an action for collection of P2,000,000.00, plaintiff bank alleged that defendant, Oriental Textile Mills, Inc. for valuable consideration, executed in favor of the bank a promissory note for said amount. Defendant filed an answer to the complaint denying liability and alleging that Jesus Lim had no authority to negotiate and obtain a loan in its behalf nor to sign the promissory note. The answer was not verified. During the trial, defendant sought to introduce evidence to show that Jesus Lim was not authorized to enter into the transaction and to sign the promissory note for and in behalf of the defendant corporation. Plaintiff objected to such evidence, claiming that Lim's authority had been admitted by defendant's failure to verify the answer. (a) The judge sustained the objection. Was the ruling correct? (b) xxx Suggested answer. The ruling of the court is correct. Where the claim is based on an actionable document like a promissory note, the genuineness and due execution of the note are deemed admitted where such matters are not specifically denied under oath. In the instant case, the defendant in not verifying his answer did not make a denial under oath. When a party is deemed to have admitted the genuineness and due execution of an actionable document, defenses that are implied from said admission are necessarily waived like the defenses of forgery of the document, lack or authority to execute the document, that the party charged signed the document in some other capacity than that alleged in the pleading, or that the document was never delivered. Illustration (Bar 1990) In his answer to the complaint, Mario Reyes alleged that he does not owe Norma Alajar any sum of money, and that he executed the promissory note only to enable Norma Alajar to show the same to her husband to explain the
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(d) usury; and (e) fraud. These defenses are not inconsistent with the admission of the genuineness and due execution of the instrument and are not therefore, barred. It is submitted that prescription, release, waiver, statute of frauds, estoppel, former recovery or discharge in bankruptcy are not likewise barred.
Suggested answer: The objection should be overruled. When an actionable document is not denied under oath, the genuineness and the due execution of the document are deemed admitted. When a party is deemed to have admitted the genuineness and due execution of an actionable document, defenses that are implied from said admission are necessarily waived like the defenses of forgery of the document, lack or authority to execute the document, that the party charged signed the document in some other capacity than that alleged in the pleading, or that the document was never delivered. The defense of absence of consideration is not however, deemed admitted. This defense is not inconsistent with the admission of the genuineness and due execution of the instrument. U. Splitting a single cause of action l. Splitting a single cause of action is the act of instituting two or more suits for the same cause of action (Sec. 4, Rule 2, Rules of Court). In splitting a cause of action, the pleader divides a single cause of action, claim or demand into two or more parts, brings a suit for one of such parts with the intent to reserve the rest for another separate action. It also occurs when a party brings a suit for each part of the same action that was split. V. Prohibition against splitting a single cause of action 1. Splitting a cause of action is not allowed by the Rules of Court. "A party may not institute more than one suit for a single cause of action" (Sec. 3, Rule 2, Rules of Court). 2. The practice of splitting a single cause of action is discouraged because it breeds multiplicity of suits, clogs the court dockets, leads to vexatious litigation, operates as an instrument of harassment, and generates unnecessary expenses to the parties. 3. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and crossclaims. 4. To illustrate: The act of a defendant in taking possession of the plaintiff's land by means of force and intimidation constitutes a single act of dispossession but gives rise to two reliefs: (a) recovery of possession, and (b) damages arising from the loss of possession. Both of these reliefs result from a single wrong hence, constitute but a single cause of action. Each of them cannot be the subject of two separate actions. It is procedurally erroneous for the, plaintiff to file an action to recover possession and another action for damages. Both remedies must be alleged and claimed in only one complaint. To file a separate action for each relief is to split a single cause of action.
5. An action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry. The claim for damages cannot be filed separately. - The same principle applies to an action to recover the possession of a land. The action must also include the recovery of the fruits already taken from the land and appropriated by the defendant. A suit for the recovery of the land and a separate suit to recover the fruits will not be sustained. 6. A single act may sometimes violate several rights of a person. Nevertheless the plaintiff has only one cause of action regardless of the number of rights violated. If a car owner sustains injuries to his person and damage to his car as a result of the negligent driving of the defendant, two rights of the plaintiffs have been violated, namely, his personal right to be safe in his person and his property right to have his car intact and free from any damage. Under the circumstances, the plaintiff can only file a single action for the recovery of damages for both types of injuries. Filing an action to recover damages to his person and later for damages to his car would be splitting a single cause of action. If however, a passenger in the same car was also injured, the injuries to the passenger gives rise to a cause of action separate and distinct from those sustained by the car owner because distinct rights belonging to different persons have been violated. The injured passenger may file a suit against the defendant separate from the suit filed by the car owner. 7. A tenant illegally ejected from the land is entitled to two reliefs - one for reinstatement and another for damages. Since both reliefs arose from- the same cause of action, they should be alleged in one complaint. 8. However, an action for the reconveyance of title over property does of include a cause of action for forcible entry or unlawful detainer. They are distinct causes of action. Hence, the pendency of an action for reconveyance of title does not divest the Municipal Trial Court of its jurisdiction to try an ejectment case of either forcible entry or unlawful detainer. What is involved in an ejectment case is possession de facto or material possession. In an action for reconveyance, the issue is ownership. 9. An action for the recovery of taxes should also include the demand for surcharges resulting from the delinquency in the payment of said taxes. The non-payment of taxes gave rise to two reliefs: (a) the recovery of the unpaid taxes; and (b) the recovery of the surcharges resulting from non-payment of the taxes. These two reliefs are results of a single cause of action and which should be pursued in a single complaint. 10. A bank cannot file a civil action against the debtor for the collection of the debt and then subsequently file an action to foreclose the mortgage. This would be splitting a single cause of action. - It has been held however, that an action to collect the amount of the loan will not preclude a subsequent action for the rescission of the mortgage based on violation of the conditions of the mortgage.
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disappearance of the amount from the conjugal funds as Norma Alajar lost the same in the casino. The answer is not verified. At the trial, the lawyer of Norma Alajar objected to the testimony of Mario Reyes as to his accommodation story because, as the answer is not verified, he is deemed to have admitted the genuineness and due execution of the promissory note. Decide on the objection with reasons.
Suggested answer. The motion to dismiss must be granted. The action to foreclose the mortgage tantamounts to splitting a single cause of action. One cannot file an action to collect the indebtedness and then file another action for foreclosure. 11. A claim for partition of real property and a claim for compensation for the improvements thereon constitute a single cause of action. An action for partition alone will. bar a subsequent action for the recovery of compensation on the improvements. 12. An action for annulment of the sale of certain shares of stock should include a claim for the recovery of accrued dividends (Bar 1996). Illustration (Bar 2005) Raphael, a warehouseman, filed a complaint against V Corporation, X Corporation and Y Corporation to compel them to interplead. He alleged therein that the three corporations claimed title and right of possession over the goods deposited in his warehouse and that he was uncertain which of them was entitled to the goods. After due proceedings, judgment was rendered by the court declaring that X Corporation was entitled to the goods. The decision became final and executory. Raphael filed a complaint against X Corporation for the payment of P100,000.00 for storage charges and other advances for the goods. X Corporation filed a motion to. dismiss the complaint on the ground of res judicata. X Corporation alleged that Raphael should have incorporated in his complaint for interpleader his claim for storage fees and advances and that for his failure to do so he was barred from interposing his claim. Raphael replied that he could not have claimed storage fees and other advances as in his complaint for interpleader because he was not yet certain as to who was liable therefore. Resolve the motion with reasons. Suggested answer. The motion to dismiss should be granted. When the complaint for interpleader was filed, Raphael should have incorporated the claim for storage charges and other expenses. In filing a separate suit, he split a single cause of action. Illustration (Bar 2005) While cruising on a highway, a taxicab driven by Mans hit an electric post. As a result thereof, its passenger, Jovy, suffered serious injuries. Mans was subsequently
charged before the Municipal Trial Court with reckless imprudence resulting in serious physical injuries. Thereafter, Jovy filed a civil action against Lourdes, the owner of the taxicab, for breach of contract, and Mans for quasi-delict. Lourdes and Mans filed a motion to dismiss the civil action on the ground of litis pendency, that is, the pendency of the civil action impliedly instituted in the criminal action for reckless imprudence resulting in serious physical injuries. Resolve the motion with reasons. Suggested answer. The action for breach of contract against the taxicab owner cannot be barred. This is not a case of splitting a single cause of action. The suit against the owner is based on breach of contract of carriage separate and distinct from the cause of action arising from the crime. A contract is a source of obligation separate and distinct from a crime (Art. 1156, Civil Code of the Philippines). The civil action based on a quasi-delict is likewise not barred. Its source is likewise separate and distinct from the crime. A quasi-delict is a separate source of a civil obligation and is independent of the criminal act committed by the defendant (Art. 1156; Art. 2177, Civil Code of the Philippines). Illustration (Bar 1996) 1. xxx 2. X brought an action against Y for the recovery of certain shares of stocks. After the case was decided in favor of X, he filed another action for the recovery of the dividends that had already accrued even when the first action was filed. Is the second action for the recovery of dividends proper? Suggested answer: The second action is not proper. There was a splitting of a single cause of action. When X filed an action to annul the sale of the shares, he should have included therein the recovery of the dividends that had accrued. 13. A contract which requires the performance of several obligations at different times, like an obligation to be performed on an installment basis, gives rise to divisible independent obligations. Each obligation not performed when due and upon proper demand gives rise to an independent cause of action. In other words since the failure to pay an installment constitutes a distinct cause of action, each installment that falls due can be the subject of a separate suit. If there is already a pending suit based on a default of a previous installment and during such pendency an installment falls due and is not paid, the latter may, as an alternative move, be incorporated in the pending suit by filing a supplemental pleading. - Thus, in a contract of lease which provides for the payment of rentals in separate installments, each unpaid installment constitutes an independent cause of action. However, when at the time the complaint is filed, there are several installments already due, all of them constitute but a single cause of action and should be included in a single complaint. W. Anticipatory breach
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Illustration (Bar 1999) A purchased a lot from B for P 1,500,000.00 He gave a down payment of P500,000.00, signed a promissory note payable thirty days after date, and as security for the settlement of the obligation, mortgaged the same lot to B. When the note fell due and A failed to pay, B commenced suit to recover from A the balance of P1 million. After securing a favorable judgment on his claim, B brought another action against A before the same court to foreclose the mortgage. A now files a motion to dismiss the second action on the ground of bar by a prior judgment. Rule on the motion.
- Where the parties enter into a contract for the delivery of a specified amount of goods every month for a period of ten years and the defendant expressed his intention not to make any deliveries under the contract, the breach is total and there can only be one action. This is an unqualified and positive refusal to perform a contract and even if assuming that the performance thereof is not yet due, the renunciation goes to the whole contract and shall be treated as a complete breach that will entitle the injured party to bring his action at once. This anticipatory breach committed by the defendant entitles the plaintiff to only one cause of action for damages.
claims if he desires because each debt is a separate cause of action. Joinder of causes of action is not compulsory. It is merely permissive (Bar 1999).
X. Effect of splitting a single cause of action (Bar 1998;1999) 1. If two or more suits are instituted for a single cause of action, "the filing of one or a judgment upon the merits in any of one is available as a ground for dismissal of the others" (Sec. 4, Rule 2, Rules of Court). The remedy of the defendant is to file a motion to dismiss.
3. Assume that aside from the above claims, C as lessor also wants to eject D from the apartment occupied by D as lessee. May the action be joined with the claims for money? No. An action for ejectment is a special civil action. This kind of action cannot be joined with ordinary actions. The joinder does not include special civil actions or those actions governed by special rules. The rule is clear: "The joinder shall not include special civil actions or actions governed by special rules" (Sec. 5[b], Rule 2, Rules of Court). Confusion in the application of procedural rules would certainly arise from the joinder of ordinary and special civil actions in a single complaint.
2. Note that it need not be the second action filed that should be dismissed. The phraseology of the present rule (Sec. 4, Rule 2) no longer confines the dismissal to the second action. As to which action should be dismissed would depend upon judicial discretion and the prevailing circumstances of the case. Y. Joinder of causes of action (Bar 1999) 1. Joinder of causes of action is the assertion of as many causes of action as a party may have against another in one pleading alone (Sec. 5, Rule 2, Rules of Court). It is the process of uniting two or more demands or rights of action in one action.
4. Assume that C has the following causes of action against D: (a) P1 million based on a note; (b) PI million based on torts; and (c) foreclosure of a real estate mortgage. May the causes of action be joined? They can be joined but excluding foreclosure of real estate mortgage which is a special civil action. "The joinder shall not include special civil actions or actions governed by special rules" (Sec. 5[b], Rule 2, Rules of Court). 5. When there are two or more defendants, or one or more plaintiffs, the causes of action against the defendants can only be joined if there is a compliance with the rules on joinder of parties under Sec. 6 of Rule 3. This provision requires that before there can be a proper joinder of parties, the right to relief should arise out of the same transaction or series of transactions and that there exists a common question of law or fact. Note that this requirement does not apply when there is only one plaintiff and one defendant.
- To illustrate: D is the debtor of C for P350,000.00 due on January 5, 2007. D likewise owes C P350,000.00 due on February 13, 2007. Both debts are evidenced by distinct promissory notes. D has not paid the debts despite demand. Each debt is a separate cause of action because each is the subject of a different transaction. However, under the rule on joinder of causes of action, C may file a single suit against D for the collection of both debts, despite the claims being actually separate causes of actions and having arisen out of different transactions.
- Illustrations: (a) Suppose C is the creditor of D for P350,000.00 and also of E for P375,000.00. Both debts are due and these debts have been contracted separately. May C join D and -E as defendants in the same complaint? No. Where a party sues two or more defendants, it is; necessary for the causes of action to arise out of the same transaction or series of transactions and that there should be a common question of law or fact. The debt of D is a transaction different from the debt of E.
2. When the causes of action accrue in favor of the same plaintiff and against the same defendant, i. e., there is only one plaintiff and one defendant, it is not necessary to ask whether or not the causes of actions arose out of the same transaction or series of transactions. This question is only relevant when there are multiple plaintiffs or multiple defendants. In the hypothetical just discussed in par. 1, is C obliged to join the causes of action against D? No. C is not obliged to do so. He may file a single suit for each of the
(b) Suppose P is a passenger in a bus owned by O and driven by D. Because of the negligence of D, P sustained injuries when the vehicle fell into a ditch by the roadside. May P join O and D as defendants in the same complaint based on torts? Yes. The liability of O and that of D arose out of the same accident which gives rise to a common question of law or fact. Note that the existence of a contractual relationship does not preclude a- suit based on tort. O may be sued under a quasidelict, as an employer of D
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- Hence, If the first action is pending when the second action is filed, the latter may be dismissed based on litis pendencia, i.e., there is another action pending between the same parties for the same cause (Sec. 1[e], Rule 16, Rules of Court). If a final judgment had been rendered in the first action when the second action is filed, the latter may be dismissed based on res judicata, i.e., that the cause of action is barred by a prior judgment (Sec. 1[f], Rule 16, Rules of Court).
- In case C decides in favor of a joinder, the suit shall be filed in the Regional Trial Court because the total amount of the debts is within that court's jurisdiction. Under the Rules, when the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction (Sec. 5[d], Rule 2, Rules of Court). This situation follows the so-called totality test for purposes of jurisdiction.
Illustration (Bar 2005) Perry is a resident of Manila while Ricky and Marvin are residents of Batangas City. They are the co-owners of a parcel of residential land located in Pasay City with an assessed value of P100,000.00. Perry borrowed P 100,000.00 from Ricky which he promised to pay on or before December 1, 2004. However, Perry failed to pay his loan. Perry also rejected Ricky and Marvin's proposal to partition the property. Ricky filed a complaint against Perry and Marvin in the Regional Trial Court of Pasay City for the partition of the property. He also incorporated in his complaint his action against Perry for the collection of the latter's P100,000.00 loan, plus interests and attorney's fees. State with reasons whether it was proper for Ricky to join his causes of action in his complaint for partition against Perry and Marvin in the Regional Trial Court of Pasay City. Suggested answer. The joinder of causes of action is not proper. The joinder involves a cause of action for partition and a cause of action for a sum of money. Partition is a special civil action under Rule 69. A speciaI civil action cannot be joined with an ordinary action (Sec. 5lbl, Rule 2, Rules of Court). Illustration (Bar 2002) P sued A and B in one complaint in the RTC-Manila, the cause of action against A being an overdue promissory note for P300,000 and that against B being an alleged balance of P300,000 on the purchase of goods sold on credit. Does the RTC-Manila have jurisdiction over the case? Suggested answer. The RTC-Manila has no jurisdiction over the case. The joinder of the causes of action against A and B is not proper. For a joinder of causes of action against several defendants to be proper, the joinder must comply with the rule on joinder of parties under Sec. 6 of Rule 3. This rule requires that the causes of action joined should arise out of the same transaction or series of transactions and there
exists a question of law or fact common to both. These requirements are not met under the facts. Since the causes of action cannot be joined, each cause of action must be the subject of a separate action. The totality rule has no application under the facts of the case. The amount of each claim (P300,000.00) falls within the jurisdiction of the MTC. Illustration (Bar 2002) P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue promissory note, (2) P80,000.00 on the purchase price of a computer, (3) P150,000.00 for damages to his car, and (4) P100,000.00 for attorney's fees and litigation expenses. Can A move to dismiss the case on the ground that the court has no jurisdiction over the subject matter? Explain. Suggested answer. A cannot move for the successful dismissal of the case. Under the totality rule, the aggregate amount of the claim under the causes of action joined is P 430,000.00, an amount well within the jurisdiction of the RTC. The claim for attorney's fees and litigation expenses and costs are not to be included in determining the jurisdictional amount. Where the cause of action accrues to one plaintiff against one defendant, the provisions of Sec. 5 of Rule 2 allow a party to assert in one pleading as many causes of action as he may have against an opposing party provided he does not join special civil actions or those subject to special rules. No special civil action is involved under the facts. Illustration (Bar 1999) A secured two loans from B, one for P500,000.00 and the other for P1,000,000.00 payable on different dates. Both have fallen due. Is B obliged to file only one complaint against A for the recovery of both loans? Explain. Suggested answer. B is not obliged to file only one complaint. A joinder of causes of action is not compulsory but merely permissive. He may, if he desires, file two actions for the recovery of each loan. Illustration (Bar 1996) 1. XXX 2. The complaint filed before the Regional Trial Court of Manila states two (2) causes of actions, one for rescission of contract and the other for the recovery of One Hundred Thousand Pesos (P100,000.00) both of which arose out of the same transaction. Is the joinder of the two causes of action proper? Suggested answer. The causes of actions may be joined. Both are ordinary civil actions and thus, neither requires special rules. Since the action for rescission falls under the jurisdiction of the Regional Trial Court, the joinder may be made in said court. Illustration (Bar 1996) Distinguish joinder of causes of actions from joinder of parties. Suggested answer.
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if P so desires (Art. 2180, Civil Code of the Philippines; Air France vs. Carrascoso, 18 SCRA 155). (c) If A and B both sign a promissory note for P1 million and bind themselves to be jointly liable for the debt in. favor of C, there are two distinct obligations within the same promissory note, namely: (a) the obligation of A to C for P500,000.00; and (b) the obligation of B to C for P500,000,00. Under Art. 2108 of the Civil Code of the Philippines, unless otherwise indicated by the obligation or by law, the debt or credit shall be presumed divided into as many equal shares as there are creditors or debtors. In other words the obligation under the promissory note in the illustration is joint, not solidary. If the obligation is joint, C may sue A alone or sue B alone. This is because the debts are separate and distinct causes of action. May C however, join A and B under one complaint and thereby join the causes of action against them? Yes. The debt of A and the debt of B arose out of the same transaction, i.e., the same promissory note and would necessarily give rise to a common question of law or fact.
> Joinder of parties - a procedural device that may be employed when there are various causes of actions that accrue in favor of one or more plaintiffs against one or more defendants, i.e., there is a plurality of parties. A joinder of parties requires that before parties can be joined under a single complaint the right to relief must arise out of the same transaction or series of transactions and there must be a common question of law or fact. A joinder of parties may or not be involved in a joinder of causes of actions. Z. Remedy in case of misjoinder of actions - When there is a misjoinder of causes of action, the erroneously joined cause of action can be severed or separated from the other causes of action upon motion by a party or upon the court's own initiative. Misjoinder is not a ground for the dismissal of the case (Sec. 6, Rule 2, Rules of Court). For example, if an action for forcible entry is joined in one complaint with the causes of actions based on several promissory notes, the complaint should not be dismissed based on the misjoinder of the forcible entry case. Instead, the cause of action predicated on forcible entry may be severed from the complaint upon motion of a party or by the court motu proprio. II. ACTIONS A. Definition 1. > action - the legal and formal demand of one's right from another person made and insisted upon in a court of justice 2. In this jurisdiction, it is settled that the terms "action" and "suit" are synonymous. B. Civil actions and criminal actions 1. > civil action "- one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" (Sec. 3[a], Rule 1, Rules of Court). 2. > criminal action "- one by which the State prosecutes a person for an act or omission punishable by law" (Sec. 3[b], Rule 1, Rules of Court). 3. It has been ruled that ". . . proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory.. ." C. Actions distinguished from special proceedings (Bar 1998;1996) Action Special Proceedings The purpose of an action is The purpose of a special either: proceeding is to establish a (if civil action) to status, a right or a particular protect a right or prevent fact (Sec. 3, Rule 1, Rules of or redress a wrong if the Court). action
(if criminal action) to prosecute a person for an act or an omission punishable by law (Sec. 3, Rule 1, Rules of Court). - Note: Refer to Sec. 1 of Rule 72 for the cases that apply special proceedings while the provisions of Rule 72 to Rule 109, discuss the specific kinds of special proceedings. D. Real and personal actions (Bar 2006; 2004) 1. An action is `real' when it affects title to or possession of real property, or an interest therein (Sec. 1, Rule 4, Rules of Court). All other actions are personal actions (Sec. 2, Rule 4, Rules of Court; Bar 1994). 2. An action is real when it is founded upon the privity of real estate. That means that realty, or an interest therein is the subject matter of the action. Not every action however, involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a `real' action, it is not enough that the action must deal with real property. It is important that the matter in litigation must also involve any of the following issues: title to, ownership, possession, partition, foreclosure of mortgage or condemnation of real property. 3. Examples: An action for damages to real property, while involving realty is a personal action because although it involves real property, it does not involve any of the issues mentioned. An action to recover possession of real property plus damages is a real action because possession of the real property is involved. However, an action to recover possession of a personal property is a personal action. 4. An action for a declaration of the nullity of marriage is a personal action 5. An action for specific performance is a personal action as long as it does not involve a claim of or recovery of ownership of real property. Where the allegations as well as the prayer of the complaint do not claim ownership of the lots in question or ask for possession of the same but instead seeks for the execution of a deed of sale by the defendants in favor of the plaintiff, the action is a personal action. - However, where a complaint is denominated as one for specific performance but nonetheless prays for the issuance of a deed of sale for a parcel of land for the plaintiff to acquire ownership of the land, its primary objective and nature is one to recover the parcel of land itself and thus, is deemed a real action. 6. If the action is denominated as one for specific performance, but the plaintiff actually seeks for the issuance of a deed of assignment in his favor of certain shares of stocks to regain ownership and possession of said shares, the action is not one for specific performance but a personal action for the recovery of property. The docket fee therefore, should be computed based on the value of the property and not based on the docket fee for specific performance.
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> Joinder of causes of action - the procedural device whereby a party who asserts various claims against the same or several parties, files all his claims against them in a single complaint. The joinder will not involve a joinder of parties when the causes of actions joined accrue in favor of the same plaintiff against the same defendant, i.e., there is only one plaintiff against the same defendant. This means that a joinder of causes of action will not necessarily involve a joinder of parties.
the main relief without passing upon the claim of the parties with respect to the title to and the possession of the lot in question. The action is a real action.
8. Where the action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property, the action is real.
14. Where the sale is fictitious, with absolutely no consideration, it should be regarded as a non-existent contract. There being no contract between the parties, there is nothing in truth to annul by action. The action therefore, cannot be an action for annulment but one for the recovery of a fishpond, a real action.
9. Where an award of a house and lot to the plaintiff was unilaterally cancelled, an action that seeks to annul the cancellation of the award over the said house and lot is a personal action. The action does not involve title to, ownership or possession of real property. The nature of the action is one to compel the recognition of the validity of the previous award by seeking a declaration that the cancellation is null and void.
E. Significance of the distinction between a personal and a real action 1. The distinction between a real action and a personal action is important for the purpose of determining the venue of the action. Questions involving the propriety or impropriety of a particular venue are resolved by initially determining the nature of the action, i.e., if the action is personal or real.
Illustration (Adapted from Bar 1978 and 1976) X filed in the Court of First Instance (now Regional Trial Court) of Cavite against the Development Bank of the Philippines (DBP) seeking the annulment of the cancellation of the award of a house and lot in Quezon City in his favor. DBP had unilaterally cancelled the award because X was a retired employee who had merely an option to purchase said house and lot. DBP filed a motion to dismiss the complaint on the ground of improper venue, contending that since the property in question is located in Quezon City, the complaint should have been filed there. Resolve said motion, stating your reasons briefly. Is the action a real or a personal action?
2. A real action is `local', i.e., its venue depends upon the location of the property involved in the litigation. "Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated" (Sec. 1, Rule 4, Rules of Court; Italics supplied).
Suggested answer. The action is a personal action. The nature of the action is one to compel the recognition of the validity of the award by seeking a declaration that the cancellation of the award is null and void. The issue does not involve title to the property or any interest therein. 10. An action to foreclose a real estate mortgage is a real action, but an action to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage is a personal action. 11. An action praying that the defendant be ordered "to accept the payment being made" by plaintiff for the lot to which the latter contracted to buy on an installment basis from the former, to pay plaintiff compensatory damages and attorney's fees and to enjoin the defendant and his agents from repossessing the lot in question, is one that affects title to land because although the immediate remedy is to compel defendant to accept the tender of payment allegedly made, it is obvious that this relief is merely the first step to establish plaintiff's title to real property. The action is real. 12. An action to annul a contract of loan is a personal action. An action to annul or cancel a real estate mortgage is a personal action. 13. Although the main relief sought in the action is the delivery of the certificate of title, said relief, in turn depends upon who, between the parties, has a better right to the lot in question. It is not possible for the court to decide
3. A personal action is `transitory; i. e., its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. A personal action "may be commenced and tried where the plaintiff or any of the principal plaintiffs resides or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff" (Sec. 2, Rule 4, Rules of Court; Italics supplied; Bar 1994). 4. Hence, if the question involves the venue of an action, the analysis will necessarily involve the following steps: (a) a determination whether the action is real or personal (b) an application of the rules on venue under Rule 4, Rules of Court. Thus, an action for a sum of money, instituted by a resident of Manila against a resident of Quezon City, shall be filed either in Manila or Quezon City at the election of the plaintiff because the action is personal. 5. An action to annul a sale of a land located in Baguio City where recovery of ownership is essentially the material issues in the case, must be filed in Baguio City. The action is a real action and must be filed in the place where the property is situated regardless of the residence of the parties. 6. An action for ejectment must be filed where the real property subject of the action is situated. Do not consider the residences of the parties because "forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated" (Sec. 1, Rule 4, Rules of Court). 7. An action for the recovery of possession of the leased premises located in Davao City and for the payment of
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7. Where it is alleged in the complaint that the defendant breached the contract, so that the plaintiff prays that the contract be rescinded and that the defendant be ordered to return possession of the hacienda to the plaintiff, the ultimate purpose or end of the action is to recover possession of real property and not a mere breach of contract.
accrued rentals is a real action. The venue of the action is Davao City (Bar 1991).
anyone in the world. On the other hand, an action for damages is both a personal action and an action in personam.
8. To reiterate, where an award of a house and lot to the plaintiff was unilaterally cancelled, an action that seeks to annul the cancellation of the award over the said house and lot is a personal action. The action does not involve title to, ownership or possession of real property. The nature of the action is one to compel the recognition of the validity of the previous award by seeking a declaration that the cancellation is null and void. The venue is the residence of the plaintiff or that of the defendant at the option of the plaintiff (Hernandez vs. Development Bank of the Philippines, 71 SCRA 290; Bar 1976; Bar 1978).
5. An action for specific performance is an action in personam. An action for specific performance and/or rescission is not an action in rem.
F. In personam and in rem actions (Bar 1994) 1. A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose through the judgment of a court, some responsibility or liability directly upon the person of the defendant. Examples: An action for a sum of money; an action for damages. In this kind of action, no one other than the defendant is held liable, not the whole world.
8. Cases involving an auction sale of land for the collection of delinquent taxes is an action in personam. Mere publication of the notice of delinquency does not suffice. Notice by publication although sufficient in proceedings in rem does not satisfy the requirements of proceedings in personam.
3. An action in personam is not necessarily a personal action. Nor is a real action necessarily an action in rem. An in personam or an in rem action is a classification of actions according to the object of the action. A personal and real action is a classification according to foundation. It is in rem when directed against the whole world (Bar 1994). For instance, an action to recover, title to or possession of real property is a real action, but it is an action in personam. It is not brought against the whole world but against the person upon whom the claim is made. 4. An action for ejectment (forcible entry or unlawful detainer) is a real action because it involves the issue of possession of real property. It is also however, an action in personam because the action is directed against a particular person who is sought to be held liable (Sec. 1, Rule 4, Rules of Court). An action for the declaration of nullity of a marriage is a personal action because it is not founded on real estate. It is also an in rem action because the issue of the status of a person is one directed against the whole world. One's status is a matter that can be set up against
7. A land registration proceeding is an action in rem. Hence, the failure to give a personal notice to the owners or claimants of the land is not a jurisdictional defect. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction
9. An action to recover real property is a real action. It is however, also an action in personam for it binds only a particular individual. G. Quasi in rem actions 1. An action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. 2. The object of an action quasi in rem is the sale or disposition of the property whether by attachment, foreclosure or any other form of remedy. 3. Examples of actions quasi in rem: (a) action for partition; (b) action for accounting; Such actions are essentially for the purpose of affecting the defendant's interest in the property and not to render a judgment against him; (c) attachment; (d) foreclosure of mortgage. H. Significance of distinction between actions in rem, in personam and quasi in rem 1. The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. Jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case against said defendant where the action is one in personam but not where the action is in rem or quasi in rem. - Against a resident defendant in an action in personam, this jurisdiction is acquired by service in person on the defendant (Sec. 6, Rule 14, Rules of Court) or in case he cannot be served in person within a reasonable time, by substituted service of summons (Sec. 7, Rule 14, Rules of Court). Without a valid service of the summons the court cannot obtain jurisdiction over the person of the defendant unless the defendant voluntarily appears in the action. This voluntary appearance is equivalent to service of summons (Section 20, Rule 14, Rules of Court).
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2. A proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. Traditional jurisprudence has referred to this action as one brought against the whole world.
6. A cadastral proceeding is an action in rem
3. Summons by publication, as far as existing jurisprudence is concerned, will not enable the court to acquire jurisdiction over the person of the defendant. This jurisprudential rule is however, subject to the exceptions laid down under the amended rules which took effect on July 1, 1997. These rules are: (a) If the resident defendant is temporarily out of the country, he may be served by publication with leave of court. Note the words, "any action" in Sec. 16 of Rule 14 and a reference made to Sec. 15 of Rule 14 in the same section (Sec. 16, Rule 14 in relation to Sec. 15, Rule 14, Rules of Court); and (b) If the identity of the defendant is unknown or whose whereabouts are unknown, service may, with leave of court, be effected upon him by publication in a newspaper of general circulation. Note the words, "in any action" in Sec. 14 of Rule 14 (Sec. 14, Rule 14, Rules of Court). 4. The Supreme Court sums up the basic rules on the matter, in the following words, thus: "The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. The rules on service of summons under Rule 14 of the Rules of Court likewise apply according to the nature of the action. "An action in personam is an action against a person on the basis of his personal liability. An action in rem is an action against the thing itself instead of against the person. An action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Jurisdiction over the res is acquired either (1) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (2) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. Nonetheless, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements.
A resident defendant who does not voluntarily appear in court, must be personally served with summons as provided under Sec. 6, Rule 14 of the Rules of Court. If she cannot be personally served with summons within a reasonable time, substituted service may be effected (1) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (L) by leaving the copies at def'endant's office or regular place of business with some competent person in charge thereof in accordance with Sec. 7, Rule 14 of the Rules of Court (Biaco vs. Philippine Countryside Rural Bank, G.R. No. 161417, February 8, 2007). I. Jurisdiction over the res 1. Jurisdiction over the res refers to the court's jurisdiction over the thing or the property which is the subject of the action. Jurisdiction over the res may be acquired by the court by placing the property or thing under its custody (custodia leg's). Example: attachment of property. It may also be acquired by the court through statutory authority conferring upon it the power to deal with the property or thing within the court's territorial jurisdiction. Example: suits involving the status of the parties or suits involving the property in the Philippines, of non-resident defendants. - A land registration case is a proceeding in rem, and jurisdiction over the res in this case cannot be acquired unless there is a constructive seizure of the land through publication and service of notice. 2. If the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not required. What is required is jurisdiction over the res although summons must also be served upon the defendant in order to satisfy the requirements of due process. 3. If the suit against a non-resident defendant is in rem or quasi in rem as in the case of an in rem action for annulment of his marriage to a Filipina while he was temporarily in the Philippines, a suit for annulment may prosper despite the absence of said non-resident defendant in the Philippines. Summons by publication or any of the modes of extraterritorial service under Sec. 15 of Rule 14 will suffice because what the court merely needs is jurisdiction over the res. J. Extraterritorial service; other rules on summons (Bar 1959) 1. When the defendant is (a) a non-resident, and (b) he is not found in the country, summons may be served upon him extraterritorially in accordance with Rule 14, Sec. 15. Under this provision, there are only four instances when extraterritorial service of summons is proper, namely: (1) when the action affects the personal status of the plaintiff, (2) when the action relates to, or the subject of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant nonresident's property has been attached within the Philippines. Observe that these cases are either in rem or quasi in rem. 2. It must be stressed that the concept of extraterritorial service of summons will apply only to a defendant who is a
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2. "In an action in personam against a non-resident who does not voluntarily submit himself to the authority of the court, personal service within the state is essential to the acquisition of jurisdiction over his person. This method is possible if such defendant is physically present in the country. If he is not found therein, the court cannot acquire jurisdiction over his person and therefore, cannot validly try the case against him". In an action for specific performance against a nonresident who does not reside in the Philippines, summons by publication will not enable the court to acquire jurisdiction over him. Because an action for specific performance is in personam, service of summons upon him in person while he is within the territory is essential for the court to acquire jurisdiction over him.
non-resident and at the same time is outside the Philippines. It does not apply to any other defendant like a resident of the Philippines or a non-resident who is in the country. It must be emphasized too that extraterritorial service can only be effected when the action is either in rem or quasi in rem. Jurisdiction over the person of the defendant here is not required. Instead of jurisdiction over the person of the defendant, the rule merely requires jurisdiction over the res. Publication is sufficient to enable the court to acquire this type of jurisdiction. If the action however, against the nonresident defendant is in personam, extraterritorial service cannot be availed of. This is because "there is no extraterritorial service in an action in personam"
either a citizen or a resident of the country. If the suit is in personam, as when the suit is for a sum of money, summons by publication would be ineffective to acquire jurisdiction over his person. The remedy is to file the suit and at the same time avail of the provisional remedy of attachment. Following established principles, jurisdiction over the person of the defendant would no longer be required when there is a preliminary attachment of the defendant's properties because the suit has assumed the status of an action quasi in rem which merely requires jurisdiction over the res. The suit can then proceed despite the absence of the defendant because in this case, the property of the defendant would now be the object of the judicial power.
K. Application of principles 1. It must again be stressed that if the defendant is a nonresident, personal service of summons (more appropriately called "service in person on defendant") within the state is essential to the acquisition of jurisdiction over the person of the defendant and this is not possible if the defendant is not within the country. The court thus, cannot acquire jurisdiction over his person. So when the action is for the recovery of a sum of money against the non-resident defendant, the summons by publication is ineffective for the trial court to acquire jurisdiction over the person of the defendant. Any judgment rendered against him is therefore, null and void for lack of jurisdiction over the defendant.
3. A proceeding for the probate of a will is one in rem, such that the corresponding publication of the petition brought the whole world a party in the case and vests the court with jurisdiction to hear and decide it. Personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite.
- Example No. 1: An American tourist while in the Philippines, incurred hotel bills of P2 million. Without paying his bills, he surreptitiously left the country. The hotel filed an action for a sum of money and with leave of court effected summons by publication. The defendant made no appearance in any form and judgment by default was rendered against him. Is he bound by the judgment? Answer: He is not bound by the judgment because the same was rendered without jurisdiction over his person. The summons by publication did not enable the court to acquire jurisdiction over him. Here, the action is one in personam.
- Subsequently, a motion for leave to serve summons by publication upon the defendant was granted by the court. For failure to file an answer, the defendant was declared in default. The Court however, sustained the correctness of the extrajudicial service of summons by publication.
2. There are situations where a non-resident defendant has properties in the Philippines probably because he used to be
- The Court explained, that attachment and foreclosure proceedings are both actions quasi in rem. As such, jurisdiction over the person oftho non-resident defendant is not essential. Service of summons on a non-resident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he may be informed of the pendency of the action against him and the possibility that property belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, should he be so minded. 5. There is no such action called "annotation of lis pendens'. Notice of lis pendens is ordinarily recorded without the court's intervention. The annotation of lis pendens is not proper where the action is in personam like recovery of a sum of money and damages. For the annotation to be proper, the action must be one affecting title to property. CHAP. 3: JURISDICTION, VENUE AND PARTIES I. JURISDICTION A. Meaning of jurisdiction 1. > Jurisdiction - the power and authority of the court to hear, try and decide a case
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- Example No. 2: Mr. D is a balikbayan, a former Filipino, and a naturalized Canadian citizen. He visited the country to attend the funeral of his father from whom he inherited a parcel of land. He obtained a loan while in the Philippines and executed a real estate mortgage on his inherited land. He left without paying the debt. An action to foreclose the mortgage was filed. How may the court obtain jurisdiction over the person of Mr. X? Answer: There is no way. He is already out of the country. However, jurisdiction over the person of the defendant is not necessary and hence, irrelevant under the facts of the case because the action for foreclosure is not an action in personam. A foreclosure suit is a quasi in rem action. In this kind of action, jurisdiction over the person of the defendant is not required. Summons by publication or other modes of extraterritorial service under Sec. 15 of Rule 14, is enough to acquire jurisdiction over the res. May the court therefore validly render a judgment in the foreclosure proceedings? The court can. It has jurisdiction over the res as long as summons by any of the means allowed under the rules on extraterritorial service is effected (Sec. 15, Rule 14, Rules of Court).
4. In Sahagun vs. Court of Appeals, an action was filed against a non-resident defendant, Abelardo Sahagun, and a writ of attachment was issued against the property of the defendant in the Philippines. Because of the failure to serve summons extraterritorially upon the defendant, the complaint was dismissed without prejudice.
B. Power of the court - Jurisdiction is not the power of the judge but of the court. Neither is it the decision rendered. It is the power or authority of the court to decide a cause. C. Test of jurisdiction - Jurisdiction does not depend upon the regularity of its exercise or on the rightness of the decision made. The test of jurisdiction is whether the court has the power to enter into the inquiry and not whether the decision is right or wrong. D. Matter of substantive law - Jurisdiction is a matter of substantive law (BP 129; R.A. 7691) because it is conferred by law. This jurisdiction which is a matter of substantive law should be construed to refer only to jurisdiction over the subject matter. Jurisdiction over the parties, the issues and the res are matters of procedure. E. Not subject to waiver or stipulation Jurisdiction cannot be waived, enlarged or diminished by stipulation of the parties (Republic vs. Estipular, 336 SCRA 333). This is a consequence of the substantive character of jurisdiction over the subject matter. F. Duty of a court to determine its jurisdiction 1. It is the duty of the court to consider the question of jurisdiction before it looks at other matters involved in the case. It may, and must, do this on its own motion without waiting for the question of jurisdiction being raised by any of the parties involved in the proceeding. Courts are bound to take notice of the limits of their authority and they may act accordingly by dismissing the action even though the issue of jurisdiction is not raised or not even suggested by counsel. 2. If the court finds that it has jurisdiction, it is the duty of the court to exercise the jurisdiction conferred upon it by law and to render a decision in a case properly submitted to it. It cannot decline to exercise its jurisdiction. Failure to do so may be enforced by way of a mandamus proceeding. 3. When it appears that the court has no jurisdiction over the subject matter of a complaint filed before it, the court shall dismiss the claim and can do so motu proprio (Sec. 1, Rule 9, Rules of Court). Even if the parties do not challenge the jurisdiction of a court or tribunal, this does not prevent the court from addressing the issue. G. Jurisdiction versus the exercise of jurisdiction Jurisdiction Exercise of jurisdiction a. the power or authority of a. exercise of this power or the court. authority b. the authority to decide a b. Where there is jurisdiction
case and not the decision rendered therein.
over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. The errors which the courts may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subjects of an appeal.
H. Error of judgment and error of jurisdiction; distinctions (Bar 1989) 1. > error of judgment - one which the court may commit in the exercise of its jurisdiction. As long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment. Errors of judgment include errors of procedure or mistakes in the court's findings. > error of jurisdiction - one where the act complained of was issued by the court without or in excess of jurisdiction. Errors of'jurisdiction occur when the court exerciHes a jurisdiction not conferred upon it by law It may also occur when the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. 2. Errors of judgment are correctible by appeal Errors of jurisdiction are correctible only by the extraordinary writ of certiorari 3. Where a court has jurisdiction, a wrong decision is not void. If the court has jurisdiction, it is altogether immaterial how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be considered a nullity, and cannot therefore, be collaterally impeached. Such a judgment is binding on the parties unless it is reversed or annulled in a direct proceeding. But if there is a total want of jurisdiction in a court, its proceedings are an absolute nullity, confer no right and afford no protection but will be pronounced void when collaterally attacked. - Any judgment rendered without jurisdiction is a total nullity and may be struck down at any time, oven on appeal; the only exception is when the party raising the issue is barred by estoppels. 4. A relatively more recent case holds in reiteration of the principle: "When a court, tribunal, or officer has jurisdiction over the person and the subject matter of the dispute, the decision on all other questions arising in the case is an exercise of that jurisdiction." Consequently, all errors committed in the exercise of said jurisdiction are merely errors of judgment. Under prevailing procedural rules and jurisprudence, errors of judgment are not proper subjects of a special civil action for certiorari. I. Lack of jurisdiction and excess of jurisdiction - Lack of jurisdiction and excess of jurisdiction are distinguished thus: the respondent court or tribunal acts without jurisdiction if it does not have the legal power to
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2. It is not only the power to hear and determine, but the power to enforce its determination, as the judgment or decree is the end for which jurisdiction is exercised, and it is only through the judgment and its execution that the power of the court is made efficacious and its jurisdiction complete. The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction and the most important part of the litigation is the process of execution of decisions
J. Jurisdiction and cause of action (Bar 1988) - Jurisdiction is not a cause of action. Jurisdiction an authority. Conferred by law Cause of action the act or omission violative of the rights of others. not conferred by law but exists because of a violation of a right. K. Jurisdiction over the subject matter 1. > Jurisdiction over the subject matter - the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs - the power or authority to hear and determine cases to which the proceeding in question belongs. 2. The term "subject matter" the item with respect to which the controversy has arisen, or concerning which the wrong has been done, and it is ordinarily the right, the thing, or the contract under dispute. Examples: The terms `unlawful detainer', `forcible entry', or actions `incapable of pecuniary estimation' are subject matters. So are the terms action publiciana, action reivindicatoria, partition of property, foreclosure of mortgage, expropriation, habeas corpus and action for damages, among others. 3. When a complaint is filed in court, the basic questions that ipso facto are to be immediately resolved by the court on its own are: (a) What is the subject matter of their complaint filed before the court? (b) Does the court have jurisdiction over the said subject matter of the complaint before it? Answering these questions inevitably requires looking into the applicable laws conferring jurisdiction. L. How jurisdiction over the subject matter is conferred 1. Jurisdiction over the subject matter is conferred by law which may be either the Constitution or a statute 2. The law that confers jurisdiction refers to a substantive law, not a procedural law. It likewise does not refer to an administrative order or a circular 3. Since jurisdiction is conferred by law, jurisdiction: (a) cannot be conferred by the administrative policy of any court (b) cannot be conferred by a court's unilateral assumption of jurisdiction (c) cannot be conferred by an erroneous belief by the court that it has jurisdiction (d) cannot also be conferred by the parties cannot be conferred by contract (e) cannot be granted by agreement of the parties, acquired through, or waived, enlarged or diminished by, any act or omission of the parties. Neither can it be conferred by acquiescence of the court (f) cannot be conferred by the parties' silence, acquiescence or consent
4. The Supreme Court rulings in recent cases need emphasis: "Jurisdiction cannot be conferred by the voluntary act or agreement of the parties; it cannot be acquired through or waived, enlarged or diminished by their act or omission. Neither is it conferred by the acquiescence of the court. It is neither for the court nor the parties to violate or disregard the rule, this matter being legislative in character" M. How jurisdiction over the subject matter is determined 1. It is a settled rule that jurisdiction over the subject matter is determined by the allegations of the complaint regardless of whether or not the plaintiff is entitled to his claims asserted therein. 2. If by the averments of the complaint, the court has jurisdiction, it does not lose that jurisdiction just because the defendant makes a contrary allegation in his motion or answer or because the court believes that the plaintiff's claims are ridiculous and therefore, untrue. If by the averments of the complaint, it has jurisdiction, then it has jurisdiction. N. Jurisdiction is not determined either by the defenses or by the evidences in the trial l. "It is axiomatic that the nature of the action and which court has original and exclusive jurisdiction over the same is determined by the material allegations of the complaint ... irrespective of whether the plaintiffs are entitled to some or all of the claims asserted therein ... Nor does the jurisdiction of the court depend upon the answer of the defendant or agreement of the parties, or to the waiver or acquiescence of the parties.” The settled rule is that jurisdiction is based on the allegations in the initiatory pleading and the defenses in the answer are deemed irrelevant and immaterial in its determination. 2. Because jurisdiction is determined by the allegations of the complaint and is not affected by the pleas or theories set up by the defendant in his motion to dismiss or answer, the Municipal Trial Court does not lose its jurisdiction over an ejectment case by the mere allegation that the defendant asserts ownership over the litigated property. 3. The jurisdiction of the court or tribunal over the nature of the action cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss, for otherwise, the question of jurisdiction would depend almost entirely on defendant 4. However, while the Municipal Trial Court does not lose its jurisdiction over an ejectment case by the simple expedient of a party raising as a defense therein the alleged existence of a tenancy relationship between the parties, yet if after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction. 5. The jurisdiction of the court or tribunal over the nature of the action cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss, for otherwise, the question of jurisdiction would depend almost entirely on defendant.
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determine the case; where the respondent, being clothed with the power to determine the case, oversteps its authority as determined by law, it is performing a function in excess of its jurisdiction.
7. It is an established principle that jurisdiction is determined by the cause of action alleged in the complaint and not by the amount substantiated and awarded (Dionisio vs. Sison Puerto, 60 SCRA 471). Thus, where a complaint seeking for the payment of Pl million is filed in the Regional Trial Court, but after considering the evidences presented, the amount owing to the plaintiff is only P300 thousand, an amount within the jurisdiction of the Municipal Trial Court if originally filed in it, the Regional Trial Court has authority to render judgment on the lesser amount. - The above rule does not apply in the reverse. Where a complaint for the recovery of a loan of P300 thousand is filed in the Municipal Trial Court, but after consideration of the evidences, it is shown that the amount recoverable is Pl million, an amount within the jurisdiction of the Regional Trial Court, the Municipal Trial Court cannot render judgment for Pl million for want of jurisdiction. O. Applicability to criminal actions 1. The above rule has an affinity to the rule in the prosecution of criminal actions. In order to determine the jurisdiction of the court in criminal cases, the complaint or information must be examined for the purpose of ascertaining whether or not the facts set out therein and the punishment provided for by law for such acts fall within the jurisdiction of the court in which the criminal action is filed. If the facts set out in the complaint are sufficient to show that the court has jurisdiction, then that court indeed has jurisdiction. 2. It is jurisprudentially settled that the jurisdiction of the court over a criminal case is determined by the allegations of the complaint or information in relation to the law prevailing at the time of the filing of the criminal complaint or information, and the penalty provided by law for the crime charged at the time of its commission. 3. In criminal cases, where there is a variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved, which is included in the offense charged, or of the offense charged which is included in the offense proved (Sec. 4, Rule 120, Rules of Court). Hence, if an accused is charged with attempted homicide but the offense proved is merely slight physical injuries, he may be convicted of the latter offense which is necessarily included in the offense charged. P. Exception to the rule that jurisdiction is determined by the allegations of the complaint 1. The rule holds that what determines the nature of the action and the court that has jurisdiction over the case are the allegations in the complaint. Hence, in determining whether or not it has jurisdiction over the complaint before it, the court, as a rule, need not look beyond the allegations
of the complaint. The nature of the cause of action and consequently the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or pleadings filed by the defendant. This is the general rule which however, has not been applied with rigidity in ejectment cases in which the defendant averred the defense of the existence of a tenancy relationship between the parties. 2. In Ignacio vs. CFI of Bulacan, it was held "that while the allegations in the complaint make out a case for forcible entry, where tenancy is averred by way of defense and is proved to be the real issue, the case should be dismissed for lack of jurisdiction as the case should properly be filed with the then Court ofAgrarian Relations (now DARAB). In Ignacio and other ejectment cases, where tenancy was the defense, the court went beyond the allegations of the complaint in determining jurisdiction in resolving a motion to dismiss based on lack of jurisdiction over the subject matter and required the presentation of evidence to prove or disprove the defense of tenancy. After finding the real issue to be tenancy, the cases were dismissed for lack of jurisdiction. 3. It must be borne in mind however, that the Municipal Trial Court does not automatically lose its jurisdiction over ejectment cases by the mere allegation of the defense of tenancy relationship between the parties. There must first be a reception of evidence and, if after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction. The rule still is that jurisdiction of the court is determined by the allegations of the complaint. Q. Doctrine of primary jurisdiction 1. Under the doctrine of primary jurisdiction, courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. The practice is to refer specialized disputes to administrative agencies of specialized competence and the courts will not determine a controversy prior to the resolution of the question by the administrative tribunal because the Court accords great respect to the findings of administrative agencies since they have acquired expertise in their jurisdiction and it will refrain from questioning their findings, particularly when these are affirmed by the appellate tribunal. 2. The objective of the doctrine of primary jurisdiction is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. The court cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to resolving the same, where the question demands the exercise of sound administrative discretion requiring special knowledge, experience and services in determining technical and intricate matters of fact. 3. Examples: (a) The Supreme Court recognized that the MWSS was in the best position to evaluate and decide which
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6. Because the allegations of the complaint are determinative of jurisdiction, jurisdiction does not depend on the amount ultimately substantiated in the course of the trial or proceedings. Where the Regional Trial Court rendered a judgment involving a lesser amount than that alleged, this fact did not divest the court of its jurisdiction.
R. Doctrine of continuity of jurisdiction (adherence of jurisdiction) 1. Jurisdiction is referred to as "continuing" in view of the general principle that once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction (20Am Jur 2d, Courts § 147). This principle also means that once jurisdiction has attached, it cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case. 2. As a consequence of this principle, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal except when otherwise provided in the statute or if the statute is clearly intended to apply to actions pending even before its enactment. 3. In an action for ejectment, if the defendant voluntarily surrenders the premises subject of the action to the plaintiff, the surrender of the property does not divest the court of jurisdiction. 4. If the court has jurisdiction to act on a motion at the time it was filed, that jurisdiction to resolve the motion continues until the matter is resolved and is not lost by the subsequent filing of a notice of appeal. 5. The trial court did not lose jurisdiction over the case involving a public official by the mere fact that said official ceased to be in office during the pendency of the case. Also, the jurisdiction that the court had at the time of the filing of the complaint is not lost by the mere fact that the respondent judge ceased to be in office during the pendency of the case. 6. Even the finality of the judgment does not totally deprive the court of jurisdiction over the case. What the court loses is the power to amend, modify or alter the judgment. Even after the judgment has become final, the court retains jurisdiction to enforce and execute it. S. Law which governs jurisdiction - Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the court. T. Objections to jurisdiction over the subject matter 1. The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction. "When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, . . . the court shall dismiss the same" (Sec. 1, Rule 9, Rules of Court). 2. The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over the subject matter is a ground for a motion to dismiss (Sec. 1(b], Rule 16, Rules of Court). If no motion to dismiss is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer (Sec. 6, Rule 16, Rules of Court). 3. Under the omnibus motion rule, a motion attacking a pleading like a motion to dismiss, shall include all grounds then available, and all objections not so included shall be deemed waived (Sec. 8, Rule 15, Rules of Court). The defense of lack of jurisdiction over the subject matter is however, a defense not barred by the failure to invoke the same in a motion to dismiss already filed. Even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer, raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule. 4. Thus, the prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. 5. When the court dismisses the complaint for lack of jurisdiction over the subject matter, it is common reason that the court cannot remand the case to another court with the proper jurisdiction. Its only power is to dismiss and not to make any other order. Illustration (Bar 2004) Plaintiff filed a complaint for a sum of money against defendant with the McTC-Makati, the total amount of the demand exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, being P1,000,000.00. In due time, defendant filed a motion to dismiss the complaint on the ground of the McTC's lack of jurisdiction over the subject matter. After due hearing, the McTC (1) ruled that the court lacked jurisdiction over the subject matter of the complaint; and (2) ordered that the case therefore, should be forwarded to the proper Regional Trial Court immediately. Was the court's ruling concerning jurisdiction correct? Explain briefly. Suggested answer: The ruling concerning jurisdiction was correct. The amount falls within the jurisdiction of the RTC. The jurisdictional amount of the McTC should not exceed P400, 000.00 (Sec. 33, BP 129; R.A. 7691). However, its order to
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bid for a waterworks project was compatible with its development plan. (b) The Civil Service Commission is better equipped in handling cases involving the employment status of employees as it is within its field of expertise. (c) The court upheld the primary jurisdiction of the Department ofAgrarian Reform Adjudicatory Board (DARAB) in an agrarian dispute over the payment of back rentals under a leasehold contract. The Department of Agrarian Reform (DAR) is vested with primary jurisdiction to determine and adjudicate agrarian reform matters, with exclusive original jurisdiction over all matters involving the implementation of agrarian reform except those falling under the exclusive jurisdiction of the Department of Agriculture and the Department of Environment and Natural Resources.
forward the case to the RTC is erroneous. The proper order is to dismiss the case.
decision was rendered by the Court of Appeals that it finally woke up to raise the question of jurisdiction.
U. Effect of estoppel on objections to jurisdiction 1. While it is true that jurisdiction over the subject matter may be raised at any stage of the proceedings since it is conferred by law, it is nevertheless settled that a party may be barred from raising it on the ground of estoppel
- Laches should have been raised so belatedly so as to give rise to the presumption that the party entitled to assert it had abandoned or declined to assert it. Sibonghanoy applies only to exceptional circumstances. The general rule remains: a court's lack of jurisdiction may be raised at any stage of the proceedings even on appeal.
3. The fact pattern common among those cases wherein the Court invoked estoppel to prevent a party from questioning jurisdiction is a party's active participation in all stages of a case, including invoking the authority of the court in seeking affirmative relief and questioning the court's jurisdiction only after receiving a ruling or decision adverse to his case for the purpose of annulling everything done in. the trial in which he has actively participated. As clearly pointed out in Lao: "A party who has invoked the jurisdiction of the court over a particular matter to secure affirmative relief cannot be permitted to afterwards deny that same jurisdiction to escape liability." 4. The Supreme Court frowns upon the undesirable practice of submitting one's case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction if it is not. 5. The active participation of a party in a case is tantamount to recognition of that court's jurisdiction and will bar a party from impugning the court's jurisdiction. Jurisprudence however, did not intend this statement to lay down the general rule. V. `Tijam" ruling, an exception rather than the rule 1. The ruling in Sibonghanoy on the matter of jurisdiction is however, the exception rather than the rule as subsequently confirmed in Calimlim vs. Ramirez and Pangilinan vs. Court ofAppeals. Estoppel by lathes may be invoked to bar the issue of jurisdiction only in cases in which the factual milieu is analogous to that of Sibonghanoy. 2. In Sibonghanoy, the defense of lack of jurisdiction ,vas raised for the first time in a motion to dismiss filed by the Surety almost fifteen (15) years after the questioned ruling had been rendered. At several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its case for final adjudication on the merits. It was only when the adverse
3. To reiterate: "The contention that the defense of lack of jurisdiction may be waived by estoppel through active participation in the trial is not the general rule but an exception, best characterized by the circumstances in Tijam vs. Sibonghanoy." W. Jurisdiction over the parties 1. The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant. 2. Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court. Illustration (Bar 1981) "A," a resident of Melbourne, Australia, presented a complaint against "B," a resident of Manila, before the Court of First Instance (RTC) of Manila for accounting and damages. "A"never came to the Philippines to file the suit and is only represented in this case by counsel. "B" files a motion to dismiss the complaint on the ground that the Court acquired no jurisdiction over the person of "A." Should the case be dismissed on this ground and why? Suggested answer: The suit should not be dismissed on the ground invoked by "B."Jurisdiction over the plaintiff is not acquired by his personal appearance in court. Jurisdiction over the plaintiff is acquired by his filing of the complaint in court. By filing a complaint even through his counsel, "A" voluntarily submitted himself to the jurisdiction of the court. 3. Jurisdiction over the person of the defendant is obtained either by a valid service of summons upon him or by his voluntary submission to the court's authority 4. The mode of acquisition of jurisdiction over the plaintiff and the defendant applies to both ordinary and special civil actions like mandamus or unlawful detainer cases (Bar 1994). Illustration (Bar 2005) A obtained a money judgment against B. After the finality of the decision, the court issued a writ of execution for the enforcement thereof. Conformably with the said writ, the sheriff levied upon certain properties under B's name. C filed a third-party claim over said properties claiming that B had already transferred the same to him. A moved to deny the third-party claim and to hold B and C jointly and severally liable to him for the money judgment alleging that B had transferred said properties to C to defraud him (A).
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2. The doctrine of estoppel by lathes in relation to objections to jurisdiction first appeared in the landmark case of Tijam vs. Sibonghanoy. Here, the Supreme Court barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings. The doctrine of estoppel by lathes said the Supreme Court in Tijam is "based upon grounds of public policy * * * and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted."
Suggested answer. The ruling of the court is not correct. To be valid, a judgment must be rendered against a person over whom the court has jurisdiction. The court has no jurisdiction over the person of C who was not impleaded in the action. He was not summoned to the suit and thus, was never a party to the proceedings. The third-party claim of C is a claim filed during the execution stage of a judgment that is already final and executory. Illustration (Bar 1994) How is jurisdiction acquired by a court over the person of: (a) the plaintiff in a special civil action for mandamus? (b) the defendant in an action for unlawful detainer? (c) a non-resident defendant who is not found in the Philippines, in an action for compulsory acknowledgment of his natural child? Suggested answer: (a) Jurisdiction over the person of the plaintiff in a special civil action for mandamus is acquired when the action is commenced by the filing of the complaint (Sec. 5, Rule 1, Rules of Court). This presupposes payment of the docket fees. (b) Jurisdiction over the defendant is acquired by his voluntary appearance or by a valid service of summons (Sec. 6, 20, Rule 124, Rules of Court). (c) Jurisdiction cannot be acquired over the person of the defendant. The action being in personam, jurisdiction can be acquired over the defendant by service in person upon him within the country. Since he is outside the jurisdiction of the court, service in person cannot be done. X. When jurisdiction over the person of the defendant is required 1. Jurisdiction over the person of the defendant is required only in an action in personam. Jurisdiction over the person of the defendant is not a prerequisite in an action in rem and quasi in rem 2. A later ruling holds: In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi inrem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res. Y. Voluntary appearance of the defendant 1. The court may acquire jurisdiction over the person of the defendant without service of summons or despite a defective service of summons. This occurs when the defendant voluntarily appears in the action. "The defendant's voluntary appearance in the action shall be equivalent to service of summons" (Sec. 20, Rule 14, Rules of Court).
2. To constitute voluntary appearance, it must be the kind that amounts to a voluntary submission to the jurisdiction of the court. Submission to the court's jurisdiction takes the form of an appearance that seeks affirmative relief except when the relief sought is for the purpose of objecting to the jurisdiction of the court over the person of the defendant. 3. Examples: (a) when the defendant files the necessary pleading; (b) when the defendant files a motion for reconsideration of the judgment by default; (c) when the defendant files a petition to set aside the judgment of default; (d) when the parties jointly submit a compromise agreement for approval of the court; (e) when the defendant files an answer to the contempt charge; or (f) when the defendant files a petition for certiorari without questioning the court's jurisdiction over his person. 4. As a rule, an appearance in whatever form without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court. Hence, the filing of an answer per se should not be treated automatically as a voluntary appearance. When the appearance is precisely to object to the jurisdiction of the court over his person, it is not considered an appearance in court (French Oil Machinery Company vs. Court of Appeals, 295 SCRA 462) and should not be construed as a submission by the defendant of his person to the jurisdiction of the court. Z. Objections to jurisdiction over the person of the defendant - An objection to the jurisdiction over the person of the defendant may be raised as a ground for a motion to dismiss (Sec. 1[a], Rule 16, Rules of Court). If no motion to dismiss has been filed, the objection may be pleaded as an affirmative defense in the answer (Sec. 6, Rule 16, Rules of Court). However, if a motion to dismiss has been filed, the objection must be pleaded in the same motion, otherwise it is deemed waived pursuant to the omnibus motion rule. The defense of lack of jurisdiction over the person of the defendant is not one of those defenses which are not deemed waived if not raised in the motion to dismiss. Only lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription are not waived (Sec. 1, Rule 9, Rules of Court in relation to Sec. 8, Rule 15, Rules of Court). Illustration (Bar 1990) While the trial was ongoing, the lawyer of Mario Reyes discovered that there was improper service of summons, the summons having been sent by registered mail. He filed a motion to dismiss on the ground that the court had not acquired jurisdiction over the person of Mario Reyes. Should the said motion be granted? Explain your answer. Suggested answer. The motion should be denied. The defense of lack of jurisdiction over the person of the defendant should have been raised either in a motion to dismiss or as an affirmative defense in the answer. Failure to raise the objection is waiver thereof (Sec. 1, Rule 9, Rules of Court). AA. Effect of pleading additional defenses aside from lack of jurisdiction over the person of the defendant
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After due hearing, the court denied the third-party claim and rendered an amended decision declaring B and C jointly and severally liable to A for the money judgment. Is the ruling of the court correct? Explain.
2. The above rule was re-examined in La Naval Drug Corporation vs. Court ofAppeals. This significant case wisely held that if a plaintiff may assert two or more causes of actions, a defendant is also allowed under the Rules of Court to put up his own defenses alternatively or hypothetically. The Court stressed that it should not be the invocation of available additional defenses that should be construed as a waiver of the defense of lack of jurisdiction over the person of the defendant, but the failure to raise the defense. 3. The pronouncements in La Naval are now embodied in Sec. 20 of Rule 14 which provides: " * * * The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance." 4. As the rule now stands, the rule allows the raising of defenses other than lack of jurisdiction over the person of the defendant without creating an inference of a voluntary submission to the jurisdiction of the court (Sec. 20, Rule 134, Rules of Court). BB. Jurisdiction over the issue 1.> Jurisdiction over the issue - the power of the court to try and decide issues raised in the pleadings of the parties 2. > issue - a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision. Where there is no disputed point, there is no issue. CC. How jurisdiction over the issue is conferred and determined l. Generally, jurisdiction over the issues is conferred and determined by the pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or of law. Hence, in order to determine whether or not a court has jurisdiction over the issue or issues of the case, one must examine the pleadings. Whether or not a court has jurisdiction over a specific issue is a question that requires nothing but an examination of the pleadings. 2. Jurisdiction over the issues may also be determined and conferred by stipulation of the parties as when in the pretrial, the parties enter into stipulations of facts and documents or enter into an agreement simplifying the issues of the case (Sec. 2, Rule 18, Rules of Court). 3. Jurisdiction over the issues may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings. Here the parties try with their express or implied consent issues not raised by the pleadings. The issues tried shall be treated in all respects as
if they had been raised in the pleadings (Sec. 5, Rule 10, Rules of Court). 4. With respect to an issue raised by the pleadings, an issue arises because the material allegations of a claiming party are specifically denied by the defending party. Thus, where the defendant admits all the material allegations of fact of the claiming party, there is no controverted issue between the parties. Under Rule 34, where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, a judgment on the pleadings may be rendered by the court upon a motion properly filed. CC. Distinction between a question of law and a question of fact (Bar 2004) 1. The issue in a case may be either one of law or one of fact. 2. There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. There is a question of fact when the doubt or difference arises as to the truth or falsehood of the alleged facts - To illustrate: Where the question is whether or not the debtor has paid the debt, the issue is one of fact. Where the question is whether or not the manner of payment is of the type which produces the legal effect of extinguishing the obligation, the issue becomes one of law. Also, when under the set of facts the issue is whether or not the law on double sales applies, there is a question of law. 3. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact. 4. Where the threshold issue is whether certain paragraphs in an agreement are void for being contrary to law or public policy, certainly, it is obvious that the issue is a question of law. DD. When an issue arises even if not raised in the pleadings 1. While it is a rule that an issue arises from the pleadings of the parties, an issue may arise in the case without it having been raised in the pleadings. This occurs when the parties try an issue with their consent. Under Sec. 5 of Rule 10, when issues not raised in the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Under Sec. 5 of Rule 10, upon motion of any party, the pleadings may be amended to conform to the evidence but the failure to so amend does not affect the result of the trial of these issues because the pleadings are deemed impliedly amended to embody the issues tried with the consent of the parties.
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1. Under the former procedure, if the defendant raises the objection of lack of jurisdiction over his person in a motion to dismiss, the motion must rely only on that particular ground. If the defendant appears in court, objects to its jurisdiction over his person and at the same time alleges other grounds, the appearance would be deemed a general appearance which was in effect a voluntary submission to the jurisdiction of the court.
2. The consent of the parties may be inferred from the failure to interpose an objection to the presentation of evidence on a matter not alleged in the pleadings. Thus, where the issue as determined in the complaint and answer is one of ownership, any evidence showing possession must be objected to, possession not being an issue raised in the pleadings of the parties. However, if the evidence is not objected to seasonably, the matter of possession will be deemed to have been raised by the parties in their pleadings and the evidence becomes admissible.
May the corresponding pleading still be amended to conform to the evidence? Explain.
3. If the complaint does not allege a claim for salary differential, but no objection was interposed on the evidence presented to prove the claim for salary differential, the Labor Arbiter correctly considered the evidence.
EE. Jurisdiction of Municipal Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts (Under B.P. 129 as amended by R.A. 7691)
Illustration (Bar 2004, No. 1) In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did not mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plaintiff duly offered Exh. "A" in evidence for the stated purpose of proving the making of extrajudicial demand on defendant to pay P500,000, the subject of the suit. Exh. "A" was a letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served on defendant some two months before suit was begun. Without objection from defendant, the court admitted Exh. "A" in evidence. Was the court's admission of Exh. "A" in evidence erroneous or not? Suggested answer. The admission of Exh. "A"was not erroneous. Under Sec. 5 of Rule 10, when issues not raised in the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. When Exh. "A" was offered in evidence without objection from the defendant, it is as if the matter of demand was raised by the parties in their pleadings. The pleadings may be amended to conform to the evidence but the failure to so amend does not affect the result of the trial of these issues because the pleadings are deemed impliedly amended to embody the issues tried with the consent of the parties (Sec. 5, Rule 10, Rules of Court). Illustration (Bar 2004) During the trial, plaintiff was able to present, without objection on the part of the defendant in an ejectment case, evidence showing that the plaintiff served on defendant a written demand to vacate the subject property before the commencement of the suit, a matter not alleged or otherwise set forth in the pleadings on file.
(1) Explanatory note 1. R.A. 7691, which took effect on April 15, 1994 (Administrative Circular 09-94, June 14, 1994), amended the jurisdictional provisions of BP 129 and in effect has expanded the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and the Municipal Circuit Trial Courts. The succeeding paragraphs treat of the jurisdiction of said courts which shall be referred to under the generic acronym, "MTC." 2. When R.A. 7691 took effect on April 15, 1994, the jurisdictional amount of the MTC was one not exceeding P100,000.00 outside Metro Manila and not exceeding P200,000.00 in Metro Manila. However, Sec. 5 of R.A. 7691 provided that five (5) years from the effectivity of R.A. 7691 the amount of P100,000.00 for courts outside Metro Manila shall be adjusted to P200,000.00 and the amount of P200,000.00 for Metro Manila shall be adjusted to P400,000.00. The corresponding adjustments took effect on April 15, 1999. It further provided that the amount of P200,000.00 shall be further adjusted to P300,000 five (5) years after its adjustment from P100,000.00 to P200,000.00. Since April 15, 2004 therefore, the jurisdictional amount of an MTC outside Metro Manila is one not exceeding P300,000.00. That of the Metropolitan Trial Court remains constant at an amount not exceeding P400,000.00. (2) Actions for forcible entry and unlawful detainer 1. The MTC has exclusive original jurisdiction over forcible entry and unlawful detainer cases. These are both ejectment cases (Sec. 3, R.A. 7691). 2. All ejectment cases are within the jurisdiction of the MTC regardless of whether said cases involve questions of ownership or if the issue of possession cannot be determined without resolving the question of ownership. Judgment of the inferior court, however, on the question of ownership is of a provisional nature and shall be for the sole purpose of determining the issue of possession. - If the defendant raises the question of ownership and the issue of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession (Sec. 3, R.A. 7691).
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4. If in a complaint for a sum of money filed before the Regional Trial Court, plaintiff did not allege the making of a demand for payment before commencing suit but during the trial, plaintiff duly offered in evidence a letter of demand for the purpose of proving the making of an extrajudicial demand on the defendant, and the letter was admitted in evidence without objection of the defendant, it is as if the matter of demand was raised in the pleadings. The court committed no procedural error in admitting the letter of demand in evidence. Consider the following bar problem.
Suggested answer. The pleading may be amended to conform to the evidence. Even if the making of the written demand was not alleged in the pleading, it is as if it was raised in the pleadings of the parties because it was presented in evidence without objection from the adverse party (Sec. ,5, Rule 10, Rules of Court).
(3) Real actions other than forcible entry and unlawful detainer 1. The MTC also has exclusive original jurisdiction over civil actions involving title to or possession of real property, or any interest therein, where the assessed value does not exceed P20,000 (outside Metro Manila) or P50,000 (Metro Manila). In cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots (Sec. 3, R.A. 7691; Sec. 33, BP 129). 2. The jurisdiction of the court under R.A. 7691, over an action involving title to or possession of land is now determined by the assessed value of the said property and not the market value thereof. The assessed value of real property is the fair market value of the real property multiplied by the assessment level. It is synonymous to taxable value. The fair market value is the price at which a property may be sold by a seller, who is not compelled to sell, and bought by a buyer, who is not compelled to buy. This rule excludes the real actions of forcible entry and unlawful detainer cases which are within the exclusively original jurisdiction regardless of the assessed value of the property involved. - The real actions for example, of action reivindicatoria and action publiciana used to be under the jurisdiction of the Regional Trial Court. Jurisdiction over these actions under R.A. 7691 is now determined by the assessed value of the property and depending on such value may not be filed in the Regional Trial Court but in the Municipal Trial Court. 3. An action reivindicatoria is a suit which has for its object the recovery of possession over the real property as owner. It involves recovery of ownership and possession based on the said ownership. On the other hand, an action publiciana is one for the recovery of possession of the right to possess. It is also referred to as an ejectment suit filed after the expiration of one year after the occurrence of the cause of action or from the unlawful withholding of possession of the realty. - The determining jurisdictional element for the action reivindicatoria, for instance is, as RA 7691 discloses, the assessed value of the property in question. For properties in the provinces, the RTC has jurisdiction if the assessed value exceeds P20,000, and the MTC, if the value is P20,000 or below. An assessed value can have reference only to the tax rolls
in the municipality where the property is located, and is contained in the tax declaration. It is elementary that the tax declaration indicating the assessed value of the property enjoys the presumption of regularity as it has been issued by the proper government agency. 4. Where the ultimate objective of the plaintiffs, is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof. (4) Demand not exceeding P300,000.00 or P400,000.00 - The MTC exercises exclusive original jurisdiction over civil actions where the demand does not exceed P300,000 (outside Metro Manila) or not more than P400,000 (Metro Manila) (Sec. 1, R.A. 7691; Sec. 33, BP 129). (4) Actions involving personal property - The MTC has exclusive original jurisdiction over actions involving personal property valued at not more than P300,000 (outside Metro Manila), or not more than P400,000 (Metro Manila) (Sec. 19, BP 129, Sec. 3, R.A. 7691). (5) Admiralty and maritime cases - These cases were traditionally under the jurisdiction of the Regional Trial Court but may be under the jurisdiction of the Municipal Trial Court under R.A. 7691 where the demand or claim does not exceed P300,000 (outside Metro Manila), or does not exceed P400,000 (Metro Manila) (Sec. 1, R.A. 7691). (6) Probate proceedings; provisional remedies 1. Exclusive original jurisdiction over probate proceedings, testate and intestate, where the gross value of the estate does not exceed P300,000 (outside Metro Manila) or, P400,000 (Metro Manila) (Sec. 3, R.A. 7691; Sec. 33, BP 129). - A petition for probate of a will involving an estate valued at P200,000 falls under the jurisdiction of the MTC (Bar 1997, No. 1[e]). 2. The MTC has exclusive original jurisdiction to grant or deny provisional remedies in cases where the principal action is within its jurisdiction. (7) Delegated jurisdiction - The MTC also exercises delegated jurisdiction over cadastral and land registration cases covering lots were there is no controversy or opposition, or contested lots the value of which does not exceed P100,000, as may be delegated by the Supreme Court (Sec. 34, BP 129; Sec. 4, R.A. 7691). a. The value of the lot shall be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property (Sec. 34, BP 129 as amended by R.A. 7691). b. The decisions of these courts shall be appealable in the same manner as the decisions of the Regional Trial Courts. Hence, the MTC acting under its delegated jurisdiction is acting as a Regional Trial Court. The decision of the MTC therefore, shall be appealable to the Court of Appeals (Sec. 34, BP 129; Sec. 4, R.A. 7691).
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- An adjudication made in an ejectment proceeding regarding the issue of ownership should be regarded merely as provisional and, therefore, would not bar or prejudice an action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real property, that is, possession de facto and not possession de jure.
(9) Cases subject to summary procedure (Bar 2004; 1995; 1993;1991;1989;1988) - The civil cases subject to summary procedure are: (a) Forcible entry and unlawful detainer cases (Bar 1995); and (b) all other claims where the total claim does not exceed P100,000 (outside Metro Manila), or does not exceed P200,000 (Metro Manila), exclusive of interests and costs. Probate proceedings are not covered by the rule on summary procedure even if the gross value of the estate does not exceed P100,000 or P200,000 (1991 Revised Rules on Summary Procedure). - Certain basic principles need be remembered in civil cases subject to a summary procedure: (a) Not all pleadings in an ordinary civil action are allowed in a summary procedure. The only pleadings allowed are: (a) complaint, (b) compulsory counterclaim, (c) crossclaims pleaded in the answer, (d) answers to these pleadings (Sec. 3, Rules on Summary Procedure). (b) The court in a summary procedure may dismiss the case outright on any of the grounds for the dismissal of a civil action (Sec. 4, Rules on Summary Procedure). (c) Should the defendant fail to answer the complaint within the period of ten (10) days from service of summons, the court may, motu proprio, or on motion of the plaintiff, render judgment (not an order declaring the defendant in default) as may be warranted by the facts alleged and limited to what is prayed for (Sec. 6, Rules on Summary Procedure). (d) There shall be a preliminary conference held but there shall be no trial. Instead the parties shall submit affidavits and position papers (Sees. 7, 8, 9, Rules on Summary Procedure). (e) Within thirty (30) days from the receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment (Sec. 10, Rules on Summary Procedure). (f) As a rule a motion to dismiss is not allowed except on either of two grounds (i) lack of jurisdiction over the subject matter, or (ii) failure to comply with the barangay conciliation proceedings (Sec. 19[a], Rules on Summary Procedure). (g) Under Sec. 19 of the Rules on Summary Procedure, the following pleadings and motions are prohibited in a summary procedure (Bar 2004): 1. Motion to dismiss except upon the two grounds mentioned; 2. Motion or new trial, or a motion for reconsideration of a judgment, or a motion for reopening of trial; 3. Petition for relief from judgment; 4. Motion for extension of time to file pleadings, affidavits and other papers;
5. Memoranda; 6. Petition for certiorari, and mandamus or prohibition against an interlocutory order of the court; 7. Motion to declare the defendant in default; 8. Dilatory motions for postponement; 9. Reply; 10. Third-party complaints; 11. Interventions. (h) Although a petition for certiorari is prohibited in cases subject to summary procedure, the Court in one case allowed the petition because the trial court gravely abused its discretion by indefinitely suspending the proceedings in ejectment cases thus, acting contrary to the purposes of the Rules on Summary Procedure. The Supreme Court recognized that because the order of the trial court cannot be appealed from it being interlocutory and since the proceedings are covered by the Rules on Summary Procedure, a `procedural void' exists. Invoking its power to suspend the rules to promote substantial justice, the Supreme Court gave due course to the petition pro hac vice because of the extraordinary circumstances of the case. The Court observed that allowing the petition would avoid the mischiefs sought to be curbed by the Rules and would give spirit and life to the Rules on Summary Procedure. (10) Determination of jurisdictional amount 1. Prior to R.A. 7691, only interest and costs were excluded in computing the jurisdictional amount. At present, under R.A. 7691, the jurisdictional amount excludes the following: (a) interest, (b) damages of whatever kind, (c) attorney's fees, (d) litigation expenses and costs. These matters however, shall be included in determining the filing fees. 2. The exclusion of the term "damages of whatever kind" in determining the jurisdictional amount, applies to cases where the damages are merely incidental to or consequence of the main cause of action (Administrative Circular No. 09-94, June 14, 1994). Illustration (Bar 2004) Plaintiff filed a complaint for a sum of money against defendant with the McTC-Makati, the total amount of the demand exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, being P1,000,000.00. In due time, defendant filed a motion to dismiss the complaint on the ground of the METC's lack of jurisdiction over the subject matter. After due hearing, the METC (1) ruled that the court lacked jurisdiction over the subject matter of the complaint x x x ; (2) xxx. Was the court's ruling concerning jurisdiction correct? Explain briefly. Suggested answer. The ruling concerning jurisdiction was correct. The amount falls within the jurisdiction of the RTC. The jurisdictional amount of the McTC should not exceed P400,000.00 (Sec. 33, BP 129; R.A. 7691). (11) Totality rule - Under this rule, where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the
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(8) Special jurisdiction - The MTC has also been conferred by law a special jurisdiction over petitions for habeas corpus in the absence of all the Regional Trial Court judges in the province or city (Sec. 35, BP 129).
(12) Territorial extent of court processes All processes issued by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, in cases falling within their jurisdiction, may be served anywhere in the Philippines without the necessity of certification by the judge of the Regional Trial Court (Sec. 38[21, BP 129). (13) Review of judgments of the MTC - Judgments of the Municipal Trial Courts. Municipal Circuit Trial Courts and Metropolitan Trial Courts are appealable to the Regional Trial Courts (Sec. 38[11, BP 129). (14) Jurisdiction of Regional Trial Courts (Under B.P. 129 as amended by R.A. 7691) 1. Exclusive original jurisdiction over actions the subject matter of which is not capable of pecuniary estimation; 2. Exclusive original jurisdiction over actions involving title to or possession of real property or an interest therein, where the assessed value of such property exceeds P20,000 (outside Metro Manila), or exceeds P50,000 (Metro Manila); 3. Exclusive original jurisdiction over civil actions the demand or claim of which exceeds P300,000 (outside Metro Manila) or exceeds P400,000 (Metro Manila); 4. Exclusive original jurisdiction over actions in admiralty or maritime jurisdiction where the demand or claim exceeds P300,000 (outside Metro Manila) or exceeds P400,000 (Metro Manila); 5. Exclusive original jurisdiction over matters of probate, testate or intestate, where the gross value of the estate exceeds P300,000 (outside Metro Manila), or exceeds P400,000 (Metro Manila); 6. Exclusive original jurisdiction over actions involving personal property valued at more than P300,000 (outside Metro Manila) or more than P400,000 (Metro Manila); 7. Original exclusive jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions; 8. Concurrent and original jurisdiction with the Supreme Court in actions affecting ambassadors, other public ministers and consuls; 9. Concurrent and original jurisdiction with the Supreme Court and the Court of Appeals in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto and habeas corpus; 10. Appellate jurisdiction over cases decided by lower courts in their respective territorial jurisdictions. - The decisions of the Regional Trial Court in the exercise of its appellate jurisdiction shall be appealable by petition for review to the Court of Appeals (Sec. 23, BP 129). (15) Jurisdiction over intracorporate controversies - The Securities Regulation Code (R.A. 8799), Sec. 5.2 provides that the Regional Trial Courts shall exercise original and exclusive jurisdiction to hear and decide the following cases: (a) Cases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the Commission. (b) Controversies arising out of intra-corporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity. (c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations; and (d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee. (16) The RTC is a court of general jurisdiction - Unlike the Municipal Trial Court, which is a court of limited jurisdiction because it can only take cognizance of cases expressly provided by law, the Regional Trial Court is a court of general jurisdiction because all cases, the jurisdiction of which is not specifically provided by law to be within the jurisdiction of any other court falls within the jurisdiction of the Regional Trial Court. (17) Actions incapable of pecuniary estimation 1. The basic issue in an action incapable of pecuniary estimation is one other than the recovery of money. In this kind of action the money claim is merely incidental. If the action is one primarily for the recovery of money, the claim is considered capable of pecuniary estimation. Where the issue in the case is whether or not an assignment of rights is a nullity, the action is one incapable of pecuniary estimation. 2. A complaint for expropriation is incapable of pecuniary estimation. 3. "Examples of actions incapable of pecuniary estimation are those for specific performance, support, foreclosure of mortgage, annulment of judgment, also actions questioning the validity of a mortgage, annulling a deed of sale or conveyance and to cover the price paid and for rescission which is a counterpart of specific performance." 4. An action to annul a deed of Declaration of Heirs and for a partition of land with an assessed value of P5,000.00 is an action incapable of pecuniary estimation. The partition aspect is only incidental to the action for annulment. Illustration (Bar 2000)
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totality of the claims in all the causes of action, irrespective of whether the causes of faction arose out of the same or different transactions.
Suggested answer. The motion to dismiss is meritorious and must be granted. An action to annul an extrajudicial foreclosure sale of real property is an action incapable of pecuniary estimation. The subject matter is one other than the recovery of money. It is also one which does not involve the primary issue of title to, recovery of possession or recovery of ownership of real property and hence, not a real action which requires a consideration of the assessed value of the land. The main issue is whether or not the foreclosure sale is valid. An action incapable of pecuniary estimation is one which falls under the jurisdiction of the Regional Trial Court. 5. An action for partition of a real property located in Taytay Rizal and with an assessed value of P20,000, the resolution of which involves the determination of hereditary rights, is an action incapable of pecuniary estimation and thus, should be filed in the Regional Trial Court (Bar 2000). 6. An action for specific performance to compel the defendant to execute a deed of conveyance covering a parcel of land with an assessed value of P19,000.00 is an action incapable of pecuniary estimation and is cognizable by the Regional Trial Court because the main issue is whether or not there is a right to compel specific performance (Bar 2003). Note: This answer is subject to an alternative answer which asserts that where the primary purpose of the action is to recover or obtain ownership of the real property, the action is one affecting title to real property and is therefore, a real action. In a real action, jurisdiction is determined by the assessed value of the property and hence, because the assessed value under the facts is P19,000.00 thousand, the action is within the jurisdiction of the MTC. 7. An action for specific performance is one generally considered incapable of pecuniary estimation (Russel vs. Vestil, 304 SCRA 739). The amount of damages that may be claimed in addition to the prayer for specific performance is not determinative of jurisdiction. Thus, an action for specific performance and damages of P200.000.00 is cognizable by the Regional Trial Court even if the amount of damages sought to be recovered is within the jurisdiction of the Municipal Trial Court. Where however, the demand is in the alternative as in an action to compel the defendant to deliver the house by completing its construction or to pay the sum of P644.31, the action is one that is capable of pecuniary estimation (Cruz vs. Tan, 87 Phil. 627). Thus, an action for specific performance or in the alternative, for damages in the amount of P180,000.00 is one capable of pecuniary estimation. Here, the amount of damages is determinative of jurisdiction (Bar 1997, No. 1[a]).
8. If as gleaned from the complaint, the principal relief sought by the complaint is for the court to issue an injunction against the adverse party and his representatives to permanently enjoin them from preventing the survey of the subject land, the complaint is not a possessory action but one for injunction. As such, the subject matter of litigation is incapable of pecuniary estimation and properly cognizable exclusively by the Regional Trial Court under Section 19(1) of BP Blg. 129, as amended by R.A. 7691. 9. An action for a writ of injunction is within the jurisdiction of the Regional Trial Court. It is an action incapable of pecuniary estimation (Bar 1997, No. 1[b]). 10. An action for the replevin of a motorcycle valued at P150 thousand is capable of pecuniary estimation. The basis of jurisdiction is the value of the personal property sought to be recovered. The amount of P150 thousand falls within the jurisdiction of the MTC (Bar 1997, No. 1[e]). 11. An action for interpleader is capable of pecuniary estimation. If the subject of interpleader is real property then the jurisdictional amount is determined by the assessed value of the land. If it be personal property, then the value of the property. - Hence, an action for interpleader to determine who between the defendants is entitled to receive the amount of P190,000.00 from the plaintiff is within the jurisdiction of the MTC. (18) Extent of trial court's jurisdiction when acting as a probate court 1. A probate court cannot adjudicate or determine title to properties claimed to be part of the estate and also claimed by outside parties. All that the court could do is to determine whether they should car should not be included in the inventory or list of properties to be administered. For the purpose of determining whether a certain property should or should not be included in the inventory, the probate court may pass upon the title thereto but such determination is not conclusive and is subject to a final determination in a separate action. 2. However, if the interested parties are all heirs, or the parties consent to the assumption of jurisdiction by the probate court and third parties are not prejudiced or injured thereby, the probate court may decide questions on ownership. (19) Jurisdiction of the Court of Appeals (Under B.P. 129 as amended by R.A. 7902) 1. Exclusive original jurisdiction in actions for the annulment of the judgments of the Regional Trial Courts (Sec. 9[21, BP 129). 2. Concurrent and original jurisdiction with the Supreme Court to issue writs of certiorari, prohibition and mandamus against the (a) Regional Trial Court, (b) Civil Service Commission, (c) Central Board ofAssessmentAppeals, (d) Other Quasi judicial agencies mentioned in Rule 43, and (e) National Labor Relations Commission. Following the "doctrine of hierarchy of courts," the petition must first be filed with the Court of Appeals.
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A brings an action in the Metropolitan Trial Court of Manila against B for the annulment of an extrajudicial foreclosure sale of real property with an assessed value of P50,000 located in Laguna. The complaint alleged prematurity for the reason that the mortgage was not yet due. B timely moved to dismiss the case on the ground that the action should have been brought in the Regional Trial Court of Laguna. Decide with reasons.
4. Exclusive appellate jurisdiction by way of ordinary appeal from the Regional Trial Court and the Family Courts (Sec. 9[31, BP 129). 5. Exclusive appellate jurisdiction by way of petition for review from the Regional Trial Court rendered by the RTC in the exercise of its appellate jurisdiction (Rule 43, Rules of Court, Sec. 9, BP 129). 6. Exclusive appellate jurisdiction by way of petition for review from the decisions, resolutions orders or awards of the Civil Service Commission, Central Board ofAssessmentAppeals and other bodies mentioned in Rule 43 (Sec. 9[31, BP 129) and of the Office of the Ombudsman in administrative disciplinary cases. - Note that under R.A. 9282, the judgments and final orders of the Court of Tax Appeals are no longer appealable by way of petition for review to the Court of Appeals. Judgments of the Court of Tax Appeals rendered en band are appealable to the Supreme Court by way of Rule 45 (Sec. 11, R.A. 9282). 7. Exclusive appellate jurisdiction over decisions of Municipal Trial Courts in cadastral or land registration cases pursuant to its delegated jurisdiction (Sec. 34, BP 129 as amended by R.A. 7691). This is because decisions of Municipal Trial Courts in these cases are appealable in the same manner as decisions of Regional Trial Courts (Sec. 34, BP 129). (19) Power to try and conduct hearings - Even if the Court ofAppeals is not a trial court, under the law it has the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings (Sec. 9[31, BP 129 as amended by R.A. 7902). The Court of Appeals may pass upon factual issues as when a petition for certiorari is filed before it. (20) Jurisdiction of the Supreme Court 1. Exclusive original jurisdiction in petitions for certiorari, prohibition and mandamus against the: (a) Court of Appeals (Judiciary Act of 1948, Sec. 17); (b) Commission on Elections (Art. IX, Sec. 7, Constitution of the Philippines); (c) Commission on Audit (Art. IX, Sec. 7, Constitution of the Philippines); and (d) Sandiganbayan (PD 1606 as amended). - Note: Because the CTA has now the same rank as the CA by virtue of R.A. 9282, the CTA, it is believed should be included in this enumeration.
2. Concurrent original jurisdiction with the Court of Appeals in petitions for certiorari, prohibition and mandamus against the (Heirs of Hinog vs. Melicor, 455 SCRA 460) (a) Regional Trial Court (Sec. 9[Z4, BP 129); (b) Civil Service Commission (R.A. 7902); (c) Central Board of Assessment Appeals (PD 464; BP 129; R.A. 7002); (d) National Labor Relations Commission; and (e) Quasi judicial agencies (BP 129; R.A. 7902). This jurisdiction is subject to the doctrine of hierarchy of courts. 3. Concurrent original jurisdiction with the Court of Appeals and the Regional Trial Court in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto and habeas corpus. This jurisdiction is subject to the doctrine of hierarchy of courts (Sec. 9[Z1, BP 129; Sec. 21[Z1, BP 129; Art. VIII, Sec 5, Constitution of the Philippines): 4. Concurrent origintd jurisdiction with the Regional Trial Court in cases affecting ambassadors, public ministers and consuls (Sec. 21121, BP 129; Art. VIII, Sec. 5, Constitution of the Philippines). 5. Appellate jurisdiction by way of petition for review on certiorari (appeal by certiorari under Rule 45) against the: (a) Court of Appeals, (b) Sandiganbayan, (c) Regional Trial Courts on pure questions of law (Sec. 1, Rule 45) and in cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court (Sec. 5, Art. VIII, Constitution of the Philippines) and (d) Court of Tax Appeals in its decisions rendered en banc (R.A. 9282). Illustration (Bar 2005) May the aggrieved party file a petition for certiorari in the Supreme Court under Rule 65 of the 1997 Rules of Civil Procedure instead of filing a petition for review on certiorari under Rule 45 for the nullification of a decision of the Court of Appeals in the exercise of its original or appellate jurisdiction? Suggested answer. A petition for certiorari under Rule 65 is not proper. In order to nullify a decision of the Court of Appeals, the remedy is to file a petition for review on certiorari under Rule 45 which shall raise only pure questions of law (Sec. 1, Rule 45, Rules of Court). (21) The Supreme Court is not a trier of facts. - There are important principles worthy of note in relation to the jurisdiction of the Supreme Court. 1. The Supreme Court is not a trier of facts which means that passing upon a factual issue is not within the province of the Supreme Court. The findings of facts of the Court of Appeals, are not generally reviewable by the Supreme Court. Also, factual findings of the trial court, particularly when affirmed by the Court of Appeals, are generally binding on this Court.
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3. Concurrent and original with the Supreme Court and the Regional Trial Court to issue writs of certiorari, prohibition and mandamus against lower courts and bodies and writs of quo warranto and habeas corpus, whether or not in aid of its appellate jurisdiction. Previously, the Court of Appeals could issue these writs only in aid of its appellate jurisdiction, i.e., only in connection with a case appealed to it (Sec. 9[11, BP 129).
(22) Exceptions - While it is a settled rule that the Supreme Court, in the exercise of its power of review is not a trier of facts, jurisprudence has, however recognized several exceptions in which factual issues may be resolved by this Court, namely: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion. (23) Cases which under the Constitution must be heard en banc. - Under the Constitution of the Philippines, the following cases should be heard by the Supreme Court en banc: (a) All cases involving the constitutionality of a treaty, international or executive agreement, or law; (b) All cases which under the Rules of Court are required to be heard en banc; (c) All cases involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations (Art. VIII, Sec. 4[21, Constitution of the Philippines); (d) Cases heard by a division when the required majority in the division is not obtained; (e) Cases involving a modification or reversal of a doctrine or principle of law laid down previously by the Supreme Court in a decision rendered en banc or by a division (Art. VII, Sec. 4[3], Constitution of the Philippines); (f) Cases involving the discipline of judges of lower courts (Art. VIII, Sec. 11, Constitution of the Philippines); (g) Contests relating to the election, returns, and qualifications of the President or Vice-president (Art. VII, Sec. 4, Constitution of the Philippines). (24) Jurisdiction of the Family Courts - Under R.A. 8369, the Family Courts shall have exclusive original jurisdiction over the following civil cases:
1. Petitions for guardianship, custody of children and habeas corpus involving children; 2. Petitions for adoption for children and the revocation thereof; 3. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; 4. Petitions for support and/or acknowledgment; 5. Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines;" 6. Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under PD No. 603, E.O. No. 56 (series of 1986) and other related laws; 7. Petitions for the constitution of the family home (Sec. 5, RA 8369). - In areas where there are no Family Courts, the aboveenumerated cases shall be adjudicated by the Regional Trial Court (Sec. 17, RA 8369). II. VENUE (Rule 4) A. Meaning of venue Venue is the place, or the geographical area where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. B. Venue is not a matter of substantive law 1. Venue is procedural and not substantive. In civil cases, venue is not a matter of jurisdiction. Venue becomes jurisdictional only in a criminal case. In the latter case, where the information is filed in a place where the offense was not committed, the information may be quashed for lack of jurisdiction over the offense charged (Sec. 3, Rule 117, Rules of Court). This is not so in a civil case where improper venue is not equivalent to lack of jurisdiction. Because it is merely procedural, the parties can waive the venue of a case. C. Dismissal based on improper venue 1. The trial court cannot motu proprio dismiss a case on the ground of improper venue. The court may dismiss an action motu propio in case of lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription, but not for improper venue. Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised. The trial court cannot preempt the defendant's prerogative to object to the improper laying of the venue by motu proprio dismissing the case (Dacuycoy vs. Intermediate Appellate Court, 195 SCRA 641). Hence, if in a case filed with the Regional Trial Court, the defendant files a motion to dismiss based on lack of jurisdiction over the subject matter and the court dismisses the action based on improper venue, the court would be acting erroneously because the act would
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2. It is not the function of the Supreme Court to determine the weight of the evidence supporting the assailed decision. However, factual issues may be delved into and resolved where the findings and conclusions of the trial court or the quasi judicial bodies are frontally inconsistent with the findings of the Court of Appeals.
2. The court may however, effect a motu proprio dismissal of the complaint based on improper venue in an action covered by the rules on summary procedure. In this type of action, the court may motu proprio dismiss a case from an examination of the allegations of the complaint and such evidence as may be attached thereto on any of the grounds apparent therefrom. The dismissal may be made outright, which means that the court may do so without need for waiting for the filing of a motion to dismiss (Sec. 4, Rules on Summary Procedure). D. How venue is determined 1. As previously discussed, in order to know the venue of a particular action, the initial step is to determine if the action is personal or real. If it is personal, venue is transitory hence, the venue is the residence of the plaintiff or the defendant at the option of the plaintiff (Sec. 3, Rule 4, Rules of Court). If the action is real, the venue is local hence, the venue is the place where the real property is situated (Sec. 1, Rule 4, Rules of Court). However, when the defendant is a nonresident and is not found in the Philippines, the venue is the residence of the plaintiff or where the property involved is situated (Sec. 3, Rule 4, Rules of Court). 2. Actions for damages and actions to collect a sum of money must be filed in either the residence of the plaintiff or the residence of the defendant at the election of the plaintiff. Such actions are personal actions. Hence, an action for the collection of P1 million filed by a resident of Lingayen, Pangasinan against a resident of San Fernando, La Union, may be filed in either place at the option of the plaintiff (Bar 1998). 3. Actions to recover ownership of real property are real actions and must be filed in the place where the real property is located. Actions for unlawful detainer, forcible entry and action publiciana are real actions and must be likewise filed in the place where the subject property is situated. Thus, an action to recover possession of the leased real property and for the payment of accrued rentals, must be filed in Davao City where the property is located because the action is a real action (Bar 1991; Bar 1987). E. Stipulations on venue 1. The parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before the filing of the action, and (3) exclusive as to the venue (Sec. 4[b], Rule 4, Rules of Court). While the first two requisites rarely pose a problem, the third has been the source of controversy in the past. 2. A stipulation that "any suit arising from this contract shall be filed only in Quezon City" is exclusive in character and is clear enough to preclude the filing of the case in any other place. In this case, the residences of the parties are not to be considered in determining the venue of the action. 3. How about a stipulation that the "parties agree to sue and be sued in the courts of Manila?" This was actually the stipulation in a suit subject of the landmark case of Polytrade Corporation vs. Blanco. This stipulation was held not be
restrictive or exclusive to prevent the filing of the suit in the places provided for by the rules. According to the court, the plain meaning of the said provision is that the parties merely consented to be sued in Manila considering that there are no qualifying or restrictive words which would indicate that Manila, and Manila alone, is the agreed venue. It simply is permissive and the parties did not waive their right to pursue remedy in the courts specifically mentioned in Section 2 of Rule 4 of the Rules of Court. 4. In interpreting stipulations as to venue, there is a need to inquire as to whether or not the agreement is restrictive or not. If it is restrictive, the suit may be filed only in the place agreed upon by the parties. It must be reiterated and made clear that under Section 4(b) of Rule 4 of Rules of Court, the general rules on venue of actions shall not apply where the parties, before the filing of the action, have validly agreed in writing on an exclusive venue. The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. - Thus, if the plaintiff resides in Quezon City, the plaintiff in Makati City and the agreed venue is Pasay City which, by the terms of the agreement, is not exclusive, the venue of the action may be Quezon City, Makati City and Pasay City, at the election of the plaintiff. 5. The Polytrade doctrine was further applied in the case of Unimasters Conglomeration, Inc. vs. Court of Appeals, which analyzed the various jurisprudence rendered after the Polytrade case. In Unimasters, it was ruled that a stipulation stating that the stipulation that "all suits arising out of this Agreement shall be filed with/ in the proper Courts of Quezon City," is only permissive and does not limit the venue to the Quezon City courts. As explained in the said case: "In other words, unless the parties make very clear, by employing categorical and suitably limiting language, that they wish' the venue of actions between them to be laid only and exclusively at a definite place, and to disregard the prescriptions of Rule 4, agreements on venue are not to be regarded as mandatory or restrictive, but merely permissive, or complementary of said rule. The fact that in their agreement the parties specify only one of the venues mentioned in Rule 4, or fix a place for their actions different from those specified by said rule, does not, without more, suffice to characterize the agreement as a restrictive one. There must, to repeat, be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them, regardless of the general precepts of Rule 4; and any doubt or uncertainty as to the parties' intentions must be resolved against giving their agreement a restrictive or mandatory aspect. Any other rule would permit of individual, subjective judicial interpretations without stable standards, which could well result in precedents in hopeless inconsistency." 6. The following stipulations were likewise treated as merely permissive and did not limit the venue to the stipulated place:
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tantamount to a motu proprio dismissal based on improper venue.
7. The settled rule on stipulations regarding venue, is that 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 of the Revised Rules of Court in the absence of qualifying; or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them. Examples of words with restrictive meanings are: " "only," "solely," "exclusively in this court," "in no other court save ," "particularly," "nowhere else but / except -, or words of equal import * * *" - Example: "In the event of suit arising out of or in connection with this mortgage and/or the promissory note/s secured by this mortgage, the parties hereto agree to bring their causes of action exclusively in the proper court of Makati, Metro Manila or at such other venue chosen by the Mortgagee, the Mortgagor waiving for this purpose any other venue"
effect of making Pasay City the sole venue of the action. If the stipulation provides... "shall be filed in Pasay City," without any restrictive language employed in the agreement, the filing of the complaint in Quezon City would still be procedurally proper because the stipulation merely operates to add Pasay City to the regular venues of Manila and Quezon City (Bar 1997). 2. If X, a resident of Angeles City, borrowed P300,000 from A, a resident of Pasay City under an agreement that stipulated that the parties "agree to sue and be sued in the City of Manila," the plaintiff is not precluded from filing the action either in Angeles City or Pasay City or even Manila. The stipulation on venue is not an exclusive stipulation and its effect is merely to add Manila as an additional venue. The same conclusion would be reached had the stipulation been: "Venue for all suits arising from this contract shall be the courts in Quezon City." The action may be filed also either in Angeles City or in Pasay City. It may also be filed in Quezon City (Bar 1997). - If the parties above failed to stipulate on the venue in the loan agreement, the action may be filed either in Angeles City or Pasay City at the election of the plaintiff. The venue of a personal action such as one to recover a debt under a loan of money is a personal action (Bar 1997). G. Denial of a motion to dismiss based on improper venue; no appeal - If a motion to dismiss based on improper venue is denied, may the defendant appeal? He cannot. An order denying a motion to dismiss is merely interlocutory. It is not final. Only final orders or judgments may be appealed from. The normal remedy is to file an answer and interpose the ground as an affirmative defense, go to trial and appeal from the adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of jurisdiction, the remedy is certiorari and prohibition.
8. Cases like Hoechst, Inc. vs. Torres, and Bautista vs. De Borja, and other rulings contrary to the Polytrade doctrine must be deemed superseded by current decisions on venue. - In particular, the 1978 case of Hoechst Philippines, Inc. v. Torres, involved the stipulation that "in case of any litigation arising out of this agreement, the venue of action shall be in the competent courts of the Province of Rizal." The Supreme Court surprisingly construed this agreement as sufficient to limit the venue to the proper court of Rizal and thus, exclusive in its import. However, in Supena vs. De la Rosa, 334 Phil. 671, it was ruled that Hoechst had been rendered obsolete by recent jurisprudence applying the doctrine enunciated in Polytrade.
H. Improper venue is not jurisdictional 1. If the facts of problem show that the venue is improper, it would not be correct to file a motion to dismiss anchored on lack of jurisdiction because venue has nothing to do with jurisdiction in a civil case. Hence, if a case for unlawful detainer is filed in MTC Laguna when it should have been filed in MTC Cavite because the property subject of the action is located in Cavite, the action filed in Laguna may be dismissed by the court on the ground of improper venue but not on the ground of lack of jurisdiction because every MTC has jurisdiction over cases of unlawful detainer. It would be a serious flaw to inject into the analysis the concept of territorial jurisdiction. It is irrelevant in a civil case. Territorial jurisdiction applies only in criminal cases where venue is also jurisdictional. In a civil case, the concept of venue is distinct from the concept of jurisdiction.
F. Adopted Illustrations 1. P resides in Manila. Defendant resides in Quezon City. The written contract stipulates that any suit arising from a violation of the contract shall be filed only in Pasay City. P sues D for damages arising from an alleged breach of contract. The action was filed in Quezon City. Is the venue improper? Answer: The venue is improper. The stipulation to file the action in Pasay is restrictive and therefore, has the
Illustration (Bar 1988) (a) xxx (b) A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of land belonging to B located in Calapan, Mindoro. A filed a complaint before the Regional Trial Court, sitting in Batangas City, for the rescission of the Lease Contract of the land in Mindoro.
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a. " * * *The agreed venue for such action is Makati, Metro Manila, Philippines b. "In case of litigation hereunder, venue shall be in the City Court or Court of First Instance of Manila as the case may be for determination of any and all questions arising thereunder" c. "It is hereby agreed that in case of foreclosure of this mortgage under Act 3135, as amended, and Presidential Decree No. 385, the auction sale shall be held at the capital of the province, if the property is within the territorial jurisdiction of the province concerned, or shall be held in the city, if the property is within the territorial jurisdiction of the city concerned" d. "All court litigation procedures shall be conducted in the appropriate courts of Valenzuela City, Metro Manila"
Suggested answer: The motion to dismiss based on lack of jurisdiction is not tenable. The filing of the action in the Regional Trial Court of Batangas City did not affect the jurisdiction of the court. The defect is one of venue. Since the land subject matter of the suit is located in Mindoro, the action should have been filed in Mindoro. 2. Objections to venue in a civil action arising from libel maybe waived since they do not involve a question of jurisdiction. In criminal actions venue is jurisdictional it being an essential element of jurisdiction. H. Venue distinguished from jurisdiction (Bar 2006) - Venue is differentiated from jurisdiction as follows: Venue Jurisdiction a. the place where the case a. the authority to hear and is to be heard or tried; determine a case; b. a matter of procedural b. substantive; law c. establishes a relation c. establishes a relation between plaintiff and between the court and the defendant, or petitioner and subject matter; respondent d. may be conferred by the d. fixed by law and cannot act or agreement of the be conferred by agreement parties; of the parties e. not a ground for a motu e. lack of jurisdiction over proprio dismissal (except in the subject matter is a cases subject to summary ground for a motu proprio procedure) dismissal. III. PARTIES (Rule 3) A. Parties to a civil action 1. There are two main categories of parties to a civil action namely, the plaintiff and the defendant (Sec. 1, Rule 3, Rules of Court). 2. > plaintiff - the claiming party or more appropriately, the original claiming party and is the one who files the complaint. The term however, does not exclusively apply to the original plaintiff. It may also apply to a defendant who files a counterclaim, a cross-claim or a third party complaint. The Rules of Court (Sec. 1, Rule 3) hence, defines the term `plaintiff', as the claiming party, the counter-claimant, the crossclaimant or the third-party (fourth, etc.) -party plaintiff (Sec. 1, Rule 3, Rules of Court). 3. > defendant does not only refer to the original defending party. If a counterclaim is filed against the original plaintiff, the latter becomes a defendant and the former, a plaintiff in the counterclaim. Hence, under the Rules (Sec. 1, Rule 3), the term „defendant' refers also to a defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) -party-defendant. B. Who may be parties
- Only the following may be parties to a civil action: (a) natural persons, (b) juridical persons, and (c) entities authorized by law (Sec. 1, Rule 3, Rules of Court). C. Juridical persons as parties - The juridical persons who may be parties to a civil action are those enumerated in Art. 44 of the Civil Code of the Philippines, namely: (a) The State and its political subdivisions; (b) Other corporations, institutions and entities for public interest or purpose, created by law; and (c) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. D. Entities authorized by law to be parties - One need not be a natural or a juridical person to be a party to a civil action. As long as an entity is authorized by law to be a party, such entity may sue or be sued or both. Consider the following examples: (a) Under Sec. 21 of the Corporation Code of the Philippines, a corporation by estoppel is precluded from denying its existence and the members thereof can be sued and be held liable as general partners. (b) A contract of partnership having a capital of three thousand pesos or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons (Art. 1772 in relation to Art. 1768 of the Civil Code of the Philippines). (c) The estate of a deceased person may be a party to an action. (d) A legitimate labor organization may sue and be sued in its registered name (Art. 242[e], Labor Code of the Philippines). (e) The Roman Catholic Church may be a party and as to its properties, the archbishop or diocese to which they belong may be a party (f) A dissolved corporation may prosecute and defend suits by or against it provided that the suits (i) occur within three (3) years after its dissolution, and (ii) the suits are in connection with the settlement and closure of its affairs (.Sec.. 122, Corporation Code of the Philippines). E. Entity without a juridical personality as a defendant 1. An example of an entity that is neither a natural nor a juridical person but is allowed by the Rules of Court to be a party to an action, although as a defendant, is the one treated in Sec. 15 of Rule 3 of the Rules of Court. 2. Under Sec. 15, "when two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known." Under the same provision, the responsive pleading of the entity sued must disclose the names and addresses of its members since they are the persons ultimately liable to the plaintiff. - Thus, if A, B, C, D and E without incorporating themselves or without registering as a partnership, enter into transactions using the common name, "Ocean Quest Corp.," they may be sued as "Ocean Quest Corp." When the
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B filed a motion to dismiss on the ground that the Regional Trial Court did not have jurisdiction over the subject matter, the land being located in Mindoro. Decide with reasons.
F. Remedy when a party impleaded is not authorized to be a party 1. Where the plaintiff is not a natural or a juridical person or an entity authorized by law, a motion to dismiss may be filed on the ground that "the plaintiff has no legal capacity to sue" (Sec. 1[d], Rule 16, Rules of Court). 2. Where it is the defendant who is not any of the above, the complaint may be dismissed on the ground that the "pleading asserting the claim states no cause of action" or `failure to state a cause of action' (Sec. 1[g], Rule 16, Rules of Court), because there cannot be a cause of action against one who cannot be a party to a civil action. 3. Also, if the plaintiff has capacity to sue but he is not the `real party in interest', the ground for dismissal is a `failure to state a cause of action', not `lack of legal capacity to sue'. G. Averment of capacity to sue or be sued - Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party must be averred (Sec. 4, Rule 8, Rules of Court). H. A minor or an incompetent as a party - A minor or an incompetent, may sue or be sued. He can be a party but with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem (Sec. 5, Rule 3, Rules of Court). I. Real party in interest 1. > "A real party in interest - the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit" (Sec. 2, Rule 3, Rules of Court). 2. To be a real party-in-interest, the interest must be `real', which is a present substantial interest as distinguished from a mere expectancy or a future, contingent subordinate or consequential interest. It is an interest that is material and direct, as distinguished from a mere incidental interest in the question. 3. The determination of who the real party-in-interest is requires going back to the elements of a cause of action. A cause of action involves the existence of a right and a violation of such right. Evidently, the owner of the right violated stands to be the real party in interest as plaintiff and the person responsible for the violation iH the real party in interest are defendant. Thus, in a suit for violation of a contract, the parties in interest would be those covered by the operation of the doctrine of relativity of contracts under Art. 1311 of the Civil Code of the Philippines, namely, the parties, their assignees and heirs. Likewise in a suit for annulment of a contract, the real parties in interest would be those who are principally or subsidiarily bound by the contract (Art. 1397, Civil Code of the Philippines).
4. A person who has not taken part in a contract cannot, sue or be sued for performance or for cancellation thereof unless he shows that his interest is affected thereby as when he is an assignee of a right or a right of action. The parties to a contract are the real parties in interest in an action upon it. As a rule, under the doctrine of relativity of contracts embodied in Art. 1311 of the Civil Code of the Philippines, only the contracting parties are bound by the stipulation in the contract. They are the ones who would benefit from it and could violate it. Thus, one who is not a party to a contract, and for whose benefit it was not expressly made, cannot maintain an action on it. - While ordinarily one who is not a privy to a contract may not bring an action to enforce it, there are recognized exceptions to this rule. For example, contracts containing stipulations pour autrui or stipulations expressly conferring benefits to a nonparty may sue under the contract provided such benefits have been accepted by the beneficiary prior to its revocation by the contracting parties (Art. 1311, Civil Code of the Philippines). - Also, parties who have not taken part in a contract may show that they have a real interest affected by its performance or annulment. In other words, those who are not principally or subsidiarily obligated in a contract, in which they had no intervention, may show their detriment that could result from it. For instance, Article 1313 of the Civil Code provides that "creditors are protected in cases of contracts intended to defraud them." Further, Article 1381 of the Civil Code provides that contracts entered into in fraud of creditors may be rescinded when the creditors cannot in any manner collect the claims due them. Thus, a creditor who is not a party to a contract can sue to rescind the contract to redress the fraud committed upon him. 5. A third party who has not taken part in a compromise agreement has no right to ask for the performance of the agreement. A person who is not a party to a compromise agreement cannot seek the amendment or modification of the same. 6. A mere agent, who is not an assignee of the principal cannot bring suit under a deed of sale entered into in behalf of his principal because it is the principal, not the agent who is the real party in interest. In case the action is brought against the agent, the action must be brought against an agent acting in his own name and for the benefit of an undisclosed principal without joining the principal, except when the contract involves things belonging to the principal. The real party-in-interest is the party who would be benefited or injured by the judgment or is the party entitled to the avails of the suit. An attorney-in-fact is not a real party in interest and that there is no law permitting an action to be brought by and against an attorney-in-fact new title, null and void. 7. Should a lawful possessor be disturbed in his possession, it is the possessor, not necessarily the owner of the property, who can bring the action to recover the possession. The argument that the complaint states no cause of action because the suit was filed by a mere possessor and not by the owner is not correct. In an action for forcible entry, the possessor/lessee is the real party in interest as plaintiff and not the owner/lessor.
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defendant "corporation" answers, the names of A, B, C, D and E and their addresses must be revealed. Note however, that the authority to be a party under this section is confined only to being a defendant and not as a plaintiff. This is evident from the words, they may be sued.
8. When the corporate offices have been illegally searched, a corporate officer is not the real party in interest to question the search. The right to contest the transgression belongs to the corporation alone which has a personality of its own separate and distinct from that of an officer or a stockholder. The objection to an unlawful search and seizure is purely personal and cannot be availed of by third persons (Stonehill vs. Diokno, 20 SCRA 383). However, even if the cause of action belongs to the corporation, if the board refuses to sue despite demand by the stockholders to sue and protect or vindicate corporate rights, a stockholder is allowed by law to file a derivative suit in the corporate name. In such a suit, the real party-in-interest is actually the corporation and the stockholder filing the action is a mere nominal party. 9. In an action for ejectment, any of the co-owners may bring the action (Art. 487, Civil Code of the Philippines). 10. In an action to annul her marriage, it is the woman, not her father who is the real party in interest. 11. Under Art. 1768 of the Civil Code of the Philippines, a partnership has a juridical personality separate and distinct from that of each of the partners. Hence, if the contract was entered into by the partnership in its name, it is the partnership, not its officers or agents which should be impleaded in any litigation involving property registered in its name. A violation of this rule.will result in dismissal of the complaint for failure to state a cause of action. Illustration (Bar 1989) Isagani drove the car of his father, Pedro, and left it in the parking area of the Fairview Motel where he was a guest. Isagani entrusted the key of the car to a security guard hired by the Prime Resort Company, the owner/ operator of the motel. Emilio, pretending to be the brother of Isagani, got the key from the security guard and drove the car away. The car was never recovered. Later, Pedro sued Prime Resorts for the value of the carnapped vehicle plus damages. Prime Resorts sets up the defense that Pedro has no interest in the case, hence, has no cause of action, as he was not the guest of the motel but his son, Isagani. Is the defense tenable? Suggested answer. The defense is not tenable. The cause of action of Pedro arises from his rights as an owner. He is therefore, the real party-in-interest in the suit for damages. Illustration (Bar 1988) A complaint entitled "A as Attorney-In-Fact for X, plaintiff, versus B, defendant" was filed to recover a car in the possession of B. A's Power of Attorney expressly authorized him (A) to sue for the recovery of the car. B files a motion to dismiss for lack of capacity to sue. Decide the motion. Explain.
Suggested answer: The motion must be denied. The ground relied upon is erroneous. Under the Rules of Court, an action must be prosecuted in the name of the real party-in-interest and under the facts of this case, this party is X. The fact that the suit is in the name of A as attorney-in-fact does not mean that A has no legal capacity to sue. Being a natural person, A possesses such legal capacity. However, since, he is not the owner of the car sought to be recovered, the suit cannot be prosecuted in his name. The motion to dismiss should have been based on a failure to state a cause of action. J. Prosecution/defense of an action in the name of the real party in interest 1. Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3, Rules of Court). 2. Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity (like the trustee of an express trust, an executor or administrator), the beneficiary shall be included in the title of the case and shall be deemed to be the real partyin-interest (Sec. 2, Rule 3, Rules of Court). The phraseology of Sec. 2, Rule 3 leaves no doubt as to what the rule is. Impleading the beneficiary as a party is mandatory since said beneficiary is deemed to be the real party-ininterest. 3. If the action is prosecuted in the name of one who is not the real party-in-interest, the ground for dismissal should be that the complaint states no cause of action or fails to state a cause of action. K.Failure to include the name of a party in the pleading - The mere failure to include the name of a party in the title of the complaint is not fatal because the Rules of Court requires the courts to pierce the form and go into the substance and not be misled by a false or wrong name in the pleadings. The averments are controlling and not the title. Hence, if the body indicates the defendant as a party to the action, his omission in the title is not fatal. L. Rule on `standing' as distinguished from the concept of `real party-in-interest' l. > Locus standi - a right of appearance in a court of justice on a given question. In private suits, standing is governed by the "real-parties-in interest" rule found in Section 2, Rule 3 of the Rules of Court which provides that "every action must be prosecuted or defended in the name of the real party-ininterest." 2. However, the concept of `standing' because of its constitutional underpinnings is very different from questions relating to whether or not a particular party is a real partyininterest. Although both are directed towards ensuring that only certain parties can maintain an action, the concept of standing requires an analysis of broader policy concerns. The question as to who the real party-in-interest is involves only a question on whether a person would be benefited or injured by the judgment or whether or not he is entitled to the avails of the suit.
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The issue in an action for forcible entry is mere possession. But in an action to recover damages for damage caused by the deforciant on the property, the owner/ lessor is the real party in interest as plaintiff.
2. "An indispensable party is a party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who has not only an interest in the subject matter of the controversy, but also has an interest of such nature that a final decree cannot be made without affecting his interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. It has also been considered that an indispensable party is a person in whose absence there cannot be a determination between the parties already before the court which is effective, complete, or equitable. Further, an indispensable party is one who must be included in an action before it may properly go forward. - "The presence of indispensable parties is a condition for the exercise of juridical power and when an indispensable party is not before the court, the action should be dismissed. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. - "The joinder of indispensable parties is mandatory. Without the presence of indispensable parties to the suit, the judgment of the court cannot attain real finality. Strangers to a case are not bound by the judgment rendered by the court" 3. A person is not an indispensable party, however, if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice between them. Also, a person is not an indispensable party if his presence would merely permit complete relief between him and those already parties to the action, or if he has no interest in the subject matter of the action. It is not a sufficient reason to declare a person to be an indispensable party that his presence will avoid multiple litigation. In a joint obligation for instance, the interest of one debtor is separate and distinct from that of his co-debtor and a suit against one debtor does not make the other an indispensable party to the suit. Illustration (Bar 1996) 1. xxx 2. xxx 3. A filed an action against B, driver of the truck, C, owner of said truck, and D, insurer of the truck, for damages when the truck rammed his car. A and D entered into a compromise agreement upon an amount lower than that sued upon by A against all three defendants. Accordingly, the court dismissed the case against D. B and C moved to dismiss the case against them on the ground that, being indispensable parties under a common cause of action, non-inclusion of D would not make the case prosper.
Are the defendants indispensable parties? How would you resolve the motion? Suggested answer. The motion should be denied. B and C are not indispensable parties in relation to D and vice versa. The cause of action against B and C is based on quasi delicts or culpa aquiliana while the cause of action against D is based on the contract of insurance. A dismissal of the case against D will not affect the case against B and C. N. Compulsory joinder of indispensable parties 1. Although normally, a joinder of parties is permissive (Sec. 6, Rule 3, Rules of Court), the joinder of a party becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of indispensable parties (Sec. 7, Rule 3, Rules of Court). 2. The presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. It is precisely when an indispensable party is not before the court that the - action should be dismissed. Thus, the plaintiff is mandated to implead all the indispensable parties, considering that the absence of one such party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. One who is a party to a case is not bound by any decision of the court; otherwise, he will be deprived of his right to due process. O. Dismissal for failure to implead an indispensable party 1. It has been ruled on various occasions that since the joinder of indispensable parties is compulsory, the action should be dismissed when indispensable parties are not impleaded or are not before the court. The absence of indispensable parties renders all subsequent actions of the trial court null and void for want of authority to act, not only as to the absent parties but even as to those present. 2. It is worthy of note that the Court in its rulings did not hold that the failure to join an indispensable party results in the outright dismissal of the action. An outright dismissal is not the immediate remedy authorized by the Rules because under the Rules a non joinder (or misjoinder) of parties is not a ground for dismissal of an action. Instead, parties may be dropped or added by the court on motion of any party or on its own initiative (Sec. 11, Rule 3, Rules of Court). It is when the order of the court to implead an indispensable party goes unheeded may the case be dismissed. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when, among others, he does not comply with any order of the court (Sec. 3, Rule 17, Rules of Court). 3. One significant case adequately clarifies the procedure to be undertaken when an indispensable party is not impleaded. - The case of Pamplona Plantation Co. vs. Rodel Tinghil is the authority to support the view that an immediate dismissal of the action when indispensable parties are not impleaded is a procedural error. Said the Court: "The non joinder of indispensable parties is not a ground for the dismissal of an action. At any stage of a judicial proceeding and/or at such times as are just, parties may be added on the motion of a party or on the initiative of the tribunal concerned. If the
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M. Indispensable parties 1. > indispensable party - a real party-in-interest without whom no final determination can be had of an action (Sec. 7, Rule 3, Rules of Court). Without the presence of this party the judgment of a court cannot attain real finality.
4. A more recent case holds that whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the trial and to order the inclusion of such party. The absence of an indispensable party renders all subsequent actuations of the court null and void, for want of authority to act, not only as to the absent parties, but even as to those present. Accordingly, the responsibility of impleading all the indispensable parties rests on the plaintiff. The defendant does not have the right to compel the plaintiff to prosecute the action against a party if he does not wish to do so, but the plaintiff will have to suffer the consequences of any error he might commit in exercising his option. P. Necessary parties 1. A necessary party is not indispensable to the action. A final determination of the case can be had among the parties already impleaded where a necessary party for some justifiable reason, is not joined. But a necessary party "ought to be joined as a party if complete relief is to be accorded as to those already parties" (Sec. 8, Rule 3, Rules of Court). Q. Distinction between an indispensable and a necessary party 1. An indispensable party must be joined under any and all conditions while a necessary party should be joined whenever possible (Borlasa vs. Polistico, 47 Phil. 345). Stated otherwise, an indispensable party must be joined because the court cannot proceed without him. Hence, his presence is mandatory. The presence of a necessary party is not mandatory because his interest is separable from that of the indispensable party. He has to be joined whenever possible to afford complete relief to those who are already parties and to avoid multiple litigation. A necessary party is not indispensable but he ought to be joined if complete relief is to be had among those who are already parties (Sec. 8, Rule 3, Rules of Court). A final decree can be had in a case even without a necessary party because his interests are separable from the interest litigated in the case. The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party (Sec. 9, Rule 3, Rules of Court). 2. Consider the following: "A," and "B" are the signatories to a promissory note which reads: "We promise to pay to the order of "C" P1 million on February 27, 2007." On the due date of the obligation, the creditors failed to pay despite demand. (a) May "C"sue "A"alone? Answer: "C" may sue "A" alone. The cause of action against "A" is separate and distinct from the cause of action against "B." The tenor of the note discloses merely a joint obligation. In a joint obligation the credit or debt shall be divided into as many equal shares as there are creditors and debtors, the credits or debts being considered distinct from each other (Art. 1208, Civil Code of the Philippines). Being debtors in a joint obligation, the debtors then are liable separately for P500,000 each.
(b) Is "A," in a suit by "C" against him a necessary or an indispensable party? Answer: "A" is an indispensable party. Without him being impleaded as defendant, "C" cannot collect the P500,000 share of "A." Without "A" there cannot be a final determination of the case against him. (c) In the suit by "C" against "A," is "B" a necessary or an indispensable party? Answer: "B" is not an indispensable party. "C" can collect from "A" P500,000 without impleading "B." He is only a necessary party. Without "B" being made a party to the action, "C" cannot have a complete relief, i.e., he cannot collect his entire credit of P1 million. If he desires a complete recovery, "B" must be impleaded. 3. In the above example, assuming that the debtors bound themselves to pay the P1 million solidarily, would "B" be an indispensable or a necessary party in a suit by "C" against "A"? Answer: "B" would not be a necessary party. Complete relief could be had by "C" without joining "B" because the obligation is solidary. "A" could be ordered to pay the entire obligation of P1 million. Neither is "B" an indispensable party. There could be a complete and final determination of the action for a sum of money without "B" being joined. - Solidarity does not make a solidary obligor an indispensable party in a suit filed by the creditor against another solidary debtor. 4. B bought a car from S on an installment basis. A chattel mortgage was executed on the car in favor of S to secure the obligation. Before the payment was completed, B sold the car to D. It was agreed that D would be responsible for the monthly installments. D failed to pay three installments. May S sue D alone in the foreclosure suit or replevin suit? He cannot. B must be made defendant. B is an indispensable party. The foreclosure or replevin is premised on the default of B, the debtor. P would have no right to foreclose the mortgage or repossess the car without establishing the default of B. 5. A transferee of a property pendente lite is not an indispensable party, as it would in any event be bound by the judgment against his predecessor. 6. The person whose right to the office is challenged is an indispensable party. No action can proceed unless he is joined. 7. In an action for reconveyance of a property, the persons against whom reconveyance is asserted are indispensable parties. R. Effect of a justified failure to implead a necessary party (Bar 1998) - The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party (Sec. 9, Rule 3, Rules of Court). S. Duty to of pleader when a necessary party is not joined - While a necessary party is not indispensable to the final determination of the action, said party ought to be joined whenever possible. If a pleader has no intent to implead a
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plaintiff refuses to implead an indispensable party despite the order of the court, that court may dismiss the complaint for the plaintiff's failure to comply with the order. The remedy is to implead the non-party claimed to be indispensable."
T. When court may order joinder of a necessary party (Bar 1998) - If the reason given for the non joinder of the necessary party is found by the court to be unmeritorious, it may order the pleader to join the omitted party if jurisdiction over his person may be obtained (Sec. 9, Rule 3, Rules of Court). U. Effect of failure to comply with order of the court (Bar 1998) - The failure to comply with the order of the court to include a necessary party, without justifiable cause, shall be deemed a waiver of the claim against such party (Sec. 9, Rule 3, Rules of Court). V. Unwilling co-plaintiff - An unwilling co-plaintiff is a party who is supposed to be a plaintiff but whose consent to be joined as a plaintiff cannot be obtained as when he refuses to be a party to the action. Under Sec. 10 of Rule 3, said unwilling co-plaintiff (a) may be made a defendant, and (b) the reason therefor shall be stated in the complaint. W. Alternative defendants 1. Where the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may join all of them as defendants in the alternative. Under Sec. 13 of Rule 3, "where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other (Sec. 13, Rule 3, Rules of Court). Just as the rule allows a suit against defendants in the alternative, the rule also allows alternative causes of action (Sec. 2, Rule 8, Rules of Court) and alternative defenses (Sec. 5[b], Rule 6, Sec. 20, Rule 14, Rules of Court). 2. Assume that Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered injuries but does not know with certainty which vehicle caused the mishap. What should Mr. X do if he wants to sue? He should sue the vehicle drivers/ owners in the alternative. 3. P delivered some goods to D pursuant to a contract. The goods were delivered to E, the designated agent of D. D did not pay P. D contends that he has not received the goods. E claims otherwise and insists that D had received the goods. Should P sue D or should he sue E? P should sue both but in the alternative. 4. Plaintiff may sue the shipping company and the arrastre operator alternatively for the recovery of damages to goods shipped through a maritime vessel. X. Misjoinder and non joinder of parties 1. A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not joined
when he is supposed to be joined but is not impleaded in the action. 2. Under the Rules neither misjoinder nor non joinder of parties is a ground for the dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just (Sec. 11, Rule 3, Rules of Court). Misjoinder of parties does not involve questions of jurisdiction and not a ground for dismissal. 3. Even if neither misjoinder nor non joinder is a ground f'or dismissal of the action, the failure to obey the order of the court to drop or add a party is a ground for the dismissal of the complaint under Sec. 3, Rule 17 of the Rules of Court. 4. The rule on misjoinder or non joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non joinder and misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later at the option of the plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake. And this is' the reason why the rule ordains that the dropping is "on such terms as are just." Y. Unknown defendant - Whenever the identity or name of the defendant is unknown, he may be sued as the unknown owner heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly (Sec. 14, Rule 3, Rules of Court). Z. Effect of death of a party on the attorney-client relationship - The death of the client extinguishes the attorney-client relationship and divests a counsel of his authority to represent the client. Accordingly, a dead client has no personality and cannot be represented by an attorney. Neither does he become the counsel of the heirs of the deceased unless his services are engaged by said heirs. AA. Duty of counsel upon the death of his client - Whenever a party to a pending action dies, it is the duty of the counsel of the deceased party to inform the court of such fact within thirty (30) days after such death. The counsel has also the obligation to give the name and address of the legal representative of the deceased. This duty is mandatory and failure to comply with this duty is a ground for disciplinary action (Sec. 16, Rule 3, Rules of Court). Note that this duty is imposed upon the counsel of the deceased party, not upon the counsel of the adverse and surviving party. BB. Action of court upon notice of death; effect of death on the case 1. Upon receipt of the notice of death, the court shall determine whether or not the claim is extinguished by such death. If the claim survives, the court shall order the legal representative or representatives of the deceased to appear and be substituted for the deceased within thirty (30) days
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necessary party, the pleader is under obligation to: (a) set forth the name of said necessary party, if known, and (b) state the reason why the necessary party is omitted (Sec. 9, Rule 3, Rules of Court). A reason justifying the non-joinder of a necessary party is when said party is outside the jurisdiction of the court (Sec. 9, Rule 3, Rules of Court).
2. Where the deceased has no heirs, the court shall require the appointment of an executor or administrator. This appointment is not required where the deceased left an heir because the heir under the new rule, maybe allowed to be substituted for the deceased. If there is an heir but the heir is a minor, the court may appoint a guardian ad litem for said minor heir (Sec. 13, Rule 3, Rules of Court). Previous rulings giving priority to the legal representative like an executor or administrator over the heirs should be deemed no longer consistent with the current rule. 3. It is possible that the court may order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. This may happen in any of the three situations: (a) the counsel for the deceased does of name a legal representative, or (b) there is a representative named but he fails to appear within the specified period. All court charges in procuring such appointment, if defrayed by the opposing party may be recovered as costs (Sec. 16, Rule 3, Rules of Court). CC. When there is no need to procure an executor or administrator - Under the second paragraph of Sec. 16 of Rule 3, ". . . The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator. . ." - The second paragraph of the rule is plain and explicit. The heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased. The previous pronouncement of the Court in Lawas vs. Court of Appeals that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true. Thus, the heirs do not need to first secure the appointment of an administrator of the estate of the deceased because from the very moment of death, they stepped into the shoes of the deceased and acquired his rights as devisee/legatee. Said heirs may designate one or some of them as their representative before the trial court. DD. No requirement for service of summons 1. Service of summons is not required to effect a substitution. Nothing in Sec. 16 of Rule 3 mandates service of summons. Instead of service of summons the court shall order the legal representative of the deceased to appear and be
substituted for the said deceased within thirty (30) days from notice (Bar 1999). 2. By virtue of the Hame rule, it is significant to remember that it is not the amendment of the pleading, but the order of substitution and its service that effects the substitution of the deceased by his representative or heir (Bar 1999). EE. Purpose and importance of substitution of the deceased 1. The purpose behind the rule on substitution of parties is the protection of the right of every party to due process. It is to ensure that the deceased would continue to be properly represented in the suit through the duly appointed legal representative of the estate. 2. Non-compliance with the rules on substitution of a deceased party renders the proceedings of the trial court infirm because the court acquired no jurisdiction over the person of the legal representative of heirs of the deceased because no man should be affected by a proceeding to which he is a stranger. A party to be affected by a personal judgment must have a day in court and an opportunity to be heard. - It has been held however, that in an ejectment case, the non-substitution of the deceased by his legal representatives because of the failure of counsel to inform the court of the death of his client does not deprive the court of jurisdiction. The decision of the court is nevertheless, binding upon the successors-in-interest of the deceased. A judgment in an ejectment case may be enforced not only against defendants herein but also against the members of their family, their relatives, or privies who derived their right of possession from the deceased defendant. 3. Formal substitution is however, not necessary when the heirs themselves voluntarily appeared in the action, participated therein and presented evidence in defense of deceased defendant. FF. Examples of actions which survive the death of a party 1. Actions and obligations arising from delicts survive. 2. Actions based on the tortious conduct of the defendant survive the death of the latter 3. Actions to recover real and personal property, actions to enforce a lien thereon, and actions to recover damages for an injury to person or property and suits based on the alleged tortious acts of the defendant survive. 4. An ejectment case survives the death of a party. It continues until judgment because the issue concerning the illegality of the defendant's possession is still alive, and upon its resolution depends the corollary issue of whether and how much damages may be recovered. 5. Actions for the recovery of money, arising from a contract express or implied are not extinguished by the death of the defendant (Sec. 20, Rule 3, Rules of Court; Bar 2000). - Note: If the action does not survive (like the purely personal actions of support, annulment of marriage and legal separation), the court shall simply dismiss the case. It follows then that substitution will not be required. GG. Actions for the recovery of money on contractual claims - When the action is for the recovery of money arising from contract and the defendant dies before entry of final
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from notice (Sec. 16, Rule 3, Rules of Court). The substitution of the deceased would not be ordered by the court in cases where the death of the party would extinguish the action because substitution is proper only when the action survives.
HH. Incompetency or incapacity of a party during the pendency of the action - In case a party becomes incapacitated or incompetent during the pendency of the action, the court, upon motion, may allow the action to be continued by or against the incapacitated or incompetent party with the assistance of his legal guardian or guardian ad litem (Sec. 18, Rule 20, Rules of Court). II. Transfer of interest - In case of transfer, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party (Sec. 19, Rule 3, Rules of Court). JJ. Indigent parties 1. A party may be authorized to litigate as an indigent if the court is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities. The application and the hearing to litigate as an indigent litigant may be made ex parte (Sec. 21, Rule 3, Rules of Court). 2. If one is authorized to litigate as an indigent, such authority shall include an exemption from the payment of docket fees, and of transcripts of stenographic notes, which the court may order to be furnished by him. However, the amount of the docket and other lawful fees, which the indigent was exempt from paying, shall be lien on the judgment rendered in the case favorable to the indigent. A lien on the judgment shall not arise if the court provides otherwise (Sec. 21, Rule 3, Rules of Court). KK. Role of the `Solicitor General' 1. The rule is that only the Solicitor General can bring and defend actions on behalf of the Republic of the Philippines and that actions filed in the name of the Republic or its agencies and instrumentalities, i ('not initiated by the Solicitor General will be summarily dismissed. The authority of the Solicitor General is embodied in Sec. 35(1), Chapter 12, Title III, and Book IV of the Administrative Code of 1987. 2. Also, in any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rule or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him (Sec. 22, Rule 3, Rules of Court). 3. In criminal actions brought before the Court of Appeals or the Supreme Court, the authority to represent the State is solely vested in the OSG. This is pursuant to Section 35(1), Chapter 12, Title III, Book III of the Administrative Code of 1987, as amended, providing that the OSG shall represent the Government in the Supreme Court and the Court ofAppeals in all criminal proceedings. Only the Solicitor General may bring
or defend actions on behalf of the People of the Philippines once such actions are brought before the Court of Appeals or Supreme Court. - Also, under Sec. 5 of Rule 110 of the Revised Rules on Criminal Procedure, as amended, "All criminal actions, either commenced by complaint or by information, shall be prosecuted under the direction and control of a public prosecutor." LL. Suit by or against spouses - Husband and wife shall sue or be sued jointly except as provided by law (Sec. 4, Rule 3, Rules of Court). An instance when a spouse need not be joined in a suit involving the other is when the litigation pertains to an exclusive property of a spouse. In such a case, the owner-spouse may appear alone in court to litigate with regard to the same (Art. III, Family Code of the Philippines). There may be instances when despite the separation of property, one spouse may end up being sued and be held answerable for the liabilities incurred by the other spouse. "The liability of the spouses to creditors for family expenses shall however, be solidary" (Art. 146, Family Code of the Philippines). Under a solidarity liability, each one of the spouses is bound to render entire compliance of the obligation (Art. 1207, Art. 1216, Civil Code of the Philippines). MM. Class suit; requisites 1. A class suit is an action where one or more may sue for the benefit of all if the requisites for said action are complied with. 2. An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the attendant facts 3. For a class suit to prosper, the following requisites must concur: (a) The subject matter of the controversy must be of common or general interest to many persons; (b) The persons are so numerous that it is impracticable to join all as parties; (c) The parties actually before the court are sufficiently numerous and representative as to fully protect the interests of all concerned; and (d) The representatives sue or defend for the benefit of all (Sec. 12, Rule 3, Rules of Court). NN. Commonality of interest in the subject matter 1. A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. The `subject matter' of the action is meant the physical, the things real or personal, the money, lands, chattels, and the like, in relation to the suit which is prosecuted and not the delict or wrong committed by the defendant. It is not also a common question of law that sustains a class suit but a common interest in the subject matter of the controversy. 2. There is no class suit in an action filed by four hundred residents initiated through a former mayor, to recover damages sustained due to their exposure to toxic wastes and fumes emitted by the cooking gas plant of a corporation
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judgment, the court shall not dismiss the suit. It shall continue and his legal representative or legal heir shall substitute the deceased. If the plaintiff obtains a favorable judgment, said judgment shall be enforced as a money claim against the estate of the deceased (Sec. 20, Rule 3; Rules of Court).
3. There is no class suit in an action for damages filed by the relatives of the fatalities in a plane crash. There is no common or general interest in the injuries or death of all passengers in the plane. Each has a distinct and separate interest which must be proven individually (Bar 1991). OO. No class suit when interests are conflicting - When the interests of the parties in the subject matter are conflicting, a class suit will not prosper. Hence, an action brought by seventeen (17) residents of a town with a population of two thousand four hundred sixty (2,460) persons to recover possession of a holy image was held not to qualify as a class suit because the plaintiffs did not represent membership of the churches they purport to represent and that the interests of the plaintiffs conflict with those of the other inhabitants who were opposed to the recovery. PP. No class suit by a corporation to recover property of its members - A non-stock corporation may not institute in behalf of its individual members for the recovery of certain parcels of land allegedly owned by its members and .for the nullification of the transfer of certificates of title issued in favor of defendants. The corporation being an entity separate and distinct from its members has no interest in the individual property of its members unless transferred to the corporation. Absent any showing of interests, a corporation has no personality to bring an action for the purpose of recovering property, which belongs to the members in their personal capacities. Moreover, "a class suit does not lie in actions for the recovery of property where several persons claim ownership of their respective portions of property, as each one could allege and prove his respective right in a different way for each portion of the land, so that they cannot all be held to have identical title through acquisitive prescription." QQ. No class suit to recover real property individually held 1. A class suit would not lie where each of the parties has an interest only in the particular portion of the land he is occupying and not in the portions individually occupied by the other defendants. 2. A class suit does not lie in an action for recovery of real property where separate portions of the same parcel of land were occupied and claimed individually by different parties to the exclusion for each other, such that the different parties had determinable, though undivided interest in the property in question. RR. No class suit to recover damages for personal reputation - There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others.
SS. Common or general interest in the environment and natural resources - There is a class suit in an action filed by minors represented by their parents, in behalf of themselves and others who are equally concerned about the preservation of the country's resources, their generation as well as generations yet unborn, in a suit filed to compel the Secretary of the Department of Environment and Natural resources to (1) cancel all existing timber license agreements in the country; and (2) cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. - In what could be deemed a novel ruling, the Court held: "We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. Illustration (Bar 2005) (a) xxx (b) xxx (c) xxx (d) Distinguish a derivative suit from a class suit. Suggested answer. A derivative suit is corporate law concept which is filed by a stockholder in behalf of the corporation to protect the interests of the latter and is asserted because of the failure of the board of directors, deliberate or otherwise to act in protection of the corporation (Black's 5th Ed. 399; Lim vs. Lim-Yu, 352 SCRA 216). A class suit is a procedural device availed of by persons having a common or general interest in a subject matter and are so numerous that it would be practicable to join all of them. The suit is filed by a person or by a few in behalf of himself and all the members of his class (Sec. 12, Rule 3, Rules of Court). In a derivative suit, the cause of action belongs to the corporation and not to the stockholder who initiates the suit. In a class suit, the cause of action belongs to the members of the class. Illustration (Bar 1994) Four hundred residents of Barrio Ramos initiated a class action suit through Albert, a former Mayor of the town,
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located in the town. Each of the plaintiffs has a separate and distinct injury not shared by other members of the class. Each supposed plaintiff has to prove his own injury. There is no common or general interest in the injuries allegedly suffered by the members of the class (Bar 1994).
Suggested answer The class suit is not proper. For a class suit to prosper, the subject matter of the controversy must be one of common or general interest to the members of the class (Sec. 12, Rule 3, Rules of Court). The damages suffered by an individual resident of the town is not shared in common by the others and affected only his own interest. Every plaintiff must allego and provo the injury he sustained. Illustration (Bar 1991) An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the passengers and crew perished. Twenty (20) relatives of the fatalities filed for themselves and in behalf of the relatives of all those who perished in the mishap a class suit for damages totaling P5 million against the airline. The propriety of the class suit is questioned by the defendant. Resolve the issue. Suggested answer. The class suit is not proper. For a class suit to prosper, the subject matter of the controversy must be one of common or general interest to the members of the class (Sec. 12, Rule 3, Rules of Court). Each of the plaintiffs has a separate claim or injuries not shared in common by the others. Consequently each must prove his own damages. CHAP. 4: FILING, AMENDMENT AND DISMISSAL BY THE PLAINTIFF A. FILING OF THE COMPLAINT (Rules 1 & 13) I. Meaning of filing > filing of the complaint - the act of presenting the said complaint to the clerk of court (Sec. 1, Rule 13, Rules of Court). For the purpose of filing, the original must be presented (Sec. 3, Rule 13, Rules of Court). II. Significance of filing of the complaint - The filing of the complaint signifies the commencement of the civil action (Sec. 5, Rule 1, Rules of Court). By the filing of the complaint, the court also acquires jurisdiction over the person of the plaintiff. Submission to the jurisdiction of the court is implied from the very filing of the complaint where affirmative relief is prayed for by the plaintiff. It also has the effect of tolling the running of the period of prescription pursuant to Art. 1155 of the Civil Code of the Philippines. III. Payment of docket fees and acquisition of jurisdiction l. It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. In connection with the payment of docket fees, the court requires that all complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for both in die, body of the pleading and in the prayer therein and said damages shall be considered in the assessment of the filing fees; otherwise such pleading shall
not be accepted for filing or shall be expunged from the record. Any defect in the original pleading resulting in underpayment of the docket fee cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction. 2. Indeed, a court acquires jurisdiction over the claim of damages upon payment of the correct docket fees. 3. The rule on payment of docket fee has, in some instances, been subject to the rule on liberal interpretation. Thus, in a case, it was held that while the payment of the required docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period. Also, if the amount of docket fees is insufficient considering the amount of the claim, the party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost. IV. Payment of docket fees for cases on appeal 1. The Rules of Civil Procedure, as amended, which took effect on July 1, 1997, now require that appellate docket and other lawful fees must be paid within the same period for taking an appeal. This is clear from the opening sentence of Section 4, Rule 41 of the same rules that, "(W)ithin the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees." 2. The Supreme Court has consistently held that payment of the docket fee within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory. Hence, non-payment is a valid ground for the dismissal of an appeal (M.A. Santander Construction. Inc. vs. Villanueva, GR. No. 136477, November 10, 2004). However, delay in the payment of the docket fees confers upon the court a discretionary, not a mandatory power to dismiss an appeal. B. AMENDMENT OF COMPLAINT (Rule 10) I. Amendment as a matter of right 1. A plaintiff has the right to amend his complaint once at any time before a responsive pleading is served by the other party or in case of a reply to which there is no responsive pleading, at any time within ten (10) days after it is served (Sec. 2, Rule 10, Rules of Court). Thus, before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right. The defendant may also amend his answer, also as a matter of right, before a reply is served upon him. - Sec. 2 refers to an amendment made before the trial court, not to amendments before the Court of Appeals. The Court of Appeals is vested with jurisdiction to admit or deny amended petitions filed before it.
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to recover damages sustained due to their exposure to toxic waste and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town. Is the class suit proper?
2. The right to amend a pleading as matter of right may, according to the Rules, be exercised only once (Sec. 2, Rule 10, Rules of Court). Hence, even if no responsive pleading has yet been served, if the amendment is subsequent to a previous amendment made as a matter of right, the subsequent amendment must be with leave of court.
trial and was not objected to. The provision also covers situations where, to conform to evidence not objected to by the adverse party, the pleadings are sought to be amended on motion of a party. Thus, a complaint which fails to state a cause of action may be cured by evidence presented during the trial.
3. Before the service of 'a responsive pleading, a party has the absolute right to amend his pleading, regardless of whether a new cause of action or change in theory is introduced.
- For example, a complaint filed by a guarantor to collect a sum of money from the debtor fails to state a cause of action if the complaint does not allege that the creditor of the debtor has been paid by the guarantor even if in fact there was payment. However, if during the course of the proceedings, evidence is offered on the fact of payment without objection from the debtor, the defect in the complaint was cured by the evidence. The plaintiff may then move for the amendment of his complaint to conform to the evidence.
III. A motion to dismiss is not a responsive pleading (Bar 1979;2005) 1. If a motion to dismiss is filed, an amendment to the complaint would still be a matter of right during the pendency of the motion to dismiss. Such a motion is not a responsive pleading and its filing does not preclude the exercise of the plaintiff's right to amend his complaint. 2. Even if the motion to dismiss is granted by the court, the plaintiff may still amend his complaint as a matter of right before the dismissal becomes final as long as no answer has yet been served. - To illustrate: PP filed an action based on an oral loan against DD who filed a motion to dismiss the complaint for failure to state a cause of action because the allegations of the complaint do not allege that the debt is already due and demandable at the time the complaint was filed. Instead of opposing the motion, PP filed an amendment to the complaint to correct the deficiencies in its allegations. The amendment is a matter of right and hence, cannot be refused by the court. IV. Amendment by leave of court (Bar 1994; 1986) 1. Leave of court is required for a substantial amendment made after service of a responsive pleading (Sec. 3, Rule 10, Rules ol'Court). The plaintiff; fir example, cannot amend his complaint by changing his cause of action or adding a new one without leave of court. 2. After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly require a substantial alteration in the defenses of the adverse party. The amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, required. On the other hand, where no responsive pleading has yet been served, no defenses would be altered. The amendment of the pleading will not then require leave of court. V. Amendment to cure a failure to state a cause of action 1. If the complaint failed to aver the fact that certain conditions precedent were undertaken and complied with, the failure to so allege the same may be corrected by an amendment of the complaint. Section 5 of Rule 10 likewise applies to situations wherein evidence not within the issues raised in the pleadings is presented by the parties during the
2. Where the complaint was filed at a time where no cause of action has yet accrued in favor of the plaintiff, an amendment cannot cure the defect. The reason for this is plain: There is no cause of action to cure where there is none in the first place. - In a case where an action was filed for the collection of certain loans under promissory notes which were not yet due, the Supreme Court held: "x x x the curing effect under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. x x x The curing effect will also apply in a situation where there was in fact a cause of action and the only problem was the insufficiency of the allegations in the complaint. - "It thus follows that a complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. Such an action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by the court upon proper motion seasonably filed by the defendant. The underlying reason for this rule is that a person should not be summoned before the public tribunals to answer for complaints which are premature. 3. Sec. 5 of Rule 10 envisions two situations: The first is when evidence is introduced on an issue not alleged in the pleadings and no objection was interposed by the other party. The second is when evidence is offered on an issue not raised in the pleadings but an objection was interjected. The rule in the second scenario is that the court may nevertheless admit the evidence where the objecting party fails to show that the admission of the evidence would prejudice him in his defense. The court must however, give him a continuance to enable him to meet the new situation. VI. Amendment to correct a jurisdictional defect before a responsive pleading is served 1. A fair reading of jurisprudence recognizes the right of a pleader to amend his complaint before a responsive pleading is served even if its effect is to correct a jurisdictional defect. The argument that the court cannot allow such type of amendment since the court must first possess jurisdiction over the subject matter of the complaint before it can act on
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II. Applicability of mandamus - The court would be in error if it refuses to admit an amended pleading when its exercise is a matter of right. This error is correctible by mandamus.
2. In one case involving a litigation over a parcel of land, the complaint filed with the then Court of First Instance (now Regional Trial Court), a complaint alleging forcible entry. The defendants filed a motion to dismiss alleging that the court has no jurisdiction over an action for forcible entry. Without waiting for the resolution of the motion to dismiss, the plaintiff filed an amended complaint with new allegations which transformed the original allegations of forcible entry into an action for quieting of title, an action which at that time was solely cognizable by the Court of First Instance. The trial court admitted the amended complaint, ordered the defendants to answer it and denied the motion to dismiss. The Supreme Court sustained the trial court as being consistent with the purpose and spirit of the Rules. 3. In another case filed before the City Court of Manila to recover unpaid rentals with a prayer that an order be issued for the surrender of the premises by the defendant to the plaintiff', the defendant filed a motion to dismiss on the ground that the amount sought to be recovered is beyond the jurisdiction of the court and that there are no allegations in the complaint showing that the defendant was unlawfully withholding the premises from the plaintiff. Before action could be taken on the motion to dismiss, the plaintiff amended the complaint, to include the requisite allegations. The court denied the motion to dismiss and the opposition to the amended complaint. The court ruled that since no responsive pleading was served at the time of the amendment, the plaintiff had done so as a matter of course. Reiterating the rule that a motion to dismiss is not a responsive pleading, the Supreme Court sustained the trial court. VII. Amendment to correct a jurisdictional defect after a responsive pleading is served 1. An amendment of the complaint to correct a jurisdictional error cannot be validly done after a responsive pleading is served. The amendment this time would require leave of court, a matter which requires the exercise of sound judicial discretion. The exercise of this discretion requires the performance of a positive act by the court. If it grants the amendment, it would be acting on a complaint over which it has no jurisdiction. Its action would be one performed without jurisdiction. - The situation is vastly different from an amendment as a matter of right. Here, the court does not act. The admission of the amendment is a ministerial duty of the court. It requires no positive action from the court. Since it would not be acting in this regard, it could not be deemed as acting without jurisdiction. 2. In one case, a former employee filed an action for recovery of compensation for unpaid holiday and overtime services with the then Court of Industrial Relations against his former employer. The defendant filed a motion to dismiss but was denied. The employer then filed an answer invoking as one of its affirmative defenses lack of jurisdiction of the court over the subject matter since the complaint did not allege the existence of an employer-employee relationship between the parties. The complaint alleged neither illegal
dismissal nor seeks for the reinstatement of the plaintiff. Realizing, a jurisdictional error, the plaintiff filed leave to amend his complaint and to admit an amended pleading alleging illegal dismissal and a claim for reinstatement. Speaking on the issue of the propriety of the admission of the amendment, the Supreme Court ruled that a "complaint cannot be amended to confer jurisdiction on the court in which it was filed, if the cause of action originally set forth was not within the court's jurisdiction" Note that in Campos Rueda, an answer has already been served and filed. - Similarly, in an action for damages filed before the then Court of First Instance (now Regional Trial Court) against a sheriff for an alleged illegal levy upon the property of the plaintiff, the latter sought to amend his complaint after an answer has been served by the defendant. The amendment was made when the plaintiff realized that the amount alleged as damages was below the jurisdiction of the court. The Supreme Court held that it was error to admit the amendment because the court must first acquire jurisdiction over the subject matter of the complaint in order to act validly on the same including its amendment. Illustration (Bar 2005) On May 12, 2005, the plaintiff filed a complaint in the Regional Trial Court of Quezon City for the collection of P250,000.00. The defendant filed a motion to dismiss the complaint on the ground that the court had no jurisdiction over the action since the claimed amount of P250,000.00 is within the exclusive jurisdiction of the Metropolitan Trial Court of Quezon City. Before the court could resolve the motion, the plaintiff, without leave of court, amended his complaint to allege a new cause of action consisting in the inclusion of an additional amount of P200,000.00, thereby increasing his total claim to P450,000.00 The plaintiff thereafter filed his opposition to the motion to dismiss, claiming that the Regional Trial Court had jurisdiction over his action. Rule on the motion of the defendant with reasons. Suggested answer. The motion to dismiss should be denied. The amendment was made before a responsive pleading was served on the plaintiff. The pending motion to dismiss did not affect the right of the plaintiff to amend his complaint as a matter of right because a motion to dismiss is not a responsive pleading. 258). The amendment correcting a jurisdictional defect was proper because no responsive pleading has been served at the time of the amendment. The rule that a complaint cannot be amended to confer jurisdiction on a court where there was none applies only to an amendment made after a responsive pleading has been served. VIII. Amendment to conform to the evidence 1. In the event that a party presents evidence on a matter not in issue, the adverse party has a reason to object. Common reason dictates that a party cannot breach the basic procedural rule that the trial can deal only with matters raised by the parties in their pleadings. Neither can a court render judgment on a matter not in issue because a judgment must conform to the pleadings and the theory of the action under which the case was tried. But when issues not raised in the pleadings are tried with the express or
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any amendment has no application upon an amendment that is made as matter of right.
Illustration (Bar 2004) In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did not mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plaintiff duly offered Exh. "A" in evidence for the stated purpose of proving the making of extrajudicial demand on defendant to pay P500,000, the subject of the suit. Exh. "A» was a letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served on defendant some two months before suit was begun. Without objection from defendant, the court admitted Exh. "A" in evidence. Was the court's admission of Exh. "A" in evidence erroneous or not? Reason. Suggested answer: The admission of Exh. ""was not erroneous. Since it was admitted without objection from the defendant, it is as if the matter of demand was raised in the pleadings (Sec. 5, Rule 10, Rules of Court). 2. In a situation where issues not raised in the pleadings are tried with the express or implied consent of the parties, Sec. 5 of Rule 10 authorizes the amendment of the pleadings to conform to the evidence upon motion of a party at any time, even after judgment. If the parties fail to amend the pleadings, such failure will not affect the trial of these issues because such issues are treated as having been raised in the pleadings of the parties (Sec. 5, Rule 10, Rules of Court). This provision under the Rules virtually authorizes an implied amendment of the pleadings. Illustration (Bar 1992) A complaint was filed by the counsel for Superior Sales (an entity without a juridical personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia did not file a motion to dismiss. Eventually, trial was held and his liability was established through several invoices, each of which uniformly showed on its face that Mr. Tan is the Proprietor of Superior Sales. After Superior Sales had rested its case, Mr. Garcia filed a motion to dismiss on the ground that since there is actually no person properly suing as plaintiff, no relief can be granted by the court. On the other hand, the counsel for Superior Sales filed a motion to amend the complaint to make it conform to the evidence, that the real party plaintiff is Mr. Tan. The court denied said motion on the ground that it was filed too late and instead, dismissed the case. Did the court act correctly? Suggested answer: The court did not act correctly. Although there was a defect in the designation of the plaintiff because it had no juridical personality to sue, this defect was cured when the defendant did not object to the evidence that it was Mr. Tan who was the proprietor of the business and in whose favor the defendant is liable. This matter of Mr. Tan being the aggrieved party and thus, the real party-ininterest as plaintiff, was tried with the consent of the defendant. An
amendment to conform to the evidence is but proper under the circumstances. The contention of the court that the motion was filed too late is with no legal basis. Under Sec. 5 of Rule 10, the motion to amend may be presented at any time, "even after judgment." IX. Effect of the amendment on the original pleading 1. An amended pleading supersedes the original one which it amends (Sec. 8, Rule 10, Rules of Court). The original pleading loses its status as a pleading, is deemed withdrawn and disappears from the record. 2. It has been held that the original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces a new or different cause of action. X. Effect of the amendment on admissions made in the original pleading - Admissions made in the original pleadings cease to be judicial admissions. They are to be considered as extrajudicial admissions. "However, admissions in superseded pleadings may be received in evidence against the pleader. . ." (Sec. 8, Rule 10, Rules of Court) and in order to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. Illustration (Bar 1993) In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the defendant through his lawyer filed an answer therein admitting the averment in the complaint that the land was acquired by the plaintiff through inheritance from his parents, the former owners thereof. Subsequently, the defendant changed his lawyer and, with leave of court, amended the answer. In the amended answer, the abovementioned admission no longer appears. Instead, the alleged ownership of the land by the plaintiff was denied coupled with the allegation that the defendant is the owner of the land for the reason that he bought the same from the plaintiff's parents during their lifetime. After trial, the Regional Trial Court rendered a decision upholding the defendant's ownership of the land. On appeal, the plaintiff contended that the defendant is bound by the admission contained in his original answer. Is the contention of plaintiff correct? Suggested answer: The contention of the plaintiff is not correct. An amended pleading supersedes the pleading that it amends (Sec. 8, Rule 10, Rules of Court). Admissions made in the original pleadings cease to be judicial admissions. They are to be considered as extrajudicial admissions. The admission of the defendant should have been offered in evidence. XI. When summons not required after complaint is amended 1. Although the original pleading is deemed superseded by the pleading that amends it, it does not ipso facto follow that service of new summons is required. Where the defendants have already appeared before the trial court by virtue of a summons in the original complaint, the amended complaint may be served upon them without need of another summons, even if new causes of action are alleged. A court's
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implied consent of the parties, such as when no objection is made by either, such issues not raised shall be treated as if they had been put in issue by the pleadings (Sec. 5, Rule 10, Rules of Court).
2. However, where a new defendant is impleaded, summons must be served upon him so that the court may acquire jurisdiction over his person because logically, the new defendant cannot be deemed to have already appeared by virtue of summons under the original complaint in which he was not yet a party. Illustration (Bar 1999) When an additional defendant is impleaded in the action, is it necessary that summons be served upon him? Suggested answer. Summons must be served upon the defendant who has not yet appeared before the court under the original complaint. It is necessary to acquire jurisdiction over his person otherwise the judgment will be void as to him, unless he voluntarily appears in the action (Sec. 20, Rule 14, Rules of Court). XII. Supplemental pleadings 1. > supplemental pleading - one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented (Sec. 6, Rule 10, Rules of Court). 2. The filing of supplemental pleadings requires leave of court. The court may allow the pleading only upon such terms as are just. This leave is sought by the filing of a motion with notice to all parties (Sec. 6, Rule 10, Rules of Court). XIII. Cause of action in supplemental pleadings 1. When the cause of action in the supplemental complaint is different from the cause of action mentioned in the original complaint, the court should not admit the supplemental complaint. 2. As its very name denotes, a supplemental pleading only serves to bolster or add something to the primary pleading. A supplemental pleading exists side by side with the original. It does not replace that which it supplements. Moreover, a supplemental pleading assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action. It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint. - When the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the original complaint, the court should not admit the supplemental complaint; the parties may file supplemental
pleadings only to supply deficiencies in aid of an original pleading, but not to introduce new and independent causes of action. C. DISMISSAL BY THE PLAINTIFF (Rule 17) I. Dismissal by mere notice of dismissal 1. Before the service of an answer or the service of a motion for summary judgment, a complaint may be dismissed by the plaintiff by filing a notice of dismissal (Sec. 1, Rule 17, Rules of Court). 2. Upon the filing of the notice of dismissal, the court shall issue an order confirming the dismissal (Sec. 1, Rule 17, Rules of Court). 3. It is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies, said order merely confirms a dismissal already effected by the filing of the notice of dismissal. The court does not have to approve the dismissal because it has no discretion on the matter. Before an answer or a motion for summary judgment has been served upon the plaintiff, the dismissal by the plaintiff' by the filing of a notice is a matter of right. The dismissal occurs as of the date the notice is filed by the plaintiff and not the date the court issues the order confirming the dismissal. 4. Under the clear terms of Sec. 1 of Rule 17, the dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed with the court. Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a matter of right. Illustration (Bar 1989) Before any answer or motion for summary judgment could be filed (the appropriate term under the present rule is served) by the defendant, the plaintiff' filed a notice of dismissal of his complaint. The trial court simply noted the dismissal. Is the case considered dismissed? Suggested answer. The case is considered dismissed. No order of dismissal from the court is required to effect the dismissal when such dismissal is a matter of right. The order issued by the court is one which merely confirms the dismissal (Sec. 2, Rule 10, Rules of Court). II. Dismissal without prejudice 1. A dismissal made by the filing of a notice of dismissal is a dismissal without prejudice, i.e., the complaint can be refiled. This is the general rule. The dismissal will however, be one with prejudice in any of the following situations: (a) the notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or (b) the plaintiff has previously dismissed the same case in a court of competent jurisdiction (Sec. 1, Rule 17, Rules of Court). 2. If the plaintiff files a notice of dismissal providing therein a reason that prevents the refiling of the complaint, the
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jurisdiction continues until the case is finally terminated once it is acquired. Conversely, when the defendants have not yet appeared in court, new summons on the amended complaint must be served on them. It is not the change of a cause of action that gives rise to the need to serve another summons for the amended complaint but rather the acquisition of jurisdiction over the persons of the defendants. If the trial court has not yet acquired jurisdiction over them, a new summons for the amended complaint is required
III. Two-dismissal rule l. The `two-dismissal' rule applies when the plaintiff has (a) twice dismissed actions, (b) based on or including the same claim, (c) in a court of competent jurisdiction. The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. Since as a rule, the dismissal is without prejudice, the same claim may be filed. If the refiled claim or complaint is dismissed again through a second notice of dismissal, that second notice triggers the application of the two-dismissal rule and the dismissal is to be deemed one with prejudice because it is considered as an adjudication upon the merits.
1. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff's motion to dismiss, and the court grants the said motion to dismiss, the dismissal "shall be limited to the complaint" (Sec. 2, Rule 17, Rules of Court). The phraseology of the provision is clear: the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because the rule makes no distinction. The rule provides: " * * * The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim * * *" (Sec. 2, Rule 17, Rules of Court). 2. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from notice of the plaintiff's motion to dismiss (Sec. 2, Rule 17, Rules of Court). Should he opt to prosecute his counterclaim in a separate action, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint.
2. For the above rule to apply, the complaints must have been dismissed in a court of competent jurisdiction. To illustrate: PP files in the Regional Trial Court of Manila, an action to collect P300,000.00 from DD. The complaint was dismissed when PP immediately filed a notice of dismissal. The same claim was again filed in the Metropolitan Trial Court of Manila. Before DD served either an answer or a motion for summary judgment, PP filed a notice of dismissal. Does the two-dismissal rule apply? It does not. The first court, the RTC was not a court of competent jurisdiction because the claim was below its jurisdictional amount.
3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3 of Rule 17, wherein the dismissal of the complaint does not carry with it the dismissal of the counterclaim. The same provision also grants the defendant a choice in the prosecution of his counterclaim.
Illustration Mar 1989) 1. XXX 2. Lawrence filed a complaint against Grace to collect a loan of P50,000.00. Later because of their intimate relationship in the past, Lawrence filed a notice of dismissal of his complaint. Subsequently, the two had a serious misunderstanding so that Lawrence filed a complaint against Grace to collect another loan of P100,000.00. Lawrence and Grace reconciled before the latter could file (serve) her answer or a motion for summary judgment. Was the dismissal with or without prejudice?
VII. Dismissal due to the fault of plaintiff 1. A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. The dismissal in this case will be through reasons attributed to his fault. Sec. 3 of Rule 17 provides the following grounds for dismissal: (a) the failure of plaintiff, without justifiable reasons, to appear on the date of the presentation of his evidence in chief; (b) the failure of the plaintiff to prosecute his action for an unreasonable length of time; (c) the failure of the plaintiff to comply with the Rules of Court; or (d) the failure of the plaintiff to obey any order of the court.
Suggested answer: The dismissal is without prejudice because the 'twodismissal' rule does not apply. The dismissal of the claim of P100,000.00 is based on a loan different from the first claim of P50,000.00. IV. Dismissal by filing a motion to dismiss - Once either an answer or a motion for summary judgment has been served on the plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion to dismiss, not a mere notice of dismissal. The motion to dismiss will now be subject to the approval of the court which will decide on the motion upon such terms and conditions as are just (Sec. 2, Rule 17, Rules of Court). The dismissal under Sec. 2 of Rule 17 is no longer a matter of right on the part of the plaintiff but a matter of discretion upon the court. V. Effect of dismissal upon a counterclaim already pleaded
VI. Dismissal without prejudice - The dismissal authorized under Sec. 2 of Rule 17 is a dismissal without prejudice except if the order of dismissal specifies that it is without prejudice (Sec. 2, Rule 17, Rules of Court).
2. The dismissal due to the fault of the plaintiff may be done by the court on its own motion (motu proprio) or upon a motion filed by the defendant (Sec. 2, Rule 17, Rules of Court). VIII. Effect of dismissal on the counterclaim under Sec. 3 1. The dismissal of the complaint under Sec. 3 of Rule 17, i.e., because of the fault of the plaintiff, is without prejudice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action. 2. A recent case, Pinga vs. Heirs of Santiago confirms the above rule: "Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the complaint due to the fault of
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dismissal must be deemed one with prejudice even if the notice does not state that the dismissal is with prejudice. This happens when for instance, the notice provides that the plaintiff recognizes the fact of prescription or extinguishment of the obligation of the defendant or for reasons stated in Sec. 5 of Rule 16.
Procedure were implicitly abandoned insofar as incidents arising after the effectivity of the new procedural rules on 1 July 1997. BA Finance, or even the doctrine that a counterclaim may be necessarily dismissed along with the complaint, clearly conflicts with the 1997 Rules of Civil Procedure. The abandonment of BA Finance as doctrine extends as far back as 1997, when the Court adopted the new Rules of Civil Procedure. If, since then, such abandonment has not been affirmed in jurisprudence, it is only because no proper case has arisen that would warrant express confirmation of the new rule. That opportunity is here and now, and we thus rule that the dismissal of a complaint due to the fault of the plaintiff is without prejudice to the right of the defendant to prosecute any pending counterclaims of whatever nature in the same or separate action. We confirm that BA Finance and all previous rulings of the Court that are inconsistent with this present holding are now abandoned" IX. Dismissal with prejudice - The dismissal under Sec. 3 of Rule 17 shall have the effect of an adjudication on the merits, unless otherwise declared by the court. Hence, as a rule, it is a dismissal with prejudice. CHAP. 5: SUMMONS I. Nature of summons (Rule 14) 1. > Summons - the writ by which the defendant is notified of the action brought against him 2. The issuance of summons is not discretionary on the part of the court or the clerk of court but is a mandatory requirement. The provisions of Sec. 1 of Rule 14 direct that the clerk of court shall issue the corresponding summons to the defendant upon (a) the filing of the complaint, and (b) the payment of the requisite legal fees. The use of the term "shall" leaves no doubt of the mandatory character of summons. II. Purpose of summons 1. In an action in personam, the purpose of summons is not only to notify the defendant of the action against him but also to acquire jurisdiction over his person - The filing of the complaint does not enable the court to acquire jurisdiction over the person of the defendant. By the filing of the complaint and the payment of the required filing and docket fees, the court acquires jurisdiction only over the person of the plaintiff, not over the person of the defendant. Acquisition of jurisdiction over the latter is accomplished by a valid service of summons upon him. Service of summons logically follows the filing of the complaint. Note further that the filing of the complaint tolls the running of the prescriptive period of the cause of action in accordance with Article 1155 of the Civil Code of the Philippines. 2. In an action in rem or quasi in rem, jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res. The purpose of summons in these actions is not the acquisition of jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process III. To whom summons is directed
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plaintiff does not necessarily carry with it the dismissal of the counterclaim. The rule makes no distinction between a compulsory and a permissive counterclaim and hence, covers both types. By the very tenor of Sec. 3 of Rule 17 of the Rules of Court, the dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim. xxx "In contrast, Sec. 3, Rule 17 of the 1964 Rules was silent on the effect of the dismissal of the complaint on existing counterclaims. xxx "Despite the silence of Sec. 3 of the then Rule 17 of the old Rules of Court previous jurisprudence laid emphasis on whether the counterclaim was compulsory or permissive in character. Such distinction was provided by another provision of the 1964 Rules particularly Section 2 of Rule 17, which stated that in instances wherein the plaintiff seeks the dismissal of the complaint, "if a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication." xxx "Of the cases before the adoption of the 1997 Rules of Civil Procedure, BA Finance Corp. vs. Co., G.R. No. 105751, 30 June 1993, 224 SCRA 163, particularly stands out among previous cases dealing with the effect of the dismissal of an action on the counterclaims already pleaded before the dismissal. BA Finance Corporation held that the dismissal of the complaint for nonappearance of plaintiff at the pre-trial, upon motion of the defendants, carried with it the dismissal of their compulsory counterclaim. The Court reiterated the rule that "a compulsory counterclaim cannot remain pending for independent adjudication by the court... as it is auxiliary to the proceeding in the original suit and merely derives its jurisdictional support therefrom. xxx "Under this revised section [21, where the plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either prosecute his counterclaim in a separate action or to have the same resolved in the same action. Should he opt for the first alternative, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. Should he choose to have his counterclaim disposed of in the same action wherein the complaint had been dismissed, he must manifest such preference to the trial court within 15 days from notice to him of plaintiff's motion to dismiss xxx. "With the aforestated amendments in Secs. 2 and 3 laying down specific rules on the disposition of counterclaims involved in the dismissal actions, the controversial doctrine in BA Finance Corporation vs. Co, et al. (G.R. No. 105751, June 30,1993) has been abandoned, together with the apparent confusion on the proper application of said Secs. 2 and 3. x x x "Previous rulings contrary to Secs. 2 and 3 of Rule 17 should be deemed no longer controlling and abandoned. Pinga further holds: " To be certain, when the Court promulgated the 1997 Rules of Civil Procedure, including the amended Rule 17, those previous jural doctrines that were inconsistent with the new rules incorporated in the 1997 Rules of Civil
IV. Who serves summons - The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons (Sec. 3, Rule 14, Rules of Court).
them, or (b) upon the person in charge of the office or of the place of business maintained in such name. IX. Service upon a prisoner - If the defendant is a prisoner, service upon said prisoner is to be made by the officer managing the jail or institution where said prisoner is confined. For this purpose, the jail manager is deemed deputized as a special sheriff (Sec. 9, Rule 14, Rules of Court).
V. Duty of server upon completion of service 1. When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service (Sec. 4, Rule 14, Rules of Court).
X. Service upon a minor and an incompetent - Service upon a minor, an insane or an incompetent shall be made (a) upon him personally and (b) on his legal guardian if he has one, or if none, upon his guardian ad litem. The appointment of the guardian ad litem shall be applied for by the plaintiff. If the defendant is a minor, service may be made also upon his father or mother (Sec. 10, Rule 14, Rules of Court).
2. After the completion of the service, a proof of service is required to be filed by the server of the summons. The proof of service of summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec. 18, Rule 14, Rules of Court).
XI. Service upon a private domestic juridical entity 1. "When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer or in-house counsel" (Sec. 11, Rule 14, Rules of Court). This enumeration has been held to be exclusive and summons cannot be served upon any other person.
VI. Uniformity of the rules on summons - The rules on summons apply with equal force in actions before the Regional Trial Courts, the Municipal Trial Courts, the Municipal Circuit Trial Courts and the Metropolitan Trial Courts (Bar 1989). This is because the procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rules on Summary Procedure (Sec. 1, Rule 5, Rules of Court).
2. In construing the provisions of this rule before its amendment took effect on July 1, 1997, the Court employed the principle of substantial compliance. Thus, in Summit Trading and Development Corporation vs. Avendano, the Court upheld the validity of service made upon the secretary of the corporate president. The same liberal construction of the rule on summons was made in a case where service was made upon a mere clerk of the corporation. It was likewise held that service upon the administrator of the corporate property and recognized as such by the workers therein is a substantial compliance of the rule. Service of summons on an operations manager was held valid. Service of summons on a bookkeeper was also upheld. Other previous rulings allowed service through a secretary of the President, or the cashier.
VII. Contents of the summons - The summons shall contain the following matters: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by the Rules; and a (c) notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief prayed for. A copy of the complaint (also a copy of an order of appointment of a guardian ad litem, if necessary) shall be attached to the original and each copy of the complaint (Sec. 2, Rule 14, Rules of Court). VIII. Service upon an entity without a juridical personality 1. Under Sec. 15 of Rule 14, when two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known (Sec. 15, Rule 14, Rules of Court). Thus, if A, B and C enter into a transaction under the name, ABC Corporation, an entity which has actually no juridical personality, A, B, and C may be sued under the name ABC Corporation. How then may summons be served upon the non-existent corporation or upon those who compose the "corporation"? 2. Under Sec. 8 of Rule 14, service may be effected upon all the defendants by serving summons upon (a) any one of
- The case of Millenium Industrial Corporation vs. Tan, although promulgated after the effectivity of the amendments to the Rules was decided upon facts occurring before the effectivity of the 1997 amendments, and hence, the ruling therein was guided by the rule of substantial compliance. Service of summons upon a "draftsman" was upheld because the defendant corporation actually received the summons from the employee served. - The much later case of Aboitiz International Forwarders, Inc. vs. Court of Appeals, which upheld service of summons upon a customer service representative of defendant corporation and deemed an "agent" for purposes of summons, was decided in accordance with facts that transpired prior to July 1, 1997. 3. The liberal interpretation of the rule considered the tenor of the then Sec. 13 of Rule 14 (now Sec. 11 of Rule 14), which allowed service of summons, among others upon an "agent" of the defendant juridical entity. This term was broad enough to allow the application of the rule on
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- The summons is a writ that is directed to the defendant, not the plaintiff. It shall be signed by the clerk of court and under seal (Sec. 2, Rule 14, Rules of Court).
4. Finally, in E.B. Villarosa & Partner Ltd. vs. Benito, the Supreme Court agreed with the petitioner that the enumeration of persons to whom summons may be served is "restricted, limited, and exclusive" following the rule on statutory construction expressio unios est exclusio alterius and that if the Rules of Court Revision Committee intended to liberalize the rule on service of summons, it could have easily done so by clear and concise language. It further ruled that "Notably, under the new Rules, service of summons upon an agent of the corporation is no longer authorized." Hence, the Court, in this case, ruled against the validity of service of summons made on a mere branch manager of the defendant corporation. - In so doing, Villarosa stressed: "The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states "general manager" instead of only "manager;" "corporate secretary" instead of"secretary;" and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is conspicuously deleted in the new rule." 5. Significantly, it must be noted that this rule requiring a strict compliance with the rules on summons is not a novel policy. Even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing, the Court held: "A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. x x x. "The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, `to bring home to the corporation notice of the filing of the action.' x x x. "The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x." (Underscoring supplied) 6. Villarosa was upheld and confirmed in the subsequent case of Mason vs. Court of'Appeals. Here, the Court ruled: "The question of whether the substantial compliance rule is still applicable under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been settled in Villarosa which applies squarely to the instant case. In the said case, petitioner E.B. Villarosa & Partner Co. Ltd. (hereafter Villarosa) with principal office address at 102 Juan Luna St., Davao City and with branches at 2492 Bay View Drive, Tambo, Parafiaque, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City, entered into a sale with development agreement with private respondent Imperial Development Corporation. As Villarosa failed to comply with its contractual obligation, private respondent initiated a suit
for breach of contract and damages at the Regional Trial Court of Makati. Summons, together with the complaint, was served upon Villarosa through its branch manager at Kolambog, Lapasan, Cagayan de Oro City. Villarosa filed a Special Appearance with Motion to Dismiss on the ground of improper service of summons and lack of jurisdiction. The trial court denied the motion and ruled that there was substantial compliance with the rule, thus, it acquired jurisdiction over Villarosa. The latter questioned the denial before us in its petition for certiorari. We decided in Villarosa's favor and declared the trial court without jurisdiction to take cognizance of the case. We held that there was no valid service of summons on Villarosa as service was made through a person not included in the enumeration in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, which revised the Section 13, Rule 14 of the 1964 Rules of Court. We discarded the trial court's basis for denying the motion to dismiss, namely, private respondent's substantial compliance with the rule on service of summons, and fully agreed with petitioner's assertions that the enumeration under the new rule is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est exclusio alterius. Had the Rules of Court Revision Committee intended to liberalize the rule on service of summons, we said, it could have easily done so by clear and concise language. Absent a manifest intent to liberalize the rule, we stressed strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil Procedure. "Neither can herein petitioners invoke our ruling in Millenium to support their position for said case is not on all fours with the instant case. We must stress that Millenium was decided when the 1964 Rules of Court were still in force and effect, unlike the instant case which falls under the new rule. Hence, the cases cited by petitioners where we upheld the doctrine of substantial compliance must be deemed overturned by Villarosa, which is the later case" (Underscoring supplied).
XII. Service upon a public corporation 1. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General (Section 13, Rule 14, Rules of Court). 2. When the defendant is a province, city or municipality, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct (Sec. 13, Rule 14, Rules of Court). XIII. Service upon a defendant whose identity or whereabouts are unknown - Where the defendant is designated as unknown, or whenever his whereabouts are unknown and cannot be ascertained despite a diligent inquiry, service may, with prior leave of court, be effected upon the defendant, by publication in a newspaper of general circulation. The place and the frequency of the publication is a matter for the court to determine (Sec. 14, Rule 14, Rules of Court). Note that the summons by publication applies in any action (Sec. 14, Rule 14, Rules of Court). The rule does not distinguish whether the action is in personam, in rem or quasi in rem. The tenor of the rule authorizes summons by publication
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substantial compliance. Service upon an agent is no longer permitted under the present rules on summons.
whatever the action may be as long as the identity of the defendant is unknown or his whereabouts are unknown. Under previous rulings, jurisdiction over the defendant in an action in personam cannot be acquired by summons by publication.
3. There are two ways therefore, by which the court acquires jurisdiction over the person of the defendant. The first is by his voluntary appearance, and where there is no voluntary appearance, the second mode is by a valid service of summons.
XIV. Service upon a resident temporarily out of the Philippines 1. Service of summons upon a resident of the Philippines who is temporarily out of the country, may, by leave of court be effected out of the Philippines as under the rules on extraterritorial service in Sec. 15 of Rule 14, i.e., by any of the following modes: (a) by personal service as in Sec. 6 of Rule 14; (b) by publication in a newspaper of general circulation together with a registered mailing of a copy of the summons and the order of the court to the last known address of the defendant; or (c) by any manner the court may deem sufficient (Sec. 16, Rule 14, Rules of Court). Like in the case of an unknown defendant or one whose whereabouts are unknown, the rule affecting residents who are temporarily out of the Philippines applies in any action. Note also, that summons by publication may be effected against the defendant.
4. An absence of service of summons or an invalid service of summons will not prevent the court from acquiring jurisdiction over the defendant as long as he performs acts that could be construed as a voluntary appearance. This is because under Sec. 20 of Rule 14, the defendant's voluntary appearance in the action shall be equivalent to service of summons.
XV. Service upon a foreign private juridical entity 1. Service upon a foreign private juridical entity which has transacted business in the Philippines may be made on (a) its resident agent designated in accordance with law, or, if there be no such agent, (b) on the government official designated by law to that effect, or (c) on any of its officers or agents within the Philippines (Sec. 12, Rule 14, Rules of Court). 2. It has been held that when a foreign corporation has designated a person to receive summons on its behalf pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious. XVI. Acquisition of jurisdiction over the person of the defendant 1. Acquiring jurisdiction over the person of the defendant is mandatory in an action in personam. This is the most basic rule to remember. But how is this jurisdiction acquired? 2. Jurisprudence tells us that the court's jurisdiction over a defendant is acquired either upon a valid service of summons or the defendant's voluntary appearance in court. Stated otherwise, without a valid service of summons, the court cannot acquire jurisdiction over the defendant, unless the defendant voluntarily submits himself to the jurisdiction of the court. When the defendant does not voluntarily submit to the court's jurisdiction or there is no valid service of summons, any judgment of the court over the defendant will be null and void for lack of jurisdiction over the defendant.
- Jurisprudence has consistently emphasized the rule that the modes of service must be strictly followed in order that the court may acquire jurisdiction over the person of the defendant. A. Service in person on the defendant 1. In an action strictly in personam, service in person on the defendant is the preferred mode of service. This is done by handing a copy thereof to the defendant in person. If he refuses to receive and sign for it, the remedy of the server is to tender the summons to the defendant (Sec. 6, Rule 14). If the defendant refuses the service, the server should not resort to substituted service. He must "tender" the summons to him. Tender of summons is not a separate mode of service. It is a part of service in person. 2. If the defendant cannot be served in person within a reasonable time, only then may substituted service under Sec. 7 of Rule 14 be availed of. The sheriff or server must first exert all efforts to serve the defendant in person. If this effort fails, then substituted service can be made. This effort must be stated in the proof of service. This is required because substituted service is in derogation of the usual mode of service. 3. Only if service in person cannot be made promptly can the process server resort to substituted service. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business of the defendant. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer's return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective. 4. Failure to find the defendants in their residence on the first and only attempt to effect service in person, does not justify the availment of substituted service. There was no
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2. The defendant may however, also be served by substituted service (Montalban vs. Maximo, 22 SCRA 1070). This is because even if he is abroad, he has a residence in the Philippines or a place of business and surely, because of his absence, he cannot be served in person within a reasonable time.
5. Service of summons is not only a means of acquiring jurisdiction over the person of the defendant. It is also a means of complying with the due process requirement of notice under the constitution. Note that the rules do not require just a mere service of summons. The service must be valid.
5. In a suit in personam, against a resident of the Philippines temporarily absent from the country, the defendant may be served by substituted service because a man temporarily out of the country leaves a definite place of residence or a dwelling where he is bound to return. He also leaves his affairs to someone who protects his interests and communicates with him on matters affecting his affairs or business. - If the defendant is out of the country, he cannot be expectedly served within a reasonable time. The fact that "for justifiable causes, the defendant cannot be served within a reasonable time," constitutes the operative fact that triggers the application of substituted service. This mode of service in the case of a resident temporarily absent from the country is, of course, in addition to the summons by publication authorized by Sec. 16 of Rule 14 in relation to Sec. 15 of Rule 14 of the Rules of Court. 6. An ineffective substituted service has certain adverse effects. First, the period to file a motion to dismiss for lack of jurisdiction over the defendant's person does not commence to run since the court has no jurisdiction to adjudicate the controversy as to him, unless he voluntarily submits to the jurisdiction of the court (Laus vs. Court ofAppeals, 219 SCRA 688). Second, the trial court does not acquire jurisdiction over the person of the defendant. B. Substituted service of summons 1. The pertinent provision of the Rules of Court (Sec. 7, Rule 14) provides that substituted service may be availed of if "for justifiable causes, the defendant cannot be served within a reasonable time." What exactly is a reasonable time? 2. Within a reasonable time has been interpreted to contemplate a period of time longer than that demarcated by the word "prompt" and presupposes that a prior attempt at personal service had failed. 3. The case of Manotoc vs. CA is more specific: ". . . Reasonable time is defined as so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done... Under the Rules, the service of summons has no set period... To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of the complaint is what the witness wants. To the sheriff "reasonable time means 15 to 30 days because at the end of the month, it is a practice for the branch clerk to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriff's Return provides data to the clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus one month from the issuance of summons can be considered "reasonable" with regard to personal service on the defendant.
4. "The Court has set stringent conditions prior to the availment of substituted service. Manotoc thus, stresses: ". . . since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant." For substituted service to be available there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition the sheriff must cite why such efforts where unsuccessful. It is only then that impossibility of service can be confirmed or accepted (Underscoring supplied). 5. "The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the alleged occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on the defendant must be specified in the Return to justify substituted service. The form on Sheriff's Return of Summons on Substituted Service prescribed in the Handbook for Sheriff's published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. Supreme Court Circular No. 5 dated November 5, 1989 requires that impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts which should be made in the proof of service." 6. A mere general claim or statement in the Sheriff's Return that the server had made "several attempts" to serve the summons, without making reference to the details of facts and circumstances surrounding such attempts, does not comply with the rules on substituted service. A Return which merely states the alleged whereabouts of the defendants without indicating that such information was verified and without specifying the efforts exerted to serve the summons is not enough for compliance. So is a mere general statement that such efforts were made. XVII. How substituted service is made 1. On the assumption that substituted service is now justified, how then may summons be served by substituted service? The answer is supplied by Sec. 7 of Rule 14. The rule provides the server with options, to wit: (a) leaving copies of the summons at the defendant's residence, or (b) leaving copies of the summons at the defendant's office or regular place of business. The rule does not however, allow leaving the summons with anyone else other than with those mentioned therein. Thus, if the summons is left at the defendant's residence, the summons must be served by leaving the same with a person of suitable age and discretion residing therein. If served in the defendant's office or regular place of business, the summons must be left with some competent person in charge thereof. 2. "A person of suitable age and discretion is one who has attained the full age of full legal capacity (18 years old) and
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attempt by the sheriff to faithfully comply with the requirements of service in person on the defendant. Worse, substituted service was made through a girl who was only 11 to 12 years old.
3. A competent person in charge of the office or regular place of business "must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, the details must be contained in the Return. It is not necessary that the person in charge of the defendant's regular place of business be specifically authorized to receive the summons. It is enough that he appears to be in charge. 4. Where the substituted service has been validly served, its validity is not affected by the defendant's failure to actually receive the summons from the person with whom the summons had been left. It is immaterial that the defendant does not in fact receive actual notice. The rule does not require the sheriff or any authorized server to verify that the summons left in the defendant's residence or office was actually delivered to the defendant. 5. What if diligent efforts were undertaken by the Sheriff to serve the defendant by substituted service but he was prevented from effecting such service by the defendant himself? This question was addressed in Robinson vs. Miralles. Here, the plaintiff filed a complaint for a sum of money against the defendant. Summons was served on the defendant at her given address but per return of service of the sheriff it was learned that the defendant no longer resided at such address. Later, the trial court issued an alias summons to be served at the defendant's new address. - Again, the summons could not be served on the defendant. The Sheriff explained: "The Security Guard assigned at the gate ofAlabang Hills refused to let me go inside the subdivision so that I could effect the service of the summons to the defendant in this case. The security guard alleged that the defendant had given them instructions not to let anybody proceed to her house if she is not around. I explained to the Security Guard
that I am a sheriff serving the summons to the defendant, and if the defendant is not around, summons can be received by any person of suitable age and discretion living in the same house. Despite of all the explanation, the security guard by the name ofA.H. Geroche still refused to let me go inside the subdivision and served (sic) the summons to the defendant. The same thing happened when I attempted to serve the summons previously. "Therefore, the summons was served by leaving a copy thereof together with the copy of the complaint to the security guard by the name of A.H. Geroche, who refused to affix his signature on the original copy thereof, so he will be the one to give the same to the defendant." - Eventually, the plaintiff filed a motion to declare the defendant in default for her failure to file an answer seasonably despite service of summons. The trial court granted respondent's motion declaring petitioner in default and allowing respondent to present her evidence ex parte. A judgment by default was rendered and upon respondent's motion, the trial court issued a writ of execution. - The defendant filed with the trial court a petition for relief from the judgment by default. She claimed that summons was improperly served upon her, thus, the trial court never acquired jurisdiction over her and that all its proceedings are void. The defendant contended that the service of summons upon the subdivision security guard is not in compliance with Section 7, Rule 14 since he is not related to her or staying at her residence. Moreover, he is not duly authorized to receive summons for the residents of the village. Hence, the substituted service of summons is not valid and that the trial court never acquired jurisdiction over her person. - The trial court issued a Resolution denying the petition for relief. Petitioner filed a motion for reconsideration, but it was denied by the trial court. - Declared the Supreme Court: "We have ruled that the statutory requirements of substituted service must be followed strictly, faithfully, and fully and any substituted service other than that authorized by the Rules is considered inefIbctive Waluwagan ngBayan Savings Bank vs. King. However, we frown upon an overly strict application of the Rules It is the spirit, rather than the letter of the procedural rules, that governs. "In his Return, the sheriff declared that he was refused entry by the security guard in the subdivision. The latter informed him that petitioner prohibits him from allowing anybody to proceed to her residence whenever she is out. Obviously, it was impossible for the sheriff to effect personal or substituted service of summons upon petitioner. We note that she failed to controvert the sheriff's declaration. Nor did she deny having received the summons through the security guard. "Considering her strict instruction to the security guard, she must bear its consequences. Thus, we agree with the trial court that summons has been properly served upon petitioner and that it has acquired jurisdiction over her. The summons was therefore, properly served" (Robinson vs. Miralles, G.R. No. 163584, December 12, 2006). Illustration (Bar 2006)
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is considered to have enough discernment to understand the importance of summons. "Discretion is defined as the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. Thus, to be of sufficient age and discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have a "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of summons. The sheriff must therefore, determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient's relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to deliver it to the defendant or at least notify the defendant of said receipt of summon and his duty to immediately deliver in to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons."
Tina Guerrero filed with the Regional Trial Court of Bifian, Laguna, a complaint for a sum of money amounting to P1 Million against Carlos Corro. The complaint alleges, among others, that Carlos borrowed from Tina the said amount as evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by Linda, his secretary. However, Carlos failed to file an answer to the complaint within the 15-day reglementary period. Hence, Tina filed with the court a motion to declare Carlos in default and to allow her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint, denying under oath the genuineness and due execution of the promissory note and contending that he has fully paid his loan with interest at 12% per annum. 1. Was the summons validly served on Carlos?
reasonable time, substituted service will apply (Sec. 7, Rule 14, Rules of Court), but not summons by publication which is permissible however, under the conditions set forth in Section 14 of Rule 14 (when the identity or whereabouts of the defendant are unknown and in Section 16 of Rule 14 (when the defendant is a resident temporarily out of the Philippines). 3. Against a non-resident, jurisdiction is acquired over the defendant by service upon his person while said defendant is within the Philippines. As once held, when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over him. This is in fact the only way of acquiring jurisdiction over his person if he does not voluntarily appear in the action. Summons by publication against a non-resident in an action in personam is not a proper mode of service.
Suggested answer: The summons was not validly served. The type of summons used by the sheriff was obviously a substituted service. The efficacy of this mode of service is anchored among others, on the fact that the defendant cannot be served in person within a reasonable time. The facts do not show that the sheriff exerted efforts to effect a service in person upon the defendant. There is therefore, no basis for a substituted service (Sec. 7, Rule 14, Rules of Court, Laus vs. Court ofAppeals, 219 SCRA 688; Manotoc vs. CA, G.R. No 130974, August 16, 2006).
4. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. Publication is not a mode of service in an action in personam except under certain situations mentioned in paragraph 2 of this page.
Suggested answer: The motion to dismiss is meritorious. The application of substituted service presupposes that the defendant could not be served in person within a reasonable time. This presupposes in turn that genuine efforts were undertaken to have the defendant served in person. The conditions precedent for a substituted service are absent in the case at bar. C. Summons by publication l. As a rule, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam. 2. Against a resident, the recognized mode of service is service in person on the defendant under Sect. 6 of Rule 14. In a case where the defendant cannot be served within a
2. The specific actions, which are either in rem or quasi in rem that will justify the application of extraterritorial service of summons in actions involving a nonresident are: (a) actions that affect the personal status of the plaintiff; (b) actions which relate to, or the subject matter of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (c) actions in which the relief demanded consists, wholly or in part, in excluding the defendant from an interest in property located in the Philippines; and (d) when the defendant's property has been attached in the Philippines. 3. 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 nonresident in an action for injunction which is in personam is not proper. Where the action is in personam, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case. However, when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over him. XIX. Modes of extraterritorial service
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Illustration (Bar 2004) Summons was issued by the MM Regional Trial Court and actually received on time by defendant from his wife at their residence. The sheriff earlier that day had delivered the summons to her at said residence because defendant was not home at the time. The sheriff's return or proof of service filed with the court in sum states that the summons, with the attached copy of the complaint, was served on defendant at his residence thru his wife, a person of suitable age and discretion then residing therein. Defendant moved to dismiss on the ground that the court had no jurisdiction over his person as there was no valid service of summons on him because the sheriff's return does not show that the sheriff first made a genuine attempt to serve summons on defendant personally before serving his wife. Is the motion to dismiss meritorious? x x x
XVIII. Extraterritorial service of summons l. Extraterritorial service of summons in Sec. 15 of Rule 14 applies when the following requisites concur: (a) the defendant is a nonresident; (b) he is not found in the Philippines; and (c) the action against him is either in rem or quasi in rem. A fundamental concept to be remembered in extraterritorial service of summons is that it does not apply to a defendant who is a resident of the Philippines. It does not also apply to an action in personam.
2. The personal service using the procedure in Sec. 6 of Rule 14, will not have the effect of acquiring jurisdiction over the nonresident defendant even if the summons and the copy of the complaint are personally received by him in the country where he may be found. This is because of the rule that a nonresident defendant who refuses to come to the country voluntarily remains beyond the personal processes of the court which therefore, cannot acquire jurisdiction over him (Banco Espanol-Filipino vs. Palanca, 37 Phil. 921; Perkins vs. Dizon, 69 Phil. 186). Besides, in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nevertheless summons is served upon the defendant not for the purpose of vesting the court with jurisdiction over the person of the defendant but merely for satisfying the due process requirement (Asiavest Limited vs. Court of Appeals, 296 SCRA 539). Compliance with due process is actually the underlying purpose of all modes of extraterritorial service. - Example: Mexicano, a tourist in the Philippines, by the employment of force and intimidation, contracted a marriage with Filipina, a hotel receptionist. When Mexicano left for Mexico to visit his parents, Filipina filed an action for annulment of the marriage with damages of P3 million. With leave of court, extraterritorial service of summons by publication was effected. Mexicano did not appear. The court decreed the annulment of the marriage and awarded damages after all procedural and substantive requirements were complied with. Was the judgment correct? The judgment was correct in so far as the decree of annulment is concerned. The action is an action in rem. In this kind of action, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not essential in this case, so whether or not there was jurisdiction over Mexicano, this fact did not affect the authority of the court to decide on the issue of annulment. However, the judgment of the court awarding damages to Filipina is void as to the defendant. By its nature, a claim for damages is in personam. The court is without jurisdiction to award damages unless it has first acquired jurisdiction over the person of Mexicano. The only ways by which this type of jurisdiction may be acquired in the case at bar is either through service in person upon Mexicano in the Philippines or by his voluntary appearance in the action. Neither of these occurred in the case under consideration. 3. The Supreme Court summarized the rule on service of summons upon anon-resident as follows:
Under the rules on extraterritorial service " * * * when the defendant is a nonresident and he is not found in the country, summons may be served extraterritorially. There are only four instances when extraterritorial service of summons is proper, namely: (a) when the action affects the personal status of the plaintiffs; (b) when the action relates to, or the subject of which is property, within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (c) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (d) when the defendant's property has been attached within the Philippines. In these instances, service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient. "Thus, extrajudicial service of summons applies only where the action is in rem, that is, an action against the thing itself instead of against the person, or in an action quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. The rationale for this is that in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. "Where the action is in personam, that is, one brought against a person on the basis of her personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. When the defendant is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdiction over the person. Summons on the defendant must be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. This cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him." CHAP. 6: PROCEEDINGS AFTER SERVICE OF SUMMONS I. Preliminary statements - Recall that the summons served upon the defendant directs him to answer within the time fixed in the Rules. It is coupled with a notice that unless the defendant so answers, the plaintiff will take judgment by default and may be granted the relief applied for (Sec. 1, Rule 14, Rules of Court). - There are however, countervailing reasons that may preclude the plaintiff from filing an answer to the complaint. These same reasons would actually be the excuses of a defendant in not filing an immediate answer to the complaint. For instance, there may be allegations or claims in the complaint that are not spelled out with sufficient clarity to enable him to file an intelligent responsive pleading. The move of the defendant in a situation like this is not to file either an answer or a motion to dismiss but to file a motion for bill of particulars. If on the other hand, the complaint's averments are clear enough to allow the filing of an answer, the defendant is not compelled to file said
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1. When the conditions for the applicability of extraterritorial service of summons are complied with, the following are the alternative modes of extraterritorial service, all of which require a prior leave of court: (a) By personal service as provided (br in Sec. 6 of'Rule 14 governing `service in person on defendant'; (b) By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and the order of the court shall be sent by registered mail to the last known address of the defendant; or (c) In any manner the court may deem sufficient (Sec. 15, Rule 14, Rules of Court).
- Hence, three options are available to the defendant upon receipt of the complaint, to wit: (a) Filing of a motion for bill of particulars; (b) Filing of a motion to dismiss; or (c) Filing of an answer to the complaint. A. MOTION FOR BILL OF PARTICULARS 1. Although under the Rules, the defendant is required to answer the complaint within fifteen (15) days from service of summons (Sec. 1, Rule 11, Rules of Court), the defendant need not file his answer to the complaint within the required period if there are matters in the complaint, which are vague or ambiguous or not averred with sufficient definiteness. Instead, he may file a motion for bill of particulars (Rule 12, Rules of Court). 2. As long as the allegations of a complaint make out a cause of action, the ambiguity in some allegations of the complaint or the failure to allege facts with sufficient particularity does not justify the filing of a motion to dismiss. The proper remedy is to file a motion for bill of particulars. 3. It must be made clear that a motion for bill of particulars is not directed only to a complaint. It is a motion that applies to any pleading which in the perception of the movant contains ambiguous allegations. I. When to file the motion 1. A motion for bill of particulars is to be filed before, not after responding to a pleading (Sec. 1, Rule 12, Rules of Court). The period to file the motion refers to the period for filing the responsive pleading in Rule 11. Thus, where the motion for bill of particulars is directed to a complaint, the motion should be filed within fifteen (15) days after service of summons. If the motion is directed to a counterclaim, then the same must be filed within ten (10) days from service of the counterclaim which is the period provided for by Sec. 4 of Rule 11 to answer a counterclaim. 2. If case of a reply to which no responsive pleading is provided for by the Rules, the motion for bill of particulars must be filed within ten (10) days of the service of said reply (Sec. 1, Rule 12, Rules of Court).
II. Purpose of the motion 1. The purpose of the motion is to seek an order from the court directing the pleader to submit a bill of particulars which avers matters with "sufficient definiteness or particularity" to enable the movant to prepare his responsive pleading (Sec. 1, Rule 12, Rules of Court), not to enable the movant to prepare for trial. The latter purpose is the ultimate objective of the discovery procedures from Rules 23 to 29 and even of a pre-trial under Rule 18. 2. In less technical terms, a function of a bill of particulars is to clarify the allegations in the pleading so an. adverse party may be informed with certainty of the exact character of a
cause of action or a defense. Without the clarifications sought by the motion, the movant may be deprived of the opportunity to submit an intelligent responsive pleading. 3. Since the purpose of the motion for bill of particulars is to allow the movant to properly prepare his own pleading, it would be erroneous for the motion to ask the court to order the adverse party to disclose or to set forth in his pleading the evidences relied upon for his cause of action or defense. These are matters obtainable by the various modes of discovery. Besides under Section 1 of Rule 8, pleadings are meant to contain only a direct statement of the ultimate facts which constitute the party's claims or defenses. Matters of evidentiary facts are to be omitted. 4. It would likewise not be proper for a motion for bill of particulars to call for the production of the particulars constituting malice, intent, knowledge or condition of the mind which, under the Rules (Sec. 5, Rule 8, Rules of Court) may be averred generally. To require a pleader to do so would be to require the statement of evidentiary facts in a pleading. It would not however, be incorrect to move for a bill of particulars to require the averment of the particular circumstances of fraud or mistake. Under the Rules (Sec. 5, Rule 8, Rules of Court), such matters must be alleged with particularity. 5. A motion for bill of particulars to require a pleader to set forth matters showing the jurisdiction of a court to render its judgment is Iiol. proper.'fhe provisions of Sec. 6, Rule H are clear: In pleading a judgment it is sufficient to aver the same generally. III. Requirements for the motion - Aside from the requirements for a motion as set forth in Rule 15, the motion shall point out the (a) defects complained of, (b) the paragraphs wherein they are contained, and (c) the details desired (Sec. 1, Rule 12, Rules of Court). IV. Action of the court - Upon receipt of the motion which the clerk of court must immediately bring to the attention of the court, the latter has three possible options, namely, (a) to deny the motion outright, (b) to grant the motion outright, or (c) to hold a hearing on the motion. V. Duty of the pleader when the motion is granted 1. If the motion for bill of particulars is granted, the court shall order the pleader to submit a bill of particulars to the pleading to which the motion is directed. The compliance shall be effected within ten (10) days from notice of the order, or within the period fixed by the court (Sec. 3, Rule 12, Rules of Court). 2. In complying with the order, the pleader may file the bill of particulars either in a separate pleading or in the form of an amended pleading (Sec. 3, Rule 12, Rules of Court). 3. The bill of particulars submitted becomes part of the pleading for which it is intended (Sec. 6, Rule 12, Rules of Court).
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answer if a ground for the dismissal of the complaint pursuant to Rule 16 is available. In this case, the defendant may file a motion to dismiss the complaint instead of filing an answer.
VI. When the movant shall file his responsive pleading 1. A motion for bill of particulars is not a pleading hence, not a responsive pleading. Whether or not his motion is granted, the movant may file his responsive pleading. When he files a motion for bill of particulars, the period to file the responsive pleading is stayed or interrupted. After service of the bill of particulars upon him or after notice of the denial of his motion, he may file his responsive pleading within the period to which he is entitled to at the time the motion for bill of particulars is filed. If he has still eleven (11) days to.file his pleading at the time the motion for bill of particulars is filed, then he has the same number of days to file his responsive pleading from the service upon him of the bill of particulars. If the motion is denied, then he has the same number of days within which to file his pleading counted from his receipt of the notice of the order denying his motion (Sec. 5, Rule 12, Rules of Court). 2. If the movant has less than five (5) days to file his responsive pleading after service of the bill of particulars or after notice of the denial of his motion, he nevertheless has five (5) days within which to file his responsive pleading (Sec. 5, Rule 12, Rules of Court). B. MOTION TO DISMISS - Even when the allegations are now clear enough to enable the defendant to file his responsive pleading because the adverse party has already submitted a bill of particulars, the defendant need not file his answer immediately. He may first explore the possibility of filing a motion to dismiss under Rule 16. If there is no ground for a motion to dismiss, he has to file his answer. I. A motion to dismiss is not a pleading - A motion to dismiss is not a pleading. It is merely a motion. Under the Rules, a motion is an application for relief other than by a pleading (Sec. 1, Mule 15, Rules of Court). The pleadings allowed under the Rules are: (a) complaint, (b) answer, (c) counterclaim, (d) cross-claim, (e) third (fourthetc.) -party complaint, (f) complaint in intervention (Sec. 2, Rule 6, Rules of Court), and (g) reply (Sec. 10, Rule 6, Rules of Court). A motion is not one of those specifically designated as a pleading under the Rules of Court. II. Hypothetical admissions of a motion to dismiss - A motion to dismiss hypothetically admits the truth of the factual allegations of the complaint. The admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inferences from facts not stated, matters of evidence or irrelevant matters. Only deemed hypothetically admitted are material allegations, not conclusions. An allegation that a contract is an "equitable mortgage" is a conclusion and not a
material allegation. Hence, it is not deemed admitted by the motion to dismiss. - If for instance the plaintiff files an action for damages against the defendant who files a motion to dismiss, the defendant in effect says that even assuming the facts to be true as alleged by the plaintiff, the latter has failed to show that he has a right to relief because his action has prescribed or because the court where the action was filed has no jurisdiction over the subject matter of the complaint. III. Omnibus motion 1. When a motion to dismiss is filed, all grounds available at the time the motion is filed must be invoked in the motion. This is required under the "omnibus motion rule." Grounds not so invoked are deemed waived. The grounds not waived however, are lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription (Sec. 8, Rule 15; Sec. 1, Rule 9). 2. The above rule applies only when a motion to dismiss is filed. Where no motion to dismiss is filed, the grounds for a motion to dismiss may be availed of as affirmative defenses in the answer (Sec. 6, Rule 16, Rules of Court). No defense is waived because no motion to dismiss was filed. There is indeed an unmistakable difference in the legal effects between filing and not filing a motion to dismiss in relation to waiver of defenses. 3. If no motion to dismiss has been filed, any of the grounds for dismissal provided in the Rules may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Based on the foregoing, a preliminary hearing undeniably is subject to the discretion of the trial court. The trial court's order granting or dispensing with the need for a preliminary hearing may not be corrected by certiorari absent any showing that the trial court had acted without jurisdiction or in excess thereof or with such grave abuse of discretion as would amount to lack of jurisdiction. IV. Contents and form of the motion l. The motion to dismiss shall state the relief sought and the grounds upon which it is based and shall be accompanied by supporting affidavits and papers (Sec. 3, Rule 15, Rules of Court). 2. The motion shall be set for hearing by the applicant (Sec. 4, Rule 15, Rules of Court) and shall contain a notice of hearing addressed to all parties concerned. Such notice shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion (Sec. 5, Rule 15, Rules of Court). 3. The notice requirement in a motion is mandatory and its absence renders the motion defective. As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the filing of the requisite pleading. V. Time to file the motion 1. Within the time for filing the answer but before filing said answer, a motion to dismiss may be filed on any of the
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V. Effect of non-compliance with the order of the court or insufficient compliance - If the order is not obeyed or if there is an insufficient compliance of the order, the court the following options: (a) to order the striking out of the pleading, (b) to order the striking out of the portions of the pleading to which the order was directed, or (c) to make such other order it may deem just (Sec. 4, Rule 14, Rules of Court).
2. A motion to dismiss that is filed after the answer has been filed, is filed out of time and the defending party is estopped from filing the motion to dismiss. This is only a general rule. 3. A motion to dismiss may be filed even after the filing of the answer and will not be considered filed out of time if the ground raised in the motion is either of the following: (a) lack of jurisdiction over the subject matter; (b) that there is another action pending between the same parties for the same cause; (c) that the action is barred by a prior judgment; or that the action is barred by the statute of limitations (Sec. 1, Rule 9, Rules of Court). - Under Sec. 1 of Rule 9, when any of the above grounds appears from the pleadings or from the evidence on record, the court shall dismiss the claim. The authority given to the court is, from the tenor of the rule, not only mandatory but also subject to a motu proprio dismissal. Since the ground for dismissal may appear from the evidence, it is obvious that the dismissal may be made during the trial and this means, even after the answer has been filed. VI. Grounds for motion to dismiss - Under Sec. 1 of Rule 16 of the Rules of Court, a motion to dismiss may be filed on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court hits no jurisdiction over the subject matter of the claim; (c) That the venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties and for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. VII. Laches as a ground for a motion to dismiss under Rule 16 - In one case, in reversing the RTC's order of dismissal, the Court of Appeals held that lathes could not be a ground to dismiss a complaint since it is not one of the grounds for the dismissal of a civil action under Sec. 1 of Rule 16 of the Rules of Court. The Supreme Court categorically held that the Court of appeals "is not entirely correct." Under paragraph (h) of Sec. 1 of Rule 16, one of the grounds for the dismissal of an action is where a claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished. The Court declared: "The language of the rule, particularly on the relation of the words "abandoned" and "otherwise extinguished" to the phrase "claim or demand deemed set forth in the plaintiff's pleading"
is broad enough to include within its ambit the defense of bar by lathes. However, when a party moves for the dismissal of the complaint based on lathes, the trial court must, sot a hearing; on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved. Thus, being factual in nature, the elements of lathes must be proved or disproved through the presentation of evidence by the parties VIII. Res judicata as a ground for a motion to dismiss 1. Res judicata as a ground for dismissal is based on two grounds, namely: (1) public policy and necessity, which makes it to the interest of the State that there should be an end to litigation -republicae ut sit litium; and (2) the hardship on the individual of being vexed twice for the same cause - nemo debet bis vexari et eadem causa. A conflicting doctrine would subject the public peace and quiet to the will and dereliction of individuals and prefer the regalement of the litigious disposition on the part of suitors to the preservation of the public tranquility and happiness. 2. Accordingly, courts will simply refuse to reopen what has been decided. They will not allow the same parties or their privies to litigate anew a question once it has been considered and decided with finality. Litigations must end and terminate sometime and somewhere. The effective and efficient administration of justice requires that once a judgment has become final, the prevailing party should not be deprived of the fruits of the verdict by subsequent suits on the same issues filed by the same parties IX. Concepts of res judicata 1. Res judicata comprehends two distinct concepts: (1) bar by a former judgment, and (2) conclusiveness of judgment. 2. The first concept bars the prosecution of a second action upon the same claim, demand or cause of action. - The second concept - conclusiveness of judgment - states that a fact or question which was in issue in a former suit and was there judicially passed upon and determined by a court of competent jurisdiction, inconclusively settled by the judgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different cause of action, while the judgment remains unreversed by proper authority. X. Elements of res judicata - The concept of res judicata has the following elements: (1) the former judgment must be final; (2) the court which rendered it had jurisdiction over the subject matter and the parties; (3) the judgment must be on the merits; and (4) there must be between the first and the second actions, identity of parties, subject matter and causes of action. The application of the doctrine of res judicata does not require absolute identity of parties but merely substantial identity of parties. There is substantial identity of parties when there is community of interest or privity of interest between a party
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grounds mentioned in Rule 16 (Sec. 1, Rule 16, Rules of Court).
XI. Application of res judicata to quasi judicial proceedings - It has been held that the rule of res judica to which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasijudicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers. The Director of Lands is a quasi judicial officer. As such officer, his decisions and orders rendered pursuant to his quasi judicial authority, have upon their finality, the force and binding effect of a final. judgment within the purview of the doctrine of res judicata. XII. Pleading grounds as affirmative defenses 1. If no motion to dismiss has been filed, any of the grounds provided for dismissal provided in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16, Rules of Court). 2. Implied under Sec. 6 of Rule 16 is the rule that the grounds for a motion to dismiss are not waived even if the defendant fails to file a motion to dismiss because he may still avail of the defenses under Rule 16 as affirmative defenses in his answer. 3. The preliminary hearing authorized on the affirmative defenses raised in the answer, applies only if no motion to dismiss has been filed. As a rule, a preliminary hearing is not authorized when a motion to dismiss has been filed. An exception previously carved out by the Court is if the trial court had not categorically resolved the motion to dismiss. Another exception would be justified under the liberal construction rule as when it is evident that the action is barred by res judicata. A strict application of Sec. 6 of Rule 16 would accordingly lead to absurdity when an obviously barred complaint continues to be litigated. 4. May a ground previously invoked in a denied motion to dismiss be invoked anew? The ground may still be invoked. " . . . the denial of a motion to dismiss does not preclude any future reliance on the grounds relied thereupon." XIII. Remedy of the defendant if the motion is denied 1. If the motion to dismiss is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event (Sec. 4, Rule 16, Rules of Court). As a rule, the filing of an answer, going through the usual trial process, and the filing of a timely appeal from an adverse judgment are the proper remedies against a denial of a motion to dismiss. The filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The order of denial, being interlocutory is not appealable by express provision of Sec. 1(c), Rule 41. 2. Where the judgment or final order is not appealable, like an interlocutory order, Rule 41 declares that the "aggrieved party may file an appropriate civil action under Rule 65." This
remedy however, is predicated upon an allegation and a showing that the denial of the motion was tainted with grave abuse of discretion amounting to lack of jurisdiction. Without such showing, Rule 65 cannot be availed of as a remedy. 3. Jurisprudence declares: "An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction" XIV. Remedies of the plaintiff if the motion to dismiss is granted 1. If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the defendant has several options. (a) Depending upon the ground for the dismissal of the action, the defendant may simply re file the complaint. For instance, if the ground for dismissal was anchored on improper venue, the defendant may file the action in the proper venue. (b) He may appeal from the order of dismissal where the ground relied upon is one which bars the refiling of the complaint like res judicata, prescription, extinguishment of the obligation or violation of the statute of frauds (Sec. 5, Rule 16, Rules of Court). Since the complaint cannot be refiled, the dismissal is with prejudice. Under Section 1(h) of Rule 41, it is an order dismissing an action without prejudice which cannot be appealed from. Conversely, where the dismissal is with prejudice, an appeal from the order of dismissal is not precluded. However, where the ground for dismissal for instance, is the failure of the complaint to state a cause of action, the plaintiff may simply file the complaint anew but since the dismissal is without prejudice to its refiling, the order of dismissal cannot be appealed from under the terms of Sec. 1(h) of Rule 41 of the Rules of Court. Where the ground for dismissal is lack of jurisdiction over the subject matter, the dismissal is without prejudice to the refiling of the complaint. Following the tenor of Sec. 1(h) of Rule 41, an order dismissing a complaint for lack of jurisdiction over the subject matter is a dismissal without prejudice and hence, no appeal may be had from the order of dismissal. Despite Sec. 1 of Rule 41, appeal may nevertheless be taken from the order in this case because of the effect of Sec. 8 of Rule 40 which specifically allows, by necessary implication, an appeal from orders dismissing cases on the ground of lack of jurisdiction over the subject matter. The tenor of Sec. 8 of Rule 40 therefore, operates to furnish an exception to the general rule enunciated in Sec 1 of Rule 41.
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in the first and a party in the second case even if the first case did not implead the latter.
XV. When complaint cannot be refiled 1. An order granting a motion to dismiss shall bar the refiling of the same action or claim if the dismissal is based on any of the following grounds (Sec. 5, Rule 16, Rules of Court): (a) The cause of action is barred by a prior judgment (Sec. 1[f], Rule 16, Rules of Court); (b) The cause of action is barred by the statute of limitations (Sec. 1[l, Rule 16, Rules of Court); (c) The claim or demand has been paid, waived, abandoned or otherwise extinguished (Sec. 1[h], Rule 16, Rules of Court); and (d) The claim on which the action is founded is unenforceable under the provisions of the statute of frauds (Sec. 1[i], Rule 16, Rules of Court). 2. Where the defendant is barred from refiling the action, the remedy under the circumstances is to file an appeal because by the clear language of Sec. 5, Rule 16 the dismissal is subject to the right of appeal. XVI. Effect of dismissal of complaint on the counterclaim - The dismissal of a complaint shall be without prejudice to the prosecution in the same or a separate action of a counterclaim pleaded in the answer of the defendant (Sec. 6, 2nd par., Rule 16, Rules of Court). Thus, where the defendant pleads a counterclaim in his answer, and after the preliminary hearing on his affirmative defenses, the court dismisses the complaint, it would be error for the court to dismiss the counterclaim. Under Sec. 6 of Rule 16, the dismissal of the main action does not carry with it the dismissal of the counterclaim. CHAP. 7: ANSWER, OTHER PLEADINGS, DEFAULT, JUDGMENT ON THE PLEADINGS, SUMMARY JUDGMENT A. ANSWER I. Nature of an answer > answer - a pleading in which a defending party sets forth his defenses (Sec. 4, Rule 6, Rules of Court). This pleading may be an answer to the complaint, an answer to a counterclaim or an answer to a cross-claim. There is no answer to a reply but there could be an answer to a thirdparty complaint or complaint-in-intervention. II. Defenses in the answer 1. An answer contains the defenses of the answering party. These defenses may either be negative or affirmative. A defense is negative when the material averments alleged in the pleading of the claimant are specifically denied (Sec. 5, Rule 6, Rules of Court). A negative defense is stated in the form of a specific denial. The kinds of specific denials are described in Sec. 10 of Rule 8. If the denial is not one of those described, the denial is deemed to be general. A general denial is an admission. III. Effect of absence of a specific denial
1. Under Sec. 11 of Rule 8, material allegations, (except unliquidated damages), not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear i n the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34. 2. An admission in a pleading cannot be controverted by the party making such admission because the admission is conclusive as to him. All proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether an objection is interposed by a party or not (Republic vs. Sarabia, G.R. No. 157847, August 25, 2005). Said admission is a judicial admission, having been made by a party in the course of the proceedings in the same case, and does not require proof. A party who desires to contradict his own judicial admission may do so only by either of two ways: (a) by showing that the admission was made through palpable mistake, or (b) that no such admission was made (Sec. 4, Rule 129, Rules of Court). III. Purpose of a specific denial - The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial. The parties are compelled to lay their cards on the table. IV. Kinds of specific denials 1. A denial is not specific simply because it is so qualified by the defendant. A general denial does not become specific by the use of the word "specifically." Merely uttering "specific denial" is ineffective if the denial does not conform to the methods of denial provided for by the Rules of Court. It amounts to an admission pursuant to Rule 8, Sec. 11 of the Rules of Court. There is no need for the other party to present evidence to support its allegations because of petitioners' implied admission thereof. 2. There are three types of specific denials mentioned in Sec. 10 of Rule 8 of the Rules of Court: (a) The defendant specifies each material allegation of fact the truth of which he does not admit and, whenever practicable, sets forth the substance of the matters upon which he relies to support his denial. This kind of denial is known an absolute denial (Sec. 10, Rule 8 of the Rules of Court). - Example: "Defendant denies the truth of the allegations in par. 7 of the complaint alleging that he owes the plaintiff P450,000.00, the truth of the matter being that it is the Plaintiff who owes the defendant the same amount." Here the defendant absolutely denies his liability and alleges what to him are the actual facts. In making a specific denial, reference must be made to the paragraph sought to be denied. Since the rule requires that the defendant must "specify each material allegation of fact," a denial of the allegations in each paragraph is required. A blanket denial which reads: "Defendant specifically denies all the material allegations of the complaint," is not a specific denial. The use of the word "specific" does not
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(c) The defendant may also avail of a petition for certiorari. This remedy is available if the court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice (Sec. 1, Rule 41, Rules of Court).
(b) Another type of a specific denial is where the defendant does not make a total denial of the material allegations in a specific paragraph. He denies only a part of the averment. If he chooses this type of denial, he specifies that part the truth of which he admits and denies only the remainder. This denial known is known as a partial denial. - Example: In an action for damages, the defendant avers: "Defendant admits the allegations in paragraph 5 of the complaint, that Plaintiff sustained injuries when his car collided with the herein Defendant's car, but denies the allegation that the collision occurred through Defendant's fault." (c) One type of a specific denial is where the defendant alleges that he "is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint."This type of specific denial called a denial by disvowal of knowledge, must be made sincerely and in good faith. - When the defendant alleges having no knowledge or information sufficient to form a belief as to the truth of the allegations of the other party but such matters are plainly and necessarily within the defendant's knowledge, a claim of "ignorance or lack of information" will not be considered as a specific denial. - Example: Mr. D signs a promissory note in favor of Mr. P Because Mr. D failed to pay despite demand, suit was brought against him. The complaint duly pleaded the promissory note as an actionable document. Mr. D denies the alleged promissory note by averring lack of knowledge of the note. This averment is clearly one in bad faith and shall be considered as an admission because it is absurd for Mr. D not to know of the promissory note he himself signed (Bar 1993; Bar 1978). - In an action to foreclose a mortgage, a denial that the defendant is without any knowledge of his having signed a deed of mortgage when the facts and the actionable document forming the basis of the claim incontrovertibly show that he so executed the document denied, is a denial in bad faith. This denial amounts to an admission (Bar 2005; Bar 2004). While a pleader is allowed to allege that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, this rule shall not apply where the fact as to which a lack of knowledge is asserted is, to the knowledge of the court, so plainly within the defendant's knowledge that his averment of ignorance must be palpably untrue. V. Negative pregnant - A negative pregnant does not qualify as a specific denial. It is conceded to be actually an admission. - Example: A complaint alleges: "Plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2006 in Baguio City." The defendant in his answer alleges: "Defendant specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000 on July 27, 2006." The answer is a mere repetition of the allegations made in the complaint. The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place? The effect of this kind of denial is an admission. VI. When a specific denial must be coupled with an oath 1. There are specific denials which must be under oath and in these instances a mere specific denial is not sufficient. These are: (a) a denial of an actionable document (Sec. 8, Rule 8, Rules of Court); and (b) a denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8, Rules of Court). 2. If the cause of action in the complaint is founded upon a promissory note, the said note is the basis of the action. Recall that in a previous discussion of the topic, it was mentioned that the allegation must be done in the following manner: The substance of this promissory note shall be set forth or stated in the pleading and the original or copy thereof shall be attached to the pleading as an exhibit. When attached as an exhibit the promissory note shall be deemed a part of the pleading. The copy of the note may also be set forth in the pleading, i.e., it may be copied verbatim (Sec. 7, Rule 8, Rules of Court). When the manner of alleging the document is done in accordance with the Rules, the document becomes an `actionable document'. The adverse party who desires to deny the genuineness and the due execution of the document must do two things: (a) to specifically deny the document, set forth what he claims to be the facts, and (b) deny the document under oath. - If he does not specifically deny the document under oath, he is deemed to have admitted the `genuineness and due execution' of the promissory note. Because of this admission, he can no longer deny that the note was forged or that he had no authority to execute the instrument. These defenses are barred by the admission. May he however, still defend by showing that the note was executed by fraud, or that the note has prescribed or was already paid? Yes, he can because these defenses are not barred by the admission. - The failure to deny the genuineness and due execution of an actionable document does not preclude a party from arguing against it by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppel, and want of consideration. 3. The allegations of usury which requires a specific denial under oath must be (a) allegations of usury in a complaint (not allegations of usury in the answer), and (b) the complaint is filed to recover usurious interests (Sec. 11, Rule 8, Rules of Court). VII. Matters not deemed admitted by the failure to make a specific denial - The provisions of Sec. 11 of Rule 8 establish the rule that material allegations in the complaint not specifically denied are deemed admitted. The following are nevertheless, not deemed admitted by the failure to make a specific denial in a party's responsive pleading:
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make it specific. The blanket denial is actually a general denial which in effect, is an admission.
VIII. Affirmative defenses l. A defense is affirmative when it alleges new matters which, while hypothetically admitting the allegations of the pleading of the claimant, would, nevertheless, prevent or bar recovery by the claiming party (Sec. 5, Rule 6, Rules of Court). 2. An affirmative defense is one which is not a denial of an essential ingredient in the plaintiff's cause of action, but one which, if established, will be a good defense - i.e., an "avoidance" of the claim. An affirmative defense includes fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. - Allegations presented in the answer as affirmative defenses are not automatically characterized as such. Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action. - An answer may allege affirmative defenses which may strike down the plaintiff's cause of action. When the answer asserts affirmative defenses, there is proper joinder of issues which must be ventilated in a full-blown trial on the merits and cannot be resolved by mere judgment on the pleadings. B. COUNTERCLAIM I. Nature of a counterclaim (Bar 1999) 1. > counterclaim - any claim, which a defending party may have against an opposing party (Sec. 6, Rule 6, Rules of Court). It partakes of a complaint by the defendant against the plaintiff. 2. A counterclaim is described by the Rules of Court as any claim. This may refer to a claim for (a) money, or (b) some other relief against an opposing party. A counterclaim is permitted by the Rules as a way of preventing multiplicity of suits by allowing in one action the determination of the entire controversies between the parties 3. When the defendant files a counterclaim against the plaintiff, the defendant becomes the plaintiff in the counterclaim while the original plaintiff becomes the defendant. The filing of a counterclaim gives rise to two complaints, namely, the one filed by the plaintiff by way of an original complaint and the one filed by the defendant by way of a counterclaim. To illustrate: PP files a complaint for unlawful detainer against DD. The latter files an answer together with a claim for reimbursement of all the expenses he incurred in repairing the building subject of the lease, the claim for reimbursement is a counterclaim and is in the nature of a complaint by the defendant against the plaintiff.
4. A counterclaim is not intrinsically a part of the answer because it is a separate pleading. It may however, be included in the answer. This inclusion is merely a matter of form and does not have the effect of fusing the two separate pleadings into a single pleading. Thus, it is not uncommon for lawyers to denominate these two pleadings as: "Answer With A Counterclaim." Note however, that a "Motion To Dismiss With A Counterclaim" is not sanctioned by both the Rules of Court and by common usage (Bar 1992). II. Compulsory counterclaim 1. To be compulsory, the counterclaim must have the following elements: (a) It arises out of, or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party's claim; (b) It does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction; and (c) The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6, Rules of Court). . 2. One compelling test of compulsoriness is the logical relation between the claim alleged in the complaint and that in the counterclaim. 3. A counterclaim is compulsory under the following facts: Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed the value of the improvements she has introduced in the same land and the payment of damages she has sustained as a consequence of the suit. The claim of Lea arises out of, or is necessarily connected with the subject matter of the complaint (Bar 1994; Bar 1985). It has been held that a claim for compensation for improvements on land partakes of the nature of a compulsory counterclaim. - The most common compulsory counterclaim filed by the defendant in the absence of any other counterclaim is to claim in the same suit his expenses in the suit for being forced to litigate in the face of an allegedly unfounded and baseless complaint. Added to these expenses are the alleged damages he sustained as a consequence of the unfounded complaint. 4. The logical connection between the complaint and the counterclaim will not give rise to a compulsory counterclaim where the latter is not within the jurisdiction of the court. If the counterclaim exceeds the jurisdiction of the court, the counterclaim should be deemed permissive, not compulsory. Thus, a counterclaim for P500,000.00 in the Metropolitan Trial Court of Manila cannot be considered a compulsory counterclaim since the amount exceeds the court's jurisdiction even if assuming, it is intimately connected with the subject matter of the complaint. 5. Despite the lack of jurisdiction of the court to adjudicate on the counterclaim, the same may nevertheless, be pleaded in the same action, not to obtain affirmative relief because the court, for want of jurisdiction, cannot do so. The purpose would merely be to weaken the plaintiff's claim. If the counterclaim in excess of the jurisdiction of the court is interposed in the same action, and the court finds both the complaint and the counterclaim meritorious, it will
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(a) The amount of unliquidated damages (Sec. 11, Rule 8, Rules of Court). (b) Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading (Sec. 1, Rule 8, Rules of Court). (c) Non-material allegations are not deemed admitted because only material allegations have to be denied (Sec. 11, Rule 8, Rules of Court).
Rules of Court) because a compulsory counterclaim not set up shall be barred (Sec. 2, Rule 9, Rules of Court).
the complaint.
6. There may be instances when the court has to dismiss the counterclaim for lack of jurisdiction over the subject matter. If the counterclaim for instance, interposed in the Regional Trial Court is one for unlawful detainer, the same cannot be invoked as a counterclaim in the same action even if the amount of rentals or damages is within the jurisdiction of the Regional Trial Court. A Regional Trial Court cannot adjudicate upon an unlawful detainer case. Also, a counterclaim for illegal dismissal cannot be entertained by regular courts for want of jurisdiction. The subject matter of the counterclaim is within the jurisdiction of Labor Arbiters.
b. not an initiatory pleading.
b. considered an initiatory pleading.
c. does not require certificates mentioned
the
c. should be accompanied by a certification against forum shopping and whenever required by law, also a certificate to file action issued by the Lupong Tagapamayapa. (The certificates mentioned are required to be attached because a permissive counterclaim is an initiatory pleading).
d. Such fees are not paid for a compulsory counterclaim
d. The docket and other lawful fees should be paid for a permissive counterclaim. (The docket fees are required to be paid because a permissive counterclaim is considered an initiatory pleading.)
e. Failure to answer a compulsory counterclaim is not a cause for a default declaration. A compulsory counterclaim that merely reiterates special defenses are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint, need not be answered. In such a case, failure to answer a compulsory counterclaim may not be a cause for a declaration of default.
e. must be answered by the party against whom it is interposed otherwise, he may be declared in default as to the counterclaim
7. The absence of jurisdiction to entertain a counterclaim because of the amount thereof appropriately applies to a Municipal Trial Court and equivalent courts. Hence, a Municipal Trial Court in Bulacan will not have the jurisdiction to take cognizance of a counterclaim in excess of P300,000.00 and a Metropolitan Trial Court of Makati City cannot assume jurisdiction over a counterclaim in excess of P400,0000.00. The result will differ however, when the original action is filed with the Regional Trial Court. In this court, the counterclaim may be deemed compulsory regardless of the amount (Sec. 7, Rule 6, Rules of Court). Hence, a counterclaim of P350,000.00 filed in the Regional Trial Court of Manila is still a compulsory counterclaim even if the court would have no jurisdiction over the amount claimed if it is filed as an original complaint. III. Permissive counterclaim 1. Generally, a counterclaim is permissive if any of the elements of a compulsory counterclaim discussed previously, is absent. But the most commonly treated feature of a permissive counterclaim is its absence of a logical connection with the subject mater of the complaint, i.e., it does not arise out of, or is not connected with the plaintiff's cause of action. 2. A counterclaim for damages based on culpa aquiliana in a complaint for collection of a loan is a permissive counterclaim for not having connection with the plaintiff's claim. 3. A counterclaim for damages based on a quasi-delict cannot be pleaded as a compulsory counterclaim in an action for unlawful detainer. The counterclaim is permissive. 4. A counterclaim for the payment of the price of the car is not a compulsory counterclaim in an action to recover a piece of land (Bar 1996). IV. Distinctions between a compulsory and a permissive counterclaim - The following are the most significant distinctions between the two counterclaims: Compulsory counterclaim Permissive counterclaim a. the compulsory a. not subject to the above counterclaim which a party rule. Hence, it may be set up has at the time the answer is as an independent action and filed shall be contained in will not be barred if not the answer (Sec. 8, Rule 11, contained in the answer to
- Thus, if the plaintiff files an action to recover possession of real property against the defendant who interposed a counterclaim for damages and attorney's fees arising from the filing of the complaint, the counterclaim need not be answered by the plaintiff. A motion to declare him in default for failure to answer the counterclaim must be denied because the counterclaim is compulsory (Bar 1996). On the other hand, if the counterclaim is for damages arising from the alleged tortious conduct of the plaintiff in an action to collect a sum of money, the defendant may file a motion to declare the plaintiff' in default if he fails to file an answer to the counterclaim which is permissive. V. How to set up an omitted compulsory counterclaim
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not grant the relief in the complaint on the ground that the defendant has a bigger claim. If the defendant desires to have affirmative relief on his counterclaim, he may waive the amount in excess of the jurisdiction of the court.
VI. How to set up a counterclaim arising after the filing of the answer - A counterclaim, which either matured or was acquired by a party after serving his pleading, may, with the permission of the court, be presented as a counterclaim by supplemental pleading before judgment (Sec. 9, Rule 11, Rules of Court). VII. Period to answer a counterclaim - If a counterclaim is to be answered, the same must be made within ten (10) days from service (Sec. 4. Rule 11, Rules of Court). This rule has more relevance to a permissive counterclaim which has to be answered. VIII. Effect of the dismissal of a complaint on the counterclaim already set up 1. There are three significant situations involving the dismissal of a complaint and the effect of such dismissal on the counterclaim already pleaded by the defending party. (a) The first is the situation contemplated under the last paragraph of Sec. 6 of Rule 16. Here, the defendant does not file a motion to dismiss. Instead, he files an answer and utilizes certain grounds for a motion to dismiss as affirmative defenses. Included in the answer is a counterclaim. He then asks for a preliminary hearing on the affirmative defenses set up, a request granted by the court. During the hearing on the affirmative defenses, the court decides to dismiss the complaint. If the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. Sec. 6 of Rule 16 is explicit: "The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer." (b) The second situation is covered by Sec. 2, of Rule 17. Under this provision, the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. The motion is granted by the court. "x x x the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action." (c) The third situation is covered by Sec. 3 of Rule 17. Here the complaint is dismissed through the plaintiff's fault and at a time when a counterclaim has already been set up. Like the first two situations, the dismissal is "without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action.' 2. The above described situations have a common thread running through them. The rules cited recognize the right of the defending party to prosecute the counterclaim in the
same or separate action notwithstanding the dismissal of the complaint, and without regard as to the permissive or compulsory nature of the counterclaim. With the aforestate(I rules in effect since July l, 1997 previous jural pronouncements in conflict with the same, like that of BA Finance Corporation vs. Co, abandoned. C. CROSS-CLAIM I. Nature of a cross-claim 1. > cross-claim - any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. The cross-claim may include a claim that the party against whom it is asserted is liable or maybe liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (Sec. 8, Rule 6, Rules of Court). 2. While a counterclaim is asserted by a defending party against a claimant, a cross-claim is asserted by a defending party against a co-defending party so that the latter may be held liable for the claim which the claimant seeks to recover from the cross-claimant. If XYZ Bank sues A and B for the collection of a loan, A, who turned over to B all the proceeds of said loan, may file a cross-claim against his co-defendant, B by asserting that it is B who is the actual and true debtor and hence, should be ultimately liable for the payment of the loan. 3. B and C borrowed P400,000 from A. B, who received the money from A, gave the P200,000 to C. In an action filed by A against B and C, B may file a cross-claim against C for P200,000 (Bar 1997). 4. A cross-claim that a party has at the time the answer is filed shall be contained in said answer (Sec. 8, Rule 11, Rules of Court). Broadly, this means that the cross-claim must be set up in the same action. If through oversight, inadvertence, or excusable negligence, it is not asserted, it may still be set up with leave of court, by amendment of the pleadings (Sec. 9, Rule 11, Rules of Court). It has to be set up in the action because if' not set up it shall be barred (Sec. 2, Rule 9, Rules of Court). Note however, that the cross-claim that shall be barred if not asserted is the cross-claim already existing at the time the answer is filed, not the cross-claim that may mature or may be acquired after service of the answer. As to the latter, Sec. 9 of Rule 11 declares that it may, by leave of court, be set up by way of a supplemental pleading. II. Distinctions between a counterclaim and a cross-claim (Bar 1999) Cross-claim a. a claim against a co-party;
Counter-claim a. a claim against opposing party; and
b. must arise from the transaction or occurrence that is the subject matter of the original complaint or counterclaim (Sec. 8, Rule 6, Rules of Court).
b. may or may not arise out of the subject matter of the complaint.
an
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- A compulsory counterclaim not initially set up because of the pleader's oversight, inadvertence, excusable neglect or when justice requires, may be set up, by leave of court by amendment of the pleadings before judgment (Sec. 10, Rule 11, Rules of Court). If not set up in the action, the compulsory counterclaim shall be barred (Sec. 2, Rule 9, Rules of Court). The bar of course refers to a counterclaim that a defending party has at the time he files the answer, i.e., a counterclaim already existing at the time the answer is filed (Sec. 8, Rule 11, Rules of Court).
2. A third-party complaint is actually a complaint independent of, and separate and distinct from, the plaintiff's complaint. Were it not for the above rule, such third-party complaint would have to be filed independently and separately from the original complaint. The purpose is to avoid circuitry of action and unnecessary proliferation of lawsuits and of disposing expeditiously in one litigation all the matters arising from one particular set of facts.
respect of the plaintiff's claim. The third-party complaint is actually independent of and separate and distinct from the plaintiff's complaint. Were it not for this provision of the Rules of Court, it would have to be filed independently and separately from the original complaint by the defendant against the thirdparty. But the Rules permit defendant to bring in a third-party defendant or so to speak, to litigate his separate cause of action in respect of plaintiff's claim against a third party in the original and principal case with the object of avoiding circuitry of action and unnecessary proliferation of lawsuits and of disposing expeditiously in one litigation the entire subject matter arising from one particular set of facts. Prior leave of Court is necessary, so that where the allowance of a third-party complaint would delay the resolution of the original case, such as when the thirdparty defendant cannot be located or where matters extraneous to the issue of possession would unnecessarily clutter a case of forcible entry, or the effect would be to introduce a new and separate controversy into the action, the salutary object of the rule would not be defeated, and the court should in such cases require the defendant to institute a separate action.
- Be that as it may, trial courts are not especially enjoined by law to admit a third-party complaint. They are vested with discretion to allow or disallow a party to an action to implead an additional party. Thus, a defendant has no vested right to file a third-party complaint.
II. Leave of court - The filing of a third party complaint requires leave of court (Sec. 11, Rule 6, Rules of Court) and hence, its admission is subject to judicial discretion. Leave of court is not required in filing a counterclaim or a cross-claim.
3. It is not proper to file a third-party complaint against one who is already a party to the action such as against the plaintiff or a co-defendant. A claim against the plaintiff is asserted by way of a counterclaim. A claim by the defendant against his co-defendant is set up by way of a cross-claim. Thus, if Mr. S sells a car to Mr. B, and later, the real owner of the car, Mr. O files an action against Mr. B to recover the car, Mr. B may file a third-party complaint against Mr. S to require the latter to answer for the breach of warranty against eviction (Art. 1558, Civil Code of the Philippines).
III. Answer to a third-party complaint - The time to answer a third-party complaint shall be governed by the same rule as the answer to the complaint (Sec. 5, Rule 6, Rules of Court).
D. THIRD (FOURTH, ETC.) -PARTY COMPLAINT I. Nature of a third-party complaint 1. This pleading is a claim which a defending party may, with leave of court, file against a person who is not yet a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim (Sec. 11, Rule 6, ' Rules of Court). There could also be a fourth, etc. -party complaint with the same function as a third-party complaint.
- Also if the passenger of a taxicab sues the operator for breach of contract of carriage because of injuries sustained by him in a mishap, the operator may file a third-party complaint against the negligent driver for reimbursement. 4. B and C borrowed P400,000 from A. B, who received the money from a, gave C P200,000. C in turn gave by way of loan, P100,000 to D. C, if sued can file a third-party complaint against D (Bar 1997). - A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries. If X files an action for damages against A and B, B cannot file a third-party complaint against A because both are already parties to the action. B should instead, file a cross-claim against A (Bar 1996). 5. Explains the Court in no uncertain terms: "The thirdparty complaint, is a procedural device whereby athird party' who is neither a party nor privy to the act or deed complained of by the plaintiff, may be brought into the case with leave of court, by the defendant, who acts as third-party plaintiff to enforce against such third-party defendant a right for contribution, indemnity, subrogation or any other relief, in
E. INTERVENTION I. Nature of intervention 1. > Intervention - a legal proceeding by which person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules of Court. This third person who intervenes is one who is not originally impleaded in the action. 2. Intervention is never an independent proceeding but is ancillary and supplemental to an existing litigation. Its purpose is to enable a stranger to an action to become a party to protect his interest. An intervention cannot alter the nature of the action and the issues already joined. 3. Intervention in an action is neither compulsory nor mandatory but only optional and permissive. Hence, the court has the full measure of discretion in permitting or disallowing the same. This discretion however, must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. Thus, where the substantial interest of the movant in the subject matter is undisputed, a denial of a motion to intervene is an injustice. II. Requisites for intervention (Bar 2000) - The following requisites must be complied with before a non-party may intervene in a pending:
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III. Period to answer a cross-claim - A cross-claim must be answered within ten (10) days from service (Sec. 4, Rule 11, Rules of Court).
(b) The movant must show in his motion that he has a: (1) legal interest in (a) the matter in litigation, (b) the success of either of the parties in the action, or (c) against both parties, (2) that the movant is so situated as to be adversely affected by a distribution or other disposition of property n the custody of the court or of an officer thereof (Sec. 1, Rule 19, Rules of Court), and (3) that the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor's rights may not be fully protected in a separate proceeding. III. Meaning of legal interest l. The legal interest must be one that is direct anti o`' an immediate character, not merely contingent or expectaiA pit; that the intervenor will either gain or lose by the direct legal operation of the judgment. Thus, when the title to the property had been already declared void by final judgment, intervention will not revive or reinstate the inovant's title derived from the title declared void. 2. The assignee of a property who assumed payment of` whatever amount may be finally adjudged against the assignor may intervene in a proceeding involving the execution of the property pursuant to a judgment. 3. In an action for foreclosure of mortgage, the alleged owners of the land sought to be foreclosed may intervene. IV. Procedure for intervention 1. The intervenor shall file a motion for intervention attaching thereto his pleading-in-intervention. The pleading to be filed depends upon the purpose of the intervention. If the purpose is to assert a claim against either or all of the original parties, the pleading shall be called a complaint-inintervention; If the pleadings seek to unite with the defending party in resisting a claim against the latter, he shall file an answer-inintervention (Sec. 3, Rule 19, Rules of Court); 2. The motion and the pleading shall be served upon the original parties; 3. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the courts (Sec. 4, Rule 9, Rules of Court). V. Time for intervention 1. The motion to intervene may be filed at any time before rendition of judgment by the trial court (Sec. 2, Rule 189, Rules of Court). 2. Intervention after trial and decision can no longer be permitted. F. REPLY I. Nature of a reply
1. > reply - a pleading, the function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby joins or makes issue as to such new matters (Sec. 10, Rule 6, Rules of Court). 2. A reply is the responsive pleading to an answer. It is not a responsive pleading to a counterclaim or a cross-claim. The proper response to a counterclaim or a cross-claim is an answer to the counterclaim or answer to the cross-claim. 3. As a rule, the filing of a reply to the answer is not mandatory and will not have an adverse effect on the defendant. Under Sec. 10 of Rule 6, if a party does not file such reply, all the new matters alleged in the answer are deemed controverted or denied. No admission follows from the failure to file a reply. Hence, if the answer to the complaint alleges as a defense the prescription of the action, the failure of the plaintiff to specifically deny the prescription will not amount to an admission that the debt has prescribed because the rule already denies the matter of prescription without the plaintiff making a specific denial. It is already, as the rule says, "deemed controverted" (Bar 1996; Bar 1977). - Contrast this with the rule that the failure to specifically deny the material allegations of the complaint shall mean the implied admission of such material allegations (Sec. 11, Rule 8, Rules of Court). Thus, the gist of the rule is: The material allegations of a complaint must be specifically denied but the allegations of new matters or material allegations of the answer need not be denied because they are deemed denied by the Rules for the plaintiff. G. DEFAULT I. Nature of default 1. > Default - a procedural concept that occurs when defending party fails to file his answer within reglementary period (Bar 1999). It does not occur from failure of the defendant to attend either the pre-trial or trial.
the the the the
- The failure of the defendant to appear at the pre-trial shall be cause for the court to order the plaintiff to present his evidence ex parte and for the court to render judgment on the basis thereof Under the Rules, this consequence is not to be called a declaration of default (Sec. 5, Rule 18, Rules of Court). The failure of the defendant to appear in the trial will be construed as a waiver to assail the evidences against him or a waiver of the right to adduce evidence in his behalf.] 2. It is error to declare a defendant in default where an answer has already been filed. II. Requisites before a party may be declared in default (Bar 1999) l. The following are the requisites before a party may be declared in default: (a) There must be a motion to declare the defending party in default filed by the claiming party; and (b) Summons has been validly and previously served upon him;
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(a) There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 1, Rule 19). A motion is necessary because leave of court is required before a person may be allowed to intervene (Sec. 1, Rule 19).
- Section 3, Rule 9 of the Rules of Court provides: - The required hearing of the motion is mandated by Sec. 4 of Rule 15 which specifically provides: "Sec. 4. Hearing of motion. - Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant" (Underscoring ours). 2. "Prior to the present rule on default introduced by the 1997 Rules of Civil Procedure, as amended, Section 1 of the former Rule 18 on default is silent on whether or not there is need for a notice of a motion to declare defendant in default. The Court then ruled that there is no need. However, the present rule expressly requires that the motion of the claiming party should be with notice to the defending party. The purpose of a notice of a motion is to avoid surprises on the opposite party and to give him time to study and meet the arguments. The notice of a motion is required when the party has the right to resist the relief sought by the motion and principles of natural justice demand that his right be not affected without an opportunity to be heard. - "Therefore, as the present rule on default requires the filing of a motion and notice of such motion to the defending party, it is not enough that the defendant failed to answer the complaint within the reglementary period to be a sufficient ground for declaration in default. The motion must also be heard." 3. There is no justification for the trial judge for not hearing the motion and for hastily granting the motion to declare the defendant in default prior to the scheduled hearing of the motion on the ground that it had found the motion to be impressed with merit. The error of the trial judge is compounded by his having ignored the opposition of the defendant to the motion to declare him in default and the denial of his motion to admit answer filed prior to the hearing. - Indeed, in totally disregarding the purpose for which the filing of a motion and notice to defending party are required by the Rules, the trial court had acted in a despotic manner that is correctly assailed through a petition for certiorari which petitioners have seasonably filed with the CA. III. No motu proprio declaration of default - The court has no authority to motu propio declare the defendant in default. A motion to declare the defending party must be filed by the claiming party before a declaration of default is made by the court. The rule is clear. Sec. 3 of Rule 9 provides ". . . upon motion of the claiming party." IV. Failure to file an answer under the Rule on Summary Procedure
1.Under the Rule on Summary Procedure, the defendant who fails to file an answer within the reglementary period is not supposed to be declared in default. Instead, the court motu proprio, or on motion of the plaintiff, shall render judgment, (not to declare the defendant in default) as may be warranted by the facts alleged in the complaint and limited to what is prayed for (Sec. 6, II, 1991 Rule on Summary Procedure). This represents a principal distinction between default in regular civil proceedings and default under a summary procedure (Bar 1988). 2. Also, under the Rule on Summary Procedure, the plaintiff is prohibited from filing a motion to declare the defendant in default (Sec. 19[h], 1991 Rule on Summary Procedure). This is another significant departure from the regular rule (Bar 1988). V. Effect of a declaration/order of default 1. The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial (Sec. 3[a], Rule 9, Rules of Court). 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, Rules of Court). It is submitted that he may participate in the trial, not as a party but as a witness. 3. A declaration of default is not an admission of the truth or the validity of the plaintiff's claims. V. Action of the court after the declaration/order of default 1. Under the rules, when a party is declared in default, the court may do either of two things: (a) to proceed to render judgment, or (b) to require the plaintiff to present his evidence ex parte. 2. The choice of which action to take is a matter of judicial discretion (Sec. 3, Rule 9, Rules of Court). Under the previous rule, the court had no power to render judgment immediately after the declaration or order of default. It had to require the reception of evidence by the plaintiff but done without the participation of the defendant who has already lost his standing. The court, under current rules may, at its discretion, select between the options granted to by the Rules of Court. 3. The court need not personally receive the evidence if it decides to hear the evidence of the plaintiff. The reception of the evidence may be delegated to the clerk of court (Sec. 3, Rule 9, Rules of Court). VI. Remedies of a defending party declared in default (Bar 1998) 1. The following are the remedies of a party declared in default: (a) Remedy after notice of order and before judgment The defendant must file a motion under oath to set aside the order of default and show that (a) the failure to answer was due to fraud, accident, mistake, or excusable negligence (FAMEN), and that (b) the defendant has a meritorious defense, i.e., there must be an affidavit of merit (Sec. 3[b], Rule 9, Rules of Court).
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(c) The defending party must have failed to file his answer within the reglementary period or within the period fixed by the court; (d) There must be proof of the failure to file the answer; (e) The defending party must be notified of the motion to declare him in default (Sec. 3, Rule 9, Rules of Court); and (f) There must be a hearing of the motion to declare the defendant in default.
(c) Remedy after the judgment becomes final and executory - The defendant may file a petition for relief from judgment under Rule 38. - The current judicial trend is to avoid defaults and thus, courts are enjoined to be liberal in setting aside orders of default. The issuance of orders of default should be the exception rather than the rule and to be allowed only in clear cases of obstinate refusal by the defendant to comply with the orders of the trial court, because suits should as much as possible, be decided on the merits and not on technicalities. Thus, in practice, an answer under oath containing the defenses of the defendant, may under the rules on liberal interpretation, be deemed as the equivalent of an affidavit of merit. 2. Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack of jurisdiction and when the lack of jurisdiction is patent in the face of the of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65. VII. Extent of relief in a judgment by default - If the complaint seeks to recover P1 million but the evidence of the plaintiff shows a right to recover P1.5 million. The court has no authority to grant the latter amount despite the evidence. This is because under the Rules, "A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages" (Sec. 3[d], Rule 9, Rules of Court). VIII. Cases where a declaration/order of default cannot be made 1. Default is not allowed in the following actions: (a) annulment of marriage; (b) declaration of nullity of marriage; and (c) legal separation (Sec. 3[e], Rule 9). 2. If no answer is filed in any of the above actions, the court shall order the prosecuting attorney to investigate whether or not collusion exists between the parties. If there is no collusion, the court shall order said prosecuting attorney to intervene for the State in order to see to it that the evidence submitted is not fabricated (Sec. 3[e], Rule 9, Rules of Court). IX. Judgment by default for refusal to comply with the modes of discovery - The rule is that a default order and consequently a default judgment is triggered by the failure of the defending party to file the required answer (Sec. 3, Rule 9, Rules of Court). By way of exception, a judgment by default may be rendered in the following cases despite an answer having been filed:
(a) If a party refuses to obey an order requiring him to comply with the various modes of discovery (Sec. 3[c], Rule 29, Rules of Court); or (b) If a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition (Sec. 5, Rule 29, Rules of Court). H. JUDGMENT ON THE PLEADINGS (Bar 1999; 1993; 1978) I. Nature of judgment on the pleadings 1. The concept of a judgment on the pleadings will not apply when no answer is filed. It will come into operation when an answer is served and filed but the same fails to tender an issue or admits the material allegations of the adverse party's pleading (Sec. 1, Rule 34, Rules of Court, Bar 1999). 2. An answer fails to tender an issue when the material allegations of the other party are admitted or not specifically denied by the pleader. Under the rules, material allegations of the complaint are deemed admitted (Sec. 11, Rule 8, Rules of Court). II. Motion required - A judgment on the pleadings cannot be rendered by the court motu proprio. It can be done only where there is a prior motion to the effect filed by the appropriate party (Sec. 1, Rule 34, Rules of Court; Bar 1999). III. Cases where judgment on the pleadings will not apply l. In the following cases, a judgment on the pleadings will not lie: (a) actions for the declaration of nullity of a marriage; (b) actions for annulment of marriage; and (c) actions for legal separation (Sec. 1, Rule 34, Rules of Court). 2. In the above cases, the material facts alleged in the complaint shall always be proved (Sec. 1, Rule 34, Rules of Court). I. SUMMARY JUDGMENT (Bar 1989) I. Nature of summary judgment (Bar 1986;1989;1996;1999) 1. A summary judgment, also called accelerated judgment, is proper where, upon a motion filed after the issues had been joined and on the basis of the pleadings and papers filed, the court finds that there is no genuine issue as to any material fact except as to the amount of damages. Under the Rules, when there is no genuine issue as to any material fact, other than for instance, the amount of damages, and the moving party is entitled to a judgment as a matter of law, a summary judgment may be rendered. 2. What triggers a summary judgment is the absence of a genuine factual issue. It is not proper where there are factual issues to be resolved by the presentation of evidence. Even if there is a complicated question of law if there is no issue as to the facts, a summary judgment is not barred. 3. In an action for foreclosure of mortgage for example, the material issues are the existence of the debt and its demandability. When the defendant admits the existence of the debt and raises an issue as to the demandability of the
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(b) Remedy after judgment but before its finality - The defendant may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law.
debt or the interest rate involved because of an alleged contemporaneous agreement between the parties, the issue tendered is sham, fictitious, or patently unsubstantial. A summary judgment would be proper because there is no genuine issue.
Judgment on the pleadings a. there is an absence of a factual issue in the case because the answer tenders no issue at all
Summary judgment a. involves an issue, but the issue is not genuine.
- Where only the genuineness and the due execution of the promissory are the matters deemed admitted for the failure of the defendant to deny the same under oath, a summary judgment is not proper (Bar 1986).
b. A motion for judgment on the pleadings is fled by a claiming party like a plaintiff or a counterclaimant (Sec. 1, Rule 34, Rules of Court).
b. A motion for summary judgment may be filed by either the claiming or the defending party (Sets. 1, 2, Rule 35, Rules of Court).
c. based on the pleadings alone (Sec. 1, Rule 34, Rules of Court).
c. based on the pleadings, affidavits, depositions and admissions (Sec. 3, Rule 35, Rules of Court). "
d. Only a three-day notice is required prior to the date of hearing in a motion for judgment on the pleadings based on the regular rules on motions (Sec. 4, Rule 15, Rules of Court).
d. A ten-day notice is required in a motion for summary judgment (Sec. 3, Rule 35, Rules of Court).
4. The Court, in Asian Development and Construction Corporation vs. Philippine Commercial and Industrial Bank reiterated the principles governing summary judgment as follows: ". . . Under the Rules, summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact. > "genuine issue" - an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to the facts, and summary judgment is called for. The party who moves for summary judgment has the burden. of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to, constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial. 5. The trial court cannot motu proprio decide that summary judgment on an action is in order. Under the applicable provisions of Rule 35, the defending party or the claimant, as the case may be, must invoke the rule on summary judgment by filing a motion. The adverse party must be notified of the motion for summary judgment and furnished with supporting affidavits, depositions or admissions before hearing is conducted. More importantly, a summary judgment is permitted only if there is no genuine issue as to any material fact and a moving party is entitled to a judgment as a matter of law (Pineda vs. Heirs of Eliseo Guevara, G.R. No. 143188, February 14, 2007). II. Distinctions between a judgment on the pleadings and a summary judgment (Bar 1989)
CHAP. 8: PRE-TRIAL AND MODES OF DISCOVERY A. PRE-TRIAL I. Nature and purpose of a pre-trial 1. > pre-trial - a procedural device held prior to the trial for the court to consider the following purposes: (a) The possibility of an amicable settlement or a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; (h) The advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18, Rules of Court). 2. The pre-trial is mandatory in civil cases (Sec. 2, Rule 18) 3. In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Courts, pre-trial is also mandatory (Sec. 1, Rule 118, Rules of Court). 4. A pre-trial conference is likewise mandatory in both civil and criminal cases under the Rules on Summary Procedure (Sec. 7, Sec. 14, 1991 Rule on Summary Procedure).
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- In an action for a sum of money, where the debt and the fact of its nonpayment is admitted and the only issue raised is the rate of interest and the damages payable, there is no genuine issue and a summary judgment maybe rendered upon proper motion.
II. How pre-trial is called (Bar 1999) 1. In a civil case, it is not the court which initiates the setting of the case for a pre-trial. It is set at the instance of the plaintiff. Under the Rules, it shall be the duty of the plaintiff, not of the defendant, to promptly file a motion to set the case for pre-trial. This motion is an ex parte motion. This means that the motion need not be the subject of a hearing (Sec. 1, Rule 18, Rules of Court). 2. The ex parte motion to set the case for pre-trial is to be made by the plaintiff after the last pleading has been served and filed (Sec. 1, Rule 18, Rules of Court). Specifically, the motion is to be filed within five (5) days after the last pleading joining the issues has been served and filed (Administrative Circular No. 399, January 15, 1999). If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial (A.M. No. 03-109-SC, July 13, 2004). III. The meaning of `last pleading' 1. The last permissible pleading that a party can file is the reply to the answer to the last pleading asserting a claim. The claim could be the original complaint, the counterclaim, the cross-claim or the third-party complaint. If an answer is filed and served in response to these claims, the pleading in response to these answers is the reply which is to be filed within ten (10) days from the service of the pleading responded to (Sec. 6, Rule 11, Rules of Court). 2. Where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial. However, the `last pleading' need not be literally construed as one having been served and filed. For purposes of the pre-trial, the expiration of the period for filing the last pleading without it having been served and filed is sufficient. IV. Notice of pre-trial (Bar 1977) 1. The notice of pre-trial shall be served on the counsel of the party if the latter is represented by counsel. Otherwise the notice shall be served on the party himself. The counsel is charged with the duty of notifying his client of the date, time and place of the pre-trial (Sec. 3, Rule 18, Rules of Court). 2. The old rule required that the notice be served not only upon the counsel but also upon the party and where no separate notice to the party is sent, it was then the rule that all the proceedings at the pre-trial and subsequent thereto are null and void. The present rule simplifies the procedure because the notice of pretrial is served on the counsel, and service is made on the party only if he has no counsel.
3. Notice is so important that it would be grave abuse of discretion for the court for example, to allow the plaintiff to present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive through his counsel a notice of pre-trial. Accordingly, there is no legal basis for a court to consider a party notified of the pre-trial and to consider that there is no longer a need to send notice of pretrial merely because it was his counsel who suggested the date of pre-trial. V. Appearance in the pre-trial (Bar 1992) - It shall be the duty of both the parties and their counsels to appear at the pre-trial (Sec. 4, Rule 18, Rules of Court). VI. Effect of failure to appear by the plaintiff (Bar 1989; 1981;1980) 1. The failure of the plaintiff to appear shall be cause for the dismissal of the action. This dismissal shall be with prejudice except when the court orders otherwise (Sec. 5, Rule 18, Rules of Court). The former rule (Sec. 2, Rule 20) provides that the plaintiff who fails to appear in the pre-trial may be 'non-suited'. 2. Since the dismissal of the action shall be with prejudice, unless otherwise provided, the same shall have the effect of an adjudication on the merits thus, final. The remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is appealable. Under the Rules, it is only when the order of dismissal is without prejudice, that appeal cannot be availed of (Sec. l[h], Rule 41, Rules of Court). Since appeal is available, certiorari is not the remedy because the application of a petition for certiorari under Sec. 65 of the Rules of Court is conditioned upon the absence of appeal or any plain, speedy and adequate remedy (Sec. 1, Rule 65, Rules of Court). VII. Effect of failure to appear by the defendant 1. The failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis of the evidence presented by the plaintiff (Sec. 5, Rule 18, Rules of Court). The former rule (Sec. 2, Rule 20) provided that the defendant who fails to appear in the pre-trial may be considered "as in default." 2. The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is therefore, merely interlocutory hence, not appealable. Under Sec. 1(c) of Rule 41, no appeal may be taken from an interlocutory order. The defendant who feels aggrieved by the order may move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari. VIII. How non-appearance is excused 1. The non-appearance of a party may be excused only if a valid cause is shown for such non-appearance or a representative shall appear in his behalf fully authorized in writing to enter into any of the following matters: (a) an amicable settlement, (b) alternative modes of dispute resolution, and (c) stipulations and admissions of facts (Sec. 4, Rule 18, Rules of Court). The phraseology of the provision suggests that it is not sufficient for the written authority to
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5. Under the former rule (Sec. 3, Rule 20), the court was authorized to render a judgment on the pleadings or a summary judgment if at the trial the court finds that facts exist to warrant the rendition of said judgments. The court under the old rule may do so on its own motion. Under the current rule (Sec. 2[d], Rule 18), the court's authority is confined to a mere determination of the propriety of rendering a judgment on the pleadings or a summary judgment. The requisite motion should be filed and heard pursuant to Rule 34 (Judgment on the Pleadings) and Rule 35 (Summary Judgments).
2. Although Sec. 4 uses the disjunctive "or," the logical meaning of the rule dictates that the written authority given to the representative be coupled with an explanation showing a valid cause for a party's non-appearance. Common reason suggests that having a written authority but without a justification for a party's absence or vice versa, would not be in accord with the spirit of the Rules. 3. The written authority must be in the form of a special power of attorney. Entering into an amicable settlement for a client who is the principal in the attorney-client relationship involves entering into a compromise. Substantive law (Art. 1878[31 of the Civil Code of the Philippines) is explicit: "Special power(s) of attorney are necessary * * *To compromise, to submit questions to arbitration * * *". Procedural rules (Sec. 23, Rule 138) likewise prohibit an attorney to compromise his client's litigation without a "special authority." IX. Filing and contents of pre-trial briefs 1. The parties shall file with the court their respective pretrial briefs which shall be received at least three (3) days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party (Sec. 6, Rule 18, Rules of Court). 2. The pre-trial brief shall contain the following matters: (a) A statement of their willingness to enter into an amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purposes thereof; (e) A manifestation of their having availed of or their intention to avail of the discovery procedures or referral to commissioners; and - The number and names of the witnesses, and the substance of their respective testimonies (Sec. 6, Rule 18, Rules of Court). X. Effect of failure to file a pre-trial brief - The failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial (Sec. 6, Rule 18, Rules of Court). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause for dismissal of the action. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex parte. Note: A pre-trial brief is not required in a criminal case. XI. Pre-trial order
1. This order of the court is issued by the court upon the termination of the pre-trial. This order recites in detail the following: (a) The matters taken up in the conference; (b) The action taken thereon; (c) The amendments allowed to the pleadings; and (d) The agreements or admissions made by the parties as to any of the matters considered (Sec. 7, Rule 18, Rules of Court). These admissions embodied in the pre-trial order are binding upon the parties and conclusive upon them. 2. Should the action proceed to trial, the pre-trial order (a) defines and limits the issues to be tried, and (b) controls the subsequent course of the action except if it is modified before trial to prevent manifest injustice (Sec. 7, Rule 18, Rules of Court). XII. Pre-trial in civil cases compared to pre-trial in criminal cases (Bar 1997) 1. The pre-trial in a civil case is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18, Rules of Court). The pre-trial in a criminal case is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense (Sec 1, Rule 118, Rules of Court). 2. The motion to set the case for pre-trial in a civil case is made after the last pleading has been served and filed (Sec. 1, Rule 18, Rules of Court). In a criminal case, the pre trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused (Sec. 1, Rule 118, Rules of Court). 3. The pre-trial in a civil case considers the possibility of an amicable settlement as an important objective (Sec. 2[a], Rule 118, Rules of Court). The pre-trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118, Rules of Court). 4. In a civil case, the agreements and admissions made in the pretrial are not required to be signed by the parties and their counsels. They are to be contained in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18, Rules of Court). In a criminal case, all agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2, Rule 118, Rules of Court). 5. The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff or the defendant in a civil case (Sec. 4, Rule 18, Rules of Court). The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 118, Rules of Court). XIII. Preliminary conference under the Revised Rules on Summary Procedure 1. Under the Revised Rules on Summary Procedure, a preliminary conference shall be held not later than thirty (30) days after the last answer is filed. Here, the rules on pre-trial in ordinary cases shall apply except when inconsistent with the rules on summary procedure (Sec. 7, 11, Rules on Summary Procedure).
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give to the representative the power to enter into one of the matters mentioned in Sec. 4 of Rule 18, as when the only authority granted is to enter into an amicable settlement. The authority must also confer upon the representative the power to enter into alternative modes of dispute resolution and stipulations and admissions of fact. An incomplete authority does not satisfy the requirements of the Rules and should be deemed the equivalent of having no authority at all.
3. Within five (5) days from the termination of the preliminary conference, the court shall issue an order stating the matters taken up in the conference (Sec. 8, 11, Rules on Summary Procedure). - Note: Please refer to Appendix 1J for the guidelines on enhanced pre-trial proceedings. B. MODES OF DISCOVERY I. Meaning of discovery - In general, > discovery -a device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for the trial. As contemplated by the Rules, the device may be used by all the parties to the case. II. Purpose of discovery - 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. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact that they intend to raise at the trial, except such as may involve privileged or impeaching matters. III. Modes of discovery under the Rules of Court (Bar 2000) - The following are the modes of discovery under the Rules of Court: (a) Depositions pending action (Rule 23); (b) Depositions before action or pending appeal (Rule 24); (c) Interrogatories to parties (Rule 25); (d) Admission by adverse party (Rule 26); (e) Production or inspection of documents and things (Rule 27); and (f) Physical and mental examination of persons (Rule 28). IV. Depositions (Rules 23-24) 1. A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. It may be either by (a) an oral examination, or by (b) a written interrogatory (Sec. 1, Rule 23, Rules of Court). 2. A deposition may be sought for use in a future action (Rule 24,) during a pending action (Rule 23) or for use in a pending appeal (Rule 24). - If the deposition is for use during a pending action, it is commonly called a deposition benne esse and is governed by
Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam. V. When leave of court is required and not required for taking a deposition pending action 1. Leave of court is not required after an answer has been served but leave of court is required before the service of an answer but after jurisdiction has been acquired over the defendant or over the property subject of the action (Sec. 1, Rule 23, Rules of Court). 2. When it is the deposition of a prisoner that is to be taken, his deposition may be taken only with leave of court and upon such terms as the court may prescribe (Sec. 1, Rule 23, Rules of Court). 3. In one case, petitioners contend they have not yet served an answer to respondents because the answers that they have filed with the trial court were made ex abudanti cautela. In other words, they do not consider the answers they filed in court and served on respondents as answers contemplated by the Rules of Court on the ground that same were filed ex abudanti cautela. They contend that since they had not yet filed an answer, any deposition must be made with leave of court. - The court in finding the contention untenable ruled: "We find petitioners' contention to be untenable. Ex abudanti cautela means "out of abundant caution" or "to be on the safe side." An answer ex abudanti cautela does not make their answer less of an answer. A cursory look at the answers filed by petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses and the failure to file one within the time allowed therefore may cause a defending party to be declared in default. Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss. "Petitioners' argument that the issues of the case have not yet been joined must necessarily fail in light of our ruling that petitioners have filed their answers although the same were made ex abudanti cautela. Issues are joined when all the parties have pleaded their respective theories and the terms of the dispute are plain before the court. In the present case, the issues have, indeed, been joined when petitioners, as well as the other defendants, filed their answers. The respective claims and defenses of the parties have been defined and the issues to be decided by the trial court have been laid down. "We cannot also sustain petitioners' contention that the lower court erred when it said that the joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules of Civil Procedure may be availed of. Under said section, a deposition pending action may be availed of (1) with leave of court when an answer has not yet been filed but after jurisdiction has been obtained over any defendant or property subject of the action, or (2) without leave of court after an answer to the complaint has been served. In the instant case, the taking of the deposition may be availed of even without leave of court because petitioners have already served their answers to the complaint.
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2. The failure of the plaintiff to appear in the preliminary conference shall be cause for dismissal of his complaint and the defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim. All crossclaims shall be dismissed (Sec. 7, 11, Rules on Summary Procedure).
VII. Before whom taken (depositions pending action) 1. Within the Philippines, a deposition need not be taken before a judge, although it may be taken before one. It may also be taken before a notary public (Sec. 10, Rule 23, Rules of Court) or before any person authorized to administer oaths if the parties so stipulate in writing (Sec. 14, Rule 23, Rules of Court). 2. Outside the Philippines, a deposition may be taken before (a) a secretary of an embassy or legation; consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) such person or officer as may be appointed by commission or letters rogatory; or (c) a person authorized to administer oaths by written stipulation of the parties (Sec. 17, Rule 23, Rules of Court). 3. No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action (Sec. 13, Rule 23, Rules of Court). VIII. Examination of the deponent 1. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined (Sec. 15, Rule 23, Rules of Court). After the notice is served, the court may make any order for the protection of the parties and the deponents (Sec. 16, Rule 23, Rules of Court). 2. The attendance of witnesses may be compelled by the use of subpoenas (Sec. 1, Rule 23, Rules of Court). 3. The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Secs. 3 to 18 of Rule 132 apply to a deponent (Sec. 3, Rule 23, Rules of Court). 4. Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts (Sec. 3, Rule 23, Rules of Court). 5. The officer before whom the deposition is taken has no authority to rule on the objections interposed during the course of the deposition although any objections shall be noted by the officer upon the deposition. Any evidence that
is objected to shall still be taken but subject to the objection (Sec. 17, Rule 23, Rules of Court). IX. Use of depositions pending action 1. Any part or all of the deposition, so far as admissible under the rules of evidence, may be used (a) against any party who was present or represented at the taking of the deposition, or (b) against one who had due notice of the deposition (Sec. 4, Rule 23, Rules of Court). 2. The deposition may be used for the following purposes: (a) For contradicting or impeaching the testimony of the deponent as a witness; (b) For any purpose by the adverse party where the deponent is a party; (c) For any purpose by any party, where the deponent is a witness if the court finds that: (i) the witness is dead, (ii) that the witness resides more than one hundred(100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or (v) when exceptional circumstances exists (Sec. 4, Rule 23, Rules of Court). X. Deposition upon written interrogatories - A deposition need not be conducted through an oral examination. It may be conducted through written interrogatories which shall be served upon every other party. The party served may also serve cross-interrogatories upon the party proposing to take the deposition within ten (10) days from service of the written interrogatories. The latter may, within five (5) days serve re-direct interrogatories and within three (3) days the other party may serve re-cross interrogatories (Sec. 25, Rule 23, Rules of Court). Copies of all these interrogatories shall be delivered to the officer before whom the deposition is taken and who shall take the responses and prepare the record (Sec. 26, Rule 23, Rules of Court). XI. Perpetuation of testimony before action or pending appeal 1. The perpetuation of a testimony, is done by filing a verified petition in the place of the residence of any expected adverse party. This petition is filed by a person who desires to perpetuate his own testimony or that of another regarding any matter that may be cognizable in any court of the Philippines (Sec. 1, Rule 24, Rules of Court). 2. Notices shall be sent in accordance with the Rules (Sec. 3, Rule 24, Rules of Court) and if the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make the appropriate order for the taking of the deposition (Sec. 4, Rule 24, Rules of Court). 3. The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. 6, Rule 24, Rules of Court).
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VI. Deposition of a prisoner - When it is the deposition of a prisoner that is to be taken, his deposition may be taken only with leave of court and upon such terms as the court may prescribe (Sec. 1, Rule 23, Rules of Court).
4. A deposition for the perpetuation of testimony in a case pending appeal may likewise be availed of under the same rules as those followed in perpetuation of testimony pending action and those prescribed for depositions pending action (Sec. 7, Rule 29, Rules of Court).
1. A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give deposition pending appeal, unless allowed by the court or to prevent a failure of justice (Sec. 6, Rule 25, Rules of Court).
Interrogatories to Parties (Rule 25)
2. This provision encourages the use of written interrogatories and although a party is not compelled to use this discovery procedure, the rule imposes sanctions for his failure to serve written interrogatories by depriving him of the privilege to call the adverse party as a witness or to give a deposition pending appeal.
XII. Purpose of interrogatories to parties - This mode of discovery which is availed of by a party to the action is for the purpose of eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25, Rules of Court).
Admission by Adverse Party (Rule 26)
XIV. Distinguished from written interrogatories in a deposition Written interrogatories Interrogatories to parties not served upon the adverse interrogatories to parties are party directly. They are served directly upon the instead delivered to the adverse party (Sec. 1, Rule officer before whom the 23, Rules of Court). deposition is to be taken (Sec. 26, Rule 23, Rules of Court). XV. Procedure 1. The mode of discovery is availed ofby filing and serving upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, the written interrogatories shall be answered by any of its officers competent to testify in its behalf (Sec. 1, Rule 25, Rules of Court). 2. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party (Sec. 4, Rule 25, Rules of Court). 3. The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof. This time may, upon motion, be extended or shortened by the court (Sec. 1, Rule 25, Rules of Court). 4. The party against whom it is directed may make objections to the interrogatories. If he does so, said objections shall be presented to the court within ten (10) days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories (Sec. 3, Rule 25, Rules of Court). XVI. Effect of failure to serve written interrogatories
XVII. Purpose of admission by adverse party - The purpose of this mode of discovery is to allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: (a) admit the genuineness of any material and relevant document described in and exhibited with the request; or (b) admit the truth of any material and relevant matter of fact set forth in the request. XVIII. Filing of written request for admission - A party, although not compelled by the Rules, is advised to file and serve a written request for admission on the adverse party of those material and relevant facts at issue which are, or ought to be, within the personal knowledge of said adverse party. The party who fails to file and serve the request shall not be permitted to present evidence on such facts (Sec. 5, Rule 26, Rules of Court). XIX. Filing and service of a sworn statement of admission or denial; effect of failure to file and serve 1. It is advisable for the party to whom the written request is directed to file and serve upon the party requesting the admission a sworn statement either (a) specifically denying the matters of which admission is requested, or (b) if he does not deny the same, to set forth in detail the reasons why he cannot truthfully admit or deny those matters. This sworn statement shall be filed and served within the period designated in the request but which shall not be less than fifteen (15) days from the service of such request, or within such further time as the court may allow (Sec. 2, Rule 26, Rules of Court). 2. If the party to whom the written request for admission does not file the required sworn statement each of the matters of which an admission is requested shall be deemed admitted (Sec. 2,, Rule 26, Rules of Court). 3. Any admission etude by a party as a consequence of the failure to comply with the request is only for the purpose of the pending action and shall not be deemed an admission for any other purpose. Likewise, the admission cannot be used against the admitting party in any other proceeding (Sec. 3, Rule 26, Rules of Court). XX. Deferment of compliance
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XIII. Distinguished from a bill of particulars Bill of particulars Interrogatories to parties designed to clarify not directed to a particular ambiguities in a pleading or pleading. Instead, they seek to state with sufficient to disclose all material and definiteness allegations in a relevant facts from a party pleading. A bill of (Sec. 1, Rule 23, Rules of particulars therefore, is Court). directed to a pleading (Sec. 1, Rule 12, Rules of Court).
XXI. Withdrawal of admission - Admissions made under this mode of discovery, whether express or implied are not final and irrevocable. 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, Rules of Court). To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission. Production or Inspection of Documents or Things (Rule 27) XXII. Purpose - The purpose of this mode of discovery is to allow a party to seek an order from the court in which the action is pending to: (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. XXIII. Filing of a motion; order of the court 1. A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same (Sec. 1, Rule 27, Rules of Court). 2. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just (Sec. 1, Rule 27, Rules of Court). XXIV. Physical and Mental Examination of Persons (Rule 28) Applicability - This mode of discovery applies to an action in which the mental or physical condition of a party is in controversy (Sec. 1, Rule 28, Rules of Court). Examples of this action would be: (a) An action for annulment of a contract where the ground relied upon is insanity or dementia; (b) A petition for guardianship of a person alleged to be insane; (c) An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff. XXV. Procedure 1. A motion must be filed showing good cause for the examination, with notice to the other parties as well aside from the party to be examined. The motion shall likewise specify the time, place, manner, conditions and scope of the
examination and by the person or persons by whom it is made (Sec. 2, Rule 28, Rules of Court). 2. The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony (Sec. 3, Rule 28, Rules of Court). XXVI. Waiver of privilege - By requesting and obtaining a report of the examination or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination (Sec. 4, Rule 28, Rules of Court). XXVII. Refusal to comply with the modes of discovery (Rule 29) - The sanctions for refusal to comply with the modes of discovery may be summarized as follows: A. Refusal to answer any question (a) The court may upon proper application, compel a deponent who refuses to answer an oral examination. The same applies to a witness who refuses to answer an interrogatory submitted (Sec. 1, Rule 29, Rules of Court). A refusal to answer after being directed by the court may be considered as a contempt of court (Sec. 2, Rule 29, Rules of Court). - The court may order the deponent, a party, or the counsel advising the refusal, or both of them, to pay the proponent the amount of reasonable expenses incurred in obtaining the order, including attorney's fees (Sec. 1, Rule 29, Rules of Court). (b) If the application for an order to compel a deponent to answer is denied because of the absence of a substantial justification, the court may require the proponent or the counsel advising the application, or both of them, to pay to the refusing party or deponent the amount of reasonable expenses incurred in opposing the application, including attorney's fees (Sec. 1, Rule 29, Rules of Court). B. Refusal to answer designated or particular questions or refusal to produce documents or things or to submit to physical or mental examination (a) The court may order that the matters regarding which the questions were asked shall be taken as established for purposes of the action in accordance with the claim of the party obtaining them (Sec. 3[a], Rule 29, Rules of Court). (b) The court may issue an order refusing to allow the disobedient party to refuse or support designated claims or defenses or prohibiting him from introducing in evidence
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- To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement deferred. This deferment may be effected by the filing with the court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court (Sec. 2, par. 2, Rule 26, Rules of Court).
designated documents or things or items of testimony, or from introducing evidence of physical or mental condition (Sec. 3[b], Rule 29, Rules of Court).
each case and to make their considered determination thereafter.
(c) The court may issue an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party (Sec. 3[c], Rule 29, Rules of Court).
CHAP. 9: TRIAL, DEMURRER TO EVIDENCE AND JUDGMENT
C. Refusal to be sworn - A refusal of a party to be sworn after being directed by the court may be considered as contempt of court (Sec. 2, Rule 29, Rules of Court). D. Refusal to admit - If a party refuses to admit the genuineness of any document or the truth of any matter of fact and serves a sworn denial thereof and if the other party later on proves the genuineness of the document or the truth of such matter of fact, the court upon proper application, may order the former to pay the reasonable expenses in making such proof, including attorney's fees (Sec. 4, Rule 29, Rules of Court). E. Failure to attend depositions or to serve answers to interrogatories 1. The court may (a) strike out all or any part of the pleading of that party, or dismiss the action or proceeding or any part thereof, or (b) enter a judgment by default against that party, and in its discretion, (c) order him to pay reasonable expenses incurred by the other, including attorney's fees (Sec. 5, Rule 29, Rules of Court). 2. The consequences under Sec. 5 of Rule 29 will apply if a party refuses to answer the whole set of written interrogatories, and not just a particular question. Where the party upon whom the written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order, Sec. 3(c) of Rule 29 will apply. - The following are the consequences provided for in Sec. 3(c) of Rule 29: (a) The court may issue an order striking out pleadings or parts thereof; (b) The court may issue an order staying further proceedings until the order is obeyed; or (c) The court may issue an order rendering a judgment by default against the disobedient party. 3. The matter of how, and when,: the above sanctions should be applied is one that' primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice. For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the circumstances of
I. Nature of `trial' > trial - the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments. II. Trial and hearing - The terms `trial' and `hearing' are sometimes interchangeably used. There is however, a marked difference between these terms. A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It includes the re-trial and the determination of granting or denying a motion. III. When trial is unnecessary (Bar 1996) - A civil case may be adjudicated upon without the need for a trial (Bar 1996) in any of the following cases: (a) Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34, Rules of Court). (b) Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35, Rules of Court). (c) 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, Rules of Court, Art. 2028, Civil Code of the Philippines). (d) Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, Rule 7, Rules of Court). (e) Where the case falls under the operation of the Rules on Summary Procedure. (f) 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, Rules of Court). IV. Notice of Trial - Upon entry of the case in the trial calendar, the clerk of court shall notify the parties of the date of trial in such manner as to ensure its receipt at least five (5) days before such date (Sec. 1, Rule 30, Rules of Court). V. Calendaring of cases - In Calendaring cases, the clerk of court shall give preference to habeas corpus cases, election cases, special civil actions and those so required by law to be preferred (Sec. 1, Rule 20, Rules of Court).
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(d) The court may direct the arrest of any party or agent of a party for disobeying any of the orders of the court, except an order to submit to a physical examination.
A. TRIAL
2. Unless the docket of the court requires otherwise, not more than four (4) cases shall be scheduled for trial daily (Administrative Circular No. 3-39, January 15, 1999). VII. Adjournments and postponements - The general rule is that a court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require (Sec. 2, Rule 30, Rules of Court). VIII. Limitation on the authority to adjourn - The court has no power to adjourn a trial for a period longer than one month from each adjournment, nor more than three (3) months in all, except when authorized in writing by the Court Administrator (Sec. 2, Rule 30, Rules of Court). A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier. IX. Postponement on the ground of illness - Trial may be postponed on the ground of illness of either party or counsel by complying with the following: (a) A motion for postponement must be filed; (b) The motion must be supported by an affidavit or sworn certification showing that (1) the presence of the party or counsel at the trial is indispensable, and (2) that the character of his illness is such as to render his nonattendance excusable (Sec. 4, Rule 30, Rules of Court). X. Postponement on the ground of absence of evidence (Bar 1975) 1. Trial may be postponed on the ground of absence o(' evidence upon compliance with the following: (a) A motion for postponement must be filed; (b) The motion must be supported by an affidavit or sworn certification showing the (1) materiality or relevancy of the evidence, and (2) that due diligence has been used to procure it (Sec. 3, Rule 30, Rules of Court). 2. If the adverse party admits the facts given in evidence, the trial shall not be postponed even if he reserves the right to object to the admissibility of the evidence (Sec. 3, Rule 30, Rules of Court). XI. Postponement is not a matter of right - A postponement is not a matter of right. It is addressed to the sound discretion of the court XII. Reception of evidence
- The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Reception of the evidence may nevertheless be delegated to the clerk of court who is a member of the bar, in any of the following cases: (a) in default hearings; (b) in ex parte hearings; or (c) in any case by written agreement of the parties (Sec. 9, Rule 30, Rules of Court). XIII. Issues in the trial - The trial shall be limited to the issues stated in the pretrial order. This is the general rule unless the court so directs for special reasons (Sec. 5, Rule 30, Rules of Court). B. DEMURRER TO EVIDENCE 1. The regular order of trial requires the plaintiff to adduce evidence in support of his complaint. During the trial the plaintiff presents all the evidences available to him - object, documentary and testimonial. 2. After the plaintiff has completed the presentation of his evidence, the defendant shall then adduce evidence in support of his defense, counterclaim or third-party complaint as the case may be. The defendant however, may sincerely feel that the plaintiff has not lived up to his burden of proving the material allegations of his claim and is therefore, not entitled to the relief sought for in his complaint. 3. Instead of presenting 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, Rules of Court). This motion for dismissal is called a demurrer to evidence. A demurrer is a specie of a motion to dismiss but is not the motion to dismiss under Rule 16. I. Effect of denial of the demurrer to evidence 1. If the demurrer is denied, the defendant shall have the right to present his evidence (Sec. 1, Rule 33, Rules of Court). This means that the denial of the demurrer to evidence does not deprive the defendant to adduce evidence in his behalf. 2. Where a court denies a demurrer to evidence, it should set the date for the reception of the defendant's evidence in chief. It should not proceed to grant the relief demanded by the plaintiff. 3. An order denying a demurrer to the evidence is interlocutory and is therefore, not appealable. It can however, be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. 4. A party who files a demurrer to evidence in an election case cannot insist on the right to present evidence. The provision of the Rules of Court; governing demurrer to evidence does not apply to an election case. II. Effect of granting of the demurrer to evidence 1. If the demurrer is granted, the case shall be dismissed. However, if on appeal the order granting the motion is reversed, the defendant loses his right to present evidence. 2. It is not correct for the appellate court reversing the order granting the demurrer to remand the case to the trial court
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VI. Session hours 1. The session hours of trial courts shall be from 8:30 A.M. to noon and from 2:00 I? M. to 4:30 P .M. from Monday to Friday. The hours in the morning shall be devoted to the conduct of the trial, while the hours in the afternoon shall be utilized for the conduct of (1) pre-trial conferences; (2) writing of decisions, resolutions, or orders; or (3) the continuation of the trial on the merits, whenever rendered necessary as may be required by the Rules of Court, statute, or circulars in specified cases. This schedule may be modified upon request of the Integrated Bar of the Philippines in multi-sala courts in places where there are few practicing lawyers.
III. Demurrer as distinguished from a motion to dismiss under Rule 16 Motion to dismiss Demurrer a. usually filed before the a. made after the plaintiff service and filing of the rests his case. answer; b. anchored on many grounds b. anchored on one ground plaintiff' has no right to relief. c. If a motion to dismiss is c. the defendant may denied, the defendant may present his evidence. file his responsive pleading IV. Demurrer in a civil case as in a criminal case Demurrer in a civil case a. leave of court is not required before filing a demurrer. b. if the demurrer is granted, the order of dismissal is appealable (Sec. 1, Rule 33, Rules of Court). c. if the demurrer is denied, the defendant may proceed to present his evidence.
distinguished from a demurrer Demurrer in a criminal case a. leave of court is filed with or without leave of court (Sec. 23, Rule 119, Rules of Criminal Procedure). b. the order of dismissal is not appealable because of the constitutional policy against double jeopardy. c. the accused may adduce his evidence only if the demurrer is filed with leave of court. He cannot present his evidence if he filed the demurrer without leave of court (Sec. 23, Rule 119, Rules of Court).
C. JUDGMENT I. Meaning of a judgment > judgment - the final ruling by a court of competent jurisdiction regarding the rights or other matters submitted to it in an action or proceeding. A judgment is the court's official and final consideration and determination of the respective rights and obligations of the parties. II. Judgment and decision "Judgment" is normally synonymous with "decision." III. Requisites of a valid judgment 1. For a judgment to be valid, the following requisites must exist: (a) The court or tribunal must be clothed with authority to hear and determine the matter before it; (b) The court must have jurisdiction over the parties and the subject matter; (c) The parties must have been given an opportunity to adduce evidence in their behalf; (d) The evidence must have been considered by the tribunal in deciding the case
(e) The judgment must be in writing, personally and directly prepared by the judge; A verbal judgment is, in contemplation of law, not in esse, therefore, ineffective (f) The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court (Sec. 1, Rule 36, Rules of Court; Sec. 14, Art. VIII, Constitution of the Philippines). This requirement refers to decisions and final orders on the merits, not to those resolving incidental matters. 2. Decisions, no matter how concisely written, must distinctly and clearly set forth the facts and the law upon which they are based. This rule however, does not require that the court shall state in its decision all the facts found in the records. 3. A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis is distinctly and clearly set forth, the judgment is valid. 4. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is specially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. A decision with nothing to support it is a patent nullity. A void judgment has no legal and binding effect, force or efficacy for any purpose. IV. Orders granting or denying a motion to dismiss 1. It is not only judgments which must distinctly and clearly state the facts and the law upon which they are based. Under Sec. 3, Rule 16 of the Rules of Court, as amended, it is required that resolutions disposing of a motion to dismiss shall state clearly and distinctly the reasons therefore. This requirement proscribes the common practice of perfunctorily dismissing a motion to dismiss for lack of merit. Such cavalier dispositions can often pose difficulty and misunderstanding on the part of the aggrieved party in taking recourse therefrom and likewise on the higher court called upon to resolve the same, usually on certiorari. 2. An example of an order violative of the Rules of Court is one which reads: "This Court finds that the grounds stated in the Motion to Dismiss are without merit, hence, denied". V. Denials of a petition for review or of a motion for reconsideration - The Constitution of the Philippines also requires that the refusal to give due course to or the denial of a petition for review or of a motion for reconsideration must state the legal basis therefor (Sec. 14, Art. VIII). VI. Conflict between the dispositive portion and body of the decision 1. A judgment has two parts, namely, (a) the body of the judgment or the ratio decidendi, and (b) the dispositive portion of the judgment or the fallo. - The body of the decision called the ratio decidendi is not the part of the judgment that is subject to execution but the fallo because it is the latter which is the judgment of the court.
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for further proceedings. The appellate court should, instead of remanding the case, render judgment on the basis of the evidence submitted by the plaintiff.
3. The general rule is that where there is a conflict between the dispositive portion or fallo of the decision and the body of the decision, the fallo controls. This rule rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing. Where the inevitable conclusion from the body of the decision is so clear that there was a mere mistake in the dispositive portion, the body of the decision will prevail. VII. Ambiguity in the judgment; clarificatory judgment. - Where the judgment is difficult to execute because of ambiguity in its terms, the remedy of a party is to have the court remove the ambiguity by the filing of a motion for a clarificatory judgment and not to assail the judgment as void. VIII. Resolutions of the Supreme Court l. Resolutions of the Supreme Court denying petitions to review decisions of the Court of Appeals, are not "decisions" within the purview of the Constitution. 2. Minute resolutions are likewise not decisions falling within the constitutional requirement. 3. When a minute resolution is issued by the Supreme Court denying or dismissing a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order, together with all its findings of fact and legal conclusions are deemed sustained. IX. Interlocutory orders - Interlocutory orders are not decisions within the constitutional definition (Amargo vs. Court ofAppeals, 53 SCRA 64). Interlocutory orders are those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. Examples: An order denying a motion to dismiss, an order granting an extension of time to file a pleading, or one authorizing an amendment thereof, or granting or denying applications for postponement or inspection of documents, are interlocutory orders. - The word interlocutory refers to something intervening between the commencement and the end of the suit which decides some point or matter but is not a final decision of the whole controversy. - The proper remedy to question an improvident interlocutory order is a petition for certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of redress to question only final judgments. One cannot appeal from an interlocutory order. Permitting appeals on such an order may result in multiplicity of appeals in a single action thus, prolonging the action.
X. Memorandum decisions 1. A memorandum decision is one rendered by an appellate court and incorporates by reference the findings of fact and conclusions of law contained in the decision or order under review. The reason for allowing the findings of facts and conclusions of law to be incorporated by reference is to avoid the cumbersome reproduction and repetition of the decision of the lower court in the decision of the higher court. To be valid however, such decision must not simply incorporate the findings of facts and the conclusions of law of the lower court by reference. It must also provide direct access to the facts and the law being adopted, which must be contained in a statement attached to Ow decision and made an indispensable part of the decision. 2. Memorandum decisions are authorized by BP 129 and Rule 51 of the Rules of Court. Both provide: "Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of facts and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from (Sec. 40, BP 129; Sec. 5, Rule 51, Rules of Court). 3. Although a memorandum decision is permitted, it cannot merely refer to the conclusions of law of the lower court. The appellate court must make full findings of fact and conclusions of law of its own for the decision not to be a nullity (Ong Chia Kwan vs. Court ofAppeals, 345 SCRA 586). As long as a memorandum decision states the nature of the case, summarizes the facts with references to the record and contains a statement of the applicable laws and jurisprudence and the tribunal's assessment and conclusions on the case, the constitutional requirement of a valid judgment will not be transgressed. XI. Meaning of rendition of judgment 1. > Rendition of a judgment - the filing of the same with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. It is not the writing of the judgment or its signing which constitutes rendition of the judgment. 2. 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 and before its filing does not yet constitute the real judgment of the court. XII. Period within which to render a decision 1. All cases filed must be decided or resolved by the Supreme Court within twenty-four (24) months from the date of their submission for decision, and unless reduced by the Supreme Court, within twelve (12) months for all lower collegiate courts and three (3) months for all other lower courts (Art. VIII, Sec. 15, Constitution of the Philippines). 2. A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court (Art. VIII, Sec. 15, Constitution of the Philippines).
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2. The importance of the fallo or dispositive portion of a decision cannot be gainsaid - the disposition should state whether the complaint or petition is granted or denied, the specific roliel' Araritod, and the costs. It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively
XIII. Extension of the period to render a decision - An extension of the period may be set by the Supreme Court within which to decide a case upon request by the judge concerned on account of heavy caseload or by other reasonable excuse. Without an extension granted by the court, a delay in the disposition of cases is tantamount to gross inefficiency on the part of the judge. XIV. Judgment penned by a judge who did not hear the evidence 1. It is not necessary that the judge who heard the evidence be the same judge who shall pen the decision. The judge trying the case may die, resign, be disabled or transferred to another court. In such an eventuality, another judge has to continue and finish the trial. The succeeding judge can examine and evaluate the evidence already presented by the simple expedient of going over the transcripts of the testimony of the witnesses in the same manner as appellate courts review the evidences on record. 2. The fact alone that the judge who penned the decision was not the same judge who heard the case and received the evidence therein would not render the findings in the said decision erroneous and unreliable. While the conduct and demeanor of witnesses may sway a trial court judge in deciding a case, it is not, and should not be, his only consideration. Even more vital for the trial court judge's decision are the contents and substance of the witnesses' testimonies, as borne out by the transcript of stenographic notes, as well as the object and documentary evidence submitted and made part of the records of the case. XV. Judgment penned by a judge who had ceased to be a judge 1. A decision penned by a judge after his retirement cannot be validly promulgated and cannot acquire a binding effect. In like manner, a decision penned by a judge during his incumbency cannot be validly promulgated after his retirement. When a judge retires, all his authority to decide any case, i.e., to write, to sign and promulgate the decision has also "retired" with him. 2. What deserves stressing is that, in this jurisdiction, there exists a disputable presumption that the RTC decision was rendered by the judge in the regular performance of his official duties. While the said presumption is only disputable, it is satisfactory unless contradicted or overcame by other evidence. Encompassed in this presumption of regularity is the presumption that the RTC judge, in resolving the case and drafting his decision, reviewed, evaluated, and weighed all the evidence on record. That the said RTC judge is not the same judge who heard the case and received the evidence is of little consequence when the records and transcripts of
stenographic notes are complete consideration by the former.
and
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for
3. It is well-settled that, to be binding, a judgment must be duly signed and promulgated during the incumbency of the judge whose signature appears thereon (People vs. So, 101 Phil. 1257) A decision is void if promulgated after the judge who rendered it had ceased to be a judge of the court. XVI. Judgment penned by a judge who was transferred - A judge who was permanently transferred to another court of equal jurisdiction before the case heard by him was decided may validly prepare and sign his decision on the said case and send the same to the court where he was originally assigned (Valentin vs. Sta. Maria, 55 SCRA 40). The judge who pens the decision of a case heard by him before he was assigned or transferred to another district or branch of the court of equal jurisdiction is considered an incumbent Judge, albeit assigned to a different branch at the time the decision was promulgated. XVII. Judgments of the Supreme Court 1. The decisions of the Supreme Court form part of the legal system. Hence, every court must take cognizance of the decisions of the Supreme Court. Said decisions are proper subjects of mandatory judicial notice. Members of the bench have a responsibility to know and to apply the latest holdings of the Supreme Court. 2. It is the duty of lower courts to obey the decisions of the Supreme Court and render obeisance to its status as the apex of hierarchy of courts. XVIII. Rule of stare decisis 1. Common usage of the concept of stare decisis tells us that the rule holds that when the Supreme Court has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. In other words, the principle enjoins adherence to judicial precedents and requires courts to follow the rule established in a decision of the Supreme Court. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. 2. In the words of the Court: "The doctrine of stare decisis embodies the legal maxim that a principle or rule of law which has been established by the decision of a court of controlling jurisdiction will be followed in other cases involving a similar situation. It is founded on the necessity for securing certainty and stability in the law and does not require identity of or privity of parties. This is unmistakable from the wordings of Article 8 of the Civil Code. It is even said that such decisions "assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to decide thereby but also of those in duty bound to enforce obedience thereto." Abandonment thereof must be based only on strong and compelling reasons, otherwise, the becoming virtue of predictability which is
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3. The ninety (90) day period for deciding the case commences from the submission of the case for decision without memoranda. In case the court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the last memorandum, or the expiration of the period to do so, whichever is earlier. In cases where the court allows the filing of memoranda, no further orders announcing the submission of the case for decision is necessary before they are deemed submitted for decision.
2. ". . . It is a remark made, or opinion expressed by a judge in his decision upon a cause... that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such is not binding as a precedent." XX. When a judgment becomes final 1. The term "final" when used to describe a judgment may be used in two senses. In the first, it refers to a 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. - Since the finality of a judgment has the effect of ending the litigation, an aggrieved party may then appeal from the judgment. Under Rule 41 (Sec. 1) of the Rules of Court, an appeal may be taken from a judgment or final order that completely disposes of the case. Under the same rule, an appeal cannot be taken from an interlocutory order (Sec. I[c], Rule 41, Rules of Court). 2. In another sense, the word "final" may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been an appeal, it has already been resolved by a highest possible tribunal. In this sense, the judgment is commonly referred to as one that is "final and executory." XXI. Conclusiveness of judgments (immutability of judgments) 1. Under the doctrine of conclusiveness or immutability of judgments, a judgment that has attained finality can no longer be disturbed. The doctrine which is sometimes referred to as "preclusion of issues" or "collateral estoppel," holds that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties. 2. Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case.
- Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final, the issue or cause involved therein should be laid to rest. The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice that at the risk of occasional error, the judgment of courts and the award of quasi judicial agencies must become final at some definite date fixed by law. 3. Once a judgment has become final and executory, it can no longer be disturbed, altered or modified (Industrial Timber Corporation vs. Ababon, GR. No. 164518, January 25, 2006) except for clerical errors or mistakes, all the issues between the parties being deemed resolved and laid to rest (Ram's Studio and Photographic Equipment, Inc. vs. Court of Appeals, 346 SCRA 691). The court loses jurisdiction over the judgment to amend (except for clerical errors) or alter the same but it retains jurisdiction to execute it during its lifetime. 4. Public policy and sound practice demand that at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. This is better observed if the court executing the judgment would refrain from creating further controversy by effectively modifying and altering the dispositive portion of the decision, thus further delaying the satisfaction of the judgment. No matter how just the intention of the trial court, it cannot legally reverse what has already been settled. 5. Once a case is decided with finality, the controversy is settled and the matter is laid to rest. The prevailing party is entitled to enjoy the fruits of his victory while the other party is obliged to respect the court's verdict and to comply with it. XXII. Res judicata effect of a final judgment or final order 1. The judgment or final order has the effect of res judicata between the parties. Res judicata has two aspects, namely: (a) bar by a prior judgment -the judgment or final order is a bar to the prosecution of a subsequent action based on the same claim or cause of action; and (b) conclusiveness of judgment - the judgment or final order precludes the relitigation of particular issues or facts on a different demand or cause of action 2. By force of res judicata, a final judgment is conclusive not only on the matters or issues directly or actually determined by the decision but also on all issues that could have been raised in relation thereto. 3. A significant effect of a final judgment or order is its being appealable (Sec. 1, Rule 41, Rules of Court). > final judgment or order - one that which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined. 4. In case of a judgment or final order against a specific thing, the judgment or final order is conclusive upon the title to the thing; in respect to the probate of a will or the administration of the estate of the deceased person, it is conclusive upon the will or administration but shall be prima
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expected from this Court would be immeasurably affected and the public's confidence in the stability of the solemn pronouncements diminished. XIX. Obiter dictum 1.> obiter dictum - an opinion expressed by a court, which is not necessary to the decision of the case before it. It is neither enforceable as a relief nor a source of a judicially actionable claim.
XXIII. Exceptions to the rule of immutability of judgments - The exceptions to the general rule are: (a) the correction of clerical errors; (b) the so-called nunc pro tunc entries which cause no prejudice to any party and void judgments (c) whenever circumstances transpire after the finality of the decision rendering its execution unjust and equitable. (d) in cases of special and exceptional nature as when facts and circumstances transpire which render the judgment's execution impossible or unjust, when necessary in the interest of justice to direct its modification to harmonize the disposition with prevailing circumstances. XXIV. Judgment on the merits 1. A judgment is "on the merits" when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts. "Merits" has been as a matter of substance in law, as distinguished from a matter of form refers to the real or substantial grounds of action or defense, as contrasted with some technical or collateral matter raised in the course of the suit. There could be a judgment on the merits even if there is no trial. A ruling based on a motion to dismiss, without any trial or formal presentation of evidence, can still be a judgment on the merits. A judgment ruling that the defense was substantial enough to overcome the relief sought is a judgment on the merits. - Dismissal on the ground of failure to state a cause of action is still a judgment on the merits and operates as res judicata on a subsequent case involving the same parties, subject matter and cause of action as long as the dismissal ruled on the issues raised. What appears to be essential to a judgment on the merits is that it be a reasoned decision, which clearly states the facts and the law on which it is based. Thus, where the court for example, ruled on the right of the petitioner to foreclose the property, that the debtor was in default and that the foreclosure was valid by looking into the law and the facts and pleadings and applied the law accordingly, the judgment settled the controversy between the parties. 2. Jurisprudence does not require that a judgment on the merits be one rendered after a full blown trial. In Perez vs. Court ofAppeals, an order of the trial court that the complaint does not state a cause of action is a determination of the case on the merits. In Luzon Development Bank vs. Conquilla, the Court similarly ruled that a dismissal for failure to state a cause of action is still a judgment on the merits. - It has been held however, that a judgment dismissing an action for want of jurisdiction cannot operate as res judicata on the merits. Also, where the dismissal was on the ground of the failure of the petitioner to furnish a copy of her formal offer of evidence, the decision does not constitute an adjudication on the merits, but only a resolution of an interlocutory matter.
XXV. Several judgment 1. > several judgment - one rendered by a court against one or more defendants, but not against all, leaving the action to proceed against the others (Sec. 4, Rule 36, Rules of Court). 2. A several judgment is proper when the liability of each party is clearly separable and distinct from that of his coparties. Debtors under a joint obligation have distinct and separable interests. In a joint obligation, the credit or debt is divided into as many equal shares as there are creditors and debtors, the credits or debts being distinct from one another (Art. 1208, Civil Code of the Philippines). XXVI. Separate judgment > separate judgment presupposes that there are several claims for relief presented in a single action. Aside from the original complaint for instance, the defendant may have interposed a counterclaim or a cross-claim or a third-party complaint. The court may, after determining the issues relative to a claim and considering other circumstances, may render separate judgment let us say, on the cross-claim or the counterclaim. The judgment will terminate the action with respect to that claim and the action shall proceed as to the remaining claims. Despite the rendition of a separate judgment, the court may, stay the execution of the separate judgment until the rendition of a judgment on all the other claims (Sec. 5, Rule 36, Rules of Court). XXVII. Conditional judgment > conditional judgment - one the effectivity of which depends upon the occurrence or the non-occurrence of an event. - Such a judgment is generally void because of the absence of a disposition. XXVIII. Judgment sin perjuicio 1. A judgment sin perjuicio is traditionally understood to be a brief judgment containing only the dispositive portion, without prejudice to the making of a more extensive discussion of the findings of fact and law to support it. This is not actually a final decision, should be avoided and should not be looked with favor. 2. Its current use may also refer to a dismissal of an action without prejudice to its being refiled on a later date as in a dismissal in Sec. 1 of Rule 17 and Sec. 5 of Rule 7. XXIX. Judgment nunc pro tunc (literally, "now for then") 1. judgment nunc pro tunc - a judgment intended to enter into the record acts which had already been done, but which do not yet appear in the record. It is a judgment which orders the entry of something which was actually previously done. Its purpose is not to supply an omitted action by the court but to enter into the record an action previously done but which was not reflected in the record by reason of inadvertence or mistake. 2. The function of a judgment nunc pro tunc is not to render a new judgment or to correct a judicial error but to make the records show what the judicial action really was but was omitted from the records. A motion for clarificatory judgment that seeks the inclusion of matters that were not
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facie evidence only of the death of the testator or intestate. With respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the condition, status or relationship of the person (Sec. 47[a], Rule 39, Rules of Court).
XXX. Judgment upon a compromise (Bar 1996) 1. > judgment upon a compromise - a judgment rendered by the court on the basis of a compromise agreement entered into between the parties to the action. 2. A compromise has upon the parties the effect of'res judicata, and under the principle of'res judicata, an issue which had already been laid to rest by the parties themselves can no longer be relitigated. 3. Substantive law does not require a court approval for the res judicata effect of a compromise agreement to attach. However, there shall be no execution of the compromise agreement except in compliance with a judicial compromise (Art. 2037, Civil Code of the Philippines). A compromise is perfected by mere consent, manifested by the meeting of the offer and the acceptance upon the thing and the cause which constitutes the contract. It is perfected upon the meeting of the minds and does not need a judicial approval for its perfection. 4. > compromise - a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced (Art. 2028, Civil Code of the Philippines) but once approved by the court, a judicial compromise is not appealable and it thereby becomes immediately executory. This rule must be understood to refer and apply only to those who are bound by the compromise and, on the assumption that they are the only parties to the case, the litigation comes to an end except only as regards to its compliance and the fulfillment by the parties of their respective obligations thereunder. The reason for the rule, said the Court in Domingo vs. Court ofAppeals, is that when both parties so enter into the agreement to put a close to a pending litigation between them and ask that a decision be rendered in conformity therewith, it would only be "natural to presume that such action constitutes an implicit waiver of the right to appeal" against that decision. The order approving the compromise agreement thus becomes a final act, and it forms part and parcel of the judgment that can be enforced by a writ of execution unless otherwise enjoined by a restraining order. 5. In any event, the compromise agreement cannot bind a party who did not voluntarily take part in the settlement itself and give specific individual consent. It must be remembered that a compromise agreement is also a contract; it requires the consent ol the parties, and it is only then that the agreement may be considered as voluntarily entered into. 6. If one of the parties refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand (Art. 2041, Civil Code of the Philippines). 7. To assail a judgment by compromise, there must be a proper motion to set aside the compromise on the ground that the compromise agreement was obtained either by fraud, violence, intimidation, falsity of documents or some other vices of consent.
8. There is jurisprudence holding that if such motion is denied, appeal may be taken from the order of denial of the motion to set aside the compromise agreement. This ruling must be deemed superseded or modified by Sec. 1(e) of Rule 41 which declares as non-appealable an order denying a motion to set aside a judgment by. . . compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent. 9. A motion to set aside the compromise on a ground vitiating consent applies only to a judgment upon a compromise. When the compromise is not judicial and is a result ofthe contract between the parties, the proper remedy is an action to annul the compromise. A compromise agreement obtained by mistake, fraud, violence, intimidation, undue influence, or falsity of documents is subject to the provisions of Art. 1330 of the Civil Code. This provision declares the contract as voidable. A voidable contract under Art. 1390 of the Civil Code is subject to annulment. XXXI. Judgment upon a confession (cognovit actionem) > judgment upon a confession (cognovit actionem) – a judgment rendered by the court when a party expressly agrees to the other party's claim or acknowledges the validity of the claim against him. XXXII. Doctrine of law of the case - According to this principle, whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. This principle generally finds application in cases where an appellate court passes on a question and remands the case to the lower court for further proceedings. The question there settled becomes the law of the case upon subsequent appeal. Consequently, the court reviewing the succeeding appeal will not re-litigate the case but instead apply the ruling in the previous appeal. This enables the appellate court to perform its duties satisfactorily and efficiently which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case and upon any and subsequent appeal. XXXIII. Entry of judgment; date thereof 1. The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executory (Sec. 2, Rule 36, Rules of Court). 2. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule 36) the date of the entry of judgment is the date when the judgment becomes final and executory regardless of the date when the physical act of entry was done. Thus, if the judgment becomes final and executory on March 15, because no appeal, motion for new trial or motion for reconsideration has been filed, the judgment is deemed entered simultaneously on March 15 by operation of the rule even if
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parts of the judicial action is beyond the scope of a nunc pro tunc judgment.
the actual physical act of entry of the judgment was done on another date like March 30. This new rule eliminates confusion in determining the date of entry of a judgment. Prior to this rule, the date when a judgment becomes final and executory was not necessarily the date of its entry. XXXIV. Relevance of knowing the date of the entry of a judgment - There are some proceedings the filing of which is reckoned from the date of the entry of judgment. Examples: (a) The execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. 6, Rule 39, Rules of Court); (b) The filing of a petition for relief has, as one of its periods, not more than six (6) months from the entry of the judgment or final order (Sec. 3, Rule 38, Rules of Court). CHAP. 10: POST JUDGMENT REMEDIES I . REMEDIES BEFORE A JUDGMENT BECOMES FINAL AND EXECUTORY I. Available remedies to the aggrieved party - The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory. 1. Before a judgment becomes final and executory, the aggrieved or losing party may avail of the following remedies: (a) Motion for reconsideration; (b) Motion for new trial; and (c) Appeal. - A judgment becomes final and executory upon the expiration of the period to appeal therefrom and no appeal has been perfected (Sec. 1, Rule 39, Rules of Court). 2. After the judgment becomes executory, the losing party may avail of the following: (a) Petition for relief from judgment; (b) Action to annul a judgment; (c) Certiorari; and (d) Collateral attack of a judgment.
2. The period for appeal is within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec. 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule 45, Rules of Court). Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40, Rules of Court). 3. The abovementioned fifteen (15)-day period begins to run upon receipt of notice of the decision or final order appealed from. Such period has been considered to begin upon receipt of notice by the counsel of record, which is considered notice to the parties. Service of judgment on the party is prohibited and is not considered the official receipt of the judgment. - To reiterate, service upon the parties' counsels of record is tantamount to service upon the parties themselves, but service upon the parties themselves is not considered service upon their lawyers. The reason is simple - the parties, generally, have n() formal education or knowledge of the rules of procedure, specifically, the mechanics of an appeal or availment of legal remedies; thus, they may also be unaware of the rights and duties of a litigant relative to the receipt of a decision. More importantly, it is best for the courts to deal only with one person in the interest of orderly procedure - either the lawyer retained by the party or the party himself if he does not intend to hire a lawyer. III. Effect of the filing of the motion on the period to appeal - The filing of a timely motion for reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court). IV. Grounds for a motion for reconsideration 1. The motion for reconsideration must be in writing, a written notice of which must be served on the adverse party, and may be anchored on any of the following grounds: (a) that the damages awarded are excessive; (b) that the evidence is insufficient to justify the decision or final order; or (c) that the decision or final order is contrary to law (Sec. 1, Rule 37, Rules of Court).
A. Motion for Reconsideration (Rule 37)
2. Be it noted that a motion for reconsideration of a judgment is a prohibited motion in a case that falls under summary procedure (Sec. 19[c], IV, Rules on Summary Procedure; Bar 1989, 1990). II. When to file l. A motion for reconsideration of a judgment or a final order is filed within the period for appeal (Sec. 1, Rule 37, Rules of Court). No motion for extension of time to file a motion for reconsideration shall be allowed (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court).
2. It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions (Sec. 2, Rule 39, Rules of Court). Non-compliance with this requirement would reduce the motion to a mere pro forma motion. Under the explicit provisions of the rule (Sec. 2, Rule 37), a pro forma motion for reconsideration shall not toll the reglementary period of appeal. V. Pro forma motion 1. > pro forma motion - one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings.
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I. Object of the motion 1. The motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order. It is not the motion for reconsideration of an interlocutory order which for instance, precedes a petition for certiorari.
3. In the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration, or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence, or (3) it failed to substantiate the alleged errors, or (4) it merely alleged that the decision in question was contrary to law, or (5) the adverse party was not given notice thereof. - Where the circumstances of a case do not show an intent on the part of the pleader to merely delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. The doctrine relating to pro forma motions has a direct bearing upon the movant's valuable right to appeal. It would be in the interest of justice to accord the appellate court the opportunity to review the decision of the trial court on the merits than to abort the appeal by declaring the motion pro forma, such that the period to appeal was not interrupted and had consequently lapsed. VI. Resolution of the motion - The motion shall be resolved within thirty (30) days from the time it is submitted for resolution (Sec. 4, Rule 37, Rules of Court). VII. Denial of the motion; the "fresh period" rule 1. If the motion is denied, the movant has a "fresh period" of fifteen (15) days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. This new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. This "fresh period" rule applies not only to Rule 41 governing appeals from the Regional Trial Courts but also to Rule 40 governing appeals from the Municipal Trial Court to the Regional Trial Court; Rule 42 on petitions for review from the Regional Trial Courts to the Court ofAppeals; Rule 43 on appeals from quasi judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules and to afford fair opportunity to appeal their cases and to give the trial court another opportunity to review the case and, in the process, minimize any error of judgment. 2. Prior to Neypes, if a party filed a motion for new trial or a motion for reconsideration, he only had the remaining time of the 15-day appeal period to file the notice of appeal. This rule has been consistently applied in numerous cases and this interpretation was premised on the long-settled doctrine that the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but
also jurisdictional. The rule is also founded on deep-seated considerations of public policy and sound practice that, at risk of occasional error, the judgments and awards of courts must become final at some definite time fixed by law. 3. The Court in Neypes explains: "The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43, and 45, the Court allows extensions of time, based on justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more. - "To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. - "Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. - "* * * This pronouncement is not inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The use of the disjunctive word "or" signifies disassociation and independence of one thing from another. It should, as a rule, be construed in the sense in which it ordinarily implies. Hence, the use of "or" in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the "final order," * * * denying the motion for a new trial or reconsideration. - "Neither does this new rule run counter to the spirit of Section 39 of BP 129 which shortened the appeal period from 30 days to 15 days to hasten the disposition of cases. The original period of appeal * * * remains and the requirement for strict compliance still applies. The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration. In this manner, the trial court which rendered the assailed decision is given another opportunity to review the case and, in the process, minimize and/or rectify any error of judgment. While we aim to resolve cases with dispatch and to have judgments of courts become final at some definite time, we likewise aspire to deliver justice fairly. - In this case, the new period of 15 days eradicates the confusion as to when the 15-day appeal period should be counted - from receipt of notice of judgment ... or from receipt of notice of "final order" appealed from...
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2. A motion for reconsideration is deemed pro forma if the same does not specify the findings or conclusions in the judgment which are not supported by the evidence or contrary to law, making express reference to the pertinent evidence or legal provisions. It is settled that although a motion for reconsideration may merely reiterate issues already passed upon by the court that by itself does not make it pro forma and is immaterial because what is essential is compliance with the requisites of the Rules.
- "To recapitulate, a party litigant may either file his notice of appeal within 15 days from receipt of the Regional Trial Court's decision or file it within 15 days from receipt of the order (the "final order") denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3.
2. If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37, Rules of Court).
4. The Neypes ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the 15-day period for appeal shall run from notice of the judgment.
XI. The "single motion" rule - A party shall not be allowed to file a second motion for reconsideration of a judgment or a final order (Sec. 5, Rule 37, Rules of Court). Be reminded that the prohibition on a second motion does not apply to a motion for reconsideration of an interlocutory order.
VIII. Order of denial, not appealable - The "fresh period" rule does not refer to the period within which to appeal from the order denying the motion for reconsideration but to the period within which to appeal the judgment itself. An order denying a motion for reconsideration is not appealable under Sec. 9 of Rule 37. The non-appealability of the order of denial is also confirmed by Sec. 1(a) of Rule 41: which provides that no appeal may be taken from an order denying a motion for new trial or a motion for reconsideration. IX. Remedy when motion is denied 1. The remedy from an order denying a motion for reconsideration is not to appeal from the order of denial. Again, the order is not appealable. The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration (Sec. 9, Rule 37, Rules of Court). 2. May the order denying the motion for reconsideration be assailed? It can be assailed but not through an appeal from the order. Sec. 1 of Rule 41 clearly provides for the proper remedy against the order: "In all instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." Note that the application of Rule 65 particularly certiorari, requires a showing that the court acted "without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction."
B. Motion For New Trial (Rule 37) I. When to file 1. A motion for new trial is filed within the period for appeal (Sec. 1, Rule 37, Rules of Court). No motion for extension of time to file a motion for new trial shall be allowed (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court; Bar 1975). 2. The period for appeal is within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec. 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule 45, Rules of Court). Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only (a) in special proceedings, and (b) other cases of multiple or separate appeals (Sec. 3, Rule 40, Rules of Court). II. Effect of the filing of the motion on the period to appeal - The filing of a timely motion for new trial interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court). III. Form of a motion for new trial - Like a motion for reconsideration, the motion for new trial shall be made in writing, stating the ground or grounds therefore, 4 written notice of which shall be served by the movant on the adverse party (Sec. 2, Rule 37, Rules of Court).
X. Effect of granting a motion for reconsideration 1. If the court grants the motion, i.e., it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly (Sec. 3, Rule 37, Rules of Court).
IV. Grounds for a motion for new trial l. The aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result (Sec. 1, Rule 37, Rules of Court; Bar 1988).
- The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it.
V. Gross negligence of counsel not a ground for new trial 1. Petitioner's argument that his counsel's negligence was so gross that he was deprived of due process fails to impress. Gross negligence is not one of the grounds for a motion for a
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5. In affirming the Neypes rule, a subsequent case held: "In Neypes, et al. vs. Court of Appeals, we standardized the appeal period provided in the Rules of Court. In Neypes, we granted a "fresh period" of 15 days within which to file the notice of appeal, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration or any final order or resolution."
new trial. We cannot declare his counsel's negligence as gross as to liberate him from the effects of his failure to present countervailing evidence. The Court does not consider as gross negligence the counsel's resort to dilatory schemes, such as (1) the filing of at least three motions to extend the filing of petitioner's Answer; (2) his nonappearance during the scheduled pretrials; and (3) the failure to file petitioner's pretrial brief, even after the filing of several motions to extend the date for filing.
appeal may be taken from an order denying a motion for new trial or a motion for reconsideration.
2. A motion for the cause mentioned in paragraph "a" shall be supported by affidavits of merit. A motion based on the ground in letter "b" shal I be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence (Sec. 2, Rule 37, Rules of Court). Noncompliance with this requirement would reduce the motion to a mere pro forma motion. Under the explicit provisions of the rule (Sec. 2, Rule 37, Rules of Court), a pro forma motion for reconsideration shall not toll the reglementary period of appeal.
- May the order denying the motion for new trial be assailed? Like a denial of a motion for reconsideration it can be assailed but not through an appeal from the order. Sec. 1 of Rule 41 clearly provides for the proper remedy against the order: "In all instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Note that the application of Rule 65 particularly certiorari, requires a showing that the court acted "without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction."
VI. Affidavit of merit 1. The affidavits of merits, must be one showing the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted, because a new trial would serve no purpose and would just waste the time of the court as well as the parties if the complaint is after all groundless or the defense is nil or ineffective.
XI. Effect of granting the motion for new trial 1. If the court grants the motion, the original judgment or final order shall be vacated, and the action shall stand for trial de novo. Tho recorded evidence taken upon the former trial shall be used at the new trial without retaking the same if the evidence is material and competent (Sec. 6, Rule 37, Rules of Court).
VII. Resolution of the motion - The motion shall be resolved within thirty (30) days from the time it is submitted for resolution (Sec. 4, Rule 37, Rules of Court). VIII. Denial of the motion; the "fresh period" rule - If the motion is denied, the movant has a "fresh period" of fifteen (15) days from receipt or notice of the order denying or dismissing the motion for new trial within which to file a notice of appeal for the same reasons and grounds as the "fresh period" rule governing a denial of a motion for reconsideration. IX. Order of denial, not appealable - The "fresh period" rule does not refer to the period within which to appeal from the order denying the motion for new trial because the order is not appealable under Sec. 9 of Rule 37. The non-appealability of the order of denial is also confirmed by Sec. 1(a) of Rule 41: which provides that no
2. If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, court may grant a new trial as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37, Rules of Court). The effect of this order is a partial new trial. 3. When there is an order for a partial new trial, i.e., less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial (Sec. 8, Rule 37, Rules of Court). XII. Second motion for new trial - A motion for new trial shall include all grounds then available. Those not so included are deemed waived. However, when a ground for a new trial was not existing or available when the first motion was made, a second motion for new trial may be filed (Sec. 5, Rule 37, Rules of Court). APPEALS I. Nature of an appeal 1. The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law. The right to appeal is not a natural right. 2. The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. This is true even if the error, or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof,
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2. Under the Rules, the moving party must show that he has a meritorious defense. The facts constituting the movant's good and substantial defense, which he may prove if the petition were granted, must be shown in the affidavit which should accompany the motion for a new trial. Mere allegations that one has a "meritorious defense" and a "good cause" are mere conclusions which do not provide the court with any basis for determining the nature and merit of the case. An affidavit of merit should state facts, and not mere opinion or conclusions of law. Petitioner's motion for new trial and affidavit of merit did not mention the evidence which he was prevented from introducing, nor did it allege that such evidence would change the outcome of the case.
X. Remedy when motion is denied - The remedy from an order denying a motion for new trial is not to appeal from the order of denial. Again, the order is not appealable. The remedy is to appeal from the judgment or final order itself subject of the motion for new trial (Sec. 9, Rule 37, Rules of Court).
3. An appeal maybe taken only from judgments or final orders that completely disposes of the case (Sec. 1, Rule 41, Rules of Court). An interlocutory order is not appealable until after the rendition of the judgment on the merits. II. Judgments or orders that are not appealable - Certain judgments and orders are specifically declared as not appealable. Thus, no appeal may be taken from: (a) An order denying a motion for new trial or a motion for reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of oxecution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, crossclaims, and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. - Examples: (a) Plaintiff received an adverse judgment in a suit for damages filed against Defendant. Alleging extrinsic fraud, he filed a motion for new trial. The court denied the motion. Plaintiff cannot appeal from the order denying his motion for new trial. An appeal is not allowed by Sec. 1(a) of Rule 41. The result would be the same if instead of filing a motion for new trial Plaintiff filed a motion for reconsideration. An order denying a motion for reconsideration of a judgment is also prohibited under Sec. 1(a) of Rule 41. (b) Defendant filed a motion to dismiss based on improper venue. The motion was denied. The denial of the motion does not completely dispose of the case, hence, the order denying the motion is merely interlocutory. An interlocutory order is not appealable under the clear terms of Sec. 1(c) of Rule 41. Jurisprudence explains the rationale of the rule: "An interlocutory order is not appealable until after the rendition of the judgment on the merits for a contrary rule would delay the administration of justice and unduly burden the courts." (c) The RTC upon proper motion and hearing dismissed a complaint for violation of the rule requiring a certification against forum shopping. The order dismissing the complaint is generally not appealable. Under Sec. 5 of Rule 7, a dismissal of this nature is as a rule, a dismissal without
prejudice. An order dismissing an action without prejudice is not appealable under Sec. 1(h) of Rule 41. (d) In one case, a party filed a petition for relief from judgment. From the order denying the petition, the petitioner filed a petition for review on certiorari under Rule 45. It is obvious that the petitioner availed of the wrong remedy. A petition under Rule 45 is a mode of appeal. Under Section 1(b) of Rule 41 of the Rules of Court, the denial of a petition for relief from judgment is subject only to a special civil action for certiorari under Rule 65 and not through a petition for review on certiorari under Rule 45. III. Remedy in case the judgment or final order is not appealable 1. In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1, Rule 41, Rules of Court). 2. Rule 65 refers to the special civil actions of certiorari, prohibition and mandamus. Practically, it would be the special civil action of certiorari that would be availed of under most circumstances. The most potent remedy against those judgments and orders from which appeal cannot be taken is to allege and prove that the same were issued without jurisdiction, with grave abuse of discretion or in excess of jurisdiction, all amounting to lack of jurisdiction. IV. Issues that may be raised on appeal 1. It is already well-settled in this jurisdiction that a party may not change his theory of the case on appeal. Such a rule has been expressly adopted in Rule 44, Section 15 of the 1997 Rules of Civil Procedure, which provides SEC. 15. Qrcurstions that may be raised on appeal. Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. 2. Also, defenses not pleaded in the answer may not be raised for the first time on appeal. A party cannot, on appeal, change fundamentally the nature of the issue in the case. When a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be permitted to change the same on appeal, because to permit him to do so would be unfair to the adverse party. Accordingly, "courts of justice have no jurisdiction or power to decide a question not in issue." Thus, a judgment that goes beyond the issues and purports to adjudicate something on which the court did not hear the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental tenets of fair play. 3. Payment of docket fees and other legal fees within the prescribed period is both mandatory and jurisdictional, noncompliance with which is fatal to an appeal. The full amount of the appellate court docket and other lawful fees must be paid to the clerk of the court which rendered the judgment or final order appealed from. Without the payment of docket fees the appeal is not perfected and the appellate court does not acquire jurisdiction to entertain the appeal,
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or grave abuse of discretion in the findings of facts or of law set out in the decision. The general rule is that the remedy to obtain a reversal or modification of a judgment on the merits is appeal. A subsequent case similarly held that a party is not allowed to question the decision on the merits and also invoke the extraordinary remedy of certiorari under Rule 65 and an ordinary appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel out the other.
V. Issues that the appellate court decides on appeal l. A reading of the terms of Sec. 8 of Rule 51 discloses a basic appellate rule with respect to unassigned errors: The appellate court shall consider no error unless stated in the assignment of errors. - Accordingly, a question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process. For an appellate court to consider a legal question, it should have been raised in the court below. It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. It is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy. 2. The above rule however, is only the general rule because Sec. 8 of Rule 51 precludes its absolute application allowing as it does certain errors which even if not assigned may be ruled upon by the appellate court. Hence, the court may consider an error not raised on appeal provided the same falls within any of the following categories: (a) It is an error that affects the jurisdiction over the subject matter; (b) It is an error that affects the validity of the judgment appealed from; (c) It is an error which affects the proceedings; (d) It is an error closely related to or dependent on an assigned error and properly argued in the brief; (e) It is a plain and clerical error (Sec. 8, Rule 51, Rules of Court). - The fact that the appellant's brief did not raise the lack of jurisdiction of the trial court should not prevent the Court of Appeals from taking up the issue o{' lack of jurisdiction. 3. Jurisprudence likewise provides another exception to the rule. Declares the Highest Court: "The Supreme Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a just decision of the case. - In one case, although petitioners did not raise as issue the appellate court's reversal of the award of damages in their favor, the Court has the discretion to pass upon this matter and determine whether or not there is sufficient justification for the award of damages. 4. In a criminal case, an appellate court appears to enjoy wide latitude in deciding an appealed case. Thus: "In criminal cases, it is axiomatic that where an accused appeals the decision against him, he throws open the whole case for review and it then becomes the duty of the Supreme Court to correct any error as may be found in the appealed judgment,
whether it was made the subject of assignment of errors or not." VI. Material data (date) rule - Section 3 of Rule 46 of the Rules of Court provides that there are three material dates that must be stated in a petition for certiorari brought under Rule 65: (1) the date when notice of the judgment or final order or resolution was received; (2) the date when a motion for new trial or for reconsideration when one such was filed; and (3) the date when notice of the denial thereof was received. This requirement is for the purpose of determining the timeliness of the petition. VII. Payment of docket fee l. Time and again, this Court has consistently held that payment of docket fee within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executor. 2. In the exercise of its impartial jurisdiction, the Court allows a liberal construction of the rules on the manner and periods for perfecting appeals in order to serve the demands of substantial justice. - The established rule is that the payment in full of the docket fees within the prescribed period is mandatory. Nevertheless, this rule must be qualified, to wit: First, the failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal; Second, such power should be used in the exercise of the Court's sound discretion "in accordance with the tenets of justice and fair play and with great deal of circumspection considering all attendant circumstances." A. Appeal from Municipal Trial Courts to the Regional Trial Courts (Rule 40) I. General principles governing an appeal 1. Nature of an appeal (a) The right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal must comply with the requirements of the Rules. Thus, one who seeks to avail of the right to appeal must strictly comply with the requirements of the rules, and failure to do so leads to the loss of the right to appeal. Because an appeal is neither a natural right nor a part of due process, an appeal may be taken from a judgment or final order only when allowed by law. (b) A question that was never raised in the court below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process. Points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by the reviewing court, as they cannot be raised for the first time at that stage. Basic considerations of due process impel this rule.
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thereby rendering the decision sought to be appealed final and executory. Nonpayment of the appellate court docket and other lawful fees within the reglementary period is a ground for the dismissal of an appeal.
III. When to appeal 1. An appeal maybe taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec. 2, Rule 40, Rules of Court; Bar 1991). 2. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgment or final order (Sec. 2, Rule 40, Rules of Court). 3. A record on appeal shall be required only in special proceedings and in their cases of multiple or separate appeals (Sec. 3, Rule 40, Rules of Court). IV. How to appeal l. The appeal is taken by (a) filing a notice of appeal with the court that rendered the judgment or final order appealed from and by (b) serving a copy of the notice to the adverse party (Sec. 3, Rule 40, Rules of Court). Thus, if it is the Regional Trial Court which rendered the judgment appealed from, the notice shall be filed with the same Regional Trial Court and not with the Court of Appeals. In the same vein, if the judgment was rendered by the Metropolitan Trial Court, the notice of appeal must be filed with said court (Sec. 3, Rule 40, Rules of Court). 2. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full amount of the appellate court docket and other lawful fees (Sec. 5, Rule 40, Rules of Court). 3. Within fifteen (15) days from the perfection of the appeal, the clerk of court of the lower court shall transmit the original record or the record on appeal, together with transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court (Sec. 6, Rule 40, Rules of Court). - A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time (Sec. 4, Rule 40 in relation to Sec. 9, Rule 41, Rules of Court; Bar 1999). 4. Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact (Sec. 7[a], Rule 40, Rules of Court). Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum, copy of which shall be furnished the appellee. For the appellant, the filing of a memorandum is vital to his appeal. Failure to so file shall be a ground for the dismissal of the appeal. The memorandum shall briefly discuss the errors imputed to the
lower court. The appellee may, if his so desires, file his memorandum within fifteen (15) days from receipt of the appellant's memorandum (Sec. 7[b], Rule 40, Rules of Court). 5. The case shall be considered submitted for decision upon the filing of the memorandum of the appellee, or the expiration of the period to do so. The Regional Trial Court shall decide the case on the basis of the entire record of the proceedings had in the court of origin and such memoranda as are filed (Sec. 7[c], Rule 40, Rules of Court). V. Appeal from an order dismissing a case for lack of jurisdiction - A case may be dismissed in the Municipal Trial Court without a trial on the merits. This occurs when a motion to dismiss is filed and granted in accordance with Rule 16 of the Rules of Court. If an appeal is taken from the dismissal by the lower court, the Regional Trial Court may affirm or reverse it. If the order of dismissal is reversed, the case shall be remanded to the lower court for further proceedings. If the order is affirmed, then it is a declaration of the merits of the dismissal. However, if the dismissal is made on the ground of lack of jurisdiction over the subject matter, and the Regional Trial Court affirms the dismissal, the action of the latter court shall not be confined to a mere affirmation of the dismissal. Instead, the rule obligates the Regional Trial Court to try the case on the merits as if the case was originally filed with it. - The same rule prevails if the case was tried on the merits in the lower court without jurisdiction over the subject matter and was subsequently dismissed on such ground. On appeal, the Regional Trial Court, if it has original jurisdiction shall not dismiss the case, but shall decide the case in the same manner as a case dismissed by the lower court without trial on the merits. The Regional Trial Court may allow amendment of the pleadings and may receive additional evidence in the interest of justice (Sec. 8, Rule 40, Rules of Court). B. Appeal from The Regional Trial Courts to the Court of Appeals (Rule 41) I. Application of Rule 41 - Rule 41 applies to appeals from the judgment or final order of the Regional Trial Court in the exercise of its original jurisdiction (Sec. 2[a], Rule 41, Rules of Court). This appeal is called an "ordinary appeal" (Sec. 2[a], Rule 41, Rules of Court). Example: If a judgment by the Regional Trial Court in an action for specific performance is to be appealed from, Rule 41 will govern the appeal. This is because an action for specific performance is filed with the Regional Trial Court in the first instance, the action being within the original jurisdiction of the Regional Trial Court. Any judgment rendered by it on the case would then be a judgment rendered in the exercise of its original jurisdiction. II. When to appeal - The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30)
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II. Where to appeal from a judgment or final order of a Municipal Court - An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains (Sec. 1, Rule 40, Rules of Court).
days from notice of the judgment or final order (Sec. 3, Rule 41, Rules of Court).
below and is within the issues framed by the parties (Sec. 15, Rule 44, Rules of Court).
III. How to appeal 1. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by (a) filing a notice of appeal with the court which rendered the judgment or final order appealed from, and (b) serving a copy thereof upon the adverse party (Sec. 2[a], Rule 41, Rules of Court; Bar 1988). A record on appeal shall be required in special proceedings and other cases of multiple or separate appeals when so required by law or the Rules (Sec. 2[a], Rule 41, Rules of Court).
V. Residual jurisdiction 1. > residual jurisdiction refers to the authority of a trial court to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2 of Rule 39, and allow withdrawal of the appeal provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Sec. 9, Rule 41) or in case of a petition for review under Rule 42, before the Court of appeals gives due course to the petition (Sec. 8, Rule 42, Rules of Court).
2. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket fee (Sec. 4, Rule 41, Rules of Court). - A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time (Sec. 9, Rule 41, Rules of Court). 3. Within thirty (30) days after perfection of all the appeals, the clerk of court shall verify the correctness and completeness of the records and if incomplete, to take such measures to complete such records, certify to the correctness of the records, to transmit the same to the appellate court, and to furnish the parties with copies of his letter of transmittal of the records to the appellate court (Sec. 10, Rule 41, Rules of Court). 4. Upon receiving the original record on appeal and the accompanying documents transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties (Sec. 4, Rule 44, Rules of Court). 5. Within forty-five (45) days from receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service upon the appellee (Sec. 7, Rule 44, Rules of Court). Failure to file the appellant's brief is a ground for the dismissal of the appeal (Sec. 9, Rule 44, Rules of Court). Within forty-five days from the receipt of the appellant's brief, the appellee shall file his own brief with proof of service to the appellant (Sec. 8, Rule 44, Rules of Court). Within twenty (20) days from receipt of the appellee's brief, the appellant may file a reply brief answering points in the appellee's brief not covered in his main brief (Sec. 9, Rule 44, Rules of Court). Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended (Sec. 12, Rule 44, Rules of Court). IV. Questions that may be raised on appeal - The appellant may include in his assignment of errors any question of law or fact that has been raised in the court
2. The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed. C. Petition for Review from the Regional Trial Courts to the Court of Appeals (Rule 42) I. Application of Rule 42 - Rule 42 applies to an appeal from the judgment or final order of the Regional Trial Court to the Court of Appeals in cases decided by the former in the exercise of its appellate jurisdiction (Bar 1998; Bar 1990; Bar 1979). - Example: The plaintiff received an adverse judgment in a suit for collection of P350,000.00 filed with the Metropolitan Trial Court of Manila. He appealed from the judgment of the lower court with the appropriate Regional Trial Court and lost again. The judgment of the Regional Trial Court is a judgment rendered by it in the exercise of its appellate jurisdiction. If he desires to appeal from this judgment, he should avail of a petition for review under Rule 42. II. When to appeal - The appeal shall be made within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner's motion or new trial or reconsideration filed in due time after judgment. The court may grant an additional period of fifteen (15) days only provided the extension is sought (a) upon proper motion, and (b) there is payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. No other extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days (Sec. 1, Rule 42, Rules of Court). II. How to appeal 1. The appeal is made by filing a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition (Sec. 1, Rule 42, Rules of Court).
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- Where both parties are appellants, they may file a joint record on appeal (Sec. 8, Rule 41, Rules of Court).
2. The petition shall be filed in the proper form required in Sec. 2 of Rule 42 stating among others, a concise statement of the matters involved, the issues raised, the specification of errors of law or fact, or both, allegedly committed by the trial court and the reasons or arguments relied upon for the allowance of the appeal. The petitioner shall likewise indicate the specific material dates showing that the petition was filed on time (Sec. 2, Rule 42, Rules of Court). The requirement to indicate the relevant dates is commonly called the material data rule and applies also to Rule 42, not only to a petition for certiorari under Rule 65. This petition also requires a certification against forum shopping, it being an initiatory pleading. - The failure to comply with any of the requirements in Sec. 2 of Rule 42 regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal of the petition (Sec. 3, Rule 42, Rules of Court). 3. The Court of Appeals may dismiss the petition if it finds the same to be patently without merit, prosecuted merely for delay, or that the questions raised are too unsubstantial to require consideration (Sec. 4, Rule 42, Rules of Court). - If the court does not dismiss the petition, it may require the respondent to file a comment on the petition within ten (10) days from notice. The respondent shall file a comment, not a motion to dismiss (Sec. 4, Rule 42, Rules of Court). 4. If the Court ofAppeals finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition (Sec. 6, Rule 42, Rules of Court). - If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last leading or memorandum required (Sec. 9, Rule 42, Rules of Court). III. Residual jurisdiction - The doctrine of residual jurisdiction also applies to Rule 42. The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and thv expiration of the time to appeal of the other parties. However, the Regional Trial Court despite the perfection of the appeals may still issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2 of Rule 39, and allow withdrawal of the appeal provided these are done before the Court of Appeals gives due course to the petition (Sec. 8, Rule 42, Rules of Court). Recall that in an ordinary appeal the residual jurisdiction of the Regional Trial Court may be
exercised prior to the transmittal of the original record or the record on appeal. IV. Stay of judgment - The appeal, as a rule, shall stay the judgment or final order, unless the Court of Appeals, the law or the rules shall provide otherwise. Civil cases decided under the Rules on Summary Procedure shall not be stayed (Sec. 8[b], Rule 42, Rules of Court). D. Appeal by Certiorari to the Supreme Court (Rule 45) I. Application of Rule 45 1. Appeal by certiorari to the Supreme Court, also commonly known as petition for review on certiorari applies in the following cases: (a) Appeals from a judgment or final order of the Regional Trial Court in cases where only questions of law are raised or are involved (Sec. 2[c], Rule 41, Rules of Court; Bar 1984); (b) Appeals from the judgment, final order, or resolutions of the Court ofAppeals and the Sandiganbayan where the petitions shall raise only questions of law distinctly set forth (Sec. 1, Rule 45, Rules of Court); (c) Appeals from the decision or ruling of the Court of Tax Appeals en bane (Sec. 11, Republic Act 9282). 2. The mode of appeal prescribed under Rule 45 shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment (Sec. 9, Rule 45, Rules of Court). II. Not a matter of right 1. An appeal or a review under Rule 45 is not a matter of right, but of sound judicial discretion, and will be granted only when special and important reasons could justify the petition. 2. The following are examples of reasons which the court may consider in allowing the petition: (a) when the court below has decided a question of substance not yet determined by the Supreme Court; (b) when the court below decided a matter of substance in a way that is not in accord with law or with the applicable decisions of the Supreme Court; (c) when the court below has departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for the exercise of the power of supervision of the Supreme Court (Sec. 6, Rule 45, Rules of Court). 3. Every appeal to the Supreme Court is not a matter of right but of sound judicial discretion with the exception of cases where the penalty of death or reclusion perpetua where an appeal is a matter of right leaving the reviewing court without any discretion. III. Questions of law 1. The petition shall raise only questions of law (Sec. 1, Rule 45, Rules of Court). The rule is that before the Supreme Court, only legal issues may be raised in a petition for review on certiorari (appeal by certiorari). The Supreme Court is not a trier of facts, and is not to review or calibrate the evidence
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- The appeal is perfected as to the petitioner upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees (Sec. 6, Rule 42, Rules of Court).
2. A review of the findings of facts of the trial court affirmed by the Court of Appeals is a course of action proscribed by Section 1, Rule 45. Firm is the rule that findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal to this Court provided they are supported by evidence on record or substantial evidence. 3. Indeed, the general rule is that findings of facts of the trial court will not ordinarily be disturbed by an appellate court absent any clear showing that the trial court has overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could very well affect the outcome of the case. It is the trial court that had the opportunity to observe the witnesses' manner of testifying, their furtive glances, calmness, sighs or their scant or full realization of their oaths. Nevertheless, the higher court is not entirely precluded from reviewing and reversing these findings if it is not convinced that they conform to the evidence on record and to its own impressions of the credibility of the witnesses. IV. Exceptions to the rule 1. Remember the general rule that the Supreme Court, cannot pass upon in a petition for review on certiorari (Rule 45) factual findings of a lower court, since its jurisdiction is limited to reviewing errors of law. Hence, factual findings of the trial court, alllr-nied J)y the Court ol'Appeals are final and conclusive and may not be reviewed on appeal. The issue of negligence for instance, is factual in nature. Whether a person is negligent or not is a question of fact which, as a general rule, cannot be passed upon by the Supreme Court. 2. The rule proscribing the raising of questions of fact is not an absolute one. Questions of fact may be raised in an appeal under Rule 45 provided the petition shows any, some or all of the following: (a) The conclusion of the Court of Appeals is grounded entirely on speculations, surmises and conjectures; (b) The inference made is manifestly mistaken, absurd or impossible; (c) There is a grave abuse of discretion; (d) The judgment is based on misapprehension of facts; (e) The findings of facts are conflicting; (f) The Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (g) The findings are contrary to those of the trial court; (h) The findings of fact are conclusions without citation of specific evidence on which they are based; (i) The facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; or (j) The findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.
V. Certiorari under Rule 45 is not the certiorari under Rule 65 (Bar 1998;1999) - The following are the principal distinctions between a petition for review on certiorari under Rule 45 and a petition for certiorari under Rule 65: (a) Certiorari under Rule 45 is a mode of appeal (Sec. 2[c], Rule 41, Rules of Court), while certiorari under Rule 65 is a special civil action that is an original action and not a mode of appeal (Rule 65, Rules of Court). Certiorari under Rule 45 is but a continuation of the appellate process over the original case. Certiorari under Rule 65 is not a part of the appellate process but an independent action (Fortune Guarantee and Insurance Corp., 379 SCRA 7). It must be noted that while both Rules 45 and 65 are petitions for certiorari, the former is a petition for review while the latter is an original special civil action for certiorari. (b) Because it is a mode of appeal, certiorari under Rule 45 seeks to review final judgments or final orders while certiorari under Rule 65 may be directed against an interlocutory order or matters where no appeal may be taken from (Sec. 1, Rule 41, Rules of Court). (c) Certiorari under Rule 45 raises only questions of law (DMA Shipping Philippines, Inc. vs. Cabilar, 452 SCRA 551, February 28, 2005) while certiorari under Rule 65 raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction (Sec. 1, Rule 65, Rules of Court). (d) An appeal by certiorari under Rule 45 shall be filed within fifteen (15) days from notice of judgment or final order appealed from (Sec. 2, Rule 45, Rules of Court), while a petition for certiorari under Rule 65 shall be filed not later than sixty (60) days from notice of judgment, order or resolution sought to be assailed and in case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of denial of said motion (Sec. 4, Rule 65, Rules of Court; A.M. No. 00-2-03 amending Sec. 4 of Rule 65 effective September 1, 2000). (e) Certiorari under Rule 45 does not require a prior motion for reconsideration while certiorari under Rule 65 requires as a general rule, a prior motion for reconsideration before resorting to certiorari. (f) Certiorari under Rule 45 stays the judgment appealed from while certiorari does not stay the judgment or order subject of the petition unless enjoined or restrained. (g) In certiorari under Rule 45, the parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge, while in certiorari under Rule 65, the tribunal, board, officer exercising judicial or quasijudicial functions is impleaded as respondent (Sec. 5, Rule 65, Rules of Court). In an appeal by certiorari under Rule 45, the petitioner and respondent are also the original parties to the action in the lower courl, In certiorari as an original action, the parties are the aggrieved party against the lower court or quasijudicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents.
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on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the Court of Appeals, are conclusive on the Court. It has to be emphasized that it is not the duty of the Supreme Court to review, evaluate, and weigh the probative value of the evidence adduced before the lower courts.
(h) Certiorari as a special civil action is filed with the Regional Trial Court (Sec. 21, BP 129 as amended), the Court of Appeals Sec. 9, BP 129 as amended) or with the Supreme Court (Sec. 5[11, Art. VIII, Constitution of the Philippines) whereas certiorari as a mode of appeal is filed with the Supreme Court (Sec. 1, Rule 45, Rules of Court).
- The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for its dismissal (Sec. 5, Rule 45, Rules of Court).
- As a general rule, a party cannot file a petition both under Rules 45 and 65 of the Rules of Court because said procedural rules pertain to different remedies and have distinct applications. The remedy of appeal under Rule 45 and an original action for certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. Thus, a party should not join both petitions in one pleading. When a party adopts an improper remedy his petition may be dismissed outright.
3. The Supreme Court, may on its own initiative, deny the petition on the ground that (a) the appeal is without merit, (b) is prosecuted manifestly for delay, or (c) that the questions raised therein are too unsubstantial to require consideration (Sec. 5, Rule 45, Rules of Court).
VI. When to appeal 1. The appeal which shall be in the form of a verified petition shall be filed within fifteen (15) days from notice of the judgment, final order or resolution appealed from, or within fifteen (15) days froln notice of'tho denial of the petitioner's motion for new trial or motion 6or reconsideration filed in due time (Sec.2, Rule 45, Rules of Court). 2. The Supreme Court may, for justifiable reasons, grant an extension of thirty (30) days only within which to file the petition provided (a) there is a motion for extension of time duly filed and served; (b) there is full payment of the docket and other lawful fees and the deposit for costs; and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2, Rule 45, Rules of Court). VII. How to appeal 1. The petitioner shall file a verified petition with the Supreme Court within the reglementary period raising therein only questions of law (Sec. 1, Rule 45, Rules of Court). 2. The petitioner shall pay to the clerk of court of the Supreme Court the docket and other lawful fees as well as the deposit in the amount of P500.00 for costs. Proof of service of a copy of the petition on the lower court concerned and the adverse party shall be submitted together with the petition (Sec. 3, Rule 45, Rules of Court). - The petition shall contain all the matters mentioned in Sec. 4 of Rule 45 including compliance with the material data rule which requires the petitioner to indicate the material dates showing when notice of the judgment, final order or resolution subject of the petition was received and when a motion for new trial or motion for reconsideration, if any, was filed and when notice of the denial was received. Among others, the petition must also be accompanied by a certification against forum shopping.
- If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice (Sec. 8, Rule 45, Rules of Court). VIII. Appeals from quasi judicial bodies 1. Appeals from judgments and final orders of quasijudicial bodies/agencies are now required to be brought to the Court of Appeals under the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide a uniform rule of appellate procedure from quasi judicial bodies. 2. The appeal under Rule 43 may be taken to the Court of Appeals whether the appeal involves a question of fact, a question of law, or mixed questions of fact and law (Sec. 3, Rule 43). The appeal shall be taken by filing a verified petition for review with the Court of Appeals (Sec. 5, Rule 43, Rules of Court). 3. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless he Court of Appeals shall direct otherwise upon such terms as it may deem just (Sec. 12, Rule 43, Rules of Court). IX. Appeals from the NLRC (Bar 2006) 1. The remedy of a party aggrieved by the decision of the National Labor Relations Commission is to promptly move for the reconsideration of the decision and if denied to timely file a special civil action oi'certiorari under Rule 65 within sixty (60) days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the Court of Appeals. 2. Because of St. Martin, all special civil actions arising out of any decision or final resolution or order of the National Labor Relations Commission filed with the Supreme Court after June 1, 1999 shall be dismissed instead of referring the action to the Court of Appeals. X. Appeals from the Sandiganbayan - Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by way of certiorari under Rule 45 raising pure questions of law. Certiorari under Rule 65 is not the remedy (Sec. 1, Rule 45, Rules of Court).
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- However, the Court may set aside technicality for justifiable reasons as when the petition before the court is clearly meritorious and filed on time both under Rules 45 and 65. In accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice, the Court may treat the petition as having been filed under Rule 45.
- For purposes of determining whether the petition should be denied or given due course, the Supreme Court may require the filing of such pleadings, briefs, memoranda or the submission of documents it may deem necessary (Sec. 7, Rule 45, Rules of Court).
(a) The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases. (b) Although as a consequence of Fabian appeals from the Ombudsman in administrative cases are now cognizable by the Court of Appeals, nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with the Supreme Court to set aside the Ombudsman's order or resolution 2. In criminal cases, the ruling of the Ombudsman shall be elevated to the Supreme Court by way of Rule 65. The Supreme Court's power of review over resolutions and orders of the Office of the Ombudsman is restricted only to determining whether grave abuse of discretion has been committed by it. The Court is not authorized to correct every error or mistake of the Office of the Ombudsman other than grave abuse of discretion. The remedy is not a petition for review on certiorari under Rule 45. - In any event, jurisprudence now holds that where the findings of the Ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the Supreme Court under Rule 65. XII. Appeals from judgments of the Court of Tax Appeals (Bar 2006) 1. Under Sec. 11 of Republic Act No. 9282, March 30, 2004 no civil proceeding involving matters arising under the National Internal Revenue Code, the Tarill'and Customs Code or the Local Government Code shall be maintained, except as herein provided, until and unless an appeal has been previously filed with the CTA and disposed of in accordance with the provisions of this Act. - A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc.
2. Sec. 11 of the same Act further provides that a party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45 of the 1997 Rules of Civil Procedure. XIII. Appeals from judgments of the Commission on Elections - A judgment, resolution or final order of the Commission on Elections may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 (Sec. 2, Rule 64, Rules of Court) by filing the petition within thirty (30) days from notice (Sec. 3, Rule 64, Rules of Court). XIV. Appeals from judgments of the Commission on Audit - A judgment, resolution or final order of the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 (Sec. 2, Rule 64, Rules of Court) by filing the petition within thirty (30) days from notice (Sec. 3, Rule 64, Rules of Court). XV. Appeals from judgments of the Civil Service Commission - A judgment, final order or resolution of the Civil Service Commission may be taken to the Court of Appeals under Rule 43 of the Rules of Court (Sec. 1, 3, Rule 43, Rules of Court). Note the difference between the mode of appeal from a judgment of the Civil Service Commission and the mode of appeal from the judgments of other constitutional commissions. XVI. Appeals from judgments of the Office of the President - The judgments, resolutions, or final orders of the Office of the President may be taken to the Court of Appeals (Sec. 1, 3, Rule 43, Rules of Court). II. Remedies After A Judgment Has Become Final and executory 1. The 1997 Rules o€ Civil Procedure provides the following remedies for aggrieved parties against a judgment that is already final and executory, namely: (a) Petition for relief from judgment under Rule 38; and (b) Petition for annulment of a judgment under Rule 47. 2. In addition to the above, jurisprudence has likewise recognized an additional relief through (a) a direct action of certiorari, and (b) a collateral attack of a judgment that is void on its face. Illustration (Bar 1995) May a judgment that has become final and executory still be questioned, attacked or set aside? Suggested answer. Please refer paragraphs.
to
the
immediately
preceding
A. Petition for relief or relief from judgments, orders or other proceedings (Rule 38) I. Nature of the petition 1. It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable neglect.
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XI. Appeals from the rulings of the Ombudsman (Bar 2006) 1. In administrative disciplinary cases, the ruling of the Office of the Ombudsman are appealable to the Court of Appeals. Sec. 27 of R.A. No. 6770 (The Ombudsman Act of 1987) insofar as it allowed a direct appeal to the Supreme Court was declared unconstitutional in Fabian vs. Desierto because the statute, being one which increased the appellate jurisdiction of the Supreme Court, was enacted without the advice and concurrence of the Court. Sec. 30 of Art VI of the Constitution of the Philippines provides that "No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence". Instead, appeals from decisions of the Ombudsman in administrative disciplinary actions should be brought to the Court of Appeals under Rule 43.
II. Preliminary injunction pending the petition for relief - Remember that a petition for relief is a remedy available after the judgment or final order has become final and executory. Hence, the judgment could be the subject of a writ of execution. There is nothing in the Rules that precludes the execution of the judgment that is already executory upon proper application of the prevailing party during the pendency of the petition. The petitioner therefore, would be interested in the preservation of the status quo as well as the preservation of the rights of the parties before the petition is resolved. Hence, the petitioner may avail of the remedy allowed him under Sec. 5 of Rule 38. Under this provision, the court in which the petition is filed, may grant such preliminary injunction to preserve the rights of the parties upon the filing of a bond in favor of the adverse party. The bond is conditioned upon the payment to the adverse party of all damages and costs that may be awarded to such adverse party him by reason of the issuance of the injunction (Sec. 5, Rule 38, Rules of Court). III. Grounds for a petition for relief; proper court 1. A petition for relief may be filed on the following grounds: (a) When a judgment or final order is entered into, or any other proceeding is taken against the petitioner in any court through fraud, accident, mistake, or excusable negligence (Sec. 1, Sec. 38, Rules of Court); or (b) When the petitioner has been prevented from taking an appeal by fraud, mistake, or excusable negligence (Sec. 2, Rule 38, Rules of Court). 2. In letter "a," the petition shall be filed in the same court (not in another or higher court) which rendered the judgment and in the very same case. The petition shall pray that the judgment, order or proceeding be set aside (Sec. 1, Rule 38, Rules of Court). - In letter "b,." the petition shall likewise be filed in the same court (not in another or higher court) and in the same case but the prayer this time is that the appeal be given due course (Sec. 2, Rule 38, Rules of Court). - Hence, a petition for relief under Rule 38 cannot be availed of in the appellate court. Under the present Rules, petitions for relief from a judgment, final order or other proceeding rendered or taken should be filed in and resolved by the court in the same case from which the petition arose. Thus, petition for relief from a judgment, final order or proceeding involved in a case tried by a municipal trial court shall be filed in and decided by the same court in the same case, or in the Regional Trial Court if the case was decided by it. 3. A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the
assailed judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. IV. When to file - The petition shall be filed within sixty (60) days after the petitioner learns of the judgment, final order or proceeding and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken (Sec. 3, Rule 38, Rules of Court). - Section 3 of Rule 38 reads: SEC. 3. Time for filing petition; contents and verification. -A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits, showing the fraud, accident, mistake or excusable negligence relied upon and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. -Thus, it is clear that a petition for relief from judgment must be filed within: (a) 60 days from knowledge of judgment, order or other proceedings to be set aside; and (b) six (6) months from entry of such judgment, order or other proceeding. These two periods must concur. Both periods are also not extendible and never interrupted. Strict compliance with these periods stems from the equitable character and nature of the petition for relief. Indeed, relief is allowed only in exceptional cases as when there is no other available or adequate remedy. As it were, a petition for relief is actually the "last chance" given by law to litigants to question a final judgment or order. And failure to avail of such "last chance" within the grace period fixed by the Rules is fatal (Quelnan vs. VHF Philippines, G.R. No. 138500, September 16, 2005). While `strict interpretation' is the norm in applying the periods mentioned, such rule is always subject to the power of the Supreme Court to effect a liberal interpretation when dictated by the circumstances. V. Form of the petition - The petition must be verified and must be accompanied with affidavits showing fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be (Sec. 3, Rule 38, Rules of Court). VI. Order to answer - If the petition is sufficient in form and substance, to justify relief, the court in which it s filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof (Sec. 4, Rule 38, Rules of Court). VII. Hearing of the petition After the filing of the answer or the expiration of the period to file the answer, the court shall hear the petition (Sec. 6, Rule 38, Rules of Court). VIII. Action of the court
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2. A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which. may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition.
- Where the prayer of petitioner is to give due course to his appeal because he was prevented from taking an appeal through fraud, accident, mistake or excusable negligence, and the court finds the allegations of the petition to be true, the court shall set aside the previous denial of the appeal and shall give due course to the said appeal. It shall then elevate the records of the appealed case as if a timely and proper appeal had been made (Sec. 7, Rule 38, Rules of Court). B. Annulment of judgments or final orders or resolutions (Rule 47) I. Nature of the action 1. > action for annulment of judgment - a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of the petitioner, and is based on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. 2. This remedy is available only where the ordinary remedies of new trial, appeal, petition for relief or appropriate remedies are no longer available through no fault of the petitioner. Hence, if such remedies were not availed of due to the petitioner's fault, the petition will be dismissed. 3. Like a petition for relief, an action for the annulment of a judgment is a recourse equitable in character, allowed only in exceptional cases as where there is no available or adequate remedy. 4. The action is commenced by the filing of a verified petition with the proper court. If it is the judgment or final order of a Regional Trial Court which is sought to be annulled, then the action shall be filed in the Court of Appeals (Sec. 1, Rule 47, Rules of Court). If it is that of a Municipal Trial Court, the verified petition shall be filed in the Regional Trial Court having jurisdiction over the former (Sec. 10, Rule 47, Rules of Court). II. Grounds for annulment 1. The grounds for annulment of a judgment are: (a) extrinsic fraud; and (b) lack of jurisdiction (Sec. 2, Rule 47, Rules of Court).
2. A petition for annulment of judgment is an extraordinary action. By virtue of its exceptional character, the action is restricted exclusively to the grounds specified in the rules, namely, (1) extrinsic fraud; and (2) lack of jurisdiction The remedy may not be invoked where the party has availed himself of the remedy of new trial, appeal, petition for relief or other appropriate remedy and lost, or where he has failed to avail himself of those remedies through his own fault or negligence (Republic vs. "G" Holdings, Inc., 475 SCRA 608). The rationale for the restriction is to prevent the extraordinary action from being used by a losing party to make a complete farce of a duly promulgated decision that has long become final and executory. III. Extrinsic fraud 1. An action to annul a judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in character. Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court. 2. Stated in another way, extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by deception practiced on him by the prevailing party. Fraud employed during within the trial is not covered by the concept of extrinsic fraud. Hence, the offer in evidence of spurious documents, although fraudulent, is not the fraud that would sustain an action for annulment. IV. Lack of jurisdiction - Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. Where the court has jurisdiction over the defendant and over the subject matter of the case, its decision will not be voided on the ground of absence of jurisdiction. The petitioner must show not a mere grave abuse of discretion but an absolute lack of jurisdiction. A claim of grave abuse of discretion will support a petition for certiorari under Rule 65 but it will not support an action for annulment of a judgment. V. Period for filing the action - If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppel (Sec. 2, Sec. 4, Rule 47). VI. Who may file the action - The petitioner need not be a party to the judgment sought to be annulled. What is essential is that the petitioner is one who can prove his allegation that the judgment was obtained by the use of fraud and collusion and that he was affected thereby. VII. Basic procedure
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- After the hearing and the court finds that the allegations therein are not true, it shall dismiss the petition. If the court finds the allegations to be true, it shall set aside the judgment, final order or other proceeding complained of. The case then shall stand as if such judgment, final order or proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a motion for a new trial or reconsideration had been granted by it (Sec. 6, Rule 38, Rules of Court). This action of the court applies to a petition for relief praying that the judgment, final order or proceeding be set aside having been entered or taken against petitioner by fraud, accident, mistake or excusable negligence (Sec. 1, Rule 38, Rules of Court).
2. Except under Sec. 4 of the 1991 Rules on Summary Procedure where the court is clearly authorized to dismiss a complaint outright even before summons is served, an outright dismissal is not the usual procedure in ordinary civil actions. In ordinary civil actions, the clerk of court first issues the corresponding summons to the defendant upon the filing of the complaint and the payment of the requisite legal fees (Sec. 1, Rule 14, Rules of Court). The defendant may then file a motion to dismiss pursuant to Rule 16 or the court may make a motu proprio dismissal on certain grounds as when it finds from the examination of the complaint that it has no jurisdiction over the subject matter. An action for annulment of a judgment, although treated as an ordinary civil action, departs from the usual norm because the court, upon the filing of the petition may make an outright dismissal of the petition as long as it has specific reasons for its dismissal. This dismissal may be made even before summons is served. It is only when the court finds a prima facie merit in the petition shall summons be served on the respondent (Sec. 5, Rule 47, Rules of Court). III. Effect of a judgment of annulment 1. A judgment of annulment based on lack of jurisdiction shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refiling of the original action in the proper court (Sec. 7, Rule 47, Rules of Court). The prescriptive period for the refiling of the original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. This prescriptive period shall not however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47, Rules of Court). 2. Where the judgment or final order is set aside and annulled on the ground of extrinsic fraud, the court, upon motion, may order the trial court to try the case as if a motion for new trial was granted (Sec. 7, Rule 47, Rules of Court). 3. Aside from the setting aside of the judgment or final order and other effects, the judgment of annulment may include the award of damages, attorney's fees and other relief (Sec. 9, Rule 47, Rules of Court). IV. Application of Rule 47 1. Rule 47 governs the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts (Sec. 1, Rule 47, Rules of Court). 2. Sections 2, ,l, 4, 7, 8 and 9 of ltulc 47 shall likewise apply to annulment of judgments or final. orders of a Municipal Trial Court by the Regional Trial Court having jurisdiction of
the former. This action shall be treated as an ordinary civil action (Sec. 10, Rule 47, Rules of Court). V. Annulment of judgments of quasi judicial bodies 1. In Macalalag vs. Ombudsman, the Court ruled that Rule 47 of the 1997 Rules of Civil Procedure on annulment of judgments or final orders and resolutions covers annulment of the judgments of Regional Trial Courts by the Court of Appeals. - The silence of B.P. B1g.129 on the jurisdiction of the Court of Appeals to annul judgments or final orders and resolutions of quasi judicial bodies like the DARAB indicates its lack of such authority. 2. A party aggrieved by a judgment or resolution of a quasi judicial body enumerated under Rule 43 may avail of a petition for review to the Court of Appeals under said rule and not an action to annul the judgment or resolution. C. Certiorari (Rule 65) I. Nature of the remedy l. > certiorari - called a "supervisory or superintending writ," this remedy is availed of to annul or modify the proceedings of a tribunal, board or officer exercising judicial or extra judicial functions which has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. For this petition to prosper, it is necessary to allege and show that there is no more appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law. As a rule, where appeal is available, certiorari cannot be availed of unless it can be shown that appeal is not speedy, or adequate. Hence, the basic question to be considered is: Does the petitioner have the remedy of appeal or any other remedy? If the answer is in the affirmative, certiorari is not available, as a n4le. However, even if appeal is available, if it is not adequate, speedy or equally beneficial as certiorari, a petition for certiorari may be availed of. 2. The task of a court in a certiorari proceeding is to determine whether the lower court committed grave abuse of' discretion. It is a remedy narrow in scope. It is not a general utility tool in the legal workshop. Its function is to raise only questions of jurisdiction and no other. It cannot be used for any other purpose. Do not file certiorari if your purpose is to raise a factual issue or to ask for a reevaluation of the facts and the evidence. 3. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion. The phrase `grave abuse of discretion' has a precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility." It does not encompass an error of law. Nor does it include a mistake in the appreciation of the contending parties' respective evidence or the evaluation of their relative weight. The Court cannot be tasked to go over the proofs presented by the parties and analyze, assess and weigh them all over again to ascertain if the trial court or quasi judicial agency
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1. A petition for annulment of judgment filed in the Court of Appeals shall observe the procedure in ordinary civil cases. Should the Court of Appeals find a trial necessary, the reception of evidence may be referred to a member of the court or to a judge of a Regional Trial Court (Sec. 6, Rule 47, Rules of Court). A petition filed in the Regional Trial Court shall also be treated as an ordinary civil action (Sec. 10, Rule 47, Rules of Court).
and the appellate court were correct in according superior credit to this or that piece of evidence of one party or the other. The sole office of a writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack of jurisdiction, and does not include the review of public respondent's evaluation of the evidence and the factual findings based thereon. 4. The petition shall be filed not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration was filed, the 60-day period starts not from the notice of judgment but from notice of the denial of the motion for reconsideration.
III. Certification against forum shopping - Rule 65 also requires the pleader to submit a certification against forum shopping. IV. Observance of hierarchy of courts - In filing for a petition for certiorari, the hierarchy of courts must be observed. Hence, even though the Supreme Court has concurrent jurisdiction with the Court of Appeals and the Regional Trial Court to issue a writ of mandamus, prohibition or certiorari, litigants are advised against taking direct recourse to the Supreme Court without initially seeking proper relief from the lower courts. D. Collateral Attack of a Judgment
2. The general rule is that before filing a petition for certiorari under Rule 65 of the Rules of Court, the petitioner is mandated to comply with a condition precedent: the filing of a motion for reconsideration of the assailed order, and the subsequent denial of the court a quo. It must be stressed that a petition for certiorari is an extraordinary remedy and should be filed only as a last resort. The filing of a motion for reconsideration is intended to afford the public respondent an opportunity to correct any actual error attributed to it by way of re-examination of the legal and factual issues. However, the rule is subject to the following recognized exceptions: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived oi' due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex paste or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or public interest is involved. - For example, if the trial court issues a writ of preliminary injunction despite the absence of proof of a legal right and the injury sustained by the plaintiff, the writ is a nullity.
I. Distinction between a direct from a collateral attack A direct attack of a judgment made through an action or proceeding the main object of which is to annul, set aside or enjoin the enforcement of such judgment if not yet carried into effect; or if the property has been disposed of, the aggrieved party may sue for recovery. collateral attack made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction . Examples: A petition for certiorari under Rule 65 is a direct attack. It is filed primarily to have an order annulled. An action for annulment of a judgment is likewise a direct attack on a judgment. A motion to dismiss a complaint for collection of a sum of money filed by a corporation against the defendant on the ground that the plaintiff has no legal capacity to sue is a collateral attack on the corporation. A motion to dismiss is incidental to the main action for a sum of money. It is not filed as an action intended to attack the legal existence of the plaintiff. CHAP. 11: EXECUTION OF JUDGMENTS I. Meaning of execution > Execution - the remedy afforded for the satisfaction of a judgment. It is the fruit and end of the suit. II. Part of the judgment to be executed 1. The dispositive portion (also called "fallo") of the judgment is that part which is subject to execution (Sec. 8, Rule 39, Rules of Court). 2. Jurisprudence considers this portion of the judgment as that which finally invests rights upon the parties, sets conditions for the exercise of those rights, and imposes the corresponding duties and obligations. Hence, if there is a conflict between the dispositive portion of the decision and the body thereof, the dispositive portion controls irrespective of what appears in the body. III. When execution shall issue 1. Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39, Rules of Court). Once a judgment becomes final and executory, the prevailing party can have it
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II. Motion for reconsideration 1. A petitioner must first exhaust all other remedies available before resorting to certiorari. For example, if he can file a motion for reconsideration, then he must do so instead of certiorari. Certiorari is not a substitute for a lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive because they do not have identical elements and requisites.
executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court. Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust.
2. If for whatever reason, execution cannot be had with dispatch in the court of origin, the new rules likewise afford the judgment obligee a remedy. He may file a motion with the appellate court to direct the court of origin, in the interest of justice, to issue the writ of execution (Sec. 1, Rule 39, Rules of Court).
2. The above principles have been consistently applied. Thus, in a subsequent ruling the Court declared: "Once a judgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court's ministerial duty, compellable by mandamus."
VI. No appeal from an order of execution - No appeal may be taken from an order of execution (Sec. 1[f, Rule 39, Rules of Court; Reliance Surety and Insurance Co., Inc. vs. Amante, Jr., 462 SCRA 399). While it may be argued that an order of execution is in essence a final order, the order may not be appealed from by express provisions of the Rules. A party desiring to assail an order of execution may instead file an appropriate special civil action under Rule 65 of the Rules of Court (Sec. 1, Rule 41, Rules of Court).
IV. How execution shall issue 1. "Execution shall issue. . . on motion" as clearly set forth under Sec. 1 of Rule 39. There is therefore, a need to file a motion for the issuance of a writ of execution. In Lou vs. Siapno, it was ruled that even in judgments which are immediately executory, "there must be a motion to that effect and a hearing called for the purpose." Also, "under Supreme Court Circular No. 24-94, a motion for the issuance of a writ of execution must contain a notice to the adverse party." 2. A motion for the issuance of a writ of execution shall contain a notice to the adverse party. A motion which does not contain a notice of hearing of the time and place for the hearing of the motion as required by Sees. 4 and 5 of ltule 15 of the Rules of Court, is a worthless piece of paper which the clerk has no right to receive and which the court has no authority to act upon. Because of the present phraseology of Sec. 1 of Rule 39, rulings like those made in De Mesa vs. Court ofAppeals to the effect that where execution is a matter of right, the judgment debtor need not be given an advanced notice of the application for execution nor be afforded a prior hearing thereon, must necessarily be deemed abandoned. V. Where application for execution made 1. Execution shall be applied for in the court of origin. If an appeal has been duly perfected and finally resolved, the execution may be applied for also in the court of origin on motion of the judgment obligee (Sec. 1, Rule 39, Rules of Court). In filing a motion for execution of an appealed decision, there is no need to wait for the records of the case to be remanded to the court of origin. All that is required is for the appeal to have been duly perfected and finally resolved before execution may be applied for. This is because when the judgment obligee files a motion for execution in the court of origin, all he has to do is to attach the certified true copies of (a) the judgment of the appellate court, and (b) the entry of the said judgment (Sec. 1, Rule 39, Rules of Court) even if the records have not as yet been remanded to the court of origin. This procedure prevents needless delays in the execution of the judgment.
VII. Nature of writ of execution 1. The writ of execution is issued in the name of the Republic of the Philippines and shall state (a) the name of the court which granted the motion, (b) the case number, (c) the dispositive portion of the judgment or order subject of the execution, and (d) shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms (Sec. 8, Rule 39, Rules of Court). 2. The writ of execution should conform to the dispositive portion of the decision to be executed and the execution is void if it is in excess of and beyond the original judgment or award for it is a settled general principle that a writ of execution must conform strictly to every essential particulars of the judgment promulgated. 3. The writ may not vary the terms of the judgment to be executed. Thus, if the judgment does not provide for the payment of interest, the writ of execution cannot modify the judgment by requiring the judgment obligor to pay interest. That part of the writ imposing interest is void. An order of execution which does not substantially conform to the dispositive portion of the decision sought to be executed or which varies or goes beyond the terms of the judgment it seeks to enforce is null and void. 4. "That a writ of execution must conform to the judgment which is to be executed, substantially to every essential particular thereof, it is settled. It may not thus vary the terms of the judgment it seeks to enforce, nor go beyond its terms. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has no validity. - Thus, in the above cited case, where a contract has been declared by final judgment by the Supreme Court as perfected and valid yet is still unimplementable because of the absence of approval by the President of the Philippines, a writ of execution directing the implementation of the contract is void. - Said the Court: "In issuing the writ of execution, the trial court in effect ordered the enforcement of the contract despite the High Court's unequivocal pronouncement that albeit valid and perfected, the contract shall become effective only upon approval by the President." Indubitably, the alias writ of execution varied the tenor of this Court's
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3. Judgments and orders become final and executory by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period.
judgment, went against essential portions and exceeded the terms thereof.
(h) When refusal to execute the judgment has become imperative in the higher interest of justice
- "The execution directed by the trial court being out of harmony with the judgment, legal implications cannot save it from being found to be fatally defective.
X. Quashal of a writ of execution - A writ of execution may be quashed on certain grounds such as: (a) when the writ of execution varies the judgment; (b) when there has been a change in the situation of the parties making execution inequitable or unjust; (c) when execution is sought to be enforced against property exempt from execution; (d) when it appears that the controversy has never been submitted to the judgment of the court; (e) when the terms of the judgment are clear enough and there remains room for interpretation thereof; (f) when it appears that the writ of execution has been improvidently issued; (g) when it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or die writ was issued without authority.
VIII. Lifetime of the writ of execution (Bar 1995) - The writ shall continue in effect during the period within which the judgment may be enforced by motion (Sec. 14, Rule 39, Rules of Court). Hence, the writ is enforceable within the five-year period from entry of judgment as provided for in Sec. 6 of Rule 39 because within that period, the writ may be enforced by motion. Under the former Sec. 11 of Rule 39 of the old Rules, the lifetime of the writ was sixty (60) days from the receipt of the writ by the officer required to enforce it. IX. When execution will be denied 1. After a judgment has become final and executory, the rule is that execution becomes the ministerial duty of the court. 2. The rule however is far from absolute. The trial court may refuse to have the judgment executed in certain cases, as: (a) When the judgment has already been executed by the voluntary compliance thereof by the parties - Note: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law (Art. 2028, Civil Code of the Philippines). (b) When the judgment has been novated by the parties. - Note: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law. (c) When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. 5 of Rule 38; (d) When the judgment sought to be executed is conditional (Co Unjieng vs. Hijos Mabalacat Sugar Company, 70 Phil. 605) or when the judgment sought to be executed is incomplete (e) When facts and circumstances transpire which would render execution inequitable or unjust (f) When execution is sought more than five (5) years from its entry without the judgment having been revived (g) When execution is sought against property exempt from execution under Sec. 13 of Rule 39; or
XI. Duty of sheriff - Well-settled is the rule that a sheriff's duty in the execution of the writ is purely ministerial; he is to execute the order of the court strictly to the letter. He has no discretion whether to execute the judgment or not. When a writ is placed in the hands of the sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to implement it in accordance with its mandate. For it is only by doing so that he could ensure that the order is executed without undue delay. It cannot be overemphasized that sheriffs play an important part in the administration of justice, because they are tasked to execute the final judgments of courts. If not enforced, such decisions are empty victories on the part of the prevailing parties. Indeed, the execution of a final judgment is "the fruit and end of the suit and is the life of the law." XII. Modes of execution of a judgment (Bar 1982; 1987; 1997) 1. There are two modes of executing a final and executory judgment, to wit: (a) execution by motion if the enforcement of the judgment is sought within five (5) years from the date of its entry; and (b) execution by independent action if the five-year period has elapsed and before it is barred by the statute of limitations (Sec. 6, Rule 39, Rules of Court). 2. A writ of execution issued by motion of the prevailing party after five (5) years from the date of entry of the judgment is null and void. There is then a need for the prevailing party to file an independent action for the revival of the judgment before the action is barred by the statute of limitations. 3. It was held that if the writ of execution was issued and the levy made within five years from the entry of the judgment, the auction sale may be made even after the fiveyear period. The sale of the property and the application of the proceeds are merely the means to carry out the writ of execution and a levy already validly made. Accordingly, the levy is the essential act by which the property is set apart for the satisfaction of the judgment. The sale must however, be
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5. After a final judgment has been rendered by the Supreme Court, or even by a trial court for that matter, it is the duty of the court to enforce the judgment according to its terms. In other words, where the judgment of an appellate court has become final and executory and is returned to the lower court, the only function of the latter is the ministerial act of carrying out the decision and issuing the writ of execution.
XIII. Revival of judgment (Bar 1997) 1. The action to revive a judgment must be filed within ten (10) years from the date the judgment became final. An action to enforce a judgment prescribes in ten (10) years from the finality of the judgment (Art. 1144[31 in relation to Art. 1152, Civil Code of the Philippines). This action mentioned in Sec. 6 of Rule 39 presupposes that the judgment was not executed on motion by the prevailing party despite the lapse of five years from the entry of the judgment hence, the need for the enforcement of the judgment by action. - Caveat: This action to revive a judgment in Sec. 6 of Rule 39 is not the "revival of judgment" referred to in Sec. 34 of Rule 39 where the terms are actually used in the Rules. In the latter rule, the revival of judgment is not sought for by the judgment obligee or the prevailing party. It is sought for by the purchaser of a real property that was sold in an execution sale. Despite being the purchaser, he was not able to acquire possession of the property bought by him or She ever did acquire possession, he was evicted therefrom for one reason or another as when the judgment under which the sale was conducted was reversed, or the property sold to him was actually exempt from execution, or there was a rightful claimant to the property. The purchaser, under such situation is allowed by the Rules to file a motion in the same action or in a separate action for the purpose of recovering from the judgment obligee the price he paid, (including interest) for the property in the execution sale. He may as an option also file a motion to revive the judgment in his name to recover the price with interest. - In Sec. 34, the judgment has actually been executed unlike in Sec. 6 where the judgment has not been executed on motion within the five-year period set by the Rules. Sec. 34 seeks to revive the judgment that was already executed not by filing an independent action unlike the procedure required to enforce a judgment by action under Sec. 6. 2. When a judgment is revived such revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action also before it is barred by the statute of limitations (Sec. 6, Rule 39, Rules of Court). 3. Be it remembered that a revived judgment is deemed a new judgment separate and distinct from the original judgment. It is not a continuation of the original judgment. - Jurisprudence declares: "The action to revive the judgment is a new action and results in a new judgment constituting a new cause of action with a new period of limitations. Hence, the ten (10) year period to revive the revived judgment shall commence to run from the date of the finality of the revived
judgment and not from the date of finality of the old, original judgment." 4. An action to revive a judgment is an action incapable of pecuniary estimation and should be filed with the Regional Trial Court even if the judgment to be revived was rendered by a Municipal Trial Court. Illustration (Bar 1.997) A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against X, a resident of Quezon City, from the Metropolitan Trial Court of Manila. The judgment entered on June 15, 1991, had not as yet been executed. (a) In July 1996, A decided to enforce the judgment of the Metropolitan Trial Court of Manila. What is the procedure to be followed by A in enforcing the judgment? (b) xxx Suggested answer. A may file an action to revive the judgment. Under the Rules, a judgment may be executed by mere motion only within five (5) years from the entry ofjudgment. Since the five-year period has elapsed, an action to revive the judgment is the proper remedy (Sec. 6, Rule 39, Rules of Court). XIV. When the five-year period is interrupted (Bar 1993) 1. While the rule is that the execution of a judgment can no longer be effected by mere motion after five (5) years from the date of entry of the judgment, the Court in certain instances, allowed execution of the judgment by mere motion despite the lapse of the five-year time line. In many instances, the delays in the execution of the judgment were through causes clearly attributable to the judgment debtor as when he employs legal maneuvers to block the enforcement of the judgment. Delays attributable to the defendant have the effect of suspending the running of the prescriptive period for the enforcement of the judgment. 2. The period may also be interrupted by the agreement of the parties to suspend the enforcement of the judgment. XV. When the five and ten-year periods do not apply - The periods do not apply to (a) special proceedings, such as land registration and cadastral cases, wherein the right to ask for a writ of possession does not prescribe (Rodil vs. Benedicto, 95 SCRA 137); (b) judgments for support which do not become dormant and which can always be executed by motion despite lapse of the five-year period because the obligation is a continuing one and the court never loses jurisdiction to enforce the same. XVI. Stay of execution of a judgment; exceptions l. As a rule, an appeal perfected in due time stays the execution of a judgment. There are however, judgments, the execution of which is not stayed by a pending appeal. These judgments may be classified into two general categories, namely: (a) Those judgments which by express provision of the rules are immediately executory and are not stayed by an appeal (Sec. 4, Rule 39, Rules of Court); and (b) Those judgments that have become the object of discretionary execution (Sec. 2, Rule 39, Rules of Court).
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made within ten years during which the judgment can be enforced. The ten-year period commences to run from the finality of the judgment which is the period within which the judgment can be enforced (Art. 1152 in relation to Art. 1144[31, Civil Code of the Philippines). Because under the Rules, the date of the finality of the judgment or final order shall be deemed to be the date of its entry, (Sec. 2, Rule 36, Rules of Court) the period shall run also from the date of entry of the judgment.
2. The rule however, that the above judgments are immediately executory and not stayed by an appeal, is not absolute because the court is authorized to order otherwise. Also on appeal therefrom, the appellate court in its discretion nmy lnlrke rlrl order, suspending, modifying, restoring or granting the iniunction, receivership, accounting or award of' support (Sec. 4, Rule 39, Rules of Court). 3. Under Rule 70, a judgment rendered against the defendant in an action for forcible entry and unlawful detainer is likewise immediately executory upon motion (Sec. 19, Rule 70, Rules of Court). 4. Even if the above judgments are immediately executory, "there must be a motion to that effect and a hearing called for the purpose." XVIII. Discretionary execution (Bar 1991; 1995) 1. The concept of discretionary execution constitutes an exception to the general rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. Under Sec. 1 of Rule 39, execution shall issue only as matter of right upon a judgment or final order that finally disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. 2. A discretionary execution is called "discretionary" precisely because it is not a matter of right. The execution of a judgment under this concept is addressed to the discretionary power of the court. Unlike judgments that are final and executory, a judgment subject to discretionary execution cannot be insisted upon but simply prayed and hoped for because a discretionary execution is not a matter of right. 3. Be it noted that discretionary execution does not require a final and executory judgment but simply a "final" judgment or order. XIX. Requisites for discretionary execution - Under Sec. 2 of Rule 39, for the court to allow an execution even before the expiration of the period for appeal or pending appeal there must be compliance of the following requisites: (a) there must be a motion filed by the prevailing party with notice to the adverse party; (b) there must be a hearing of the motion for discretionary execution; (c) there must be good reasons to justify the discretionary execution; and (d) the good reasons must be stated in a special order (Sec. 2, Rule 39, Rules of Court).
XX. Discretionary execution is to be strictly construed 1. A discretionary execution like an execution pending appeal must be strictly construed because it is an exception to the general rule. It is not meant to be availed of routinely because it applies only in extraordinary circumstances. It should be interpreted only insofar as the language thereof fairly warrants, and all doubts should be resolved in favor of the general rule. 2. Where the execution is not in conformity with the rules, the execution is null and void. XXI. Good reasons 1. The existence of good reasons as justifications for discretionary execution is essential. The good reasons are what confer discretionary power upon the court to issue a writ of execution pending appeal. 2. Certiorari will lie against an order granting execution pending appeal where the same is not founded upon good reasons. 3. Sec. 2 of Rule 39 does not cite examples of the good reasons that would justify a discretionary execution. What constitutes a good reason therefore, is left to the sound exercise of judicial discretion. The following, among others, have been given by jurisprudence as good reasons: (a) The proven insolvency of the judgment debtor (b) The purpose of preventing irreparable injury to the consumers of an electric cooperative which needs the amount of the judgment for its operations and the repair of its transmission lines, electric posts, transformers, accessories, towers, and fixtures within its coverage area (c) The fact that the goods subject of the judgment will perish or deteriorate during the pendency of the appeal, a fact which would render the judgment in favor of the prevailing party ineffective (d) The failure in an unlawful detainer case to make the required periodic deposits to cover the amount of rentals due under the contract or for payment of the reasonable value of the use and occupation of the premises, or the failure to post a supersedeas bond may be good reasons to allow execution pending appeal (Sec. 19, Rule 70, Rules of Court). Illustration (Bar 1995) In an illegal detainer case, the Municipal Trial Court ruled in favor of the plaintiff-lessor who, not being satisfied with the increase of rentals granted him by the court, appealed praying for further increase thereof. Defendantlessee did not appeal. (a) Can the plaintiff-lessor as appellant, move for execution pending appeal? Suggested answer: He can move for execution pending appeal. To justify the motion it must be shown that the defendant failed to make the required periodic deposits to cover the amount of rentals due under the contract or for payment of the reasonable value of the use and occupation of the premises, or failed to post a supersedeas bond. These are good reasons to allow execution pending appeal (Sec. 19, Rule 70, Rules of Court).
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XVII. Judgments not stayed by appeal 1. The following judgments by express provision of the Rules are immediately executory, enforceable upon their rendition and shall not be stayed by an appeal taken therefrom: (a) judgment for injunction; (b) judgment for receivership; (c) judgment for accounting; and (d) judgment for support (Sec. 4, Rule 39, Rules of Court).
2. The rule has been subsequently reiterated in a case of recent vintage. The Court stressed that the trial court is not justified to order execution pending appeal, on its assertion that the appeal of the respondent is a dilatory tactic. It is not for the trial judge to determine the merit of a decision he rendered as this is the role of the appellate court. Hence, it is not within the competence of the trial court, in resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as basis for finding good reasons to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal. XXIII. Posting of bond as reason for discretionary execution (Bar 1991) l. The rule is now settled that the mere filing of a bond by the successful party is not in itself a good reason for ordering execution pending appeal, because it is the combination of circumstances which is the dominating reason that would justify immediate execution, the bond being only an additional factor. 2. If the mere posting of a bond is sufficient to justify immediate execution pending appeal, judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed was to post a bond. Immediate execution will then become the general rule rather than the exception. XXIV. Financial distress as reason for discretionary execution - The fact that the prevailing party is in financial distress is also not in itself a good reason to justify execution pending appeal. XXV. Where to file an application for discretionary execution - The motion for discretionary execution shall be filed with the trial court while (a) it has jurisdiction over the case and while (b) it is in possession of either the original record or the record on appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court (Sec. 2, Rule 39, Rules of Court). XXVI. Remedy where the judgment subject to discretionary execution is reversed or annulled - Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39, Rules of Court). There is no need of specifying in the judgment that there should be restitution because restitution is expressly provided for in the Rules. Said rule should apply in the absence of a disposition to the contrary in the judgment of the appellate court.
XXVII. Execution in case the judgment obligee dies - The death of the judgment obligee will not prevent the execution of the judgment. In case the judgment obligee dies, execution may issue upon the application of his executor, administrator or successor in interest (Sec. 7[a] Rule 39, Rules of Court). XXVIII. Execution in case the judgment obligor dies - The death of the judgment obligor will not likewise prevent execution of the judgment. In case the judgment obligor dies, execution shall still go on because under the Rules, execution shall issue against his executor or administrator, if the judgment be for the recovery of real or personal property (Sec. 7[b], Rule 39, Rules of Court). If the death occurs after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation. If there be any surplus after the sale, the officer making the sale shall account to the corresponding executor or administrator (Sec. 7[c], Rule 39, Rules of Court). XXIX. How to execute judgments for money - In executing a judgment for money, the sheriff shall follow the following steps: (a) Demand from the judgment obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of payment acceptable to him (Sec. 9[a], Rule 39, Rules of Court). In emphasizing this rule, the Supreme Court held that in the execution of a money judgment, the sheriff is required to first make a demand on the obligor for the immediate payment of the full amount stated in the writ of execution (b) If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees (Sec. 9[b], Rule 39, Rules of Court). (c) The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. The process of effecting this form of levy is called garnishment. XXX. Garnishment of debts and credits - Garnishment shall be made by (a) serving notice upon the third person having in possession or control of the credits in favor of the judgment obligor; (b) the third person or garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds to satisfy the judgment. If sufficient, the garnishee shall deliver the amount in cash or certified check shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishee. The lawful fees
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XXII. Frivolous appeal as reason for discretionary execution l. Where the sole reason given by the trial court in disallowing an appeal is that the appeal is frivolous and dilatory, execution pending appeal cannot be justified because the authority to disapprove an appeal pertains to the appellate court. Mere allegation that the appeal is dilatory is not a good reason to merit discretionary execution.
XXXI. Execution of a judgment for the performance of a specific act 1. If the judgment requires a person to perform a specific act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party (Sec. 10[a], Rule 39, Rules of Court). 2. If the judgment directs a conveyance of real or personal property, and said property is in the Philippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law (Sec. 10[a], Rule 39, Rules of Court). XXXII. Execution for a judgment for the delivery or restitution of real property (Bar 1995) 1. An example of this kind of judgment is one rendered in an action for ejectment. In such a case, the officer shall demand from the judgment obligor to vacate peaceably within three (3) working days, and restore possession of the property to the judgment obligee (Sec. 10[c], Rule 39, Rules of Court). Note that in both the Rules and jurisprudence, the writ of execution in ejectment cases cannot be enforced on the same date the sheriff receives the writ. The three (3)day notice is required even if judgment against the defendant is immediately executory under Sec. 19 of Rule 70. 2. Immediacy of execution does not mean instant execution. When a decision is immediately executory it does not mean dispensing with the required three (3)-day notice. A sheriff who enforces the writ without the required notice is running afoul with the rules. 3. After the lapse of the period given and the judgment obligor refuses to vacate, then the sheriff may enforce the writ by ousting the judgment obligor and all the persons claiming a right under him, with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession and place the judgment oblige in possession of such property (Sec. 10[c], Rule 39, Rules of Court). This provision authorizes the bodily removal of the defendant and his belongings. XXXIII. Contempt is not a remedy - The mere refusal or unwillingness of the judgment debtor to vacate the property is not a sufficient ground to hold him in contempt. The writ of possession was not directed to the judgment debtor but to the sheriff who was directed to deliver the property to the prevailing party. As the writ did not command the judgment debtor to do anything, he cannot be guilty of the acts described in Rule 71 which is "disobedience of or resistance to a lawful writ, process, order, judgment or command of any court." The proper procedure is not for the court to cite the debtor in contempt. What the officer should do is to dispossess him of the property and if after the dispossession, the judgment debtor should execute acts of ownership or possession or in any
manner disturb the possession of the judgment creditor, then and only then may he be punished for contempt. XXXIV. Removal of improvements on the property subject of execution - When the property subject of execution contains improvements constructed thereon by the judgment obligor or his agent, the officer shall not demolish, destroy or remove them. These acts may only be done by the officer upon a special order by the court which will be issued upon motion by the judgment obligee and after hearing and only after the judgment obligor fails to remove them within a reasonable time fixed by the court (Sec. 10[e], Rule 39, Rules of Court). XXXV. Property exempt from execution (Bar 1981) 1. There are certain properties exempt from execution enumerated under Sec. 13 of Rule 39, to wit: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos (Bar 1981); (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (1) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and (m) Properties specially exempted by law (Sec. 13, Rule 39, Rules of Court). 2. The rule provides that no other property is exempt from execution (Sec. 13, Rules of Court). The enumeration therefore, is exclusive. XXXVI. When the property mentioned is not exempt from execution - If the property mentioned in Sec. 13 of Rule 39 is the subject of execution because of a judgment for the recovery
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shall be directly paid to the court. If the amount is insufficient, the garnishee shall make a report as to the amount he holds for the judgment obligor (Sec. 9, Rule 39, Rules of Court).
XXXVII. Proceedings when property levied upon is claimed by third persons; terceria (Bar 1982; 1984; 1993) 1. A person claiming a property levied upon may execute an affidavit of his title or right of possession over the property. Such affidavit must state the grounds of such right or title. The affidavit shall be served upon the officer making a levy and a copy thereof must also be served upon the judgment obligee (Sec. 16, Rule 39, Rules of Court). This remedy of the claiming party is also called "terceria." - The officer served with the affidavit of the claiming third person shall not be bound to keep the property subject of the claim, unless the judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the claimant in a sum not less than the value of the property levied upon. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty ( 120) days from the date of the filing of the bond (Sec. 16, Rule 39, Rules of Court). The officer shall not be liable to any thirdparty claimant for damages for the taking or keeping of the property, if such bond is filed (Sec. 16, Rule 39, Rules of Court). 2. Said the Supreme Court in Ching vs. Court ofAppeals: ". . . the sheriff may attach only those properties of the defendant against whom a writ of attachment has been issued by the court. When the sheriff erroneously levies on attachment and seizes the property of a third person in which the said defendant holds no right or interest, the superior authority of the court which has authorized the execution may be invoked by the aggrieved third person in the same case. Upon application of the third person, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment, more specifically if he has indeed levied on attachment and taken hold of property not belonging to the plaintiff. If so, the court may then order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the motion of the third party, the court does not and cannot pass upon the question of the title to the property with any character of finality. It can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not. If the claimant's proof does not persuade the court of the validity of the title, or right of possession thereto, the claim will be denied by the court. The aggrieved third party may also avail himself of the remedy of "terceria" by executing an affidavit of his title or right of possession over the property levied on attachment and serving the same to the office making the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting from the unlawful levy and seizure, which should be a totally separate and distinct action from the former case. The above-mentioned remedies are cumulative and any one of them may be resorted to by one third- party claimant without availing of the other remedies.
3. Other remedies may also be availed of by the thirdparty claimant because nothing contained in the Rules "shall prevent the claiming third person from vindicating his claim to the property in a separate action. . ." (Sec. 16, Rule 39, Rules of Court; Bar 1982, 1983; 1984; 1993). - "The second paragraph of Section 16, Rule 39 of the Rules of Court provides: x x x Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or separate action against a third-party claimant who filed a frivolous or plainly spurious claim. - "Clearly, a third-party claimant or any third person may vindicate his claim to his property wrongfully levied by filing a proper action which is distinct and separate from that in which the judgment is being enforced. Such action would have for its object the recovery of the possession of the property seized by the sheriff, as well as damages resulting from the allegedly wrongful seizure and detention thereof despite the third-party claim; and it may be brought against the sheriff, of course, and such other parties as may be alleged to have colluded with the sheriff in the supposedly wrongful execution proceedings, such as the judgment creditor himself. - "The same paragraph also provides a remedy to a judgment obligee when a frivolous and plainly spurious claim was filed by a third-party claimant, i.e., to file his claim for damages in the same court where the third-party claimant filed his thirdparty claim or to file a separate action. Thus, petitioners' claim for damages must be filed in the trial court, whether in the same case where a third-party claim has been filed or in a separate action for damages which petitioners may institute. This is so in order to require the filing of proper pleadings and to hold trial so as to give the parties the chance to submit their respective evidence (Caps vs. Court ofAppeals, G.R. No. 160082, September 19, 2006; Underscoring supplied). Illustration (Bar 1993) In a decision in Civil Case No. 93-1000 entitled "Beta, Inc. vs. Jaime de la Cruz," having become final and executioy, the RTC of Manila (Branch 21) issued a writ of execution for its enforcement. The sheriff levied upon certain chattels and scheduled the auction sale thereof. However, Jacinto Santamaria filed a third-party claim with the sheriff asserting that the chattels levied upon by the later belong to him and not to the judgment debtor (Jaime de la Cruz). Because the judgment creditor (Beta, Inc.) posted an indemnity bond in favor of the sheriff, the latter refused to release the chattels and threatened to proceed with the auction sale. Consequently, Jacinto Santamaria filed an action against Beta, Inc., and the sheriff in the RTC of Bulacan (Branch 8), docketed as Civil Case No. 93-487, laying claim to the levied chattels and seeking to enjoin the sheriff from proceeding with the auction sale thereof. As prayed for, the court in Civil Case No. 93-487 issued a temporary restraining order, followed by a writ of preliminary injunction, by way of enjoining the sheriff from implementing the writ of execution in Civil Case No. 93-1000 against the levied
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of the price or upon a judgment of foreclosure of a mortgage upon the property, the property is not exempt from execution (Sec. 13, Rule 39, Rules of Court).
Suggested answer. The motion to dismiss should be denied. Where a property levied upon is claimed by a third party, nothing in the Rules "shall prevent such claimant or any third person from vindicating his claim against to the property n a separate action" (Sec. 16, Rule 39, Rules of Court). Clearly, a third party claimant is allowed to vindicate his claim to his property wrongfully levied by filing a proper action which is distinct and separate from that in which the judgment is being enforced. The action filed cannot be considered as interference with the judgment of another court. The separate action filed is not, directed against the court but against the unlawful acts of the sheriffand the prevailing party. XXXVIII. Miscellaneous principles to be remembered in execution sales 1. A notice of sale is required before the property levied is sold on execution (Sec. 15, Rule 39, Rules of Court). All sales of property under execution must be made at public auction to the highest bidder (Sec. 19, Rule 39, Rules of Court) but the execution sale must be preceded by a valid levy which is indispensable for a valid execution sale. > levy - the act whereby the sheriff sets apart or appropriates a part of the whole of the properties of the judgment obligor to satisfy the command of the writ. - A levy is necessary only if the obligor cannot satisfy the judgment in cash, certified check or any other mode of payment acceptable to the judgment creditor (Sec. 9[b], Rule 39, Rules of Court). - A levy upon real property is made by the officer by performing two specific acts: (a) filing with the Register of Deeds a copy of the order, description of the attached property and notice of attachment; and (b) leaving with the occupant of the property copy of the same order, description and notice. Noncompliance with any of these requisites is fatal because a special statutory provision respecting the manner of carrying out levy of attachment must be strictly complied with and departure therefrom shall invalidate the levy. 2. After sufficient property has been sold to satisfy the execution, no more shall be sold (Sec. 19, Rule 39, Rules of Court); 3. Any excess property or proceeds of the sale shall be delivered to the judgment obligor (Sec. 19, Rule 39, Rules of Court); 4. If the purchaser at the auction refuses to pay the amount bid by him, the officer may again sell the property to the
highest bidder and the court may require such purchaser to pay unto the court the amount of whatever loss, with costs occasioned by his refusal to pay and if he disobeys the order, may punish him for contempt. Any subsequent bid by such purchaser may be refused by the officer conducting the bidding (Sec. 20, Rule 39, Rules of Court); 5. The judgment obligee may bid and if said party is the purchaser and there is no third party claim, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall only pay the excess (Sec. 21, Rule 39, Rules of Court); 6. If the purchaser of personal property capable of manual delivery pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, shall execute a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment (Sec. 23, Rule 39, Rules of Court); 7. When the purchaser of any personal property not capable of manual delivery pays the price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment (Sec. 24, Rule 39, Rules of Court). XXXIX. Sale and redemption of real property l. Upon a sale of real property, the officer must give to the purchaser a certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated (Sec. 25, Rule 39, Rules of Court). 2. The real property sold may be redeemed from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale. If there are other creditors having a lien on the property, the property so redeemed may again be redeemed within sixty (60) days from the last redemption. The property may again, and as often as a redemptioner is so disposed, be redeemed from any previous redemptioner within sixty (60) days after the last redemption (Sec. 28, Rule 39, Rules of Court). 3. The property may be redeemed by the judgment obligor, or his successor in interest or by a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent to the lien under which the property was sold. Such redeeming creditor is called a redemptioner (Sec. 27[b], Rule 39, Rules of Court). 4. Note that the right of redemption under the Rules of Court has reference only to real, not personal property (Sec. 27, Rule 39, Rules of Court). XXXX. Effect if no redemption is made 1. If no redemption is made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, the last redemptioner is entitled to the
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chattels pending determination of Jacinto Santamaria's claim thereto. Beta, Inc. and the sheriff filed a motion to dismiss Civil Case No. 93-487 on the ground that the court has no power to interfere with the judgment of the RTC of Manila (Branch 21), a coordinate court. How should the motion to dismiss be resolved? Explain.
2. Upon the expiration of the right of redemption, purchaser or redemptioner shall be substituted to acquire all the rights, title, interest and claim of judgment obligor to the property as of the time of the (Sec. 33, Rule 39, Rules of Court).
the and the levy
XXXXI. Rents, income and earnings of the property pending the redemption - The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption (Sec. 32, Rule 39, Rules of Court). XXXXII. Remedy when the judgment is unsatisfied (Bar 1983; 2002) 1. When the return of the writ of execution shows that the judgment is unsatisfied, the judgment obligee is entitled to an order from the court which rendered the judgment, requiring the judgment obligor to appear and be examined concerning his property and income before the court or a commissioner appointed by the court. This remedy has a limitation because the judgment obligor cannot be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (Sec. 36, Rule 39, Rules of Court). Thus, if the court is RTC Bulacan and the obligor is a resident of Quezon City, he cannot be required to appear and be examined. 2. It is not only the judgment debtor who may be examined. A person, corporation, or other juridical entity, indebted to the judgment debtor may be required to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same (Sec. 37, Rule 39, Rules of Court). CHAP. 12: PROVISIONAL REMEDIES I. Nature of provisional remedies 1. The term "provisional" means temporary, preliminary or tentative. 2. > Provisional remedies - temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a principal action. II. Purpose of provisional remedies (Bar 1996) - Provisional remedies are resorted to by litigants for any of the following reasons: (a) To preserve or protect their rights or interests while the main action is pending; (b) To secure the judgment; (c) To preserve the status quo; or (d) To preserve the subject matter of the action.
III. Court which grants provisional remedies - The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction. - For instance, a Municipal Trial Court has the jurisdiction to issue a writ of preliminary mandatory injunction, a provisional remedy available as ancillary to the main action of forcible entry and unlawful detainer (Sec. 15, Rule 70, Rules of Court). Where the main action is for support, the provisional remedy of support pendente lite may not be granted by a Municipal Trial Court because the main action which is incapable of pecuniary estimation is within the jurisdiction of the Regional Trial Court or the Family Court. IV. Kinds of provisional remedies (Bar 1999) 1. The provisional remedies specified under the rules are: (a) Preliminary attachment (Rule 57); (b) Preliminary injunction (Rule 58); (c) Receivership (Rule 59); (d) Replevin (Rule 60); and (e) Support pendente lite (Rule 61). 2. The enumeration is not exclusive. For example, in the special proceeding of custody of minors, the court may grant a parent visitation rights and or temporary custody of the child (Sec. 6, Rule 99, Rules of Court), both of which partake of the nature of provisional remedies even if not among those specifically enumerated as provisional remedies. V. Deposit as a provisional remedy - In one case, an action to annul a contract of sale of a land, the buyer moved for the court to order the seller to deposit in court the amount initially given to the seller as consideration for the land to prevent the dissipation of the amount paid. The seller opposed the motion arguing that a deposit is not among the provisional remedies enumerated in the Rules of Court. The Court nevertheless granted the motion. The Court considered the case as one that clearly showed a hiatus in the Rules of Court and in the law because deposit is not so provided under the Rules as a provisional remedy. If the hiatus is left alone, it will result in unjust enrichment in favor of the seller tat the oxpenme of the buyer. It may also imperil the obligation of restitution, a precondition to the annulment of a contract. This is a case of insufficiency of the law and Article 9 of the Civil Code mandates a ruling despite the "silence, obscurity or insufficiency of the laws." This calls for the application of equity, which fills the open spaces of the law. In ordering the deposit, the court exercised its "equity jurisdiction." I. Preliminary Attachment (Rule 57) I. Nature of preliminary attachment 1. > Preliminary attachment - a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case. 2. There is no separate action called preliminary attachment. It is not a distinct proceeding and is availed of within a
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conveyance and possession of the property (Sec. 33, Rule 39, Rules of Court).
3. Attachment places the property under the custody of the court (custodia legis). The property is held by the court for the satisfaction of whatever award which may be obtained by the plaintiff in his favor. 4. Attachment has been referred to as an action in rem or an action quasi in rem. When availed of and is granted in an action purely in personam, it converts the action to one that is quasi in rem. It will be recalled that in an action in personam, jurisdiction over the defendant is mandatory. However, with attachment, the action becomes one in quasi in rem. This transformation of the nature of the action dispenses with the need for acquiring jurisdiction over the defendant. Since attachment is directed against the property of the defendant, the court may validly proceed with the action as long as jurisdiction over the property is acquired. In an action in rem or quasi in rem, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not required. 5. Attachment is a purely statutory remedy. It cannot exist without a statute granting it. Its legal basis for application is not only a direct provision in the Rules of Court (Rule 57) but also the Civil Code of the Philippines (Art. 1177, Civil Code) which authorizes a creditor to pursue the property of the debtor. 6. It is not only the plaintiff who may apply for a writ of preliminary attachment. A defendant who asserts a counterclaim, a cross-claim or a third-party claim may also avail of the remedy. 7. The attachment is preliminary only when resorted to before the finality of the judgment to secure the property of the adverse party and to prevent its dissipation. Once the judgment has become final and executory, the attachment becomes a final one and is issued in order to satisfy the judgment. II. Purpose of preliminary attachment - Preliminary attachment is designed to: (a) seize the property of the debtor before final judgment and put the same in custodia legis even while the action is pending for the satisfaction of a later judgment; or (b) to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected. III. Kinds or attachmentM; distinctions (Bar 1878; 1989) 1. There are three types of attachments, to wit: (a) preliminary attachment, (b) garnishment, and (c) levy on execution. 2. > Preliminary attachment - one issued at the commencement of the action or at anytime before entry of
the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. Here the court takes custody of the property of the party against whom the attachment is directed. 3. > Garnishment - a kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called the garnishee, to his claim or the money which said third person owes the defendant. By means of garnishment, the plaintiff reaches credits belonging to the defendant and owing to him from a third person who is a stranger to the litigation. - Garnishment does not involve the actual seizure of the property which remains in the hands of the garnishee. Garnishment simply impounds the property in the garnishee's possession and maintains the status quo until the main action is finally decided. Thus, if pursuant to a court order, the defendant's credit with a stockbroker is garnished, the sheriff cannot order that said balance be surrendered to the plaintiff or the sheriff upon the garnishment. It is only after the judgment against the defendant has become final and executory that the delivery is to be made (Bar 1980; Sec. 15[c], Rule 57). - Jurisdiction over the garnishee is acquired by the mere service upon him of the copy of the writ of garnishment with a notice that his debt to the defendant or other personal property of the defendant under his control or possession is attached pursuant to the writ (Sec. 7[b], Rule 57, Rules of Court). Service of summons is not required to bind the garnishee. By virtue of the writ, the garnishee will be required to hold the property or the funds in his hands during the pendency of the litigation and at the appropriate time, to deliver the same not to the defendant but to the new creditor who is the plaintiff in the litigation. Garnishment therefore, results into a forced novation through a change in the creditor. - Garnishment proceedings are usually directed to personal property, tangible or intangible and whether capable of manual delivery or not. 4. > Levy on execution - the writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is the preliminary step to the sale on execution of the property of the judgment debtor. IV. Cases in which preliminary attachment is proper 1. One cannot secure preliminary attachment in every situation. The rules governing preliminary attachment enumerate specific situations in which the remedy can be availed of (Sec. 1, Rule 57, Rules of Court). The enumeration should be deemed exclusive. 2. Example: A borrowed money from B. A failed to pay despite demand. B sued A in the proper court. Is preliminary attachment available to B if he can show that A is already insolvent at the time the action is filed? Answer: Preliminary attachment is not available. A mere action to collect a sum of money is not one of those cases enumerated in Sec. 1, Rule 57 of the Rules of Court which would justify the
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principal action. For instance, if the plaintiff files an action to collect a sum of money, the action may be coupled with a prayer for the issuance of a writ of preliminary attachment directed against the property of the defendant in order to prevent him from further disposing of his property during the pendency of the litigation.
3. In the immediately preceding set of facts, may B successfully ask for preliminary attachment if it can be shown that A is about to depart from the Philippines? Answer: B cannot successfully ask for preliminary attachment by merely proving that the debtor is about to depart from the Philippines. There must also be a showing that the departure is with intent to defraud B. - The provisions of the Rules of Court are clear: One of the cases in which preliminary attachment is proper is "In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors (Sec. 1[a], Rule 57, Rules of Court; italics supplied). - Under the above provision, the cause of action is for money or damages, the amount of which must be "specified." The cause of action need not arise from a contract alone as it was in the old rule. It may arise also from any of the sources of obligations under Art. 1157 of the Civil Code like law, contract, quasicontract, delict or quasi-delict. However, where the action is for the recovery of moral damages or exemplary damages alone, preliminary attachment will not lie. - A writ of preliminary attachment cannot be issued for moral and exemplary damages and other unliquidated and contingent claims. - Thus, a mere allegation that the defendant is a foreigner without alleging that he intends to depart from the Philippines to defraud his creditor is not sufficient for preliminary attachment to be successfully availed of. 4. Preliminary attachment is also available in an action for money or property embezzled, fraudulently misapplied or converted to his own use by the defendant. Here, the defendant may be a public officer, a corporate officer, an attorney, a factor, a broker, an agent, a clerk or any other person acting in a fiduciary capacity. He may also be a person who acted in a manner as to willfully violate his duty not to embezzle, fraudulently misapply, or not to convert money or property for his own use. (Sec. 1[b], Rule 57, Rules of Court). - Thus, in an action against a public officer who misappropriated funds entrusted to him by virtue of his office, the issuance of a writ of preliminary attachment is proper. Preliminary attachment is also proper in an action against an officer of a private corporation who converted the corporate funds to his personal use. 5. Preliminary attachment is also available in an action to recover property unjustly or fraudulently taken, detained or converted by the defendant. Note however, that preliminary attachment under this provision will be granted if it is alleged and shown that the property involved or any part
thereof has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person (Sec. 1[c], Rule 57, Rules of Court). - In this cause of action, the property unjustly or fraudulently taken, detained and converted by the defendant may also be a real property, not just personal property. 6. Preliminary attachment is also available in an action against a defendant guilty of fraud in either contracting or performing an obligation (Sec. 1, Sec. 1[d], Rule 57, Rules of Court). - There are two kinds of frauds contemplated here. First, dolo causante (causal fraud) and second, dolo incidente (incidental fraud). > Dolo causante - fraud used to induce another to enter into a contract (Art. 1338, Civil Code of the Philippines). It is the fraud employed in contracting an obligation and renders a contract annullable or voidable (Art. 1330;Art.1390, Civil Code of the Philippines). > Dolo incidente - the fraud employed by a party in the fulfillment of his obligation or after the obligation has been contracted. This kind of fraud only obliges the person employing it to pay damages (Art. 1344, Civil Code of the Philippines). - Under the former rule, the fraud that justified a writ of preliminary attachment was only the fraud committed in contracting an obligation (dolo causante). It did not include the fraud committed subsequent to contracting the obligation (dolo incidente). - Example: Mr. X induced his rich friend, Mr. Y to grant him a loan using a spurious land title. Without the security, Mr. Y would not have extended the loan to him. If Mr. Y later learns of the fraud and files an action to recover the amount loaned to Mr. X, Mr. Y may apply for a writ of preliminary attachment. The fraud committed by Mr. X is a fraud in contracting the obligation or dolo causante. 7. Preliminary attachment is also a remedy available in an action against a person who has removed or disposed of his property with intent to defraud his creditors (Sec. 1[e], Rule 57, Rules of Court). - The mere removal or disposal of the property is not sufficient to support a prayer for the issuance of a writ of preliminary attachment. The act must be shown to have been done with the intent to defraud the plaintiff/creditor. 8. In an action against a defendant who is a non-resident and who is at the same time not found in the Philippines, attachment may be availed of in order to reach his property in the Philippines and to dispense with the need for acquiring jurisdiction over his person (Sec. 1[f], Rule 57, Rules of Court). - Here, the attachment is intended to enable the court to acquire jurisdiction over the res and thus, justifying summons by publication. When the property of a non-resident located in the Philippines is attached, the court acquires jurisdiction over the res and in that event, the jurisdiction over the person of said defendant is not essential.
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issuance of a writ of preliminary attachment. Common reason suggests that the mere inability of the debtor to fulfill his obligation to pay a debt is not synonymous with a fraudulent intent not to honor an obligation.
Suggested answer: The attachment cannot be obtained. The property sought to be attached is actually the property of the corporation while the defendant is "Y," not the corporation. The corporation has a personality separate and distinct from that of its stockholders. Illustration (Bar 1982) Edward filed a complaint for accounting against LIZA for accounting of the money received by her as administratrix of Edward's hacienda. In his complaint, Edward prayed for preliminary attachment, alleging that Liza was about to depart from the Philippines. Attached to the complaint was an affidavit executed by Marilyn to the effect that Liza told her that she, Liza, was planning to leave for Singapore in a few days. If you were the judge, would you grant the prayer for preliminary attachment? Why? Suggested answer. I would not grant the prayer for preliminary attachment. The application should show that the defendant's departure from the Philippines must be with the corresponding intent to defraud the creditors (Sec. 1, Rule 57, Rules of Court). This fact was not alleged in the application for the issuance of the writ of preliminary attachment. Illustration (Bar 1983) Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children reside. He is the Chief Executive Officer of various family corporations where he owns 20% of the respective capital stocks. These family corporations owe several banks the total sum of P2.5 billion, with Chan as a solidary co-debtor. After Chan has carefully manipulated the finances of the family corporations and diverted their funds to his account in a Swiss bank, he flees from. the Philippines and now resides at 127 Rue Duphine, Zurich, Switzerland. The banks concerned now retains the services of Atty. Ramon Castillo for the purpose of filing a suit in the Philippines against Daniel Chan on his obligations as a solidary codebtor on the loans of the family corporations. One of the procedural problems facing Atty. Castillo is the method of effecting a valid service of summons upon Daniel Chan, now residing in Switzerland, to enable the Philippine courts to acquire jurisdiction over his person. Describe the remedies and procedure, and the supporting grounds thereof that Atty. Castillo should follow as would enable him to effect a valid service of summons on Daniel Chan. Suggested answer.
Atty. Castillo should file an action against Daniel Chan for collection of a sum of money with an application for a writ of preliminary attachment. Since the action is one in personam, jurisdiction over the person of the defendant is required but this jurisdiction cannot be obtained against one who is not a resident of the Philippines in an action in personam. The writ of attachment is required in order to convert the action in personam into an action quasi in rem. In this kind of action jurisdiction over the person of the defendant is not required. What is required is jurisdiction over the res which could be obtained by the attachment. Summons by publication would then be served or by the other modes of extraterritorial service (Sec. 1[f, Rule 57, Rules of Court). Illustration (Bar 1990) On June 18, 1989, Mario Reyes executed a promissory note for P50,000 payable to Norma Alajar not later than June 18, 1990. Mario Reyes defaulted in the payment of the promissory note and a collection suit was filed against him before the Regional Trial Court of Quezon City. After the complaint has been filed, Norma Alajar discovered that Mario Reyes' petition for the issuance of an immigrant visa was approved by the United States Embassy, and that Mario Reyes has been disposing of his properties. What remedy may be availed of by Norma Alajar to protect her interest? Explain your answer. Suggested answer. Norma Alajar should file an application for the issuance of a writ of preliminary attachment. The acts of Mario Reyes are sufficient to vest upon Norma Alajar a ground for the remedy. The disposal of his properties clearly indicates an intent to defraud his creditor (Sec. 1, Rule 57, Rules of Court). V. When to apply for preliminary attachment 1. It may be applied for (a) at the commencement of the action, or (b) at any time before entry of judgment (Sec. 1, Rule 57, Rules of Court). 2. If it is applied for at the commencement of the action, the application may be incorporated in the verified complaint alleging all the grounds and complying with all the requisites for the grant of the application. VI. By whom applied for - It is not only the plaintiff who may apply for the issuance of a writ of preliminary attachment. The pertinent provisions of Sec. 1 of Rule 57 provide that "a plaintiff or any proper party may have the property of the adverse party attached "* * *". This term, proper party is broad enough to refer also to a defendant who filed a counterclaim, a cross-claim or a thirdparty complaint. What is important is the applicant can satisfy the requirements of the rules for the grant of the writ. VII. Ex parte issuance of the writ (Bar 2005; 2001;1996;1993; 1991) 1. The writ of preliminary attachment may be granted upon motion and notice and hearing by the court in which the action is pending and may even be issued by the Court of Appeals or the Supreme Court (Sec. 2, Rule 57, Rules of Court).
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Illustration (Bar 1981) Y" is a stockholder of a local corporation. "Y" owns 20% of the shares of the said corporation. "Y» defaults on a manufacturing contract with "Z." "Z" sues for specific performance and damages and, on the ground that "Y" is fleeing from the country to avoid his creditors, seeks to attach 20% of a parcel of land that belongs to the corporation. Can "Z" secure such an attachment granting that the averments of his petition are sufficient? Reasons.
Illustration (Bar 2005) Katy filed an action against Tyrone for collection of the sum of Pl million in the Regional Trial Court, with an ex parte application for a writ of preliminary attachment. Upon posting of an attachment bond, the court granted the application and issued a writ of preliminary attachment. Apprehensive that Tyrone might withdraw his savings deposit with the bank, the sheriff immediately served a notice of garnishment on the bank to implement the writ of preliminary attachment. The following day, the sheriff proceeded to Tyrone's house and served him the summons, with copies of the complaint containing the application for writ of preliminary attachment, Katy's affidavit, order of attachment, writ of preliminary attachment and attachment bond. Within fifteen (15) days from service of summons, Tyrone filed a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds: (1) the court did not acquire jurisdiction over his person because the writ was served ahead of the summons: (ii) the writ was improperly implemented; and (iii) Said writ was improvidently issued because the obligation in question was already fully paid. Resolve the motion with reasons. Suggested answer. (i) The jurisdiction of the court over the subject matter over the person of the defendant was acquired when he was served with summons. This jurisdiction was not affected by the fact that the writ was served ahead of the summons. What was affected was the enforceability of the writ. Under the Rules of Court, no levy on attachment pursuant to the writ shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines (Sec. 5, Rule 57, Rules of Court). (ii) The writ was improperly implemented because it was served prior to the service of summons (Sec. 5, Rule 57, Rules of Court). (iii) The defense of payment to support a motion to discharge the attachment is not proper. Such defense should have been invoked either in a ground for motion to dismiss or as an affirmative defense in the answer. Illustration (Bar 2001) May a writ of preliminary attachment be issued ex parte? Briefly state the reasons for your answer. Suggested answer.
A writ of preliminary attachment may be issued ex parte although it may be also issued upon notice and hearing (Sec. 2, Rule 57, Rules of Court). An ex parte issuance of the writ is intended to preempt any possible disposition of property by the adverse party to the detriment of the attaching creditor and thus defeat the very purpose of attachment (Mindanao Savings & Loan Association, Inc. vs. CA, 172 SCRA 480). Illustration (Bar 1996) 1. xxx 2. xxx 3. xxx 4. In a caso for it sum of rnoney, the trial court granted ex parte the prayer for issuance of a writ of preliminary attachment. The writ was immediately implemented by the sheriff. The defendant filed a motion to discharge the writ of preliminary attachment on the ground that it was issued and implemented prior to the service of summons. Plaintiffs opposed arguing that under the Rules of Court, the writ can be applied for and granted at the commencement of the action or at any time thereafter. In any event, plaintiff argues that the summons, which was eventually served cured whatever irregularities that might have attended the enforcement of the writ. How would you rule on the conflicting contentions of the parties? Suggested answer: The writ can be applied for at the commencement of the action (Sec. 1, Rule 57, Rules of Court). It can be issued ex parte (Sec. 2, Rule 57, Rules of Court). However, the enforcement of the writ may not be done and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment, and the attachment bond. Illustration (Bar 1993) On May 2, 1992, Precision, Inc., filed a verified complaint for the recovery of a sum of money against Summa, Inc. The complaint contained an ex parte application for a writ of preliminary attachment. On May 3, 1992, the Trial Court issued an order granting the ex parte application and fixing the attachment bond at P2 million. On May 8, 1992, the attachment bond having been submitted by Precision, Inc., the writ of preliminary attachment was issued. On May 9, 1992, summons together with a copy of the complaint, the writ of preliminary attachment and a copy of the attachment, was served on Summa, Inc., and pursuant to the writ, the sheriff attached properties belonging to Summa, Inc. On July 6, 1992, Summa, Inc. filed a motion to discharge the attachment for alleged lack of jurisdiction to issue the same because, at the time the order of attachment and the writ of preliminary attachment were issued, the court had not yet acquired jurisdiction over the person of Summa, Inc. It argued that a writ of preliminary attachment may not issue ex parte against a defendant before acquisition of jurisdiction over the latter's person by service of summons or his voluntary submission to the court's authority.
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2. It may also be issued ex party and even before summons is served upon the defendant. However, the writ may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond. Implementation of the writ of attachment without the required jurisdiction over his person is null and void.
Suggested answer. The motion should not be granted. A writ of preliminary attachment may be granted at the commencement of the action and even before jurisdiction has been acquired over the person of the defendant (Sec. 1, Rule 57, Rules of Court). It may be issued ex parte (Sec. 2, Rule 57, Rules of Court). Illustration (Bar 1991) Upon failure of X to pay the promissory note for P100,000 which he executed in favor of Y, the latter filed the complaint for a sum of money with application for the issuance of a writ of preliminary attachment alleging therein that X is about to dispose of his properties in fraud of his creditors. (a) May the court issue the writ immediately upon filing of the complaint and before service of summons? (b) If service of summons is indispensable before the writ is issued, is hearing on the application necessary? (c) If the writ is issued and X filed a motion to quash the attachment, may the motion be granted ex parte? Suggested answers: (a) The writ may be issued upon the filing of the complaint and even before the service of summons upon the defendant (Sec. 1, Rule 57, Rules of Court). (b) A hearing on the application is not necessary. The application for the writ need not be heard. It may be issued ex parte. The issuance of summons is not even indispensable before the writ is issued (Sec. 1, Rule 57, Rules of Court). (c) The motion to quash may not be granted ex paste. A hearing is necessary. Illustration (Bar 1978) X filed a complaint in the Court of First Instance of Manila (now RTC) against Y for the recovery of a sum of money. X at the same time also prayed for the issuance of an order of preliminary attachment against Y, and included in his affidavit, among others, that Y was disposing of his properties with intent to defraud X. The court immediately issued the writ of preliminary attachment ex paste. Y moved to discharge the attachment on the ground that it was irregularly issued, in that Y was not notified at all of such application or about the time and place of the hearing thereof, in gross violation of the Rules and his right to due process of law. As counsel for X prepare an opposition to Y's motion to discharge the attachment. Suggested answer. Y's motion to discharge the attachment must be denied. A writ of preliminary attachment may be issued at the commencement of the action (Sec. 1, Rule 57, Rules of Court) and can be issued ex parte (Sec. 2, Rule 57, Rules of Court). VIII. Why ex parte grant of the writ is allowed 1. An application for an order and writ of execution may be granted ex paste because it is possible that during the course of the hearing, the party against whom the writ is sought
may dispose of his property or abscond before the writ is issued. 2. It is not the notice to the defendant that is sought to be avoided but the time which such hearing would take because the defendant may delay the hearing to be able to dispose of his properties. IX. Stages in the grant of preliminary attachment - The grant of the provisional remedy of attachment has three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. Jurisdiction over the person of the defendant is not necessary in the first two stages. In the third stage, when the writ is to be implemented, the court must have acquired jurisdiction over the person of the defendant. Without such jurisdiction having been obtained, the court has no power and authority to act in any manner against the defendant (Mangila vs. Court of Appeals, GR. No. 125027, August 12, 2002). Hence, no levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by the service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. X. When contemporaneous service is not required - The requirement of prior or contemporaneous service of summons shall not however, apply in the following instances: (a) Where the summons could not be served personally or by substituted service despite diligent efforts; (b) The defendant is a resident of the Philippines who is temporarily out of the country; (c) The defendant is a non-resident; or (d) The action is one in rem or quasi in, rem (Sec. ,5, Rule 57, Rules of Court). XI. Requisites for the issuance of an order/writ of preliminary attachment l. The issuance of an order/writ of execution requires the following: (a) The case must be any of those where preliminary attachment is proper; (b) The applicant must file a motion (ex parte or with notice and hearing); (c) The applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and (d) The applicant must post a bond executed to the adverse party. This is called an attachment bond (Sec. 3, Rule 57, Rules of Court). This bond answers for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment. 2. Since Sec. 3 of Rule 57 requires that there must be a showing that there is no sufficient security for the claim sought to be enforced by the applicant, the writ will not be issued if a real estate mortgage exists to secure the obligation even if instead of filing an action for foreclosure, an action for a sum of money was instead filed.
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Should the motion be granted?
3. The bond executed in favor of the adverse party is conditioned upon the payment of all costs which the adverse may be adjudged as entitled to and all damages which he may sustain by reason of the attachment, if it shall be finally adjudged that the party applying for attachment was not entitled thereto (Sec. 4, Rule 57, Rules of Court). The bond shall not answer for damages sustained which do not arise by reason of the attachment. This is clear from the tenor of Sec 4 of Rule 57. For the liability under the bond to apply, there must also be a final judgment that the attaching party was not entitled to an attachment. XII. Grant of preliminary attachment, discretionary - The grant of the remedy is addressed to the discretion of the court. Whether or not the application shall be given full credit is discretionary upon the court. In determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends. XIII. Strict construction of the rule 1. The rule on the issuance of a writ of attachment must be strictly construed in favor of the defendant. If all the requisites for the issuance of the writ do not exist, the court which issues the writ acts without jurisdiction. 2. The writ must be granted only on concrete and specific grounds and not merely on general averments quoting the words of the rules. XIV. How to prevent the attachment - If the attachment has not yet been effected, the party whose property is sought to be attached, may prevent the attachment by doing either of two things: (1) By depositing with the court from which the writ was issued an amount equal to the value of the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs, or (2) by giving a counter-bond executed to the applicant, in an amount equal to the bond posted by the latter to secure the attachment or in an amount equal to the value of the property to be attached, exclusive of costs (Sec. 5, Rule 57; Sec. 2, Rule 57, Rules of Court). XV. How to have the attachment discharged l. If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a cash deposit or files a counter-bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment, exclusive of costs (Sec. 12, Rule 57, Rules of Court). Counter-bonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment. - Note that the mere posting of the counterbond does not automatically discharge the writ of attachment. It is only after the hearing and after the judge has ordered the
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2. Attachment may likewise be discharged without the need for filing of a counter-bond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that (a) the attachment was improperly or irregularly issued or enforced (Sec. 13, Rule 57, Rules of Court); or (b) that the bond of the attaching creditor is insufficient, or (b) that the attachment is excessive and must be discharged as to the excess (Sec. 13, Rule 57, Rules of Court), or (c) that the property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2, Rule 57, Rules of Court). 3. A discharge of the attachment must be made only after hearing. It has been held that an ex parts discharge is a disservice to the orderly administration of justice. XVI. Damages for a wrongful attachment l. Damages may be awarded on account of improper, irregular or excessive attachment. The application for damages must be filed (a) before the trial, or (b) before appeal is perfected, or (c) before the judgment becomes executioy. There must be notice to the attaching party and his surety or sureties (Sec. 20, Rule 57, Rules of Court). - Where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the attachment plaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the attachment was not merely wrongful but also malicious, the attachment defendant may recover moral damages and exemplary damages as well. 2. The damages may be awarded only upon `proper hearing' (Sec. 20, Rule 57, Rules of Court). No judgment for damages may be entered and executed against the surety without giving it an opportunity to be heard as to the reality or reasonableness of the damages resulting from the wrongful issuance of the writ. 3. To merit an award of actual damages arising from a wrongful attachment, the attachment defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered and the amount thereof. Such loss or injury must be of the kind which is not only capable of proof but must actually be proved with a reasonable degree of certainty. As to its amount, the same must be measurable based on specific facts, and not on guesswork or speculation. In particular, if the claim for actual damages covers unrealized profits, the amount of unrealized profits must be estalished and supported by independent evidence. - The judgment for damages shall be included in the judgment of the main case (Sec. 20, Rule 57, Rules of Court). This means that the application for damages cannot be setup independent of the main action and the recovery of damages is in the same, not in a separate action. 4. if however, the case is on appeal and the judgment of the appellate court is favorable to the party against whom the attachment was issued, he must file in the appellate court a claim for damages he sustained and with due notice to the
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To justify the issuance of the writ of preliminary attachment, it must be shown that the security is insufficient to cover the claim.
5. It must also be noted that the tenor of Sec. 20 of Rule 57 does not prevent the judgment obligor from recovering damages on account of improper attachment even if the judgment is adverse to him. - Even a party who loses in the main case but is able to establish a right to damages by reason of improper, irregular or excessive attachment may be entitled to damages. Illustration (Bar 1999) May damages be claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to him? Suggested answer. Damages may be claimed even by the losing party where the attachment caused him damage where the attachment was improper, irregular or excessive (Carlos vs. Sandoval, 471 SCRA 266). An improper, irregular or excessive attachment is not validated by the fact that the attaching party prevailed in the main action. XVII. Attachment of property in custodia legis - Property in custodia legis may be subject to a writ of preliminary attachment. If the property attached is in custodia legirt, the rule require that a copy of the writ of attachment shall be filed with the proper court or quasijudicial agency, and notice of the attachment served upon the custodian of said property (Sec. 7, last par., Rule 57, Rules of Court). The attachment on a property already in custodia legis merely operates as a lien and does not mean that the attaching court will wrest custody of the property from another court. In the same vein, there is likewise no rule which prohibits the attachment of a property previously attached. What will arise in this event will be a priority in the liens which means that the first attachment will have priority over subsequent attachments. Illustration (Bar 1999) (a) xxx (b) x x x (c) x x x (d) In a case, the property of an incompetent under guardianship was in custodia legis. Can it be attached? Explain. Suggested answer. The property may be attached provided that a copy of the writ of attachment shall be filed with the court and the notice of attachment shall be served upon the custodian of the property (Sec. 7, last par., Rule 57, Rules of Court).
XVIII. Proceedings where property attached is claimed by a third person - Certain remedies are available to a third person, not party to the action but whose property is the subject of execution. 1. He may avail of the remedy called terceria by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57, Rules of Court). - Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except ii' the attaching party files a bond approved by the court. The sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed. 2. The third party-claimant may also invoke the court's authority in the same case and move for a summary hearing on his claim. Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not. - This remedy is akin to an intervention but the court, in its discretion, may allow the intervention of a party claimant at this stage for the purpose of invoking the authority of the court in vindication of his claim. A person who has a legal interest in the property attached is not barred from seeking redress in the same court that issued the writ of preliminary attachment because at this stage, no judgment has yet been rendered. A motion for intervention is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19, Rules of Court). On the other hand, it would not be procedurally possible for a third party claimant during the execution stage of the judgment under Rule 39 to intervene because by then a judgment has already been rendered. Intervention is permitted only before the rendition of judgment by the trial court (Sec. 2, Rule 19, Rules of Court). 3. The third-party claimant is not precluded by Sec. 14 of Rule 57 from vindicating his claim to the property in the same or in a separate action. Thus, he may file a separate action to nullify the levy with. damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case Ching vs. Court ofAppeals, 423 SCRA 356). - The above remedies are cumulative and any one of them may be resorted to without availing of the other remedies. Illustration (Bar 2000) JK's real property is being attached by the sheriff in a civil action for damages against LM. JK claims that he is not a party to the case; that his property is not involved in the said case; and that he is the sole or registered owner of the
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attaching party and his surety or sureties. The application for damages has to be filed before the judgment of the appellate court becomes executory. Although the application is filed in the appellate court, the hearing of the application may be allowed by the appellate court to be heard by the trial court. If the applicant for damages prevails and the attachment bond is not sufficient to cover the amount of the damages awarded, he may have recourse against the property of the attaching party in the same action as long as the property is not exempt from execution (Sec. 20, Rule 57, Rules of Court).
II. Preliminary Injunction (Rule 58) I. Nature of preliminary injunction 1. > Preliminary injunction - an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. It is merely a temporary remedy subject to the final disposition of the principal action. It is issued by the court to prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied and adjudicated. Its sole objective is to preserve the status quo until the merits of the ease can be heard fully. 2. Preliminary injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit is resorted to by a litigant to protoct or proserve his rights or interests and for no other purpose during the pendency of the principal action. 3. Section 3, Rule 58 of the Rules of Court provides that a preliminary injunction may be granted when the following have been established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. 4. "A petition for a writ of preliminary injunction rests upon an alleged existence of an emergency or of a special reason for such a writ before the case can be regularly tried. By issuing a writ of preliminary injunction, the court can thereby prevent a threatened or continued irreparable injury to the plaintiff before a judgment can be rendered on the claim. - "The plaintiff praying for a writ of preliminary injunction must further establish that he or she has a present and unmistakable right to be protected; that the facts against which injunction is directed violate such right, and there is a special and paramount necessity for the writ to prevent serious damages. In the absence of proof of a legal right and the injury sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff's right is doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for a preliminary injunction.
- However, to establish the essential requisites for a preliminary injunction, the evidence to be submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complaint. A writ of preliminary injunction is generally based solely on initial or incomplete evidence. Such evidence need only be a sampling intended merely to give the court an evidence of justification for a preliminary injunction pending the decision on the merits of the case, and is not conclusive of the principal action which has yet to be decided. - "It bears stressing that findings of the trial court granting or denying a petition for a writ of preliminary injunction based on the evidence on record are merely provisional until after the trial on the merits of the case shall have been concluded." - "The trial court, in granting or dismissing an application for a writ of preliminary injunction based on the pleadings of the parties and their respective evidence must state in its order the findings and conclusions based on the evidence and the law. This is to enable the appellate court to determine whether the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in resolving, one way or the other, the plea for injunctive relief. The trial court's exercise of its judicial discretion whether to grant or deny an application for a writ of preliminary injunction involves the assessment and evaluation of the evidence, and its findings of facts are ordinarily binding and conclusive on the appellate court and this Court. II. Main action for injunction distinguished from a preliminary injunction (Bar 2006) 1. The main action for injunction is distinct from the provisional remedy of preliminary injunction. The former is an independent action. The latter can only exist as an incident to a principal action. The provisional remedy is called preliminary injunction and does not refer to injunction as a primary action. Preliminary injunction as a provisional remedy is not a cause of action in itself but merely an adjunct to a main suit. 2. The main action for injunction seeks a judgment embodying a final injunction. A preliminary injunction seeks to preserve the status quo until the merits can be heard. The purpose of the action for injunction is to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant. 3. An example of a main action for injunction is the action authorized under Art. 26 of the Civil Code of the Philippines against one prying into the privacy of another's residence, meddling with or disturbing the private life or family relations of another and other similar acts. III. Purpose of preliminary injunction 1. As a provisional remedy, the purpose of preliminary injunction is to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action.
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said property. Under the Rules of Court, what must JK do to prevent the sheriff from attaching his property? Suggested answer. Please refer to the immediately preceding topic.
2. When the injunction sought is mandatory, a writ of preliminary injunction tends to do more than to maintain the status quo because it commands the performance of specific acts and is issued only in cases of extreme urgency and where the right of the applicant is clear. Illustration (Bar 1978) The NAWASA cut off its water service to X's residence for the latter's alleged failure to pay his water bills for six months. X claims that he had paid all his water bills as evidenced by receipts. NAWASA claims the receipts to be fake and so refused to restore its water service to X's residence. As counsel for X, what action will you take and why? Suggested answer. As counsel for X I would file an action for specific performance and damages against NAWASA and apply for a writ of preliminary mandatory injunction. Here, the action for specific performance and damages is the main action and the preliminary mandatory injunction is the provisional remedy pending the judgment on the main action. IV. Preliminary injunction distinguished from a final injunction Preliminary injunction Final injunction - refers to the writ secured - when it is issued as a before the finality of the judgment making the judgment (Sec. 1, Rule 58, injunction permanent. It Rules of Court). perpetually restrains a person from the continuance or commission of an act and confirms the previous preliminary injunction (Sec. 9, Rule 58, Rules of Court).
V. Prohibitory and mandatory injunctions Prohibitory injunction Mandatory injunction 1. Injunction is prohibitory 1. It is mandatory when its when its purpose is to purpose is to require a prevent a person from the person to perform a performance of a particular particular act. act. 2. the act has not yet been 2. the act has already been performed. performed and this act has violated the rights of another. 3. the status quo is 3. the status quo is restored preserved and this refers to the last peaceable, uncontested, status prior to the controversy???
VI. Prohibitory injunction distinguished from prohibition Prohibitory injunction Prohibition - a provisional remedy that is - a special civil action directed to a litigant, not to seeking a judgment a tribunal and is issued to commanding a tribunal, require said party to refrain corporation, board or officer from a particular act (Sec. 1, to desist form further Rule 58, Rules of Court). proceeding in the action because it has no jurisdiction, is acting in excess of jurisdiction or has gravely abused its discretion amounting to lack of jurisdiction (Sec. 2, Rule 65, Rules of Court). VII. Mandatory injunction distinguished from mandamus Mandatory injunction Mandamus - directed to a party litigant, - a special civil action not to a tribunal and is seeking a judgment issued to require a party to commanding a tribunal, perform an act to restore board, officer or person to the last peaceable perform a ministerial duty uncontested status preceding required to be performed by the controversy. law (Sec. 3, Rule 65, Rules of Court). VIII. Stage of proceedings when granted - Preliminary injunction is granted at any stage of the proceedings prior to the judgment or final order (Sec. 1, Rule 58, Rules of Court). IX. Court that issues preliminary injunction 1. Preliminary injunction must be applied for and issued by the court where the action is pending (Sec. 2, Rule 58, Rules of Court). The term "court" includes a Municipal or a Metropolitan Trial Court. Where the main action is within the jurisdiction of the Municipal Trial Court, then it is this court which shall issue the preliminary injunction. - Example: Under Sec. 15 Of Rule 70 of the Rules of Court, the plaintiff in a forcible entry and unlawful detainer case, may, within five (5) days from the filing of the complaint, secure from the court a preliminary mandatory injunction to restore him in his possession. Since a forcible entry case is cognizable by the Municipal Trial Court, the preliminary injunction sought for in this action must be applied for in the Municipal Trial Court. 2. If the main action is one for injunction, the Municipal Trial Court cannot grant the preliminary injunction. This is because an action for injunction is one incapable of pecuniary estimation and hence, is cognizable by the Regional Trial Court. 3. If the action is pending in the Court of Appeals, the application must be made with the Court of Appeals. If it is pending in the Supreme Court, then the application must be made in such court. The preliminary injunction applied for in the Court of Appeals may be issued by the said court or any member thereof. If applied for in the Supreme Court, it may be issued by the Supreme Court or any member thereof (Sec. 2, Rule 58, Rules of Court). This is a situation where a member of the court may issue a writ of preliminary
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- The status quo is the last, actual, peaceable and uncontested situation which precedes a controversy. It is the situation existing at the time of the filing of the case. The injunction should not establish a new relations between the parties, but merely should maintain or re-establish the preexisting relationship between them.
X. Requisites for issuance of a writ of preliminary injunction (Bar 2006) or temporary restraining order 1. The applicable provisions of the Rules of Court enumerate the following requisites for the issuance of a writ of preliminary injunction or a temporary restraining order: (a) There must be a verified application (Sec. 4, Rule 38, Rules of Court). Absence of a verification makes an application or petition for preliminary injunction patently insufficient both in form and substance. (b) The applicant must establish that he has a right to relief, a right in esse or a right to be protected and the act against which the injunction is directed is violativo of such right. (c) The applicant must establish that there is a need to restrain the commission or continuance of the acts complied of and if not enjoined would work injustice to the applicant (d) The applicant must post a bond, unless exempted by the court. This bond, which shall be in an amount to be fixed by the court, is executed in favor of the party enjoined to the effect that the applicant shall pay to the party enjoined all damages which he may sustain by reason of the preliminary injunction or the restraining order if the court should finally decide that the applicant was not entitled to the writ or order (Sec. 4, Rule 58, Rules of Court; Bar 2006). (e) When an application or a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case if filed in a multi-sala court, shall be raffled only after notice to and in the presence of the party sought to be enjoined. The notice shall be preceded or contemporaneously accompanied by service of summons upon the defendant. Together with the summons shall be a copy of the complaint and the applicant's affidavit and bond (Sec. 4, Rule 58, Rules of Court). - However, where the summons could not be served upon the defendant either in person or by substituted service or when the defendant is temporarily out of the Philippines or when he is a non-resident, the requirement of prior or contemporaneous service shall not apply (Sec. 4, Rule 58, Rules of Court). (f) The plaintiff praying for a writ of preliminary injunction must further establish that he or she has a present and unmistakable right to be protected; that the facts against which injunction is directed violate such right; and there is a special and paramount necessity for the writ to prevent serious damages. In the absence of proof of a legal right and the injury sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff's right is doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for a preliminary injunction.
XI. Quantum of evidence required 1. To establish the essential requisites for a preliminary injunction, the evidence to be submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complaint. A writ of preliminary injunction is generally based solely on initial or incomplete evidence. Such evidence need only be a sampling intended merely to give the court an evidence of justification for a preliminary injunction pending the decision on the merits of the case, and is not conclusive of the principal action which has yet to be decided. 2. At the hearing, mere prima facie evidence is needed-to establish the applicant's rights or interests in the subject matter of the main action because the applicant is required to show only that he has an ostensible right to the final relief prayed for in his complaint. 3. It bears stressing that findings of the trial court granting or denying a petition for a writ of preliminary injunction based on the evidence on record are merely provisional until after the trial on the merits of the case shall have been concluded. The trial court, in granting or dismissing an application for a writ of preliminary injunction based on the pleadings of the parties and their respective evidence must state in its order the findings and conclusions based on the evidence and the law. This is to enable the appellate court to determine whether the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in resolving, one way or the other, the plea for injunctive relief. The trial court's exercise of its judicial discretion whether to grant or deny an application for a writ of preliminary injunction involves the assessment and evaluation of the evidence, and its findings of facts are ordinarily binding and conclusive on the appellate court and this Court. XII. Notice and hearing (Bar 2001; 1998) 1. A writ of preliminary injunction cannot be issued without a prior notice and hearing. Under the Rules, "No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined (Sea 5, Rule 58, Rules of Court). It cannot be issued ex parte (Bar 2001). 2. Subject to the rules governing matters of extreme urgency (Sec. 5, 2nd par., Rule 58, Rules of Court), the application for a temporary restraining order shall be acted upon only after all parties are heard in a summary hearing. This hearing shall be conducted within twenty-four (24) hours after the sheriff's return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately (Sec. 4, last par., Rule 58, Rules of Court). - Where the case is raffled, the period within which to conduct a summary hearing in an application for a temporary restraining order is not 24 hours after the case has been raffled but 24 hours after the records are transmitted to the branch to which it is raffled. XIII. Temporary restraining order (Bar 2006)
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injunction without the participation of other members of the court.
2. The applicant shall file a bond, unless exempted by the court (Sec. ON, Rule 58, Rules of Court). The rule grants the court the discretion on the matter of the posting of a bond. This grant of discretion to require a bond before granting a temporary restraining order, is not however, intended to give the judge the license to exercise such discretion arbitrarily to the prejudice of the defendant. Unless it appears that the enjoined party will not suffer any damage, the presiding judge must require the applicant to post a bond, otherwise the courts could become instruments of oppression and harassment. 3. If the matter is of extreme urgency, the executive judge of a multi-sala court or the presiding judge of a singlesala court may issue a TRO effective for only 72 hours from issuance, not service. Within this period the executive judge shall conduct a summary hearing to determine whether or not the TRO can be extended to 20 days. The 72 hours shall be included in the maximum 20 day period set by the Rules (Sec. 5, Rule 58, Rules of Court). When the court is a multisala court, the TRO is not to be issued by any other judge other than the executive judge of said court (Bar 2006). - With the exceptions of those provisions that apply necessarily to multi-sala courts, the same rules shall apply to single-sala stations especially with regard to immediate notice to all parties of all applications for TRO (Sec. 4, Administrative Circular 2095, September 12, 1995). 4. A temporary restraining order is issued to preserve the status quo until the hearing of the application for preliminary injunction. The judge may issue a temporary restraining order with a limited life of twenty (20) days from date of issue. If before the expiration of the twenty (20) day period, the application for preliminary injunction is denied, the temporary restraining order would be deemed automatically vacated. If no action is taken by the judge within the twenty (20) day period, the temporary restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary. 5. The rule against the non-extendibility of the twenty (20) day effectivity of a temporary restraining order is absolute if issued by a Regional Trial Court. The failure of the trial court to fix a period in the temporary restraining order does not convert it to a preliminary injunction. Where there is an omission to fix the period, the twenty (20) day period is deemed incorporated in the order.
6. It is improper for a judge to order a hearing on the issuance of a temporary restraining order where it was not prayed for in the complaint. 7. A status quo order is not a temporary restraining order. It is more in the nature of a cease and desist order, has no specified duration and does not specifically direct the performance of an act. It lasts until it is revoked. Its duration may even be subject to agreement of the parties. No bond is required for its issuance (Bar 2006). Illustration (Bar 1998) (a) What is a temporary restraining order (Bar 2006) (b) How does it differ from a writ of preliminary injunction. Suggested answers: (a) A temporary restraining order (TRO) is an order to maintain the status quo between or among the parties until the determination of the prayer for a writ of preliminary injunction. (b) A writ of preliminary injunction cannot be granted without notice and hearing. A temporary restraining order may be granted ex parte if it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made may issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined (Sec. 5, Rule 58, Rules of Court). Illustration (Bar 2001) An application for a writ of preliminary injunction with a prayer for a temporary restraining order is included in a complaint and filed in a multi-sala Regional Trial Court consisting of Branches 1, 2, 3, and 4. Being urgent in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the aforesaid application immediately raffled the case in the presence of the judges of Branches 2, 3 and 4. The case was raffled to branch 4 and the judge thereof immediately issued a temporary restraining order. Is the temporary restraining order valid? Suggested answer: The temporary restraining order is not valid for two reasons (a) The facts show a multi-sala court. In this kind of court, it is only the Executive Judge who can issue the temporary restraining order ex parte (Sec. 5, Rule 58 Rules of Court); and (b) There is no showing that the matter is of extreme urgency and that the applicant would suffer from grave or irreparable injury if the desired temporary restraining order would not be issued. Illustration (Bar 2001) (a) xxx (b) May a writ of preliminary attachment be issued ex parte? Suggested answer: A writ of preliminary injunction cannot be issued ex parte. The rule is clear. It provides that a preliminary injunction cannot be issued without a prior notice and hearing (Sec. 5, Rule 58, Rules of Court).
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l. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made may issue a temporary restraining order (TRO) ex parte for a period not exceeding 20 days from service to the party sought to be enjoined. Within the said twenty day period, the court must order said party to show cause why the injunction should not be granted. Also within the same period, the court shall determine whether or not the preliminary injunction shall be granted and then shall issue the corresponding order (Sec. 5, Rule 59, Rules of Court).
XIV. Issuance of temporary restraining order by the Court of Appeals (Bar 2006) and the Supreme Court 1. A temporary restraining order (TRO) may be issued by the Court of Appeals or any member thereof. If so issued, it shall be effective for 60 days from notice to the party sought to be enjoined.
period. The Municipal Trial Court, if it grants the motion, cannot be considered to have committed a procedural error. This is because the period to answer was not interrupted by the filing of the petition. The defendant should have obtained a preliminary injunction or a temporary restraining order.
- A temporary restraining order issued by the Court of Appeals cannot exist indefinitely; it has a lifetime of a nonextendible period of sixty days and automatically expires on the sixtieth day. No judicial declaration that it has expired is necessary, and, the lower courts, including the Court ofAppeals, have no discretion to extend the same. A second TRO by the Court of Appeals after the expiration of the sixty day period is a patent nullity.
Illustration (Bar 2003) A filed with the Metropolitan Trial Court of Manila an action for specific performance against B, a resident of Quezon City, to compel the latter to execute a deed of conveyance covering a parcel of land situated in Quezon City having an assessed value of P19,0000. B received the summons and a copy of the Complaint on 02 January 2003. On 10 January 2003, B filed a Motion to Dismiss the Complaint on the ground of lack of jurisdiction contending that the subject matter of the suit was incapable of pecuniary estimation. The court denied the motion, In due time, B filed with the Regional Trial Court a Petition for Certiorari praying that the said Order be set aside because the Metropolitan Trial Court had no jurisdiction over the case. On 13 February 2003, A filed with the Metropolitan Trial Court a motion to declare B in default. The motion was opposed by B on the ground that his petition for certiorari was still pending. (a) xxx (b)Resolve the motion to declare the defendant in default.
Illustration (Bar 1988) What is the duration of a temporary restraining order (TRO) issued by a (i) Regional Trial Court, (ii) the Court of Appeals, and (iii) the Supreme Court? Suggested answer. Please refer to the immediately preceding topic. XV.Nature of an order granting a preliminary injunction 1. The issuance of a writ of preliminary injunction rests entirely within the discretion of the trial court and is generally not interfered with except in cases of manifest abuse. The assessment and the evaluation of evidence in its issuance involve findings of facts ordinarily left to the trial court for its conclusive determination. 2. An order granting a writ of preliminary injunction is an interlocutory order, not a final order. An interlocutory order does not dispose of a case completely but leaves something to be done (Bar 2006). The grant of the writ is therefore not appealable. The special civil action of certiorari is therefore, the correct remedy. XVI. Examples of cases justifying the issuance of a writ of preliminary injunction 1. The provisional remedy may be availed of when a petition for certiorari under Rule 65 of the Rules of Court is filed. The filing of a petition does not interrupt the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the respondent tribunal or officer (Sec. 5, Rule 65, Rules of Court). Settled is the rule that to arrest the course of the principal action during the pendency of certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the higher court directed to the lower court. - Illustration: Defendant filed a petition for certiorari alleging that the Metropolitan Trial Court gravely abused its discretion in denying his motion to dismiss and the subsequent motion for reconsideration. During the pendency of the petition in the Regional Trial Court, the plaintiff filed a motion to declare the defendant in default for failure to file an answer to the complaint within the reglementary
Suggested answer: (b) The motion to declare B in default should be granted. B failed to file his answer within the period prescribed by the Rules (Sec. 3, Rule 9, Rules of Court). The filing of a petition for certiorari did not have the effect of suspending the proceedings in the case and the running of the reglementary period. B should have obtained a writ of preliminary injunction or a temporary restraining order from the Regional Trial Court when he filed the petition for certiorari. Illustration (Bar 1984) A, a grocery owner, sued B, before a Regional Trial for the payment of some merchandise. When the sheriff failed to effect service of summons on B at Morong, Rizal, the address stated in the complaint, the Court ordered the publication of the summons and a copy of the complaint in a newspaper of general circulation in Rizal. As B was actually no longer residing in Rizal and consequently did not become aware of the collection suit against him, he failed to f.le-his answer in court. He was therefore declared in default and a judgment was in due time rendered against him. One year after the date of judgment, a levy on execution was made on B's properties. (a) xxx (b) What remedies, including provisional ones, if any, would be available to B and to what forum should he go for relief? Explain. Suggested answer: (b) An action for annulment of the judgment should. be filed with the Regional Trial Court, the action being one incapable of pecuniary estimation. To enjoin the , execution sale, the
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2. A temporary restraining order (TRO) may also be issued by the Supreme Court or a member thereof. If so issued, it shall be effective until further orders (Sec. 5, Rule 58, Rules of Court).
2. Preliminary injunction may be availed of when a petition for relief under, Rule 38 of the Rules of Court is filed. Remember that the petition is filed after a judgment has already become final and executory. Assuming that the prevailing party has not yet filed a motion for an order of execution, the pendency of a petition for relief will not prevent the execution of the judgment. To stay its execution, a preliminary injunction would be advisable. Common reason however, dictates that when the petition for relief is dismissed, the injunction which may have been obtained to stay the enforcement of the judgment is necessarily dissolved. - The availmentof preliminary injunction should also apply when an action to annul a judgment is filed under Rule 47 to prevent the execution of the judgment. Illustration (Bar 2002) A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment became final, but D filed a petition for relief and obtained a writ of preliminary injunction staying the enforcement of the judgment. After hearing, the RTC dismissed the D's petition, whereupon P immediately moved for the execution of the judgment in his favor. Should P's motion be granted? Why? Suggested answer. P's motion should be granted. The dismissal of the petition has the effect of dissolving the writ of preliminary injunction (Golez vs. Leonidas,107 SCRA 187). There is no more injunction that stays the execution of the judgment that has already become final and executory. 3. A preliminary mandatory injunction may be availed of to restore the plaintiff in his possession in a complaint for forcible entry or unlawful detainer (Sec. 15, Rule 70, Rules of Court). XVII. Examples of cases in which injunction/preliminary injunction will not be issued 1. Under BP Blg. 227 amending the Labor Code of the Philippines a court cannot issue a temporary or permanent injunction in cases growing out of a labor dispute. Under Art. 218 of the Labor Code of the Philippines, it is the National Labor Relations Commission (NLRC) that issues an injunction in labor disputes (See. 1, Rule X, 2005 Revised Rules of Procedure of the NLRC). - No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity except as otherwise provided in Articles 218 and 264 of the Labor Code. It is the NLRC which may grant injunctive relief under Art. 218 of the Labor Code. - The prohibition against issuance of injunction or restraining order in any case growing out of a labor dispute does not apply when the injunction is sought by a third person whose property is sought to be levied upon to satisfy the liability of another person.
2. Under RA No. 8735 and PD 1818, there is a prohibition on the issuance of temporary restraining orders, preliminary injunctions, or preliminary mandatory injunctions against the execution or implementation of government infrastructure projects, essential government projects, including arrastre and stevedoring operations. 3. A restraining order or a preliminary injunction may not be issued by any court against the Presidential Agrarian Reform Council (PARC) or any of its duly authorized agencies in any case connected with the application, implementation or enforcement of the CARP. 4. An injunction cannot be issued against the Asset Privatization Trust (Sec. 31-A, Proclamation No. 50-A. Note: The functions of the Asset Privatization Trust have been taken over by the Privatization and Management Office of the Department of Finance (E.O. No. 323, 2000). 5. A court may not interfere by injunction with the orders of another court of co-equal rank or decrees of a court with concurrent or coordinate jurisdiction. 6. The Regional Trial Court may not issue injunction against quasi judicial bodies of equal rank such as the Social Security Commission, Securities and Exchange Commission. 7. The Regional Trial Court may not issue injunction against the Intellectual Property Office, Commission on Elections, or Workmen's Compensation Commission. 8. No court shall have authority to grant an injunction to restrain the collection of any national internal revenue tax, fee, or charge imposed by the Code (RA No. 8424, §218). - Trial courts are enjoined from issuing orders releasing imported articles impounded by the Bureau of Customs. It is settled jurisprudence that the Collector of Customs has exclusive jurisdiction over seizure and forfeiture proceedings, and regular courts cannot interfere thereof or stifle and put it to naught. 9. An injunction cannot be issued against consummated acts like against a judgment that has already been executed for the purpose of stopping its execution. 10. An injunction cannot be issued to transfer possession or control of a property to another when the legal title is still in dispute between the parties and whose legal title has not been clearly established. 11. An injunction cannot be issued for the purpose of establishing new relations between the parties. 12. A preliminary injunction cannot be issued where there is a lack of a clear and unmistakable right on the party of the applicant as when the complainant's right is doubtful or disputed. Granting the application constitutes grave abuse of discretion. 13. Courts should also avoid issuing injunctions which in effect would dispose of the main case without trial.
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action for annulment must be coupled with a prayer for the issuance of a writ of preliminary injunction or a temporary restraining order.
15. No temporary restraining order or writ of preliminary injunction against the extrajudicial foreclosure of mortgage shall be issued on the allegation that the loan has been paid or is not delinquent unless the application is verified and supported by evidence of payment. If the ground is that the interest is unconscionable, no TRO or writ of preliminary injunction shall be issued unless the debtor pays the mortgagee at least 12% interest per annum on the principal obligation as stated in the application for foreclosure sale, which shall be updated monthly while the case is pending (A.M. 9910-5-0, Rules on Extrajudicial and Judicial Foreclosure of Real Estate Mortgage, effective March 10, 2007). Illustration (Bar 1999) Will injunction lie to restrain the commencement of a criminal action? Suggested answer: Please refer to the immediately preceding topic. Illustration (Bar 1996) 1. xxx 2. xxx 3. ABC Cattle Corporation is the holder of a pasture lease agreement since 1990 covering 1,000 hectares of pasture land surrounded with fences. In 1992, D was issued a pasture lease agreement covering 930 hectares of land adjacent to ABC's. A relocation survey showed that the boundaries of D's land extended 580 hectares into ABC's pasture land. As ABC persistently blocked D's advances into its property, D filed a complaint with preliminary injunction to enjoin ABC from restraining him in the exercise of his lease rights. If you were the judge, would you issue a preliminary injunction? Explain. Suggested answer. (3) I would not issue a writ of preliminary injunction. The writ will not be issued to take property out of the possession of another whose right has not been clearly established 16. Under Sec. 25 of the New Central Bank Act (R.A. 7653), no restraining order or injunction shall be issued by the court enjoining the BSP from examining any institution subject to its supervision or examination, unless there is convincing proof that the action of the BSP is plainly arbitrary and made in bad faith and the petitioner or plaintiff files a bond executed in favor of BSP, in an amount to be fixed by the court.
17. A writ of preliminary injunction will not issue if the act sought to be enjoined is already consummated or is a fait accompli. XVIII. How to dissolve a writ of preliminary injunction or restraining order - A writ of preliminary injunction or temporary restraining order may be dissolved. The party enjoined may file a motion to dissolve the injunction or TRO with notice and hearing of the motion upon showing by affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated for such damages as he may suffer. The movant must also file a bond conditioned upon the payment of al damages which the applicant may suffer by the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified (Sec. 6, Rule 57, Rules of Court). III. Receivership (Rule 59) I. Nature of a receivership 1. The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied (Sec. 1, Rule 59, Rules of Court). Receivership is aimed at preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights. - Examples: (a) In an action to foreclose a mortgage when the property is in danger of being wasted or dissipated or materially injured and that its value is in danger of not being able to cover the mortgage debt, the mortgagee may ask for a receiver to preserve the property, (b) If the judgment obligor refuses to apply his property to the satisfaction of the judgment, receivership may be availed of. 2. The receivership provided in Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Illustration (Bar 2001) Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a furniture factory with a large number of machinery and equipment. During the pendency of the foreclosure, Joaquin learned from reliable sources that Jose was quietly and gradually disposing of some of his equipment and machinery to a businessman friend who was also engaged in furniture manufacturing such that from confirmed reports Joaquin gathered, the machinery and equipment left with Jose were no longer sufficient to answer for the latter's mortgage indebtedness. In the meantime, judgment was rendered by the court in favor of Joaquin but the same' is not yet final. Knowing what Jose has been doing, if you were Joaquin's lawyer, what action would you take to preserve whatever remaining machinery and equipment are left with Jose? Why?
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14. Injunction will not lie to restrain a criminal prosecution, except: (a) to afford adequate protection to the constitutional rights of the accused; (b) when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (c) when double jeopardy is clearly apparent; (d) where the charges are manifestly false and motivated by the lust for vengeance; or (e) where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.
Illustration (Bar 1995) In a suit for the collection of a sum of money, the plaintiff applied for the appointment of a receiver of the defendant's property to assure the payment of the obligation. Should the court grant the application? Suggested answer. The court should deny the application. Receivership is not available in a mere suit for collection of a sum of money. It is available when the property of fund that is the subject of the litigation is in danger of being lost, removed or materially injured which in not so in the case at bar (Sec. 1, Rule 59, Rules of Court). 3. Receivership, like injunction may also be a principal action as the one referred to in Sec. 4 of Rule 39. Rule 59 is a receivership that is ancillary to a main action. II. Court that can grant receivership - Receivership may be granted by the court in which the action is pending, by the Court ofAppeals or the Supreme Court, or any member thereof (Sec. 1, Rule 59, Rules of Court). III. Procedure for appointment of a receiver 1. A verified application must be filed by the party applying for the appointment of a receiver (Sec. 1, Rule 59, Rules of Court); 2. The applicant must have an interest in the property or funds subject of the action (Sec. 1, Rule 59, Rules of Court); 3. The applicant must show that the property or funds is in danger of being lost, wasted or dissipated (Sec. 1, Rule 59, Rules of Court); 4. The application must be with notice and must be set for hearing; 5. Before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall take his oath but before doing so, he shall file a bond. There are two bonds: the applicant's bond and the receiver's bond (Sec. 2, Rule 59); 6. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully (Sec. 4, Rule 59). IV. Powers of a receiver 1. To bring and defend, actions in his own name in his capacity as receiver; 2. To keep arid take possession of the property subject of the controversy; 3. To receive rents;
4. To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; 5. To compound for and to compromise the same; 6. To make transfers; 7. To pay outstanding debts; to divide the money and the property that shall remain among the persons legally entitled to receive the same; and 8. Generally to do such acts respecting the property as the court may authorize (Sec. 6, Rule 59, Rules of Court). V. Investment of funds by receiver - A receiver may not invest funds without an order from the court and without the written consent of the parties to the action (Sec. 6, Rule 59, Rules of Court). VI. Suits against a receiver - No action may be filed against a receiver without leave of the court which appointed him (Sec. 6, Rule 59, Rules of Court). VII. Appointment of a party as a receiver - A party to a litigation is supposed to be a disinterested person hence, neither party to the litigation should be appointed as a receiver without the consent of the other. IV. Replevin (Sec. 60) 1. Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is a suit in itself. 2. The main action for replevin action is primarily possessory in nature and generally determines nothing more than the right of possession. For instance, if the plaintiff claims that the defendant is in possession of his car without lawful cause, he may file an action for replevin. While the action is pending, the plaintiff may ask the court to allow him to have possession of the car in the meantime because he uses the same as an economic tool and the continued possession of the car by the defendant deprives him of a vital source of income. The plaintiff may then apply for replevin as a provisional remedy. Seeking to have possession of the property prior to the determination of the action is the provisional remedy of replevin and not the main action for replevin. Also, when the debtor defaults and the creditor decides to foreclose the mortgage but the debtor refuses to yield possession of the personal property, the creditor may obtain a writ of replevin as a preliminary step for the foreclosure. Illustration (Bar 1999) What is replevin? Suggested answer. Please refer to the immediately preceding topic. I. Procedure for the application for replevin 1. A party praying for the provisional remedy of replevin must file an application for a writ of replevin. His application for the writ must be filed at the commencement of the action or at any time before the defendant answers (Sec. 1, Rule 60, Rules of Court).
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Suggested answer. If I were the lawyer of Joaquin, I would apply for the appointment of a receiver. Under the Rules, in an action for the` foreclosure of a mortgage, the court may appoint a receiver if it can be shown that the property mortgaged is in danger of being wasted and dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt (Sec. 1, Rule 59, Rules of Court). The case at bar falls squarely under the applicable provision.
- The applicant need not be the owner of the property. It is enough that he has a right to its possession. 3. The affidavit must state that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention.
The remedy of replevin may be granted. The defendant may be deemed to be wrongfully detaining the goods from the plaintiff. Upon the filing of the requisite affidavit and bond, the writ of replevin may be granted (Sec. 2, Rule 60, Rules of Court). II. Undertaking of the replevin bond - The bond which is double the value of the property involved is for the payment to the adverse party of such sum as he may recover from the applicant in the action (Sec. 2, Rule 60, Rules of Court).
4. The affidavit must state that the property has not been distrained or taken for tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed in custodia legis. If it has been seized, then the affidavit must state that it is exempt from such seizure or custody. Replevin cannot be available when the property is in custodia legis, is under attachment or has been seized pursuant to law. Contrast this principle with the rule that a property in custodia legis may be attached.
III. Order of the court and duty of sheriff 1. When the court approves the application, the court shall issue an order and the corresponding writ of replevin describing the property alleged to be wrongfully detained. This order shall require the sheriff to take the property into his custody (Sec. 3, Rule 60, Rules of Court).
5. The affidavit must state the actual market value of the property, and
3. After the sheriff has taken custody of the property, he must keep it in a secure place (Sec. 4, Rule 60, Rules of Court). Within five (5) days From the taking of the property, the sheriff shall wait for the move of the adverse party. If the latter does not object to the sufficiency of the bond after said period or performs acts to effect the return to him of the property taken by the sheriff, the property shall be delivered to the applicant (Sec. 6, Rule 60, Rules of Court).
6. The applicant must give a bond, executed to the adverse party and double the value of the property (Sec. 2, Rule 60, Rules of Court). Illustration (Bar 1976) Pending final judgment in an action for recovery of personal property: (1) May the plaintiff apply for immediate delivery of the property in question? (2) In the affirmative, what requisites must the plaintiff comply with in order to make this remedy available to him? (3) What is this ancillary remedy called? (4) May this remedy be availed of in the Municipal Courts? Suggested answer. (1) The plaintiff may apply for immediate delivery of the personal property because under the Rules, said remedy may be applied for at the commencement of the action or at any time before the answer of the defendant (Sec. 1, Rule 60, Rules of Court). (2) Please refer to the immediately preceding topic for the answer. (3) This ancillary remedy is called replevin. (4) This remedy may be available in Municipal courts provided the value of the property involved is within its jurisdiction. Illustration (Bar 1996) A sold five thousand piculs of sugar to B, payable on demand. Upon delivery of the sugar to B, however, the latter did not pay its purchase price. After the lapse of some time from the date of delivery of the sugar to B, A brought an action for the rescission of the contract of sale and as incident of this action, asked for the manual delivery (replevin) of the sugar to him. May the remedy of replevin prayed for by A be granted? Explain. Suggested answer.
2. Upon the receipt of the court order, the sheriff must (a) serve a copy of the order on the adverse party, together with a copy of the application, affidavit and bond; and (b) take custody of the property (Sec. 4, Rule 60, Rules of Court).
IV. How adverse party can seek the return of the property 1. If within five (5) days from the taking of the property by the sheriff, the adverse party decides to have the property back, he may require the return thereof by (a) filing with the court where the action is pending a bond (called a redelivery bond) executed to the applicant, in double the value of the property conditioned upon the payment of such sum as may be recovered against the adverse party, and (b) by serving a copy of such bond on the applicant (Sec. 5, Rule 60, Rules of Court). 2. If the bond is sufficient and in the proper form, the adverse party gets the property back (Sees. 5, 6, Rule 60, Rules of Court). 3. Where the adverse party did not object to the other party's bond nor posted a redelivery bond to recover the possession of the property taken under the writ of replevin, the sheriff is under obligation to deliver the property to the applicant. V. Replevin distinguished from preliminary attachment Replevin 1. The purpose is to recover personal property capable of manual delivery from the defendant.
Prelimiinary attachment 1. The purpose is not to recover any property but simply to have the property put in the custody of the court to secure the satisfaction of the judgment
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2. The application must contain an affidavit where the applicant particularly describes the property that he is the owner of the property or that he is entitled to the possession thereof.
6. Property under custodia legis cannot be the object of replevin.
3. can be availed of even if the property is in the custody of third persons. 4. extends to all kinds of property, real or personal or even incorporeal property. 5. To be availed of the party applying for a writ of preliminary attachment need to show that the property is being removed, concealed or disposed of. 6. Preliminary attachment can be availed of even if the property is in custodia legis.
V. "Support Pendente Lite" (Rule 61) 1. Support pendente lite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for support Here, the main action is for support and support pendente lite is the provisional remedy. 2. In one case, temporary support was granted in an action for habeas corpus filed by the mother in behalf of a minor child against the father, where the father has recognized the child as his and has not been given support by the father pending the fixing the amount of support in another action for support. 3. Support pendente lite may be granted in rape cases for the offspring of the accused as a consequence of the rape (Sec. 6, Rule 61). 4. Support pendente lite may hence, be availed of in either of two instances: (a) In an action for support; or (b) In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing (Sec. 6, Rule 61, Rules of Court). Illustration (Bar 2001) Modesto was accused of seduction by Virginia, a poor, unemployed young girl, who has a child by Modesto. Virginia was in dire need of pecuniary assistance to keep her child, not to say of herself, alive. The criminal case is still pending in court and although the civil liability aspect of the crime has not been waived or reserved for a separate civil action, the trial for the case was foreseen to take two long years because of the heavily clogged court calendar before the judgment may be rendered.
If you were the lawyer of Virginia, what action should you take to help Virginia in the meantime especially with the problem of feeding the child? Suggested answer: If I were the lawyer of Virginia, I would apply for support pendente lite in accordance with Sec. 6 of Rule 61 which provides that in a criminal action where civil liability includes support for the offspring support pendente lite may be obtained provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing (Sec. 6, Rule 61, Rules of Court). Illustration (Bar 1999) Before the RTC, A was charged with rape of his 16year old daughter. During the pendency of the case, the daughter gave birth to a child allegedly as a consequence of the rape. Thereafter she asked the accused to support the child, and when he refused, the former filed a petition for support pendente lite. The accused however, insists that he cannot be made to give much support arguing that there are yet no findings as to his guilt. Would you agree with the trial court if it denied the application for support pendente lite? Suggested answer: I would not agree with the trial court. The remedy is available in a criminal action for rape and may be granted where the civil liability includes support for the offspring and the civil aspect has not been waived, reserved or instituted prior to its filing (Sec. 6, Rule 61, Rules of Court). I. Procedure for application for support "pendente lite" l. The application for support pendente lite may be filed at (a) the commencement of the action, or (b) at anytime prior to the judgment or final order (Sec. 1, Rule 61, Rules of Court). 2.The application must be verified, stating the grounds for the claim and the financial conditions of both parties. It shall be accompanied by affidavits, depositions or other authentic documents in support thereof (Sec. 1, Rule 61, Rules of Court). It has been ruled that if the right to support is put in issue in the pleadings or the fact from which the right to support arises has not been established, the court cannot grant support pendente lite. 3. The adverse party shall be asked to comment on the application within five (5) days from service upon him of a copy of the application and supporting documents to it. This comment shall be verified (Sec. 2, Rule 61, Rules of Court). 4. The application shall be set for hearing and a hearing shall be conducted (Sec. 3, Rule 61, Rules of Court). 5. If the application is granted, the court shall issue an order where it shall fix the amount of money to be provisionally paid as support. If the application is denied, the principal case shall be tried and decided as early as possible (Sec. 4, Rule 61, Rules of Court). - The amount fixed in the order is only provisional. It is not final in character and can be modified depending on the
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2. the property either belongs to the plaintiff' or one over which the plaintiff' has a right of possession. 3. can be availed of only when the defendant is in actual or constructive possession of the personal property. 4. extends only to personal property capable of manual delivery. 5. may be availed of without showing that the property is being concealed or disposed of to the prejudice of the plaintiff.
that may be rendered in favor of the plaintiff at some future time. 2. the property does not belong to the plaintiff but to the defendant.
Illustration (Bar 1981) "VX" and her son, Mario, are plaintiffs in a case against "WX" for support. A month after the filing of her complaint, plaintiffs asked the Court for support pendente lite. "WV opposes the petition on the ground that Mario is not his son but the issue of "V)C" as a result of an adulterous relationship. "WX"asks that he be given an opportunity to prove his defense. The court, ruling that this defense is a matter of the main case, denies "WX" the opportunity to prove his defense at that stage of the case and grants support pendente lite. Is the granting of such support pendente lite correct or not? Give your reasons. Suggested answer: The granting of support pendente lite without a hearing is not correct. Under the Rules, the application shall be set for hearing and a hearing shall be conducted (Sec. 3, Rule 61, Rules of Court). II. Enforcement of the order - The adverse party has to comply with the order to give support pendente lite. If he does not, an order of execution shall be issued by the court either motu proprio or upon motion. He may likewise be held liable for contempt (Sec. 5, Rule 61, Rules of Court). III. Restitution - When the judgment finds that the person giving support is not liable therefore, the court shall order the recipient to make a restitution of what has been received with legal interest from the date of actual payment. Should the recipient fail to do so, the person who gave the support may file an action against the person legally obliged to give such support (Sec. 7, Rule 61, Rules of Court).
CHAP. 13: SPECIAL CIVIL ACTIONS I. Preliminaries l. A civil action is of two types, namely: (a) ordinary civil actions, and (b) special civil actions (Sec. 3[a], Rule 1, Rules of Court). 2. Since a civil action in general is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3[a], Rule 1, Rules of Court), a special civil action is generally brought or filed for the same purpose. 3. Although both types of actions are governed by the rules for ordinary civil actions, there are certain rules that are applicable only to specific special civil actions (Sec. 3[a], Rule 1, Rules of Court). The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special. - Examples:
(a) An ordinary civil action must be based on a cause of action (Sec. 1, Rule 2, Rules of Court). This means that the defendant must have performed an act or omitted to do an act in violation of the rights of another (Sec. 2, Rule 2, Rules of Court). These definitions do not fit the requirements of a cause of action in certain special civil actions. This rule does not appear relevant to the special civil action of declaratory relief which is brought before there is any breach of a deed, will contract, statute, executive, order or regulation ordinance, or any other governmental regulation. In short, the cause of action as defined and required of an ordinary civil action finds no application to the special civil action of declaratory relief. It finds no application also in a complaint for interpleader. In this action, the plaintiff may file a complaint even if he has sustained no actual transgression of his rights. In fact, he actually has no interest in the subject matter of the action. This is not so in an ordinary civil action. (b) The venue in ordinary civil actions is determined by either the residence of the parties where the action is personal or by the location of the property where the action is real. This dichotomy does not always apply to a special civil action. For instance, the venue in a petition for quo warranto is where the Supreme Court or the Court of Appeals sits if the petition is commenced in any of these courts and without taking into consideration where the parties reside. It is only when the petition is lodged with the Regional Trial Court that residence is considered in venue analysis. Again, while in ordinary civil actions the residences of both the plaintiff and the defendant are factored in the determination, a petition for quo warranto filed in the Regional Trial Court merely looks into the residence of the respondent, not that of the petitioner. But if it is the Solicitor General who commences the action, another special rule is followed because the petition may only be commenced in a Regional Trial Court in Manila, in the Court of Appeals or in the Supreme Court. (c) Ordinary civil actions may be filed initially in either the Municipal Trial Court or the Regional Trial Court depending upon the jurisdictional amount or the nature of the action involved. On the other hand, there are special civil actions which can only be filed in a Municipal Trial Court like the actions for forcible entry and unlawful detainer. There are also special civil actions which cannot be commenced in the Municipal Trial Court foremost of which are the petitions for certiorari, prohibition and mandamus. 4. The special civil actions under the Rules are the following: (a) Interpleader (Rule 62); (b) Declaratory relief and similar remedies (Rule 63); (c) Review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit (Rule 64); (d) Certiorari, Prohibition and Mandamus (Rule 65); (e) Quo warranto (Rule 66); (f) Expropriation (Rule 67); (g) Foreclosure of real estate mortgage (Rule 68); (h) Partition (Rule 69); (i) Forcible Entry and unlawful detainer (Rule 70); and (j) Contempt (Rule 71).
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changing conditions affecting the ability of the obligor to pay the amount fixed for support.
- Rule 64 is a new special civil action and applies to judgments, final orders or resolutions of two constitutional commissions, the Commission on Elections and the Commission on Audit. The Civil Service Commission, another constitutional commission is not treated in Rule 64.
4. Another usual example is the case of a lessee who may commence a complaint for interpleader when he is confronted with adverse claimants on the rentals due and he is in doubt as to which of them should be the rightful recipient.
5. While ordinary civil actions when filed are denominated as `complaints', some special civil actions are not denominated as such but as `petitions' . While the terminology used does not go into the substance of the action, it is advisable to remember those special civil actions which are initiated by the filing of a petition, namely: 1. Declaratory relief and other similar remedies; 2. Review of adjudications of the COMELEC and COA; 3. Certiorari, prohibition and mandamus; 4. Quo warranto; and 5. Contempt.
- Recall that under the Civil Code of the Philippines, a cardinal principle to be observed for the validity of payment or performance is that payment must be made "to the person in whose favor the obligation was constituted" (Art. 1240, Civil Code of the Philippines). This means that as a rule, payment to the wrong person is not a valid payment and does not extinguish the obligation. Where two or more persons who do not represent the same interests claim the right to collect, the debtor will have to file an action for interpleader to effect the extinguishment of his obligation.
- The following special civil actions are initiated by the filing of a complaint: 1. Interpleader; 2. Expropriation; 3. Foreclosure of real estate mortgage; 4. Partition; and 5. Forcible entry and unlawful detainer.
Illustration (Bar 1988) LTA, Inc. is the lessee of a building owned by Mr. Tenorio paying rental of P10,000.00 a month. The owner died on May 10, 1988 and since then, LTA has not paid the monthly rentals, now amounting to P40,000.00 because two women are both claiming to be widows of Tenorio and are demanding rental payments. What legal action may LTA's counsel take, before what court and against whom to protect LTA's interest?
I. Interpleader (Rule 62) I. Meaning of interpleader (Bar 1998) 1. > interpleader - a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims among themselves (Sec. 1, Rule 62, Rules of Court; Bar 1998).
Suggested answer. LTAs counsel should file an action for interpleader against the two women and pray that the court resolve their conflicting claims. The action should be filed in the Municipal Trial Court because the subject of the action is an amount within the jurisdiction of said court. Note: When the question was asked, jurisdiction was with the Regional Trial Court. At that time the jurisdictional amount for the RTC was an amount exceeding P10,000.00.
2. As gleaned from the Rules, an action for interpleader requires that: (a) There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff; (b) The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants; (c) The subject matter of the adverse claims must be one and the same.
Illustration (Bar 1996) A lost the cashier's check she purchased from XYZ Bank. Upon being notified of the loss, XYZ Bank immediately issued a "STOP PAYMENT" order. Here comes B trying to encash the same cashier's check but XYZ Bank refused payment. As precautionary measure what remedy may XYZ Bank avail of with respect to the conflicting claims of A and B over the cashier's check? Explain. Suggested answer: XYX Bank should file a complaint for interpleader and leave unto the court the resolution of the conflicting claims of A and B. Note: The examiner made reference to "conflicting claims." This is a clue as to what the examiner desires as an answer. The examinee should therefore, refrain from making assumptions or unnecessary analysis. Illustration (Bar 1978) H insured his life with X Insurance Co. and designated W as beneficiary. The policy provided that the beneficiary could be changed by a written notice designating the new beneficiary sent by the insured and received by X Insurance Co. before the death of the insured. After the death of H, Q demanded from X Insurance Co. the proceeds of the policy, claiming that she had been designated as the beneficiary by H as may be seen from a copy of a written
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3. A classic example is that of a warehouseman who has custody of goods claimed to be owned by two or more persons who do not have the same interests. He may file an action for interpleader for the court to determine the rightful owner. The basis of the need to file an interpleader in the case of a warehouseman is actually the substantive law provisions of the Warehouse Receipts Law. Under said law, where a warehouseman delivers the goods to one who is not in fact entitled to possession, the warehouseman shall be liable for conversion (Sec. 10, Warehouse Receipts Law). He may also be sued for damages for non-delivery if he refuses to deliver the goods. Hence, Sec. 17 of the same law authorizes the warehouseman to require all known claimants to interplead to shield him from liability.
Suggested answer: I would advice my client not to pay either of the claimants in the meantime and instead file a complaint for interpleader against them and let the court resolve their conflicting claims (Sec. 1, Rule 63, Rules of Court). II. Basic procedure 1. A complaint for interpleader is filed by the person against whom the conflicting claims are made (Sec. 1, Rule 62, Rules of Court). The person who files the complaint shall pay the docket and other lawful fees and shall bear the costs and other litigation expenses even if he has no interest in the subject matter of the action. Recovery of such fees and expenses may nevertheless, be recovered later on because under Sec. 7 of Rule 62, they shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise. 2. In an ordinary civil action, upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendant (Sec. 1, Rule 14, Rules of Court). In interpleader, upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another (Sec. 2, Rule 62, Rules of Court). This order shall however, be served upon the conflicting claimants together with the summons and a copy of the complaint (Sec. 3, Rule 62, Rules of Court).
movant may file his answer within the remaining period to answer, but which shall not be less than five (5) days in any event, reckoned from the notice of denial of the motion (Sec. 4, Rule 62, Rules of Court). 5. The answer shall be filed within fifteen (15) days from the service of summons upon him. The answer shall set forth the claim of the claiming party and shall be served upon each of the conflicting claimants. If any of the claimants fail to file his answer within the reglementary period, the court may, upon motion, declare the non-answering claimant in default. A judgment shall then be rendered barring him from any claim in respect to the subject matter of the action (Sec. 5, Rule 62, Rules of Court). 6. A reply to the answer of the other may be filed by each of the conflicting claimants (Sec. 5, Rule 62, Rules of Court). The parties may also file counterclaims, cross-claims, thirdparty complaints and responsive pleadings thereto in accordance with the Rules of Court, i.e., the rules governing ordinary civil actions (Sec. 5, Rule 62, Rules of Court). 7. A pre-trial shall be conducted also in accordance with the Rules of Court (Sec. 6, Rule 62, Rules of Court). 8. After the pleadings shall have been filed, and pretrial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims (Sec. 6, Rule 62, Rules of Court). III. Court with jurisdiction - The court with jurisdiction over an action for interpleader shall depend upon the following: 1. If the subject matter of the action is personal property, valued at not more than P300,000.00 outside Metro Manila, and in Metro Manila, at not more than P400,000.00, the Municipal Trial Court has jurisdiction.
- In that same order requiring the claimants to interplead with one another, the court may include an order directing that the subject matter of the action be paid or delivered to the court. Such direction shall be made if the interest of justice so requires (Sec. 2, Rule 62, Rules of Court).
2. If the subject matter is real property with an assessed value at not more than P20,000.00 outside Metro Manila, and in Metro Manila, at not more than P50,000.00, the Regional Trial Court has jurisdiction.
3. Within the time for filing an answer, each claimant may file a motion to dismiss. The ground to be relied upon may be any of the grounds for dismissal of an action specified in Rule 16. In addition, another ground is provided for in Rule 62 impropriety of the action for interpleader (Sec. 4, Rule 62, Rules of Court). This ground is not found in Rule 16 of the Rules of Court.
Illustration (Bar 1997) What courts have jurisdiction over the following cases filed in Metro Manila? xxx (d) An action for interpleader to determine who between the defendants is entitled to receive the amount of P190, 000.00 from the plaintiff.
- It is believed that where the allegations of the complaint do not show conflicting claims between or among the persons required to interplead, the complaint for interpleader is subject to dismissal on the ground of impropriety of the interpleader, not a failure to state a cause of action under Rule 16 because the meaning of a cause of action in ordinary civil actions cannot apply to an interpleader. Besides, for an interpleader to be proper such conflicting claims must exist (Sec. 1, Rule 62, Rules of Court). Conversely, there is impropriety where no such adverse claims can be found from the reading of the complaint.
Suggested answer. (d) The action shall be filed in the Metropolitan Court in Metro Manila. The amount of P190, 000.00 not being in excess of P400, 000.00, is within the jurisdiction of said court.
4. The period to file an answer is interrupted or tolled by the filing of the motion to dismiss. If the motion is denied, the
IV. Distinctions between interpleader and intervention - The following are the well-recognized distinctions between interpleader and intervention: Interpleader Intervention 1. a special civil action, 1. not an original action but independent and original. merely ancillary and depends upon the existence of a previous pending action.
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notice signed by H and allegedly received by X Insurance Co. before X's death. W who is also demanding from X Insurance Co. the proceeds of the policy, claims that the signature of H appearing on the written notice is forged. As counsel for X Insurance Co., what advice would you give to your client and why?
3. filed by a person who has no interest in the subject matter of the action or if he has an interest, the same is not disputed by the claimants.
4. the defendants are brought into the action only because they are impleaded as such in the complaint.
2. commenced by a motion to intervene filed in a pending case attaching thereto the pleading-inintervention. 3. filed by a person who has a legal interest in any of the following: (a) the subject matter of the litigation; (b) the success of either of the parties; (c) the success of both of the parties; or (b) he may be adversely affected by the disposition or distribution of property in the judgment. 4. if a complaint-inintervention is filed, the defendants are already parties to an existing suit not because of the intervention but because of the original suit.
II. Declaratory Relief and other Similar Remedies (Rule 63) I. Preliminaries 1. Rule 63 covers two types of actions: (a) petition for declaratory relief, and (b) similar remedies. 2. The similar remedies are: (a) action for reformation of an instrument; (b) action to quiet title; and (c) action to consolidate ownership, under Article 1607 of the Civil Code. 3. These types of actions are treated differently by the Rules. In declaratory relief, "the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances" (Sec. 5, Rule 63, Rules of Court). In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore, choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition but on any of the two grounds not found in either Rule 16 or Rule 17 of the Rules of Court, namely: (a) Where a decision on the petition would not terminate the uncertainty or controversy which gave rise to the action, or (b) Where the declaration or construction is not necessary and proper under the circumstances as' when the instrument or the statute has already been breached. 4. On the other hand, the court does not have the discretion to refuse to act with respect to actions described as `similar remedies'. Thus, in an action for reformation of an instrument, to quiet title or to consolidate ownership, the
court cannot refuse to render a judgment. This is plain from the phraseology of Sec. 5 of Rule 63. II. Subject matter in a petition for declaratory relief 1. The subject matter in a petition for declaratory relief is any of the following: (a) a deed; (b) a will; (c) a contract or other written instrument; (d) a statute; (e) an executive order or regulation; (f) an ordinance; or (g) any other governmental regulation (Sec. 1, Rule 63, Rules of Court). 2. The enumeration of the subject matter is exclusive. Hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. (a) An action for declaratory relief to ask the court to declare his filiation and consequently his hereditary rights is improper. The action is not based on a deed, a will, statute or any of those enumerated as the subject matter of the petition (b) An action for declaratory relief to seek judicial declaration of citizenship to correct a previous unilateral registration by petitioner as an alien is improper, the action not being founded on a deed, contract or any ordinance (Obiles vs. Republic, 92 Phil. 864). An action for declaratory relief is not proper to resolve doubts concerning one's citizenship. (c) A petition for declaratory relief is not proper for the purpose of seeking enlightenment as to the true import of a judgment. The remedy is to move for a clarificatory judgment. (d) A petition for declaratory relief is not proper to assail a judgment. A party could appeal and employ other remedies under the Rules of Court before or after the judgment has become final and executor. 3. Even if the subject is one enumerated under the Rules, where the contract or statute is clear in its terms and there is no doubt as to its meaning and validity, a petition for declaratory relief is improper. There would be no need for construction or a declaration of rights thereunder. Illustration (Bar 1998) A student files an action for declaratory relief against his school to determine whether he deserves to graduate with Latin honors. Is this action tenable?
Suggested answer: The action is not tenable. To be the proper subject of a petition for declaratory relief, the subject of the petition must be a deed, will, contract, written instrument, statute, executive order, regulation, ordinance, or any other governmental regulation. Whether or not the student is to be conferred Latin honors is not a proper subject of the petition. III. Court with jurisdiction
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2. commenced by the filing of a complaint, it being an original action.
- The subject matter of a petition for declaratory relief raises issues which are not capable of pecuniary estimation and must be filed with the Regional Trial Court (Sec. 19[11, BP 129; Sec. 1, Rule 63, Rules of Court). It would be error to file the petition with the Supreme Court which has no original jurisdiction to entertain a petition for declaratory relief.
1. If the subject matter is a deed, will, contract or other written instrument, the petitioner is the person interested in the same (Sec. 1, Rule 63, Rules of Court). Those who may sue under the contract should be those with interest under the contract like the parties, the assignees and the heirs as required by substantive law (Art. 1311, Civil Code of the Philippines).
IV. Purpose of the petition 1. An action for declaratory relief is brought to secure an authoritative statement of the rights and obligations of the parties under a contract or a statute for their guidance in the enforcement or compliance with the same. The purpose of the petition is to ask the court to determine any question of construction or validity arising from the subject matter, and for the declaration of rights and duties therein (Sec. 1, Rule 63, Rules of Court). Thus, the purpose is to seek for a judicial interpretation of an instrument or for a judicial declaration of a person's rights under a statute and not to ask for affirmative reliefs like injunction, damages or any other relief beyond the purpose of the petition as declared under the Rules. It is not brought to settle issues arising from a breach because after the breach of the contract or statute, the petition can no longer be brought.
2. If it be a statute, executive order, regulation or ordinance, the petitioner is one whose rights are affected by the same (Sec. 1, Rule 63, Rules of Court).
3. It is the absence of allegations seeking material or affirmative reliefs in a petition for declaratory relief that it has been held that when the main case is for declaratory relief, a third-party complaint is inconceivable. The relief sought in this kind of pleading is contribution, indemnity, subrogation or other relief from the third-party defendant in respect of the claim of the plaintiff against him. Accordingly, this relief cannot be granted because in a declaratory relief, the court is merely interpreting the terms of the contract. It has also been held however, that a petition for declaratory relief may entertain a compulsory counterclaim as long as it is based on or arising from the same transaction, subject mater of the petition. 4. Since the objective of the petition is merely an interpretation of a deed or a contract or for a definitive pronouncement of rights under a particular law, rule or order, there is nothing to execute in the judgment of the court the way judgments in ordinary civil actions are executed. This is because the judgment in a declaratory relief is confined either to an interpretation of a deed or a declaration whether or nor the petitioner has or does not have rights under the law. As a general principle therefore, the judgment in a declaratory relief is said to stand by itself and no executory process follows as of course. It is unlike the judgment in an ordinary civil action which is coercive in character and enforced by execution. V. The petitioner and other parties
4. Where the action involves the validity of a local government ordinance, the corresponding `prosecutor or attorney of the local government unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard (Sec. 4, Rule 63, Rules of Court). VI. Filing before any breach or violation; justiciable controversy 1. The petition for declaratory relief is filed before there occurs` any breach or violation of the deed, contract, statute, ordinance or executive order or regulation. It will not prosper when brought after a contract or a statute has already been breached or violated (Sec. 1, Rule 63, Rules of Court). If there has already been a breach, the appropriate ordinary civil action,' not declaratory relief, should be filed. - Where the law or contract has already been contravened prior to the filing of the action for declaratory relief, the court can no longer assume jurisdiction over the action for declaratory relief if its subject, i.e., the statute, deed or contract, etc. has already been infringed or transgressed before the institution of the action. Under such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is nothing more for the court to explain or clarify short of a judgment or final order. 2. However, when the breach occurs not before the filing of the petition for declaratory relief but after the action has been constituted and during its pendency, the action is not to be dismissed but may be converted into an ordinary action and the parties shall be allowed to file such pleadings as may be necessary or proper (Sec. 6, Rule 63, Rules of Court). 3. The traditional concept of cause of action in ordinary civil actions, as earlier mentioned does not apply to a declaratory relief where no specific right of the plaintiff has as yet been violated because the action is brought before a breach of the deed or law occurs.
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2. It has been held that in an action for declaratory relief, the question raised is a question of "construction" or "validity" arising under an instrument or statute. The object is to terminate uncertainties in an instrument or statute and the judgment of the court cannot extend beyond a declaration of the rights and duties of the parties to the action and cannot provide corrective reliefs
3. The other parties are all persons who have or claim any interest which would be affected by the declaration (Sec. 2, Rule 63, Rules of Court). The rights of persons not made parties to the action do not stand to be prejudiced by the declaration (Sec. 2, Rule 63, Rules of Court). Since their rights are not to be prejudiced by their non-inclusion, the failure to implead such persons does not therefore, affect the jurisdiction of the court over the petition.
5. A justiciable controversy is required because the court, in a petition for declaratory relief is not called upon to render a mere `advisory opinion' which unlike a judicial proceeding, has no res judicata effect and requires no controversy of whatever degree. 6. Courts are not called upon to resolve questions as a "pure academic exercise." - For example, a person who impugns a statute must be one who could show that he will sustain a direct injury as a result of the enforcement of a statute (Cabarle vs. Tagle, G.R. No. 113475, February 15, 1994). An actual injury is not necessary. In declaratory relief, all that is required is an impending violation of the plaintiff's rights. VII. Summary of requisites for the petition - Jurisprudence has laid down the following as requisites for the petition: (a) There must be a justiciable controversy; (b) The controversy must be between persons whose interests are adverse; (c) The party seeking the relief must have a legal interest in the controversy; and d) That the issue is ripe for judicial determination. VIII. Reformation of an instrument 1. An action for reformation is not an action brought to reform a contract but to reform the instrument evidencing the contract. The action for reformation presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties (Art. 1359, Civil Code of the Philippines). A contract does not refer to a deed or an instrument but to a meeting of the minds of the parties (Art. 1305, Civil Code of the Philippines). Art. 1359 of the civil code does not in fact refer to a reformation of the contract but of the `instrument'. 2. The contract is to be reformed because despite the meeting of minds of the parties as to the object and cause of the contract, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, fraud, inequitable conduct or accident. The action is brought so the true intention of the parties may be expressed in the instrument (Art. 1359, Civil Code of the Philippines). - Examples: (a) The parties have agreed on the size of the land subject of the sale. By an act of fraud of the seller who prepared the deed of sale, a smaller area is indicated in the deed. There is nothing defective in the contract which is the meeting of the minds. The defect is in the deed of sale, which is the instrument. If an action for reformation is
brought, the action must be for the purpose of reforming the instrument. (b) An instrument may be reformed if the instrument does not express the true intention of the parties because of lack of skill of the person drafting the instrument (Art. 1363, Civil Code of the Philippines). (c) If the parties agree upon the mortgage or pledge of property, but the instrument states that the property is sold absolutely or with a right of repurchase, reformation of the instrument is proper (Art. 1365, Civil Code of the Philippines). 3. Where the consent of a party to a contract has been procured by fraud, inequitable conduct or accident, and an instrument was executed by the parties in accordance with the contract, what is defective is the contract itself because of vitiation of consent. The remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, Civil Code of the Philippines). A contract where one party's consent is vitiated is voidable or annullable (Art. 1330, Civil Code of the Philippines; Art. 1390[21, Civil Code of the Philippines). 4. Reformation of the instrument cannot be brought to reform any of the following: (a) Simple donations inter vivos wherein no condition is imposed; (b) Wills; or (c) When the agreement is void (Art. 1666, Civil Code of the Philippines). IX. Consolidation of ownership 1. The concept of consolidation of ownership under Art. 1607 of the Civil Code has its origins in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619, Civil Code of the Philippines) or conventional redemption (Art. 1601, Civil Code of the Philippines). 2. Legal redemption also called retracto legal, is a statutory mandated redemption of a property previously sold. For instance, a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. 1620, Civil Code of the Philippines). The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. 1621, Civil Code of the Philippines). 3. > Conventional redemption – (also called pacto de retro sale) one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. - The law provides: "Conventional redemption takes place when the vendor reserves, the right to repurchase the thing sold * * *" (Art. 1601, Civil Code of the Philippines). The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10) years from the date of the contract. In the absence of any agreement, the redemption period shall be four (4) years from the date of the contract (Art. 1606, Civil Code of the Philippines).
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4. The absence of a breach should not however, be taken to mean that the petition need not involve a controversy. A justiciable controversy is in fact indispensable for the propriety of the petition. It need not be a controversy consisting of an actual violation of a right by another but one with the "ripening seeds" of a controversy. The controversy must be one that is not merely imagined or one that is academic or theoretical.
5. The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption, consolidates ownership or title upon the person of the vendee by operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without a judicial order.
1. A party aggrieved by the judgment, final order or resolution of the Commission on Elections or the Commission on Audit may file a petition for certiorari under Rule 65 with the Supreme Court (Sec. 2, Rule 64, Rules of Court). - The mode of review under Rule 64 is starkly different from the mode applicable to the judgment, final order or resolution of another constitutional body, the Civil Service Commission. The judgment of the Civil Service Commission cannot be assailed by a petition for certiorari to the Supreme Court but by appeal. This appeal shall be taken by filing a verified petition for review to the Court of Appeals (Republic Act 7902) in accordance with Rule 43 of the Rules of Court. - Certiorari is an independent action unlike the petition for review under Rule 43 which actually is a mode of appeal although usually called a petition for review.
X. Quieting of title 1. This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where an instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code of the Philippines).
2. If the mode of review is a petition for certiorari under Rule 65, the petitioner must anchor the petition, on jurisdictional grounds, i.e., that the commission concerned committed a grave abuse of discretion or acted in excess of jurisdiction in a manner amounting to lack of jurisdiction.
2. The plaintiff need not be in possession of the real party before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject mater of the action (Art. 477, Civil Code of the Philippines).
3. The petition for certiorari referred to in Rule 64 shall be filed within thirty (30) days from notice of the judgment, final order or resolution of the Commission on Elections and the Commission on Audit (Sec. 2, Rule 64, Rules of Court). While Rule 64 makes reference to the certiorari under Rule 65, the period for filing of the petition for certiorari assailing the judgment ofthe Commission on Elections and the Commission on Audit is shorter than that provided for under Rule 65. Under the latter Rule (Sec. 4, Rule 65, Rules of Court), the petition for certiorari shall be filed not later than sixty (60) days from notice of the judgment, order or resolution, or from notice of the denial of a motion for reconsideration or motion for new trial, whether such motion is required or not. Under Rule 64, the petition shall be filed within thirty (30) days only.
III. Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the Commission on Audit (Rule 64) I. Preliminaries - Rule 64 is a new rule and has the Constitution of 1987 as its basis. Section 7 of Art. IX-A (Constitutional Commissions), provides: " * * *. Unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." - The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45. To implement the above constitutional provision, the Supreme Court promulgated Rule 64 of the Rules of Court. II. Remedy of the aggrieved party
- The petition cannot question the findings of fact of the commission involved where such findings are supported by substantial evidence. Such findings when so supported by the requisite quantum of evidence are final and non-reviewable (Sec. 5, Rule 64, Rules of Court).
4. The period of thirty (30) days has express reference to the judgment or a final order of the commission concerned. It is believed that when the petition for certiorari is directed against an interlocutory order of the commission the period in Rule 65 should apply.
III. Motion for new trial or motion for reconsideration - Whether or not a party may file a motion for a new trial or a motion for reconsideration of the judgment, final order or resolution of the commission concerned is dependent upon the procedural rules of the commission concerned. If such motions are allowed, the filing of either shall interrupt the period for the filing of the petition for certiorari. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial
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4. Where redemption is not made within the period agreed upon, in case the subject matter of the sale is real property, Art. 1607 provides that the "consolidation of ownership in the vendee * * * shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard."
IV. Basic requirements for the petition - The following basic requirements must be complied with: 1.The petition shall be verified and filed in eighteen (18) copies. 2. It must be accompanied by clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of such material portions of the record and other documents relevant and pertinent to the petition. The requisite number of copies of the petition shall contain plain copies of all documents attached to the original copy of the petition. 3. The petition shall name the aggrieved party as petitioner and shall join as respondent the commission concerned and all the persons interested in sustaining the judgment, final order or resolution. 4. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review. 5. The petition shall state the specific material dates showing that it was filed within the period fixed by the Rules. 6. The petition shall be accompanied by proof of service of a copy thereof on the commission involved and on the adverse party, and of the timely payment of docket and other lawful fees (Sec. 4, Rule 64, Rules of Court). 7. The petition shall contain a sworn certification against forum shopping. 8. The petition shall pray for a judgment annulling or modifying the questioned judgment, final order or resolution. - The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition (Sec. 5, Rule 64, Rules of Court). V. Order to comment; outright dismissal 1. The Court has two options upon receipt of the petition - to deny the petition outright or to order the filing of a comment. - The court may dismiss the petition outright if (a) the petition is not sufficient in form and substance; (b) the petition is filed manifestly for delay; or (c) the question raised is too unsubstantial to warrant further proceedings. - The court shall order the respondents to file their comments within ten (10) days from notice if it finds the petition sufficient in form and substance (Sec. 7, Rule 64, Rules of Court). - No other pleading may be filed by any party unless required or allowed by the court (Sec. 7, Rule 64, Rules of Court). - The comments of the respondents shall be filed in eighteen (18) legible copies and the original shall be accompanied by certified true copies of the material portions of the records
referred to together with other supporting papers. Copy shall be served to the petitioner (Sec. 7, Rule 64, Rules of Court).
VI. Filing of petition does not stay execution - While the filing of a motion for reconsideration or a motion for new trial shall interrupt the period for the filing of the petition (Sec. 3, Rule 64, Rules of Court), the filing of the petition itself, on the other hand, shall not have the effect of staying the judgment, final order or resolution of the Commission on Elections or of the Commission on Audit, unless the Supreme Court shall direct otherwise (Sec. 8, Rule 64, Rules of Court). To prevent the execution of the judgment, the petitioner should obtained a temporary restraining order or obtain a writ of preliminary injunction because the mere filing of the petition does not interrupt the course of the principal case. VII. Oral arguments; memoranda; submission for decision - Upon the filing of the comments on the petition, or upon the expiration of the period to do so, the case shall be deemed submitted for decision except if the Court decides to set the case for oral argument or requires the parties to submit memoranda (Sec. 9, Rule 64, Rules of Court). IV. Certiorari, Prohibition and Mandamus (Rule 65) A. Certiorari I. Nature and purpose of the remedy 1. A petition for certiorari under Rule 65 is a special civil action. It is not a mode of appeal. It is an original action independent from the principal action which resulted in the rendition of the judgment or order complained of (Rule 65, Rules of Court). 2. Certiorari is not intended to review the errors of judgment of the trial court. In certiorari, judicial review does not go as far as to examine and assess the evidence of the parties and to weigh the probative value thereof. Raising errors of judgment is proper only in an appeal. 3. Certiorari is a remedy for the correction of errors of jurisdiction, not errors of judgment. It is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. More importantly, since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment. 4. The rule is well-recognized that an appeal to the Supreme Court may be taken only by petition for review on certiorari (Sec. 3, Rule 56, Rules of Court). This is not the certiorari under Rule 65 but under Rule 45. Any party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, or the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari and which shall raise only questions of law (Sec. 1, Rule 45, Rules of Court). Illustration (Bar 2005)
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(Sec. 3, Rule 64, Rules of Court). The interruption of the period for the filing of the petition assumes that the motion for reconsideration or new trial is not pro forma. If the motion is pro forma, the period for fling the petition is not interrupted.
Suggested answer. The aggrieved party may not, as a rule. The proper remedy is to file a petition for review on certiorari under Rule 45. Availment of certiorari under Rule 65 would be on the hnHIH of'oxceptional circurnstances which would juHti(y the Supremo Court in suspending the rules pro hac vice in the interest of justice.
II. Correction of errors of jurisdiction 1. A petition for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment as when a court or body acted with grave abuse of discretion amounting to lack of jurisdiction. If the court has jurisdiction and in the process committed an error in the exercise of its jurisdiction which errors is only one of judgment, such error is reviewable only by appeal and not by certiorari. Verily, the writ of certiorari is granted to keep an inferior court within the bounds of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to lack or excess of jurisdiction. 2. A petition for certiorari is an extraordinary remedy that is adopted to correct errors of jurisdiction committed by the lower court or quasi judicial agency, or when there is grave abuse of discretion on the part of such court or agency amounting to lack or excess of jurisdiction. Where the error is not one of jurisdiction, but of law or fact which is a mistake of judgment, the proper remedy should be appeal. Hence, if there was no question of jurisdiction involved in the decision and what was being questioned was merely the findings in the decision of whether or not the practice of the other party constitutes a violation of the agreement, the matter is a proper subject of an appeal, not certiorari. III. Certiorari distinguished from appeal - Among other distinctions, the primary element which sets these remedies apart is: The writ of certiorari is proper to correct errors of jurisdiction committed by the lower court, or grave abuse of discretion which is tantamount to lack of jurisdiction. Appeal is proper whore the error is not one of jurisdiction but an error of law or fact which is a mistake of judgment IV. Necessity for a writ of injunction; certiorari not sufficient - The filing of a petition for certiorari does not interrupt the course of the principal action nor the running of the reglementary periods involved in the proceeding, unless an application for a restraining order or a writ of preliminary injunction to the appellate court is granted (Sec. 7, Rule 65, Rules of Court). It does not interrupt the reglementary period for the filing of an answer. It does not interrupt the course of the case where there is no writ of injunction. - To illustrate: In a case filed before the MTC, the defendant filed a motion to dismiss a complaint on the ground of lack of
jurisdiction. The court denied the motion and denied also a subsequent motion for reconsideration. A petition for certiorari was filed in the RTC to nullify and set aside the order of the MTC. While the petition for certiorari was pending, the plaintiff filed a motion to declare the defendant in default for failure to file an answer within the reglementary period. The MTC could not be faulted if it grants the motion to declare the defendant in default. The running of the period to answer was not interrupted because the defendant did not avail of a writ of preliminary injunction when he filed the petition for certiorari. V. No petition for certiorari in a summary proceeding 1. In a summary proceeding, petitions for certiorari, prohibition or mandamus against an interlocutory order of the court are not allowed (Sec. 19, 1991 Revised Rule on Summary Procedure). Illustration (Bar 2004) (a) xxx (b) Charged with the offense of slight physical injuries under an information duly filed with the McTC in Manila which in Lho niountimo had duly issued an order declaring Lhat the case. shall bo governed by the Revised .Rule on Summary Procedure, the accused filed with said court a rnotion to quash on the sole ground that the officer who filed the information had no authority to do so. The McTC denied the motion on the ground that it is a prohibited motion under the said Rule. The accused thereupon filed with the RTC in Manila a petition for certiorari in sum assailing and seeking the nullification of the McTC's denial of his motion to quash. The RTC in due time issued an order denying due course to the certiorari petition on the ground that it is not allowed by the said Rule. Was the RTC order denying due course to the petition x x x correct? Reason. Suggested answer: (b) The denial of the petition for certiorari was correct. A petition for certiorari of an interlocutory order of the McTC is a prohibited pleading under Sec. 19(g) of the Rules on Summary Procedure. 2. Although a petition for certiorari is prohibited in cases subject to summary procedure, the Court in one case allowed the petition because the trial court gravely abused its discretion by indefinitely suspending the proceedings in ejectment cases thus, acting contrary to the purposes of the Rules on Summary Procedure. The Supreme Court recognized that because the order of the trial court cannot be appealed from it being interlocutory and since the proceedings are covered by the Rules on Summary Procedure, a'procedural void' exists. Invoking its power to suspend the rules to promote substantial justice, the Supreme Court gave due course to the petition pro hac vice because of the extraordinary circumstances of the case. The Court observed that allowing the petition would avoid the mischiefs sought to be curbed by the Rules and would give spirit and life to the Rules on Summary Procedure. VI. Certiorari not substitute for lost appeal 1. The filing of a petition for certiorari as a substitute for a lost appeal would be erroneous. Certiorari is not and cannot
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May the aggrieved party file a petition for certiorari in the Supreme Court under Rule 65 of the 1997 Rules of Civil Procedure, instead of filing a petition for review on certiorari under Rule 45 thereof for the nullification of a decision of the Court ofAppeals in the exercise either of its original or appellate jurisdiction? Explain.
2. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The antithetic character of appeal and certiorari has been generally recognized and observed save only in those rare instances when appeal is satisfactorily shown to be an inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on appeal. Certiorari cannot be used as a substitute for appeal. 3. Certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, certiorari not being a substitute for lost appeal. Consequently, if the complaint is dismissed through a motion to dismiss, the normal remedy of the plaintiff is to appeal, not to file a petition for certiorari. Appeal is the remedy because an order dismissing a complaint is final in character. If the period for appeal lapses without an appeal having been filed, certiorari cannot take the place of the lost appeal. Illustration (Bar 1991) On 3 January 1991, the Mayon Corporation filed a complaint for foreclosure of real estate mortgage against one of its sales agents, A, who was discovered to have incurred a shortage in his accounts. Tho mortgage was executed to guarantee faithful compliance with his duties and responsibilities as a sales agent. Impleaded in the complaint as co-defendants were A's co-mortgagors, B and C. Acting on defendant's motion to dismiss, the court dismissed the complaint in an Order dated 15 February 1991, a copy of which was received by Mayon Corporation on 18 February 1991. On March 15, 1991, and definitely within a reasonable period from receipt of the dismissal order, Mayon Corporation filed with the Supreme Court a special civil action for certiorari under Rule 65 of the Rules of Court alleging therein that the trial court acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in granting the motion to dismiss. (a) Should the Supreme Court give due course to the petition? (c) May a special civil action for certiorari prosper in case of a denial of a motion to dismiss or a motion to quash? Suggested answers: (a) The Supreme Court should not give due course to the petition. An order granting a motion to dismiss is final in character. The remedy therefore of the aggrieved party is to appeal from the order granting the motion to dismiss. It should have appealed within the period for appeal, i.e., within fifteen days from February 18, 1991, the date it received the notice of dismissal. By March 15, 1991,
the period to appeal had already lapsed. Certiorari is not a substitute for a lost appeal. (b) xxx (c) An order denying a motion to dismiss is an interlocutory order, and hence, not appealable (Sec. 1, Rule 41, Rules of Court). Ordinarily, when a motion to dismiss is denied, the defendant should file an answer to the complaint, proceed to trial and await judgment before making an appeal (Sec. 4, Rule 16, Rules of Court). However, as long as it can be shown that the trial court acted without or in excess of jurisdiction or with grave abuse of discretion, a civil action for certiorari under Rule 65 may prosper (Sec. 1, last par., Sec. 41, Rules of Court). While an order denying a motion to dismiss is interlocutory and non-appealable, however, if the denial is attended by a grave abuse of discretion, certiorari and prohibition are proper remedies from such order of denial. VII. When certiorari is available despite the loss of appeal - While ordinarily, certiorari is not available when the period for appeal has lapsed, certiorari may still be invoked when appeal is lost without the appellant's negligence. Other exceptions are: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void, and (d) when the questioned order amounts to an oppressive exercise of judicial authority. VIII. Essential requisites for a petition for certiorari - A petition for certiorari requires the concurrence of the following: (a) The petition is directed against a tribunal, board or officer exercising judicial or quasi judicial functions; (b) The such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; (c) There is neither appeal nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be capricious, arbitrary and whimsical exercise of power for it to prosper IX. Respondent must exercise judicial or quasi judicial functions 1. A petition for certiorari is directed against a tribunal, board or officer exercising judicial or quasi judicial functions (Sec. 1, Rule 65, Rules of Court). Thus, if the board, tribunal or officer does not exercise either a judicial or quasi judicial function, certiorari will not lie against its acts. A quasi judicial act refers to the acts of public administrative officers or bodies required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official actions, and to exercise discretion of a judicial nature. - Specifically, the tribunal, board or officer exercising judicial or quasi judicial function must be clothed with power and authority to pass judgment or render a decision on the controversy construing and applying the laws to that end. Simply stated, where the function is merely investigative and recommendatory with no power to pronounce judgment on the controversy, the designation as investigator, therefore, does not involve the exercise of judicial or quasi judicial power. Hence, the acts may not be challenged in a petition for certiorari under Rule 65.
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be made a substitute for an appeal where the latter remedy is available but was lost through fault or negligence. The remedy to obtain a reversal of judgment on the merits is appeal. This holds true even if the error ascribed to the lower court is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion. The existence and availability of the right to appeal prohibits the resort to certiorari because one of the requirements for certiorari is that "there is no appeal."
- "In the issuance of the assailed Wage Order, respondent Regional Tripartite Wage Productivity Board (RTWPB) did not act in any judicial, quasi judicial capacity, or ministerial capacity. It was in the nature of subordinate legislation, promulgated by it in the exercise of delegated power under R.A. No. 6727. It was issued in the exercise of quasi-legislative power. Quasi-legislative or rule-making power is exercised by administrative agencies through the promulgation of rules and regulations within the confines of the granting statute and the doctrine of non-delegation of certain powers flowing from the separation of the great branches of the government." 3. A committee on the ratings of students for honor whose actions in proclaiming the honor students of a graduating class are questioned is not the "tribunal, board or officer" against whom an action may lie under Sec. 1 of Rule 65. X. Jurisdictional issue 1. A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal. 2. In one case, the Supreme Court defined errors of jurisdiction as one where the act complained of was issued by the court, officer or a quasi judicial body without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of'jurisdiction. XI. Excess of jurisdiction distinguished from absence of jurisdiction > Excess of jurisdiction – (as distinguished from absence of jurisdiction) an act, though within the general power of a tribunal, board or officer, is not authorized and invalid with respect to the particular proceeding because the conditions which alone authorize the exercise of the general power in respect of it are wanting. Without jurisdiction means lack or want of legal power, right, or authority to hear and determine it cause or causes, considered either in general or with reference to a particular matter. It means lack of power to exercise authority. - In essence, acting in excess of jurisdiction does not connote it total absence of jurisdiction. It signifies an act authorized by law but performed beyond the bounds of that authority. Under our judicial system such act is equivalent to lack of
jurisdiction. Lack of jurisdiction means just what the term says it is. It is an absence of power or authority to perform a particular act. XII. Grave abuse of discretion 1. Certiorari will not lie when there is a mere abuse of cIiscretion by the tribunal, board or officer exercising judicial or quasi-judicial functions. Such kind of abuse does not amount to lack or excess of jurisdiction. For certiorari to lie, the abuse must be "grave" (Sec. 1, Rule 65, Rules of Court). 2. In a special civil action for certiorari, there must be proof that the act of the tribunal or court emanated from the capricious and whimsical exercise of judgment. Likewise, the use of discretion should have been arbitrary due to passion, prejudice or personal hostility so patent and gross that it amounts to evasion to perform a positive duty under the law. In the case at bar, the records do not reveal nor does petitioner allege malice or prejudice on the part of the CA in reinstating private respondent's appeal. 3. There is a grave abuse of discretion where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. The abuse is patent and gross if it amounts to an evasion of a positive duty or to a virtual refusal to perform the duty or to act at all in contemplation of law. The phrase "grave abuse of discretion" amounting to lack or excess of jurisdiction means such capricious and whimsical exercise of judgment by the tribunal exercising judicial or quasi judicial functions as to amount to lack of power. 4. A mere denial of an application for an ex parte order for the seizure of evidence is not indicative of a grave abuse of discretion where petitioner failed to point out specific instances where grave abuse of discretion was allegedly committed and how the respondent court supposedly exercised its power in a despotic, capricious or whimsical manner. 5. A judge gravely abuses his discretion when he extends by twenty (20) days the 72-hour restraining order he initially issued because in no case shall the total period of effectivity of the temporary restraining order exceed 20 days (Sec. 5, Rule 58, Rules of Court). 6. There is a grave abuse of discretion where the trial court fails to determine a factual controversy before issuing a writ of demolition. Failure to do so is to disregard basic principles of due process because before demolition could be effected, the parties concerned must be heard. Such error may be corrected by a writ of certiorari. 7. There is a grave abuse of discretion if a judge hears a motion on the same day it was filed. 8. It is a grave abuse of discretion on the part of a court to order immediate execution of a final order without awaiting the expiration of the period to appeal therefrom and without even a motion having been filed for execution pending appeal. 9. By considering the motion for execution of the petitioner abandoned and ordering the payment of separation pay
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2. "A respondent is said to be exercising judicial function where he has the power to determine what the law is and what the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the parties. Quasi judicial function is a term which applies to the action, discretion, etc., of public administrative officers or bodies, which are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. Ministerial ('unction is one which an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard to the exercise of his own judgment upon the propriety or impropriety of the act done.
10. Rendering a decision in favor of complainants against the alleged employer without first determining the existence of an employer-employer relations and the failure to express the factual and legal basis of a decision is an evasion of a constitutional duty which constitutes a grave abuse of discretion. 11. While an order denying a motion to dismiss is interlocutory and non-appealable, however, if the denial is attended by a grave abuse of discretion, certiorari and prohibition are proper remedies from such order of denial. XIII. Necessity for a motion for reconsideration 1. Settled is the rule that, except in some recognized exceptions, the filing of a motion for reconsideration is a condition sine qua non to the filing of a petition for certiorari to allow the court an opportunity to correct its imputed errors. 2. The mere fact that a petitioner fails to move for the reconsideration of the court a quo's order denying his motion is sufficient cause for the outright dismissal of a petition for certiorari. Certiorari as a special civil action will not lie unless a motion for reconsideration is first filed before the respondent court to allow it an opportunity to correct its errors. To warrant a deviation from this rule, one must proffer a compelling reason. XIV. Exceptions to the requirement of a motion for reconsideration (Bar 1989) 1. Although the filing of a motion for reconsideration is a condition sine qua non for certiorari to lie, the rule is subject to certain well recognized exceptions. 2. The recognized exceptions where the special civil action for certiorari will lie even without first filing a motion for reconsideration includes: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceeding have been duly raised and passed by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioner; (d) where the subject matter of the action is perishable; (e) where under the circumstances, a motion for reconsideration would be useless; (f) where petitioner was deprived of due process and there is extreme urgency for relief; (g) where in a criminal case, relief from order of arrest is urgent and the granting of such relief by the trial court is improbable; (h) where the proceedings in the lower court are a nullity for lack of due process; (i) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and
(j) where the issue raised is one purely of'law or where public interest is involved. Illustration (Bar 1989) (1) xxx (2) Well-settled is the rule that before a petition for certiorari under Rule 65 of the Rules of Court may be filed, a motion for reconsideration must be filed to give an opportunity to the judge to correct an error, if any. An omission to comply with this procedural requirement justifies a denial of the writ applied for. When may a motion for reconsideration be dispensed with? Suggested answer. (2) Please refer to the immediately preceding topic. XV. Absence of appeal or any plain, speedy and adequate remedy (Bar 1999) 1. The settled rule is that certiorari is not available where the aggrieved party's remedy of appeal is plain, speedy and adequate in the ordinary course of law the reason being that certiorari cannot co-exist with an appeal these remedies being mutually exclusive. 2. It bears emphasis that the special civil action for certiorari is a limited form of review and is a remedy of last recourse. It cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, certiorari not being a substitute for a lapsed or lost appeal. Where an appeal is available, certiorari will not prosper, even if the ground therefore is grave abuse of discretion. - Exception: Although the extraordinary remedy of certiorari is not proper when an appeal is available, it may be allowed when it can be shown that appeal would be inadequate, slow, insufficient, and will not promptly relieve a party from the injurious effects of the order complained of. 3. Examples: (a) Under the 2000 National Prosecution Service Rules on Appeal, the resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. The remedy of the aggrieved party is to file a petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or other remedy available in the ordinary course of law. To file an appeal with the Court of Appeals by way of a petition for review under Rule 43. is to resort to an improper remedy. A petition for certiorari under Rule 65 should be filed instead. (b) An order dismissing a complaint for failure to comply with the rules on certification against forum shopping is a dismissal without prejudice. Under Sec. 1(h) of Rule 41, such dismissal is not appealable, the remedy being the appropriate special civil action under Rule 65 and one remedy under said rule is certiorari. (c) An order denying a petition for relief is not appealable under the terms of Sec. 1(b) of Rule 41. The remedy is likewise the appropriate special civil action under Rule 65 and one remedy under said rule is certiorari. Illustration (Bar 2002) The defendant was declared in the default in the RTC for his failure to file an answer to a complaint for a sum
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instead of reinstatement even if petitioner did not abandon his claim for reinstatement, the Executive Labor Arbiter committed a grave abuse of discretion.
of money. On the basis of the plaintiff's ex party presentation of'evidence, judgment by default was rendered against the defendant. The default judgment was served on the defendant on October 1, 2001. On October 10, 2001, he filed a verified motion to lift the order of default and to set aside the judgment. In his motion, the defendant alleged that immediately upon receipt of the summons, he saw the plaintiff and confronted him with his receipt evidencing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court denied the defendant's motion because it was not accompanied by an affidavit of merit. The defendant filed a special civil action for certiorari under Rule 65 challenging the denial order. (a) Is certiorari under Rule 65, the proper remedy? (b) xxx
consists of certified true copies of the judgment, order or resolution subject of the petition. Duplicate originals or certified true copies thereof must be appended to enable the reviewing court to determine whether the court, body or tribunal, which rendered the same committed grave abuse of discretion. The second set consists of the pleadings, portions of the case record and other documents which are material and pertinent to the petition. In this second set mere photocopies thereof may be attached to the petition. The requirement for certified true copies refcr-H to the judgment, order or resolution (Air Philippines vs. /wiu.ora, GR. No. 148247, August 7, 211116) and are the documents mentioned in the first set. The use of mere pho~l,ocopies of certified true copies of judgments or orders subject matter of a petition renders that petition deficient and subject to dismissal.
Suggested answer. (a) Certiorari is the proper remedy to challenge the denial of the motion. While ordinarily, the remedy against a judgment by default is to file a motion for new trial, appeal or a petition for relief as the case may be (Talsan Enterprises, Inc. vs. Baliwag Transit, Inc., 310 SCRA 156), these remedies are not speedy and adequate in the case at bar where it can be shown that the court, in denying the motion, committed a grave abuse of discretion amounting to lack of jurisdiction. The court committed a grave abuse of discretion when it denied the motion on the basis of the alleged absence of an affidavit of merit because the meritorious defense of the defendant was already alleged in his verified motion. There was then no need for a separate affidavit of merit, the incorporation of the defense in the motion being a substantial compliance with the rule.
- A petition is procedurally flawed if this provision is not complied with because these are documents important for the court's appraisal, evaluation and judicious disposition of the case. Non-observance of the rule is a sufficient cause for the dismissal of the petition and cannot be merely brushed aside as a mere technicality.
Suggested answer: The general rule precludes the filing of a petition for certiorari when appeal is still available. It is however, implied from the Rules that certiorari may be allowed when it is be shown that appeal does not appear to be a plain, speedy and adequate remedy in the ordinary course of law and will not promptly relieve a party from the injurious effects of the order complained of (Sec. 1, Rule 65, Rules of Court) XVI. How to avail of the remedy of certiorari 1. The person aggrieved may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of the tribunal, board or officer, and granting such incidental reliefs as law and justice may require (Sec. 1, Rule 65, Rules of Court). 2. The petition shall be accompanied by (a) a certified true copy of the judgment, order or resolution subject of the petition, (b) copies of all relevant pleadings and documents, and (c) a sworn certification of non-forum shopping (Sec. 1, Rule 65, Rules of Court). - Observe that the foregoing rule speaks of two sets of documents to be attached to the petition. The first set
2. No extension of time to file the petition shall be granted except for compelling reasons and in no case exceeding fifteen (15) days (Sec 4, Rule 65 as amended by A.M. No. 00203 effective September 1, 2000). XVIII. Certification against forum shopping - A certification against forum shopping must accompany the petition because certiorari is an independent action in itself and the petition filed is an initiatory pleading. XIX. Material dates in the petition; `material date' rule Under the material date rule, three material dates must be stated in the petition (a) the date when the judgment or final order or resolution was received, (b) the date when a motion for new trial or a motion for reconsideration when one was filed, and (c) the date when notice of the denial thereof was received (Sec. 3, Rule 46, Rules of Court; Great Southern Maritime Services Corporation vs. Acuna, 452 SCRA 422, February 28, 2005). XX. Court where petition is filed 1. If the petition relates to the acts or omissions of a lower court or of a corporation, board, or officer or person, then the petition shall be filed in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court (Sec. 4, Rule 65, Rules of Court; Sec. 29, BP 129). 2. The petition may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi judicial agency, the petition shall be filed in and cognizance only by the
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Illustration (Bar 1999) May a party resort to certiorari when appeal is still available?
XVII. When to file 1. The petition is to be filed within sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or a motion for a new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.
Court of Appeals, unless otherwise provided by law or by the Rules of Court (Sec. 4, Rule 65, Rules of Court).
nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein (Sec. 5, Rule 65, Rules of Court).
3. The petition may be filed in the Sandiganbayan if it is in aid of its appellate jurisdiction (Sec. 4, Rule 65, Rules of Court).
XXI. Observance of the `hierarchy of courts' principle - The Supreme Court's original jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction is not exclusive. It is shared by the Supreme Court with the Regional Trial Court and the Court of Appeals. This concurrence of jurisdiction however, should not be taken to mean that the parties have an absolute, unrestrained freedom of choice of the court to which they willfile their application or petition. There is tin ordained sequence of recourse to courts vested with concurrent jurisdiction, beginning from the lowest, on to the next highest, and ultimately to the highest. This hierarchy is determinative of the venue of appeals, and is likewise determinative of the proper forum for petitions for extraordinary writs. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent the further clogging of the Court's docket. XXII. Parties to the petition 1. The petition shall be filed by the "person aggrieved" (Sec. 1, Rule 65, Rules of Court). The person aggrieved under Sec. I of Rule 65 is not to be construed to mean that any person who feels injured by the lower court's order or decision can question the said court's disposition by certiorari. It pertains to the person who was a party in the proceedings before the lower court. 2. Where the petition relates to the acts or omissions of a judge, court, quasi judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join as private respondent/s with the public respondent/s, the person or persons interested in sustaining the proceedings in the court (Sec. 5, Rule 65, Rules of Court). The private respondent/s should appear and defend not only in his or their own behalf but also in behalf of the public respondent/s affected by the proceedings. If costs are awarded in favor of the petitioner, such costs shall be against the private respondent/s only and not against the public respondent/s (Sec. 5, Rule 65, Rules of Court). 3. The public respondent/s shall not appear in or file an answer or comment to the petition or any pleading therein, unless specifically directed by the court where the action is pending. If the case is elevated to a higher court by either party, the public respondents shall be included therein as
XXIII. Injunctive relief - Be it remembered that the filing of a petition for certiorari against the lower court or tribunal or any other public respondent does not interrupt the course of the proceedings. It is necessary to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against the public respondent so it may, during the pendency of the petition, refrain from further proceedings (Sec. 7, Rule 65, Rules of Court). XXIV. Order to comment 1. Unlike an ordinary civil action where the issuance and service of summons follows the filing of the complaint, no summons is issued in a petition for certiorari. 2. Instead of summons the court shall issue an order requiring the respondent/s to comment on the petition within ten (10) days from receipt of a copy thereof. The order to comment shall be made only if the court finds that the petition is sufficient in form and substance (Sec. 6, Rule 65, Rules of Court). The inevitable implication is that the petition may be outrightly dismissed if found not to be sufficient in both substance and form. - In petitions for certiorari before the Supreme Court and the Court of Appeals, the respondent/s may also be required to file a comment to the petition and not a motion to dismiss. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper (Sec. 6, Rule 65, Rules of Court). XXV. Proceeding after comment; judgment 1. After the comment or other pleadings are filed, the court may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda, the court finds the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled (Sec. 8, Rule 65, Rules of Court). Observe that the court need not conduct a hearing. Instead, it may require the filing of memoranda, unless of course, it finds a hearing necessary. 2. If the court finds the petition to be patently without merit, prosecuted manifestly for delay, or that the question raised therein are too unsubstantial to require consideration, the court may dismiss the petition (Sec. 8, Rule 65, Rules of Court). XXVI. Service of copy of judgment to public respondent - A certified copy of the judgment rendered in the certiorari proceedings shall be served upon the public respondent concerned. Disobedience to the judgment or order shall be punished as contempt (Sec. 9, Rule 65, Rules of Court). It is understood that all private parties shall be also served with a copy of the judgment. XXVII. Relief
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4. The petition may be filed with the Supreme Court (Sec. 4, Rules of Court). This is subject to the doctrine of `hierarchy of courts' and the Supreme Court will refrain from taking cognizance of the petition unless a compelling reason exists for not filing the same with the lower courts.
XXVIII. Distinctions between certiorari under Rule 45 and certiorari under Rule 65 (Bar 1999; 1998; 1991) - There are well-settled distinctions between these two rules, among which are the following: Certiorari under Rule 45 Certiorari under Rule 65 a. (although called a petition a. a special civil action that for review on certiorari) a is an original action and not mode of appeal (Sec. 2[c], a mode of appeal (Rule 65, Rule 41, Rules of Court) Rules of Court). - not a part of the appellate process but an independent action. b. Because it is a mode of b. certiorari under Rule 65 appeal, certiorari under Rule may be directed against an 45 seeks to review final interlocutory order or judgments or final orders matters where no appeal may be taken from (Sec. 1, Rule 41, Rules of Court). c. raises only questions of c. raises questions of law jurisdiction because a tribunal, board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction d. An appeal by certiorari d. petition for certiorari under Rule 45 shall be filed under Rule 65 shall be filed within fifteen (15) days from not later than sixty (60) days notice of judgment or final from notice of judgment, order appealed from (Sec. 2, order or resolution sought to Rule 45, Rules of Court), be assailed and in case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of denial of said motion e. does not require a prior e. requires as a general rule, motion for reconsideration a prior motion for reconsideration f. stays the judgment f. does not stay the appealed from judgment or order subject of the petition unless enjoined or restrained (Sec. 7, Rule 65, Rules of Court). g. the parties are the g. the tribunal, board, original parties with the officer exercising judicial or appealing party as the quasi judicial functions is petitioner and the adverse impleaded as respondent party as respondent without (Sec. 5, Rule 65, Rules of
impleading the lower court or its judge - In an appeal by certiorari under Rule 45, the petitioner and respondent are also the original parties to the action in the lower court.
Court). - In certiorari as an original action, the parties are the aggrieved party against the lower court or quasi judicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents
(h) Certiorari as a special civil action is filed with the Regional Trial Court (Sec. 21, BP 129 as amended), the Court of Appeals Sec. 9, BP 129 as amended) or with the Supreme Court (Sec. 5[I], Art. VIII, Constitution of the Philippines) or with the Sandiganbayan, whereas certiorari as a mode of appeal is filed with the Supreme Court (Sec. 1, Rule 45, Rules of Court). Illustration (Bar 1991) (b) Distinguish certiorari as a special civil action under Rule 65 from certiorari as a mode of appeal under Rule 45 of the Rules of Court. Suggested answer. (b) Please refer to immediately preceding topic. XXIX. Distinctions between certiorari under Rule 64 and certiorari under Rule 65 1. The certiorari in Rule 64 is directed only to the judgments, final orders or resolutions of the Commission on Elections and the Commission on Audit (Sec. 1, Rule 64, Rules of Court). The certiorari in Rule 65 is directed to any tribunal, board or officer exercising judicial or quasi judicial functions (Sec. 1, Rule 65, Rules of Court). 2. The certiorari in Rule 64 is filed within thirty (30) days from notice of the judgment (Sec. 3, Rule 64, Rules of Court); that in Rule 65 is filed within sixty (60) days from notice of the judgment (Sec. 4, Rule 65, Rules of Court). 3. In Rule 64, the filing of a motion for reconsideration or a motion for new trial if allowed, interrupts the period for the filing of the petition for certiorari. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days reckoned from the notice of denial (Sec. 3, Rule 64, Rules of Court). In Rule 65, the period within which to file the petition if the motion for reconsideration or new trial is denied, is sixty (60) days from notice of the denial of the motion (Sec. 4, Rule 65, Rules of Court). B. Prohibition (Rule 65) I. Nature and purpose of the remedy 1. > Prohibition - an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising functions that are judicial, quasi judicial or ministerial, to desist from further proceedings when said proceedings are without, or in excess of its jurisdiction, or with grave abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65, Rules of Court).
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- The primary relief will actually be the annulment or modification of the judgment, order or resolution or proceeding subject of the petition. It may also include such other incidental reliefs as law and justice may require (Sec. 1, Rule 65, Rules of Court). The court, in its judgment may also award damages and the execution of the award for damages or costs shall follow the procedure in Sec. 1 of Rule 39 of the Rules of Court (Sec. 9, Rule 65, Rules of Court).
3. A special civil action of prohibition is an original and independent action and not merely a continuation or a part of the trial resulting in the rendition of the judgment or order complained of. Neither is such an action ancillary or substitute to the action which the supervisory authority of the appellate court is sought and directed. It bears stressing that an action for prohibition or certiorari, for that matter, does not divest the inferior or trial court of its jurisdiction validly acquired over the case pending before it; it is merely an invocation for the exercise of its supervisory power over the lower court to insure that the lower court acts within its jurisdiction. II. Requisites for a writ of prohibition - For a party to be entitled to a writ of prohibition, he must establish the following requisites: (a) The petition must be directed against a tribunal, corporation, board or person exercising judicial, quasijudicial, or ministerial functions; (b) The tribunal, corporation, board or person must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; (c) There is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law (d) Like a petition for certiorari, the petition for prohibition shall be accompanied by a certified true copy of the judgment or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of nonforum shopping as provided in Sec. 3 of Rule 46 (Sec. 2, Rule 65, Rules of Court). III. Prohibition distinguished from injunction - An injunction is directed against a party to the action. Prohibition is directed to the court or tribunal directing it to refrain from the performance of acts which it has no jurisdiction to perform. IV. Prohibition distinguished from certiorari 1. A writ of certiorari seeks to annul a judicial or a quasijudicial act. A writ of prohibition is directed not only to a judicial or a quasi judicial act but even to a ministerial act (Sees. 1 and 2, Rule 65, Rules of Court). 2. A writ of certiorari is directed to the action of the court which is sought to be annulled. A writ of prohibition is directed to the court itself to restrain it from further proceeding with the case. 3. The purpose of certiorari is to annul or modify the judgment, order, resolution or proceedings of the public respondent (Sec. 1, Rule 65, Rules of Court). The purpose of
prohibition is to command the respondent to desist from further proceedings (Sec. 2, Rule 65, Rules of Court). V. Basic requirements of both certiorari find prohibition - There are certain basic requirements shared by bath special civil fictions. Certiorari as a special civil. action is available if the following essential requisites concur: (1) it must, be directed against a tribunal, board, or officer exercising; judicial or quasi judicial functions; (2) the tribunal, board, or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. - On the other hand, prohibition as a special civil action is available only if the following essential requisites concur: (1) it must be directed against a tribunal, corporation, board, officer, or person exercising functions, judicial, quasijudicial, or ministerial; (2) the tribunal, corporation, board or person has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting lack or excess of jurisdiction; and (3) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. Note the absence of the term `ministerial' in Sec. 1 of Rule 65. Examples: (a) In an action for a sum of money, the defendant moved to dismiss the complaint for improper venue it being obvious that the venue was improperly laid, the complaint having been filed in a place which was neither the residence of the plaintiff nor that of the defendant. The motion was denied and a subsequent motion for reconsideration of the order of denial was also denied. The court could be deemed to have acted with grave abuse of discretion. To prevent the court from proceeding with the case, a petition for prohibition would be proper to command the court from further proceeding. (b) Where a motion to dismiss is wrongfully denied under circumstances attended by a grave abuse of discretion amounting; to lack of jurisdiction, prohibition is a proper remedy to prevent the court from proceeding with the action. (c) Prohibition, not mandamus is the proper remedy when a motion to dismiss is wrongfully denied Illustration (Bar 1980) Antonio, a resident of Pampanga, filed a suit in the CFI of Manila (now RTC) on a promissory note executed by Andres, a resident of Cavite. The latter moved to dismiss on the ground "that venue is improperly laid." The motion was denied and Andres wants to question the denial before the higher court. If you were Andres' lawyer, should your petition be for certiorari, prohibition or mandamus? Suggested answer. If the impropriety of the venue is timely raised, the remedy is prohibition where the purpose of petitioner is to prevent the court from further exercising a power committed with grave abuse of discretion amounting to lack of jurisdiction (Sec. 2, Rule 65, Rules of Court). Certiorari may also be available to annul the order of the court.
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2. The purpose of prohibition is to secure an order to command the respondent tribunal, board, corporation or officer to desist from further proceedings in the action (Sec. 2, Rule 65, Rules of Court). Stated in another way, the purpose of prohibition is to prevent an encroachment, excess, usurpation or assumption of jurisdiction on the part of tribunal, corporation, board or officer. It is granted when it is necessary for the orderly administration of justice, or prevent the use of the strong arm of the law in an oppressive or vindictive manner, or multiplicity of actions.
I. Nature and purpose of mandamus 1. > Mandamus - an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: (a) When it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law (b) It is also available when one unlawfully excludes another from the use and enjoyment of a right or office to which much other is ontitlod - For a writ of mandamus to be issued, it is essential that petitioner should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required.
7. Mandamus will lie to compel execution of a judgment, because execution of a final and executory judgment is a matter of right (Sec. 1, Rule 39, Rules of Court). However, for a writ of mandamus to be issued, it is essential that petitioner should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. 8. Mandamus will not lie to compel the performance of an illegal act. II. Discretionary acts not compellable by mandamus l. Mandamus does not lie to compel the performance of a discretionary duty. Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is required to act. It is his judgment that is to be exercised and not that of the court.
2. The principal function of mandamus is to command, not to inquire, expedite or to adjudicate.
2. Reconstitution is not a ministerial act. It involves the exercise of discretion in the evaluation of the evidence presented before it. How to rule on the admission of the evidence cannot be compelled by mandamus.
II. Ministerial act or duty 1. It is a writ that commands the performance of a purely ministerial duty imposed by law (Black's Law Dictionary, 5th Ed., 866). A duty is ministerial when it demands no special judgment, discretion or skill. It is one in which nothing is left to discretion and is a simple and definite duty imposed by law (Black's, 5th Ed., 899). Hence, mandamus will not be available to compel the performance of a discretionary act.
3. Mandamus therefore, is not proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. A court for instance, may be compelled by mandamus to act on a particular complaint filed before it, but it will not lie to order the court to decide in a particular manner and for or against a litigant. Deciding for the plaintiff or a defendant requires the use of discretion.
2. For mandamus to lie, the act must not only be ministerial but must also be a duty enjoined by law, a duty which the tribunal or person unlawfully neglects to perform (Sec. 3, Rule 65, Rules of Court). Mandamus applies only to acts required by law to be done. The tenor of the rule therefore, excludes from its operation the performance of a contractual duty. 3. Mandamus is an appropriate remedy to compel the payment of the benefits to which an employee is entitled under the law such as holiday pay. 4. Mandamus is not proper against a school or an official with a duty that involves the exercise of discretion like on matters of admission of students. Mandamus will not also lie to compel an academic institution to allow the graduation of a student who has failed to comply with the academic rules of the school. Mandamus is not available to compel a school to confer upon a graduate his degree with honors. 5. As rule, mandamus requires the exhaustion of administrative remedies available to the petitioner. Prior resort to exhaustion of administrative remedies however, is not required where the questions raised are purely legal or when the respondent is estopped from invoking the rule of exhaustion of administrative remedies. 6. Mandamus will not lie to compel a prosecutor to file an information.
- Mandamus is not available to direct the exercise of a judgment or discretion in a particular way Illustration (Bar 1991) After reviewing the record of a preliminary investigation of a homicide case, the Secretary of Justice reversed the resolution of the Provincial Prosecutor and directed the latter to move for the dismissal of the Information which had been filed in the Regional Trial Court of Pasig. The provincial Prosecutor thus filed such motion. (a) xxx (b) If the judge refuses to grant the Provincial Prosecutor's motion to dismiss, may a special civil action for mandamus lie to compel the judge to grant the motion? Suggested answer: (b) Mandamus will not lie. The act of the judge in granting or denying the motion is a discretionary act, not ministerial. III. Contractual duties not compellable by mandamus - Mandamus cannot be availed of as a remedy to enforce the performance of contractual obligations. No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations. It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place of the other remedies provided by law for the adjudication of disputed claims. To permit the writ of mandamus to be used for the purpose of enforcing a mere contract right would be a wide departure
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C. Mandamus (Rule 65)
IV. Mandamus distinguished from injunction - There are certain distinctions between mandamus and injunction. (a) > Mandamus - a special civil action while injunction is an ordinary civil action; (b) Mandamus is directed against a tribunal, corporation board, or officer while injunction is directed against a litigant; (c) The purpose of mandamus is for the tribunal, corporation, board or officer to perform a ministerial and legal duty while the purpose of injunction is for the defendant either to refrain from an act or to perform not necessarily a legal and ministerial duty; and (d) The purpose of mandamus is to perform a positive legal duty and not to undo what has been done. The purpose of injunction is to prevent an act to maintain the status quo between the parties.
(c) The defendant unlawfully neglects the performance of the duty enjoined by law; (d) The act to be performed is ministerial, not discretionary; and (e) There is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 3, Rule 65, Rules of Court). Illustration (Bar 1978) X filed a complaint against Y in the CFI of Manila (now RTC) for annulment of a deed of mortgage, its extrajudicial foreclosure and the certificate of title issued in consequence thereof. Y filed an answer and after trial, the complaint was dismissed. Within thirty days from notice of such dismissal, X filed his notice of appeal, his record on appeal and appeal bond, and duly served Y with a copy thereof. Y filed a motion to dismiss the appeal on the ground that the same was manifestly dilatory and this was granted by the trial court. As counsel for X, what action will you take and why?
V. Mandamus distinguished from quo warranto - Recall that mandamus also is available when one is unlawfully excluded from the use or enjoyment of an office. This is similar to it quo warranto proceeding in this respect, although in mandamus, the suit is brought against the person who is responsible for excluding the petitioner from office. The respondent does not have to usurp, intrude into or hold the office. Quo warranto is brought against the holder of the office, who is the person claiming the office as against the petitioner, not necessarily the one who excludes the petitioner.
Suggested answer. I would file a petition for mandamus to compel the court of origin to allow the appeal. Where all the requirements for the perfection of an appeal have been complied with, the duty to give due course to the same is not discretionary. Denying the appeal constitutes an unlawful failure to perform a ministerial duty (Sec. 3, Rule 65, Rules of Court). Whether or not the appeal is dilatory is a determination to be made by the appellate court and not the court of origin.
Illustration (Bar 2001) Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla supposedly to replace the respondent Election Registrar Pablo who was transferred to another municipality without his consent and who refused to accept his aforesaid transfer, much less to vacate his position in Bogo town as Election Registrar, as in fact he continued to occupy his aforesaid position and exercise his functions thereto. Petitioner Fabian then filed a petition for mandamus against Pablo but the trial court dismissed the petition contending that quo warranto is the proper remedy. Is the court correct in its ruling?
I. Nature and purpose of the action 1. > Quo warranto - literally means `by what authority' and the object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office.
Suggested answer. The court is correct. The facts do not indicate that Pablo has excluded Fabian from his office. He is the holder of the office and continues to do so believing he has a right to the same and continues to exercise the functions of the office as against the petitioner. The proper remedy is a quo warranto proceeding. VI. Requisites for mandamus - Before the writ of mandamus is issued, the following requisites must be complied with: (a) The plaintiff has a clear legal right to the act demanded. It will never be issued in doubtful cases. Note: Mandamus does not establish a legal right, but merely enforces one that is already clearly established. (b) It must be the duty of the defendant, to perform the act because the same is mandated by law;
V. Quo Warranto (Rule 66)
2. Under the Rules of Court, it is a special civil action commenced by a verified petition against the following: (a) a person who usurps a public office, position or franchise; (b) a public officer who performs an act constituting forfeiture of a public office; or (c) an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so (See. 1, Rule 66, Rules of Court). II. The petitioner 1. While as a rule, a quo warranto proceeding is commenced by a verified petition brought in the name of the Government of the Republic of the Philippines (Sec. 1, Rule 55, Rules of Court) by the Solicitor General (Sec. 2, Rule 66), or in some instances, by a public prosecutor (Sec. 3, Rule 66, Rules of Court), the petition may be commenced by a private person in his own name where he claims to be entitled to the public office or position alleged to have been usurped or unlawfully held or exercised by another (Sec. 5, Rule 66, Rules of Court). 2. Accordingly, the private person as petitioner may maintain the action without the intervention of the Solicitor General
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from the settled practice in respect to the character of cases in which relief by mandamus may be obtained.
3. The Solicitor General or the public prosecutor may commence the action at the instance of another person. In this case, leave of court is necessary (Sec. 3, Rule 66, Rules of Court). III. Jurisdiction and venue 1. The petition may be brought in the Supreme Court, Court of Appeals or in the Regional Trial Court which has jurisdiction over the territorial area where the respondent or where any of the respondents resides (Sec. 7, Rule 66, Rules of Court). The petition may be brought in the Sandiganbayan in certain cases but when in aid of its appellate jurisdiction (PD 1606, § 4 as amended by R.A. No. 8249, § 4). 2. When the action is commenced by the Solicitor General, the petition may be brought in the Regional Trial Court of the City of Manila, the Court of Appeals or the Supreme Court (Sec. 7, Rule 66, Rules of Court). Illustration (Bar 2001) A group of businessmen formed an association in Cebu City calling itself Cars Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before a Regional Trial Court in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Car Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Suggested answer. The contention of Car Co. is not correct. While as a rule, a petition for quo warranto filed before the RTC should be brought in the place where the respondent resides, this rule shall not apply when the petition is filed by the Solicitor General who is given the prerogative to file the petition in the Regional Trial Court of Manila. IV. Period for filing - An action for quo warranto in relation to a public office must be filed within one (1) year after the cause of the ouster, or the right of the petitioner to hold such office or position arose (Sec. 11, Rule 66). Illustration (Bar 1980) If the principal of a public high school is illegally replaced by another, is it a requirement that before he can go to court on a quo warranto, he should first exhaust administrative remedies? Suggested answer. No. There is no such requirement under Rule 66. The action has to be brought within one (1) year from the cause of ouster from office or the right to hold the office
arose. A quo warranto proceeding is one of the instances where exhaustion of administrative remedies is not required. V. Right to damages - If the petitioner is adjudged to be entitled to the office, he may sue for damages against the alleged usurper within one (1) year from the entry of judgment establishing his right to the office in question (Sec. 11, Rule 66, Rules of Court). VI. Quo Warranto under the Omnibus Election Code 1. Under the Omnibus Election Code, a quo warranto proceeding may be instituted with the Commission on Elections by any voter contesting the election of any member of Congress, regional, provincial or city officer within then (10) days after the proclamation of the results of the election. The ground relied upon shall be (a) ineligibility to the position; or (b) disloyalty to the Republic of the Philippines (Sec. 253, Omnibus Election Code). 2. If the petition is brought against a municipal official, the petition for quo warranto must be brought in the appropriate Regional Trial Court (Se(.-. 2.5:1, Omnibus Election Code; Sec. 1, Rule 36, COMELEC Rules of Procedure). If it be against any barangay official, the petition must be brought before the appropriate Metropolitan Trial Court, Municipal Trial Court, or Municipal Circuit Trial Court (Sec. 253, Omnibus Election Code; Sec. 1, Rule 38, COMELEC Rules of Procedure). VII. Quo warranto in an elective office against quo warranto in an appointive office distinguished Quo warranto in Quo warranto in an elective office an appointive office a. the governing law is the a. the rules that govern election law are the provisions of the Rules of Court. b. the issue is the eligibility of b. the issue is the legality the person elected of the occupancy of the office by virtue of a legal appointment. c. the petition is filed within c. it is within one (1) year ten (10) days after the from the time the cause of proclamation of the results of ouster, or the right of the the election petitioner to hold the office or position, arose. d. the petition is brought in d. the petition is brought the COMELEC, the Regional in the Supreme Court, the Trial Court or the Municipal Court of Appeals or the Trial Court as the case may be; Regional Trial Court. e. the petitioner may be any e. the petitioner is the voter even if he is not entitled person entitled to the to the office office. f. when the tribunal declares f. the court has to declare the candidate-elect as who the person entitled to ineligible, he will be unseated the office is if he is the but the person occupying the petitioner second place will not be declared as the one duly elected because the law shall consider only the person who, having duly filed his certificate of candidacy, received a plurality of votes
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and without need for any leave of court. In bringing a petition for quo warranto, he must show that he has a clear right to the office allegedly being held by another. It is not enough that he merely asserts the right to be appointed to the office. He must assert that he is entitled to the office allegedly usurped or unlawfully held by another.
- The cause of action in the first is based on the eligibility or lack of it of the candidate or his being loyal or disloyal to the Republic (Sec. 253, Omnibus Election Code). The cause of action in an election protest is the irregularity in the conduct of the elections. 2. As a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto. IX. Quo warranto against corporations 1. Although a quo warranto proceeding may be brought against an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. 1[c], Rule 66, Rules of Court), the petition may be brought only against a de facto corporation, not a de jure corporation. The latter corporation has no defect in its incorporation and exercises corporate powers because it was organized in full compliance with the laws (Black's, 5th Ed., 382). There is therefore, no reason to attack its existence and its exercise of corporate powers. 2. A de facto corporation is one which in good faith claims to be a corporation, was organized in accordance and pursuant to a valid law, and assumes corporate powers because it was issued a certificate of incorporation. Traditionally, it has been referred to as a corporation which exists in fact but not in law. Under the law, its right to exercise corporate powers, shall be inquired into by a collateral attack in a private suit to which such corporation may be made a party (Sec. 20, Corporation Code of the Philippines). Hence, its exercise of corporate powers may be inquired into and its corporate existence attacked by a quo warranto proceeding. - Observe that under the Securities and Regulations Code of 2000 (R.A. 8799), that all the powers of the Securities and Exchange Commission enumerated under Sec. 5 of Presidential Decree No. 902-A were transferred to the courts of general jurisdiction (RTC) and the same law also enumerates as one of the powers of the Securities and Exchange Commission the power to "suspend, revoke * * * the franchise, or certificate of registration of corporations * * * upon any of the grounds provided by law (Sec. 5.1[m], R.A. 8799). VI. Expropriation (Rule 67) I. Preliminaries 1. Together with the police power and the power of taxation, the power of eminent domain is one of the inherent powers of a state. Because they are inherent in every sovereign state, these powers need not be conferred by law or by the Constitution and any provision in the fundamental law making reference to any of these powers should not be
construed as a conferment of the power but a recognition of a power that already exists. - The power of eminent domain in particular, has been described as a right to take or reassert dominion over property within the state for public use or to meet a public exigency and is said to be an essential part of governance even in its most primitive form and thus inseparable from sovereignty. But while the power of eminent domain does not owe its existence from the Constitution, certain restraints may be set to it by the Constitution for the protection of the citizenry against state encroachment into fundamental and equally inherent individual rights. Thus, the provisions of Sec. 9, Art. III (Bill of Rights) of the Constitution lay down specific limits to its exercise by requiring that the taking of private property can be done only for public use and upon the payment of just compensation. 2. Other constitutional provisions on eminent domain describe the uses to which the power may be put to use. For example, Sec. 18 of Art XII (National Economy and Patrimony) recognizes the authority of the state to transfer to public ownership and operation, privately owned enterprises and utilities upon the payment of just compensation, when required by national welfare and defense. The state may also expropriate idle or abandoned agricultural lands for distribution to the beneficiaries of the agrarian reform program (Sec. 22, Art. XVIII, Transitory Provisions, Philippine Constitution). 3. The scope of the power of eminent domain, as exercised by Congress is plenary and is as broad as the police power. Such power however, may also be delegated to local political subdivisions and public utilities. - Describing the delegation of the power, the Supreme Court declared: " * * * While such power may be validly delegated to local government units, other public entities, and public utilities, the exercise of such power by the delegated entities is not absolute. In fact, the scope of delegated legislative power is narrower than that of the delegating authority and such entities may exercise the power to expropriate private property only when authorized by Congress and subject to its control and restraints imposed through the law conferring the power or in other legislations. Indeed, local government units themselves have no inherent power of eminent domain. Thus, strictly speaking, the power of eminent domain delegated to local government units is in reality not eminent but "inferior" since it must conform to the limits imposed by the delegation and thus, partakes only of a share in eminent domain. The national legislature is still the principal of the local government units and the latter cannot go against the principal's will or modify the same. "Indeed, despite the existence ol' legislative grant in favor of local governments, it is still the duty of the courts to determine whether the power of eminent domain is being exercised in accordance with the delegating law (Beluso vs. Municipality of Panay Capiz, GR. No. 153974, August 7, 2006). II. Exercise of eminent domain by local government units
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VIII. Quo warranto proceedings and election protests 1. A quo warranto proceeding in an election of public officials should not be confused with an election protest. Their distinctions have been explained as far back as the early stages of Philippine jurisprudence.
2. The above provision (Sec. 19 of R.A. No. 7160 otherwise known as the Local Government Code), lays down the requisites that must concur before a local government unit can exercise the power of eminent domain, to wit: (a) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; (b) The power ol'erninerit domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; (c) There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws; (d) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. 3. The Court in no uncertain terms has pronounced that a local government unit cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. R.A. No. 7160 otherwise known as the Local Government Code expressly requires an ordinance for the purpose and a resolution that merely expresses the sentiment of the municipal council will not suffice. - Said the Court in one case: "A resolution will not suffice for a local government unit to be able to expropriate private property; and the reason for this is settled because a municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently - a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members." III. Stages in the expropriation process
- There are two stages in the expropriation process, namely; 1. The first stage is the determination of the authority of the plaintiff' to expropriate. This determination includes an inquiry into the propriety of the expropriation - its necessity and the public purpose. - The first stage will end in the issuance of an order of expropriation if the court finds for the plaintiff or in the dismissal of the complaint if it finds otherwise. 2. The second stage is the determination of just compensation through the court-appointed commissioners. IV. How expropriation is commenced - There is no reason for the exercise of the power of eminent domain through court action when the owner is willing to part with his property. The commencement of a complaint for expropriation is necessary only when the owner does not agree to sell his property or if he is willing to sell but does not agree with the price offered. 1. An expropriation proceeding is commenced by the filing of a verified complaint which shall: (a) state with certainty the right of the plaintiff to expropriation and the purpose thereof, (b) describe the real or personal property sought to be expropriated, and (c) join as defendants all persons owning or claiming to own, or occupying, any part of the property or interest therein showing as far as practicable the interest of each defendant. If the plaintiff cannot with accuracy identify the real owners, averment to that effect must be made in the complaint (Sec. 1, Rule 67, Rules of Court). 2. The defendant shall be served with summons (Sec. 3, Rule 67, Rules of Court). 3. Note that under both Rule 67 and Rep. Act No. 8974, the law governing expropriation of private property for national government infrastructure projects, the Government commences expropriation proceedings through the filing of a complaint. Unlike in the case of local governments which necessitate an authorizing ordinance before expropriation may be accomplished, there is no need under Rule 67 or Rep. Act No. 8974 for legislative authorization before the Government may proceed with a particular exercise of eminent domain. V. Answer of the defendant 1. The defendant shall serve an answer if he has an objection to the complaint or if he has a defense to the taking of his property. The answer is required to specifically designate or identify the property in which he claims to have an interest, and to state the nature and extent of the interest claimed. He must allege all his objections and defenses to the taking of his property because those objections or defenses not adduced are deemed waived. Notice that this is the same principle observed in the omnibus motion rule under Sec. 8 of Rule 15 governing ordinary civil actions. - If the answer omits some defenses, the remedy, in order to prevent a waiver of those not alleged, is to seek leave to amend the answer within ten (10) days from the filing
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l. Sec. 19 of R.A. No. 7160, which delegates to local government units the power of eminent domain expressly provides: SEC. 19. Eminent Domain. -A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.
2. In ordinary civil actions, the defendant may file an answer with a counterclaim, cross-claim or with leave of court, file a third-party complaint. Under Sec. 3 of Rule 67, none of these pleadings shall be alleged or allowed in the answer or in any subsequent pleadings (Sec. 3, Rule 67, Rules of Court). 3. If the defendant does not have any objection to the complaint or does not have a defense to the taking of his property, he need not even file an answer. Instead, he may file and serve a notice of appearance and a manifestation to the fact that he has no objections or defenses to the taking of the property. 1n the manifestation, he shall likewise specifically designate or identify the property in which he claims to have an interest. Thereafter, he shall be entitled to notices of all proceedings affecting the property even if he has no objections or defenses (Sec. 3, Rule 67, Rules of Court). 4. While it is the rule that the failure to answer or to interpose objections in the answer will have the effect of the waiver of the defenses of the defendant to the complaint for expropriation, the defendant who does not file an answer will not lose his standing in court unlike the defaulted defendant in an ordinary civil action who cannot appear in the trial. In expropriation proceedings the waiver of the objections or even the failure to file an answer will not bar the defendant from presenting evidence later on as to the amount of the compensation to be paid for his property and to share in the distribution of the award (Sec. 3, Rule 67, Rules of Court). VI. Entry upon the property or possession thereof 1. The recognition of the requirements of the public good allows the expropriator to take possession of the property upon the filing of the complaint although the mere filing of the complaint does not entitle the plaintiff to take or enter upon the possession of the real property subject of the complaint. Under Sec. 2 of Rule 67, in order to be entitled to the possession of the property subject of the complaint for expropriation, the plaintiff upon the filing of the complaint or at any time thereafter, must deposit with the proper government authority an amount equivalent to the assessed value of the property for purposes of taxation. The deposit shall be in money, unless the court authorizes a deposit in the form of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. Notice is required to be sent to the defendant before placing the plaintiff in possession of the property (Sec. 2, Rule 67, Rules of Court).
2. The deposit having been made, the court shall order the sheriff or other proper officer to place the plaintiff in possession of the property involved and to promptly submit a report to the court. Copies of the report are to be served to the parties (Sec. 2, Rule 67, Rules of Court). 3. The deposit requirement serves as an advanced payment to the owner of the property should the court decide in favor of the plaintiff and should it be otherwise the deposit shall serve as indemnity against any damage which the owner may have sustained. VII. Sec. 2 of Rule 67 deemed modified by R.A. 8974 1. "Republic Act No. 8974 (Rep. Act No. 8974), otherwise known as "An Act to Facilitate the Acquisition of Right-ofWay, Site or Location for National Government Infrastructure Projects and For Other Purposes" and its Implementing Rules and Regulations (Implementing Rules) had modified Sec. 2 of Rule 67 in many respects. - "There are at least two crucial differences between the respective procedures under Rep. Act No. 8974 and Rule 67. Under the statute, the Government is required to make immediate payment to the property owner upon the filing of the complaint to be entitled to a writ of possession, whereas in Rule 67, the Government is required only to make an initial deposit with an authorized government depositary. Moreover, Rule 67 prescribes that the initial deposit be equivalent to the assessed value of the property for purposes of taxation, unlike Rep. Act No. 8974 which provides, as the relevant standard for initial compensation, the market value of the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of Internal Revenue (BIR), whichever is higher, and the value of the improvements and/or structures using the replacement cost method. - "The relevant provision of R.A. 8974 states: SEC. 4. Guidelines for Expropriation Proceedings. Whenever it is necessary to acquire real property for the right-of'-way, site or locution fur tiny national govornment infrastructure project through expropriation, there are appropriate proceedings before the proper court under the following guidelines: a) Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) one hundred percent (100%) of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof, - "In contrast, the first paragraph of Section 2 of Rule 67 provides: SEC. 2. Entry of plaintiff upon depositing value with authorized government depository. - Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in
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thereof. Leave is required because of the tenor of the rule which provides " * the court, in the interest of justice, may permit amendments to the answer * * * " (Sec. 3, Rule 67, Rules of Court; Italics supplied). In ordinary civil actions this amendment would have been a matter of right as long as the amendment is made before the service of a reply which is the responsive pleading to the answer (Sec. 2, Rule 10, Rules of Court).
2. "While Rule 67 merely requires the Government to deposit with an authorized government depositary the assessed value of the property for expropriation for it to be entitled to a writ of possession, Rep. Act No. 8974 requires that the Government make a direct payment to the property owner before the writ may issue. Moreover, such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property to be seized. - "Rep. Act No. 8979, which provides for a procedure eminently more favorable to the property owner than Rule 67, inescapably applies in instances when the national governmen L expropriates property "for national government infrastructure projects." Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. The intent of R.A. 8974 to supersede the system of deposit under Rule 67 with the scheme of "immediate payment" in cases involving national government infrastructure projects is indeed very clear. 3. Under Sec. 19 of the Local Government Code, the amount of deposit shall be at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated. VIII. Order of expropriation 1. An order of expropriation (also referred to as order of condemnation) will be issued declaring that the plaintiff has a lawful right to take the property for the public use or purpose described in the complaint upon the payment of just compensation in the event the objections of the defendant are overruled or when no party appears to object to or to defend against the expropriation (Sec. 4, Rule 67, Rules of Court). 2. After the rendition of the order of expropriation, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except upon such terms as the court deems just and equitable (Sec. 4, Rule 67, Rules of Court). 3. The order of expropriation, as far as the court is concerned, settles the issue as to the right to expropriate, the issue of public purpose. The next vital issue in the proceedings is the determination of just compensation. IX. Appeal from the order of expropriation 1. The final order sustaining the right to expropriate the property may be appealed from by any party aggrieved by such order (Sec. 4, Rule 67, Rules of Court). The appeal shall not however, prevent the court from determining the just compensation to be paid. This should be taken to mean that despite the appeal from the order of expropriation, the court may proceed to the second stage of the expropriating process, the determination of just compensation.
2. If on appeal, the appellate court determines that the plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to enforce the restoration of the property to the defendant and the determination of the damages which the defendant may recover by reason of the possession taken by the plaintiff (Sec. 11, Rule 67, Rules of Court). X. Ascertainment of compensation l. The order of expropriation merely declares that the plaintiff has the lawful right to expropriate the property but contains no ascertainment of the compensation to be paid to the owner of the property. So upon the rendition of the order of expropriation, the court shall appoint not more than three (3) commissioners to ascertain the just compensation for the property. Objections to the appointment maybe made within ten (10) days from service of the order of appointment (Sec. 5, Rule 67, Rules of Court). The commissioners are entitled to fees and their fees shall be taxed as part of the costs of the proceedings, and all costs shall be paid by the plaintiff except those costs of rival claimants litigating their claims (Sec. 12, Rule 67, Rules of Court). - It has been ruled that the appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases. Where the principal issue is the determination of just compensation, a hearing before the commissioners is indispensable to allow the parties to present evidence on the issue of just compensation. While it is true that the findings of commissioners may be disregarded and the trial court may substitute its own estimate of the value, the latter may only do so for valid reasons, that is, where the commissioners have applied illegal principles to the evidence submitted to them, where they have disregarded a clear preponderance of evidence, or where the amount allowed is either grossly inadequate or excessive. Thus, trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or for no reason at all. Where no trial or hearing was conducted to afford the parties the opportunity to present their own evidence, the court should disregard the commissioners' findings. The absence of such trial or hearing constitutes a violation of the right of due process. 2. The parties may introduce their evidence before the commissioners and they may argue their case either by themselves or by counsel. In ascertaining the compensation, the commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken but in no case shall the consequential benefits assessed exceed the consequential damages or shall the owner be deprived of the actual value of his property so taken (Sec. 6, Rule 67, Rules of Court). 3. As a rule, the commissioners shall make their report, within sixty (60) days from the date they were notified of their appointment. This period may be extended in the discretion of the court. Upon the filing of such report, the clerk of court shat I serve copies thereof on all interested parties, with notice that, they are allowed to file their
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lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary.
XI. Judgment as to compensation - The court, after hearing, may either accept the report or set aside the same or accept the report in part or reject the same in part. If it accepts the report, it shall render judgmen I in accordance with the report. If it sets aside the report, it may appoint new commissioners or recommit the same to the commissioners for further report of facts. Whatever other orders the court may make shall always consider the interest of all the parties to the case (Sec. 8, Rule 67, Rules of'Court). XII. Appeal from the judgment as to compensation 1. The judgment rendered by the court as to the just compensation may be appealed from but the appeal shall not have the effect of delaying the right of the plaintiff to enter upon the property and to appropriate the same for public use or purpose. But if the appellate court determines that the plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to restore the property to the defendant and to determine the damages which he may have sustained by reason of the possession taken by the plaintiff (Sec. 11, Rule 67, Rules of Court). 2. If the judgment is affirmed, the costs of the appeal shall be paid not by the plaintiff but by the owner of the property who appealed the judgment (Sec. 12, Rule 67, Rules of Court). 3. Be it remembered that it is not only the judgment of the court as to the compensation which is appealable. The previous order of expropriation is also appealable. Hence, in expropriation proceedings multiple appeals are permitted and the reglementary period for appeal is thirty (30) days. XIII. Meaning of just compensation 1. As to what just compensation is, the Supreme Court's ruling in a case is enlightening: "> Just compensation - the full and fair equivalent of the property sought to be expropriated. The measure is not the taker's gain but the owner's loss. The compensation, to be just, must be fair not only to the owner but also to the taker. Even as undervaluation would deprive the owner of his property without due process, so too would its overvaluation unduly favor him to the prejudice of the public. "To determine just compensation, the trial court should first ascertain the market value of the property, to which should be added the consequential damages after deducting therefrom the consequential benefits which may arise from the expropriation. If the consequential benefits exceed the consequential damages, these items should be disregarded altogether as the basic value of the property should be paid in every case. "The market value of the property is the price that may be agreed upon by parties willing but not compelled to enter into the contract of sale. Not unlikely, a buyer desperate to acquire a piece of property would agree to pay more, and a seller in urgent need of funds would agree to accept less, than what it is actually worth. x x x "Among the factors to be considered in arriving at the fair market value of the property are the cost of acquisition, the current value of like properties, its actual or potential uses, and in the particular case of lands, their size, shape, location, and the tax declarations thereon.
2. If the compensation is not paid when the property is taken, but is postponed to a later date, the interest awarded is actually part of just compensation which takes into account such delay. 3. At what point should compensation for the property taken be determined? Is it as of the filing of the complaint for expropriation or as of the time the plaintiff takes possession of' the property? (a) Sec. 4 of Rule 67 provides that the just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (b) A relatively recent case where the taking preceded, the filing of the complaint for expropriation, held that compensation for property expropriated must be determined at the time the expropriating authority takes possession thereof and not as of the institution of the proceedings. Explaining the reason for the ruling, and citing a long line of cases, the Court explained in Sarabia: "The value of the property should be fixed as of the date when it was taken and not the date of the filing of the proceedings. For where property is taken ahead of the filing of the condemnation proceedings, the value thereof may be enhanced by the public purpose for which it is taken; the entry by the plaintiff upon the property may have depreciated its value thereby; or, there may have been a natural increase in the value of the property from the time it is taken to the time the complaint is filed, due to general economic conditions. The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way the compensation to be paid can be truly just; i.e., "just" not only to the individual whose property is taken, "but to the public, which in to pay for it." (c) In a case of more recent vintage where the filing of the complaint preceded the plaintiffs entry into' the property it was held: " * * * Where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint. (d) Under Sec. 19 of the Local Government Code the amount to be paid for the expropriation of the expropriated property shall be determined based on the fair market value at the time of the taking of the property. XIV. Payment of just compensation 1. The payment shall involve the amount fixed in the judgment and shall include legal interest from the taking of possession of the property (Sec. 10, Rule 67, Rules of Court). 2. If the defendant declines to receive the amount tendered, the same shall be ordered deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or to the person ultimately adjudged or entitled thereto (Sec. 10, Rule 67, Rules of Court).
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objections to the findings of the report, if they so desire, within ten (10) days (Sec. 7, Rule 67, Rules of Court).
XV. Right of plaintiff after payment - After payment of the just compensation as determined in the judgment, the plaintiff shall have the right to enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or to retain possession already previously made in accordance with Sec. 2 of Rule 67 (Sec. 10, Rule 67, Rules of Court). XVI. Recording of the judgment and its effect - The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is` expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose (Sec. 13, Rule 69, Rules of Court). XVII. Nonpayment of just compensation; effect - Non payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots. I-lowever, in cases where the government lailed to pay just compensation within live (5) years from the finality ofjudgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. XVIII. When title passes - Title to the property expropriated passes from the owner to the expropriator only upon full payment of just compensation. VII. Foreclosure of Real Estate Mortgage (Rule 68) I. Preliminaries l. A real estate mortgage is an accessory contract executed by a debtor in favor of a creditor as security for the principal obligation. This principal obligation is a simple loan or mutuum described in Art. 1953 of the Civil Code of the Philippines. To be a real estate mortgage, the contract must be constituted on either immovables (real property) or inalienable real rights. If constituted on movables, the contract is a chattel mortgage (Art. 2124, Civil Code of the Philippines). 2. A real estate mortgage creates a real right which follows the property whoever the owner may become after the constitution of the mortgage. Hence, the new owner who knows of the mortgage (or if registered), is bound by the mortgage even if he is not a party to the contract of mortgage. Art. 2126 of the Civil Code of the Philippines is explicit: "The mortgage directly and immediately subjects the property upon which it is imposed, whoever the possessor may be to the fulfillment of the obligation for whose security it was constituted."
3. A mortgage contract may have a provision in which the mortgage is a security for past, present and future indebtedness. This clause known as a dragnet clause or blanket mortgage clause has its origins in American jurisprudence. The Supreme Court ruled that mortgages given to secure future advancements are valid and legal contracts. 4. If the debt is not paid and the debtor defaults, the creditor cannot ipso facto appropriate the mortgaged property despite a stipulation to that effect because of the policy against, a pactum commissorium, an agreement that is legally infirm. Art. 2088 of the Civil Code of the Philippines expressly prohibits the creditor from appropriating the things given by way of pledge or mortgage and any stipulation to the contrary is null and void. This appropriation to be null and void has been interpreted to refer to an automatic appropriation granted by contract to the creditor in case of non-payment of the obligation. 5. The mortgagor need not be the debtor and the latter need not be the mortgagor. The mortgagor who is not the debtor in the principal obligation is referred to as an accommodation mortgagor. This situation is not prohibited by law and has in fact, a legal basis. The law provides: "Third persons who are not parties to the principal obligation may secure the latter by pledging or mortgaging their own property" (Art. 2085, Civil Code of the Philippines). - Since the accommodation mortgagor is ordinarily not the recipient of the loan, his liability extends only up to the loan value of the mortgaged property and not to the entire loan itself. 6. There can be several mortgages over the same property since there is neither a law nor a rule prohibiting the existence of more than one encumbrances over a property. These encumbrances have no effect on the ownership of the property and are treated merely as liens, the first one normally being treated as more superior over subsequent encumbrances. However, even a junior encumbrancer may initiate foreclosure proceedings ahead of a prior encumbrancer in case the debt in his favor matures earlier. - If the second mortgagee for instance, files a complaint for foreclosure, there is also no rule prohibiting the former from impleading the first mortgagoo (/)(, /.a Riva us. Reynoso, 61 Phil. 734). If he is not ,joined, lie may intervene in the action if he desires and if the obligation in his favor is already due and payable. This intervention is not however, indispensable because his lien remains to exist over the mortgaged property. 7. While Art. 2125 of the Civil Code of the Philippines provides that "in order for a mortgage to be validly constituted, * * * the document in which it appears * * * be recorded in the Registry of Property." The same provision also provides that if the instrument is not recorded, "the mortgage is nevertheless binding between the parties." The registration of the mortgage is necessary for the purpose of binding third persons. 8. An action to foreclose a mortgage is one incapable of pecuniary estimation and should be filed in the Regional Trial
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3. If there are conflicting claims to the property or the ownership thereof is uncertain, the court may order that the sum due as compensation be paid to the court for the benefit of the person who shall be later on adjudged entitled to payment (Sec. 9, Rule 67, Rules of Court).
9. An action for foreclosure of mortgage of real property is an action affecting interest in real property and is hence, a real action (Sec. 1, Rule 4, Rules of Court). The venue of real actions is the place where the real property involved, or a portion thereof, is situated (Sec. 1, Rule 4, Rules of Court). It has been held that if several parcels of land located in different provinces are covered by a single mortgage contract, the action may be filed in any of the provinces where any of the parcels of land is located. The judgment of the court of the province where the action is filed may be executed in all the other provinces. II. Alternative remedies of a creditor 1. Because of the prohibition against pactum commissorium, in case of default of the debtor, the creditor has the following alternative remedies: (a) To file an action for collection of a sum of money; or (b) To foreclose the mortgage, ifone has been constituted. - An election of one operates as a waiver of the other. For this purpose, a remedy is deemed chosen upon the filing of the complaint for collection or upon the filing of the complaint for foreclosure of mortgage. As to an extra judicial foreclosure, such mode is deemed elected by the filing of the application for foreclosure with the Office of the Sheriff of the Province where the sale is to be made. The mere act of filing an action for collection is a waiver of the remedy to foreclose the mortgage. No final judgment in the collection suit is required for the rule on waiver to apply. By instituting a civil action to recover on the promissory note, the plaintiff is considered to have abandoned his mortgage lien on the property. 2. The death of the mortgagor does not extinguish his debt and does not preclude the foreclosure of any real estate mortgage he may have executed prior to his death. When the mortgagor dies, the following remedies may be availed of by the mortgagee: (a) He may abandon or waive the mortgage or security and claim the entire debt from the estate of the mortgagor in accordance with Rule 86 by sharing in the general distribution of the estate; (b) To foreclose the mortgage judicially and claim any deficiency in accordance with Rule 86; or (c) To rely upon the mortgage or other security exclusively and foreclose the same at anytime before it is barred by prescription without the right to file a claim for any deficiency as creditor of the estate and without a right to share in the distribution of the other assets of the estate (Sec. 7, Rule 86, Rules of Court). III. Splitting of a single cause of action - A creditor cannot file a civil action against the debtor for collection of the debt and subsequently file an action to foreclose the mortgage. This is an example of'splitting of a single cause of action, a practice that is vexatious and oppressive.
Illustration (Bar 1999) A purchased a lot from B for P1,5000,000. He gave a downpayment of P5000,000.00, signed a promissory note payable thirty days after date, and as security for the settlement of the obligation, mortgaged the same lot to B. When the note fell due and A failed to pay, B commenced suit to recover to recover from A the balance of P1 million. After securing a favorable judgment on his claim, B brought another action against A in the same court to foreclose the mortgage. A now files a motion to dismiss the second action on the ground of bar by a prior judgment. Rule on the motion. Suggested answer: The motion of A should be granted. The failure to pay a debt secured by a mortgage constitutes but a single cause of action. The creditor cannot file an action to collect the debt and thereafter file another action to foreclose the mortgage. The filing of the second action violates the rule against splitting a single cause of action. IV. Modes of foreclosure of real estate mortgage 1. (a) Judicial foreclosure pursuant to Rule 68 of the Rules of Court; and (b) Extra judicial foreclosure pursuant to Act. No. 3135 as amended by Act No. 4118. 2. Extra judicial foreclosure is the mode to be used if there is a special power inserted in or attached to the real estate mortgage contract allowing an extra judicial foreclosure sale (Sec. 1, Act No. 3135 as amended). Where there is no such special power, the foreclosure shall be done judicially following the procedure set under Rule 68. When there is no such authority under a special power of attorney, the foreclosure must be made judicially. V. Applicability of Rule 68 - Rule 68 applies only to judicial foreclosures of real estate mortgage (Sec. 1, Rule 68, Rules of Court). VI. Complaint for foreclosure - The complaint for foreclosure of real estate mortgage shall set forth the following: (a)The date and due execution of the mortgage; (b) The assignments of the mortgage if any; (c) The names and residences of the mortgagor and mortgagee; - The mortgagor, being a contracting party is deemed indispensable to the suit. Without him being impleaded, there would be no final determination of the action. If there are junior encumbrancers it would be procedurally more advisable to implead them so complete relief could be had in the action. The junior lien holders or mortgagees are merely necessary parties. Being merely necessary parties, the mortgage may nevertheless be foreclosed even without them being impleaded although the plaintiff under Sec. 9 of Rule 3 is obligated to state their names in the complaint, if known and shall state why they are omitted.
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Court. It stands in the same footing as actions for specific performance, support, annulment of a judgment, actions questioning the validity of marriage, actions to annul a deed of sale or conveyance, and an action for rescission which is a counterpart of specific performance.
VII. Procedure - A foreclosure suit proceeds like an ordinary civil action. When a complaint is filed, summons is issued and served upon the defendant who also files his answer to the complaint for foreclosure. After the filing of the answer, a pre-trial is held and then the trial is conducted. VIII. Judgment on foreclosure 1. If after the trial, the court finds that the matters set forth in the complaint are true, it shall render a judgment containing the following matters: (a) an ascertainment of the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, as well as costs; (b) a judgment of the sum found due; (c) an order that the amount found due be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred (120) days from the entry of judgment; (d) and an admonition that in default of such payment the property shall be sold at public auction to satisfy the judgment (Sec. 2, Rule 68, Rules of Court). 2. The judgment of the court on the above matters is considered a final adjudication of the case and hence, is subject to challenge by the aggrieved party by appeal or by other postjudgment remedies. 3. The period granted to the mortgagor for the payment, of the amount found due by the court is not just a procedural requirement but a substantive right given by law to the mortgagee as his first chance to save his property from final disposition at the foreclosure sale (De Leon vs. Ibanez, 95 Phil. 119). This is a substantial requirement which cannot be omitted. IX. Equity of redemption - The period mentioned in the judgment of the court is the period within which the mortgagor may start exercising his "equity of redemption," which is the right to extinguish the mortgage and retain ownership of the property by paying the debt. The equity of redemption may be exercised even after
the foreclosure sale provided it is made before the sale is confirmed by order of the court. - The equity of redemption may also exist in favor of other encumbrancers. If subsequent lien holders are not impleaded as parties in the foreclosure suit, the judgment in favor of the foreclosing mortgagee does not bind the other lien holders. In this case, their equity of redemption remains unforeclosed (unforeclosed equity of redemption). A separate foreclosure proceeding has to be brought against them to require them to redeem from the first morgagee or from the party acquiring the title to the mortgaged property. X. Right of redemption 1. The right of redemption is a right granted to a mortgagor to repurchase the property even after the confirmation of the sale and even after the registration of the certificate of sale. 2. There is no right of redemption in a judicial foreclosure of mortgage under Rule 68. This right of redemption exists only in extra judicial f'oreclosures whore Chore is always a right of redemption within one year from the date of sale. - This period of redemption in extra judicial foreclosures is shortened by the General Banking Act of 2000 (Sec. 47, 2nd paragraph) when the mortgagor is a juridical person. The period of redemption is "until, but not after" the registration of the certificate of sale with the Register of Deeds," "which in no case shall be more than three (3) months after foreclosure, whichever is earlier" Since the law mandates that the registration should be effected not more than (3) months after the foreclosure, the redemption cannot be made after the lapse of three (3) months from the foreclosure of the mortgaged property. 3. In judicial foreclosures there is only an equity of redemption which can be exercised prior to the confirmation of the foreclosure sale. This means that after the foreclosure sale but before its confirmation, the mortgagor may exercise his right to pay the proceeds of the sale and prevent the confirmation of the sale. This is the well-recognized general rule. - This rule however, has an exception. There is a right of redemption if the foreclosure is in favor of banks as mortgagees, whether the foreclosure be judicial or extrajudicial. This right of redemption is explicitly provided in Sec. 47, par. 1, of the General Banking Law of 2000. While the law mentions the redemption period to be "one year after the sale of the real estate," this has been construed to be "one year counted from the date of registration of the certificate of sale in the Registry of Property". Hence, if the mortgagee is a bank, the mortgagor may exercise a right of redemption and this rule applies even if the foreclosure is judicial in accordance with Rule 68 of the Rules of Court. Illustration Bar (2000) AB mortgaged his property to CD. AB failed to pay his obligation and CD filed an action for foreclosure of mortgage. After trial, the court issued an Order granting CD's prayer for foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage debt including interest and other charges not later than 120 days from date of receipt of the Order. AB received the Order on August 10, 1999. No
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(d) A description of the mortgaged property; (e) A statement of the date of the note and other documentary evidence of the obligation secured by the mortgage; (f) The amount claimed to be unpaid thereon; and (g) The names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action (Sec. 1 Rule 68, Rules of Court). These include persons who may now own the property rriortgaged. Under Art. 2130 of the Civil Code of the Philippines, the mortgagor may sell the property despite the mortgage over it because a "stipulation forbidding the owner from alienating the immovable mortgaged shall be void." Also included are the junior encumbrancers earlier referred to, the persons who may have, under the contract, obligated to pay the mortgage debt or those who may have control of the property mortgaged.
Suggested answer. The petition will prosper. The period for payment is reckoned from the date of entry of judgment, not from the receipt of the Order of the court. Since no appeal was taken from the judgment when AB received the notice of the Order on August 10, 1999, the Order became final on August 25, 1999 or 15 days thereafter. Under Sec. 2 of Rule 36, the date of the finality of the judgment or final order is also the date of its entry. The Order then was deemed entered on August 25, 1999. The 120-day period would have ended on December 24, 1999. The tender of payment by AB on December 20, 1999 is well within the period set under Sec. 2 of Rule 68. XI. Sale of the mortgaged property 1. If the mortgagor fails to pay the sum due within the period (90-120 days) stated by the court in its judgment, it soul d be good practice for the mortgagee to file a motion for the sale of the mortgaged property because under the Rules, thecourt shall order the sale of the property only “upon motion of the mortgagee” (Sec. 3, Rule 68, Rules of Court). The motion will be granted as a matter of course, no notice thereof upon the mortgagor being required. - It has been held that the motion for the sale of the mortgaged property is non-litigable and may be made ex parte. 2. The manner of sale shall follow the rules governing execution sales under Rule 39 (Sec. 3, Rule 68, Rules of Court). In addition, the rules under Rule 39 governing the use of the property during the period of redemption (Sec. 31, Rule 39), the disposition of the rents, earnings and income of the property pending redemption (Sec. 32, Rule 39), and the recovery of the price of the sale by the purchaser and the rules on revival of the judgment (Sec. 34, Rule 39), shall likewise be applicable to judicial foreclosures insofar as they are not inconsistent with Rule 68 (Sec. 8, Rule 68, Rules of Court). XII. Confirmation of the sale l. After the foreclosure sale has been effected, the mortgagee should file a motion for the confirmation of the sale (Sec. 3, Rule 68, Rules of Court). Unlike the motion for the sale of the mortgaged property which is a motion ex parte, the motion for the confirmation of the sale requires a notice and a hearing. In this hearing the mortgagor will be allowed the opportunity to show cause why the sale should not be confirmed an(? to inform them when the his right will be cut off (Tglao vs. Boto a t2 s, 90 Phil. 275). If a hearing is
required and the mortgagor was not notified of the hearing, the subsequent confirmation of the sale is vitiated and consequently it is as if no confirmation ever took place. The mortgagor may therefore, still insist on his right to exercise his equity of redemption even after the alleged confirmation which is in fact of no effect. 2. After the hearing and the court finds valid grounds for its confirmation, it shall issue an order confirming the foreclosure sale. This order confirming the sale is a judgment in itself' and is deemed a final adjudication on the propriety and merits of the sale. It is hence, also appealable. Illustration (Bar 1984) In an action for foreclosure of real estate mortgage, judgment was rendered against A, the mortgagor-debtor. As A failed to pay the mortgage, debt plus interest thereon within the period stated in the judgment, the mortgaged property was sold at public auction on October 1, 1984 at a price less than the amount of the judgment. On October 3,198, A was able to raise enough money to fully satisfy the judgment, including all expenses of the sale of the mortgaged property. Assuming that the mortgagor has no right of redemption under the law, what steps should A take to protect his interest under the circumstances? Suggested answer. A should deposit the entire amount with the court for the satisfaction of the judgment and all the expenses for the sale before the court confirms the foreclosure sale. The equity of redemption of the mortgagor may be exercised prior to the confirmation of the sale. After its confirmation no further redemption may be made. XIII. Effect of confirmation of the sale 1. The confirmation of the sale shall divest the rights in the property of all the parties to the action and shall vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec. 3, Rule 68, Rules of Court). - It is said that title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale. 2. The import of Sec. 3 of Rule 68 includes one vital effect: The equity of redemption of the mortgagor or redemptioner is cut-off and there will be no further redemption, unless allowed by law (as in the case of banks as mortgagees). The equity of redemption starts from the ninety-day period set in the judgment of the court up to the time before the sale is confirmed by an order of the court. Once confirmed, no equity of redemption may further be exercised. XIV. Effect of the finality of the confirmation of the sale 1. The order of confirmation is appealable and if not appealed within the period for appeal becomes final. 2. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property and he may secure a writ of possession, upon motion, from the court which ordered the foreclosure unless a third party is
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other proceeding took place thereafter. On December 20, 1999, AB tendered the full payment adjudged by the court to CD but the latter refused to accept it on the ground that the amount was tendered beyond the 120-day period granted by the court. AB filed a motion in the same court praying that CD be directed to receive the amount tendered by him on the ground that the Order does not comply with the provisions of Sec. 2, Rule 68 which gives AB 120 days from entry of judgment, and not from date of receipt of the Order. The court denied his motion on the ground that the Order had already become final and can no longer be amended to conform to Sec. 2 of Rule 68. Aggrieved, AB files a petition for certiorari against the Court and CD. Will the petition for certiorari prosper?
- Be it noted that the writ of possession shall be issued upon motion. Hence, the purchaser or last redemptioner must file a motion for the issuance of a writ of possession in the court which ordered the foreclosure (Sec. 3, Rule 68, Rules of Court). The writ of possession is a means of enforcing and recognizing rights of the purchaser emphasized in Sec. 3 of Rule 68 which provides that the confirmation of the sale operates to divest all parties to the action of their respective rights and vest them in the purchaser. 3. It was ruled that a pending suit for annulment of the mortgage or annulment of the foreclosure proceedings does not defeat the right of the purchaser to a writ of possession to which the purchaser is entitled as a matter of right. XV. Registration of the sale 1. A certified copy of the order confirming the sale is necessary for the sale to be' registered in the registry of deeds. If there is no right of redemption, the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the narne of the purchaser (Sec. 7, Rule 68, Rules ol'Court). 2. When a right of redemption exists, the certificate of sale and the order confirming the sale shall be registered and a brief memoranda thereof shall be made by the register of deeds upon the certificate of title. The certificate of title however, in the name of the mortgagor shall not be cancelled. In the event the property is redeemed, the deed of redemption shall be registered with the register of deeds and a brief memorandum thereof shall likewise be made upon the certificate of title (Sec. 7, Rule 68, Rules of Court). 3. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the register of deeds. The certificate of title in the name of the mortgagor shall then be canceled and a new one issued in the name of the purchaser (Sec. 7, Rule 68, Rules of Court). XVI. Disposition of the proceeds of the foreclosure sale - The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority. If there be any further balance after paying them or if there be no junior encumbrancers, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4, Rule 68, Rules of Court). XVII. Deficiency judgment 1. If there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance. 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 remaining balance shall become due and such due date shall be stated in the judgment (Sec. 6, llule 68, Rules of Court). Note that the deficiency judgment is in itself' a judgment hence, also appealable.
2. No independent action need be filed to recover the deficiency from the mortgagor. The deficiency judgment shall be rendered upon motion of the mortgagee. - The motion must be made only after the sale and after it is known that a deficiency exists. Before that, any court order to recover the deficiency is void. - It has been held that the mortgagor who is not the debtor and who merely executed the mortgage to secure the principal debtor's obligation, is not liable for the deficiency unless he assumed liability for the same in the contract. Since a deficiency judgment cannot be obtained against the mortgagor who is not the debtor in the principal obligation, mortgagee may have to file a separate suit against the principal debtor. 3. Where the debtor-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, it is believed that a deficiency judgment under Sec. 6 would not be procedurally feasible. A deficiency judgment is by nature in personam and jurisdiction over the person is mandatory. Having been outside the country, jurisdiction over his person could not have been acquired. XVIII. Rule in case there is a surplus instead of a deficiency - It is the duty of the mortgagee to return to the mortgagor any surplus in the selling price during the foreclosure sale. XIX. Summary of distinctions between judicial foreclosure and extra judicial foreclosure of real estate mortgage. - Judicial and extrajudicial foreclosures may be distinguished from each other as follows: (a) A judicial foreclosure is governed by the Rules of* Court; an extrajudicial foreclosure is governed by Ad, No. 31,35 as amended. (b) A judicial foreclosure involves the filing of an independent action; an extrajudicial judicial foreclosure does not require filing of an action. (c) There is an equity of redemption in a judicial foreclosure and no right of redemption except when the mortgagee is a banking institution; there is a right of redemption in extrajudicial foreclosure of mortgage. (d) In a judicial foreclosure of judgment there could be a deficiency judgment rendered by the court; there can be no judgment for a deficiency in an extrajudicial foreclosure because there is no judicial proceeding, although recovery of the deficiency is allowed. (e) In a judicial foreclosure, recovery of the deficiency can be done by mere motion for a deficiency judgment; in an extrajudicial foreclosure, the recovery of the deficiency is through an independent action and although nothing about the recovery of the deficiency is provided in Act No. 3135, there is no prohibition either. VIII. Partition (Rule 69) I. Preliminaries 1. > Partition - the separation, division and assignment of a thing held in common among those to whom it may belong.
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actually holding the same adversely to the judgment obligor (Sec. 3, Rule 68, Rules of Court).
3. There are nevertheless instances when a co-owner may not demand partition at any time as when: (a) 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, Civil Code of the Philippines); (b) When partition is prohibited by the donor or testator for a period not exceeding twenty years (Art. 494; Art. 1083, Civil Code of the Philippines); (c) When partition is prohibited by law (Art. 494, Civil Code of the Philippines); (d) When the property is not subject to a physical division and to do so would render it unserviceable for the use for which it is intended (Art. 495, Civil Code of the Philippines); or (e) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled (Art. 1084, Civil Code of the Philippines). 4. An important principle to note is that prescription 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 coownership expressly or impliedly (Art. 494, Civil Code of the Philippines). 5. Also, the action for partition cannot be barred by prescription as long as the co-ownership exists. - But while the action to demand partition of a co-owned property does not prescribe, a co-owner may acquire ownership thereof 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. II. Modes of partition 1. Partition may be made in either of two ways: (a) By agreement of the parties; or (b) By judicial proceedings under the Rules of Court (Art. 496, Civil Code of the Philippines). 2. The right of the co-owners to opt for an agreement of partition in lieu of a judicial partition is recognized by the Rules of Court. Sec. 12 thereof provides that "Nothing in this Rule * shall be construed * * * as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action" (Sec. 12, Rule 69, Rules of Court). 3. If the co-owners cannot agree on the partition of the property, the only recourse is the filing of an action for partition. III. Action for partition 1. The action shall be brought by the person who has a right to compel the partition of real estate (Sec 1, Rule 69, Rules of Court) or of an estate composed of personal property, or
of both real and personal property (Sec. 13, Rule 69, Rules of Court). 2. The plaintiff is a person who is supposed to be a coowner of the property or estate sought to be partitioned. The defendants are all the co-owners. - All the co-owners must be joined. Accordingly, an action will not lie without the joinder of all co-owners and other persons having interest in the property. All the co owners therefore, are indispensable parties. 3. The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real estate of which partition is demanded, and shall join as defendants all other persons interested in the property (Sec. 1, Rule 69, Rules of Court). He must also include a demand for the accounting of the rents, profits and other income from the property which he may be entitled to (Sec. 8, Rule 69, Rules of Court). These cannot be demanded in another action because they are parts of the cause of action for partition. They will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action. 4. Because of the absence of special procedural rules in Rule 69, it is presumed that the rules in ordinary civil actions shall be used. Hence, after the complaint is filed, the defendants shall be served with summons and shall file and serve their answers. After the last pleading has been filed, the rule on pretrial will follow. A trial will likewise be held before the court renders its judgment. 5. When the allegations of the complaint allege that the plaintiff asserts exclusive ownership of the party sought to be partitioned, the nature of the action is not one for partition. It is an action for the recovery of property. IV. Order of partition 1. During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus, may be allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition. 2. The settlement of the issue of ownership is the first stage in an action for partition, and the action will not lie if the claimant has no rightful interest in the property in dispute. - Because the issues to be determined by the court are incapable of pecuniary estimation, the action shall be filed in the Regional Trial Court and since it is an action which involves interest in real property, it shall be brought in the place where the property is situated. - It has been held that actions for partition should be filed in the Court of First Instance (now Regional Trial Court) of the province where the property is situated. - The rule is clear: "The court shall order the partition of the property among all the parties in interest, if after trial it, finds that the plaintiff has the right to partition (Sec. 2, Ruh, 69, Rules of Court). It was held that this order of partition including an order directing an accounting is final and not.
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2. Partition presupposes the existence of a co-ownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code of the Philippines that no co-owner shall be obliged to remain in the co-ownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494, Civil Code of the Philippines).
- Worthy of note is the present rule that a final order decreeing (a) partition and (b) accounting may be appealed by any party aggrieved thereby (Sec. 2, Rule 69, Rules of Court). V. Partition by agreement 1. Observe that the order of partition is one that directs the parties or co-owners to partition the property and the parties may make the partition among themselves by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec. 2, Rule 69, Rules of Court). 2. There always exists the possibility that the co-owners are unable to agree on the partition. If they cannot partition the property among themselves, the next stage in the action will follow, the appointment of commissioners. VI. Partition by court-appointed commissioners 1. If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) commissioners who are competent and disinterested persons, to make the partition for the parties (Sec. 3, Rule 69, Rules of Court). The appointment of commissioners which is a mandatory under the circumstances, presupposes that the parties cannot agree on the partition among themselves. - Observe that the provision authorizes the commissioners merely to make or effect the partition. Nothing in the provision grants them the authority to rtdjudicttto on cluosLiorrs of title or ownership of the property hence, Sec. 12 of Rule 69 emphasizes that the partition of the property under Rule 69 is not meant to prejudice, defeat, or destroy the rights of any person holding a title paramount to the title of the parties among whom the partition shall have been made (Sec. 12, Rule 69, Rules of Court). 2. If the commissioners determine that the property cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable. Instead of being so assigned, an interested party may ask that the property be sold, in which case the court shall order the commissioners to sell the property at a public sale (Sec. 3, Rule 69, Rules of Court). VII. Report of the commissioners 1. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition. Upon the filing of such report, copies thereof shall be served by the clerk of court upon all interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire (Sec. 6, Rule 69, Rules of Court).
2. The court, may, upon hearing, accept the report and render judgment in accordance with the same. The court may., instead of accepting the report, recommit the same to the commissioners for further report of facts. It may also accept the report in part or reject the report in part or it may render such judgment that shall effectuate a fair and just partition of the real estate (Sec. 7, Rule 69, Rules of Court). Under Sec. 7; the court cannot render judgment on the report forthwith upon its receipt of the same. The rule mandates that a hearing must be conducted before a rendition of a judgment. VIII. Judgment of partition 1. The proceedings had before the commissioners shat: not bind the parties or pass title to property until the court shall have accepted the report of the commissioners and rendered judgment thereon (Sec. 6, Rule 69, Rules of Court). 2. A certified copy of the judgment shall be recorded in the registry of deeds of the place in which the real estate is situated (Sec. 11, Rule 69, Rules of Court). 3. A reading of the Rules will reveal that there are actually three (3) stages in the action each of which could be the subject of appeal, to wit: (a) the order of partition where the propriety of the partition is determined; (b) the judgment as to the accounting of the fruits and income of the property; and (c) the judgment of partition. - The action hence, admits multiple appeals and would require a record on appeal. IX. Rule when there are expenses to be paid from the estate - In a situation where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate. The determination of the expenses like those related to the deceased's final illness and burial which are chargeable to the estate cannot be done in an action in partition. Thus, the heirs have to first submit their father's estate to settlement because in estate settlement proceedings, there is a proper procedure for the accounting of all expenses for which the estate must answer. If it is any consolation at all to petitioner, the heirs or distributees of the properties may take possession thereof even before the settlement of accounts, as long as they first file a bond conditioned on the payment of the estate's obligations. IX. Forcible Entry and Unlawful Detainer (Rule 70) I. Actions to recover possession of real property - Under existing law and jurisprudence, there are thr kinds of actions available to recover possession of real property; (a) action interdictal; (b) action publiciana; and (c) action reivindicatoria. II. Action interdictal 1. The actions of forcible entry and unlawful detainer belong to the class of actions known by the generic name action interdictal (ejectment) where the issue is the right of physical or material possession of the subject real property independent of any claim of ownership by the parties involved.
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interlocutory and hence, appealable thus, revoking previous contrary rulings (Vda. De Zaldarriaga vs. Enriquez,1 SCRA 1188) on the matter.
3. The jurisdiction of these two actions, which are summary in nature, lies in the proper Municipal Trial Court or Metropolitan Trial Court. Both actions must be brought within one year from the date of actual entry on the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer. The issue in said cases is the right to physical possession. III. Action publiciana and action reivindicatoria 1. Action interdictal is not to be confused with other real actions like action publiciana and action reivindicatoria. 2. > Accion publiciana - the plenary action to recover the right of possession which should be brought when dispossession has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendant's possession had become illegal, the action will be, not one of the forcible entry or illegal detainer, but an accion publiciana. - An accion reivindicatoria, unlike the remedies previously discussed, involves not only possession, but ownership of the property. Under Article 434 of the Civil Code, two things must be alleged and proven in an accion reivindicatoria: (1) the identity of the property; and (2) plaintiff's title to it. IV. Possession as the issue 1. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of the ground before he is deemed to be in possession. 2. Where the basic issue is not possession but interpretation, enforcement and/or rescission of the contract, the same is no longer an ejectment suit. 3. Where there is a claim of ownership and the action seeks to recover ownership from the defendant including the possession of the property, the action is no longer interdictal but an accion reivindicatoria or accion de reivindicacion. V. Summary nature of the actions - Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved actions both fall under the coverage of the Rules on Summary Procedure irrespective of the amount of
damages or unpaid rentals sought to be recovered (Sec. 3, Rule 70, Rules of Court). VI. Real and in personam actions 1. Forcible entry and unlawful detainer actions are actions affecting possession of real property hence, are real actions. The venue of these actions therefore, is the place where the property subject of the action is situated (Sec. 1, Rule 4, Rules of Court). 2. Forcible entry and unlawful detainer actions are not only real actions. They are also actions in personam because the plaintiff seeks to enforce a personal obligation to vacate the property subject of the action and restore physical possession thereof the plaintiff. Illustration (Bar 1991) For failure of the tenant to pay rentals, A, the courtappointed administrator of the estate of Henry Datu decides to file an action against the former for the recovery of possession of the leased premises located in Davao City and for the payment of the accrued rentals in the total amount of P25,000.00. (a) xxx (b) What is the court of proper jurisdiction and venue of the intended action? Suggested answer: (b) The court with jurisdiction over the action is the Municipal Trial Court of Davao City. The cause is obviously an unlawful detainer case which is within the jurisdiction of said court (Sec. 33, BP 129). The action is a real action and must be filed in the place where the property is located which is Davao City (Sec. 2, Rule 4, Rules of Court). VII. Jurimdiction of the M'l.'C; summary procedure 1. The actions of forcible entry and unlawful detainer me within the exclusive and original jurisdiction of the Municipal Trial Court, Municipal Circuit Trial Court and the Metropolitan Trial Court (Sec. 33[21, BP 129; R.A. 7691) and shall be governed by the rules on summary procedure i rrespective of the amount of damages or rentals sought to be recovered (Sec. 3, Rule 70, Rules of Court). Note: Please refer to discussions on Summary Procedure in Chapter III. 2. The decision in an ejectment case does not bind the title to or ownership of the land or building. It does not also bar an action between the same parties respecting title to the property. 3. In actions for forcible entry, it may be stressed, two iiIlegations are mandatory for the municipal court to acquire jurisdiction. First, the plaintiff must allege his prior physical possession of the property. Second, he must also allege that he wits deprived of his possession by any of the means provided lirr in Section 1, Rule 70 of the Rules of Court, namely, force, intimidation, threat, strategy, and stealth. If the alleged dispossession did not occur by any of these means, the proper recourse is to file not an action for forcible entry but a plenary rwtion to recover possession. VIII. Effect of the pendency of an action involving ownership can the action for forcible entry and unlawful detainer
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2. Action interdictal comprises two distinct causes of action, namely, forcible entry (detentacion) and unlawful detainer (desahuico). In forcible entry, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. The two are distinguished from each other in that in forcible entry, the possession of the defendant is illegal from the beginning, and that the issue is which party has prior de facto possession while in unlawful detainee, possession of the defendant is originally legal but became illegal due to the expiration or termination of the right to possess.
IX. Examples of cases in the RTC which do not bar an action for forcible entry or unlawful detainer - The following are examples of cases in the Regional Trial Court which do no abate or prevent the filing of an action for forcible entry and unlawful detainer are: (a) An injunction suit filed in the RTC by the defendant in the ejectment suit; (b) An `accion publiciana" in another court between the same parties in the ejectment suit; (c) An action for quieting of title involving the same property and the same parties; (d) Suit for specific performance with damages like an action to compel the renewal of a lease contract; (e) An `accion" reivindicatoria in another court between the same parties over the same property; (f) An action for reformation of the instrument; or (g) An action for annulment of sale or title between the same parties involving the same property. Illustration (Bar 2000) BB files a complaint for ejectment in the Metropolitan Trial Court on the ground of non-payment of rentals against JJ. After two days, JJ files in the Regional Trial Court a complaint against BB for specific performance to enforce the option to purchase the parcel of land subject of the ejectment case. What is the effect of JJ's action on BB's complaint? Suggested answer. The action for specific performance in the Regional Trial Court has no effect on the ejectment case and shall proceed irrespective of the outcome of the RTC case. The issues in the ejectment case is mere possession while the issue in the specific performance case is the validity as well as the enforceability of the option to purchase. X. Distinctions between forcible entry and unlawful detainer 1. In forcible entry the possession of the defendant is illegal from the very beginning having deprived the actual possessor of his possession by force, intimidation, threat, strategy or stealth (Sec. 1, Rule 70, Rules of Court, Tirona vs. Alejo, 367 SCRA 17). In unlawful detainer, the possession by the defendant is legal in the beginning which however, subsequently becomes illegal because of the expiration or the termination of the right to have possession, by virtue of any contract, express or implied (Sec. 1, Rule 70, Rules of Court). It is the nature of defendant's entry into the land which determines the cause of action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder is forcible entry. If, however, the entry is legal but the possession thereafter becomes illegal, the case is unlawful detainer. - In unlawful detainer cases, an allegation that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, without necessarily employing the
terminology of the law. The phrase "unlawfully withholding" has been held to imply possession on the part of the defendant, which was legal in the beginning, having no other source than a contract, express or implied, and which later expires as a right and is being withheld by defendant. - In order to constitute force that would justify a forcible entry case, the trespasser does not have to institute a state of war. The act of going to the property and excluding the lawful possessor from the property necessarily implies exertion of force over the property. The words "by force, intimidation, threat, strategy or stealth" include every situation or condition under which one person can wrongfully enter upon real property to exclude another, who has prior possession. 2. In forcible entry, the plaintiff must allege and prove his prior physical possession of the property. This allegation is not required in unlawful detainer. 3. In forcible entry, a demand to vacate is not required before the filing of the action because the occupancy is illegal from the very beginning. In unlawful detainer, demand to vacate is necessary as a rule. 4. In forcible entry, the one-year period within which to file the action is counted generally from the date of actual entry by the defendant, i.e., from the time of possession. However, when the entry is by stealth, the period must be counted from the demand to vacate upon learning of the stealth. In unlawful detainer, it is counted from the date of the last demand in case of non-payment of rentals or violation of the conditions of the lease. XI. When defendant occupies premises by mere tolerance 1. If the defendant stays in the premises by mere tolerance of the owner, the possession becomes unlawful upon failure to comply with the demand to vacate made by the owner. The unlawful withholding of possession is to be counted from the date of the demand to vacate 2. To categorize the cause of action as one for unlawful detainer, the tolerance must exist at the start of possession by the defendant. The rule as to tolerance does not hold true in a case where there was forcible entry at the start. 3. It is settled that one whose stay is merely tolerated becomes a deforciant illegally occupying the land the moment he is required to leave. It is essential in unlawful detainer cases of this kind, that plaintiff's supposed acts of tolerance must have been present right from the start of the possession which is later sought to be recovered. if the possession of the defendanf, was illegal at the inception and not merely tolerated because the defendant started to occupy the subject lot and then built a house thereon without the permission and consent of the owner orrightful possessor, the defendant's entry into the land was effected clandestinely, without the knowledge of the owners. It is therefore, a possession by stealth which is forcible entry. As explained in Sarona vs. Villegas, cited in Munoz vs. Court ofAppeals, tolerance must be present right from the start of possession sought to be recovered, to categorize a cause of action as one of unlawful detainer, not of forcible entry x x x
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- A pending action involving ownership of the subject property does not bar the filing of an ejectment suit, nor suspend the proceedings of one already instituted. The underlying reason is to prevent the defendant from trifling with the summary nature of an ejectment suit by the simple expedient of asserting ownership over the disputed property.
XII. Demand in unlawful detainer cases 1. Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2, Rule 70, Rules of Court). 2. To understand the manner of the demand required by the Rules for an unlawful detainer case, attention need be given to the phraseology of Sec. 2 of Rule 70. - Where the suit is based on the defendant's failure to pay the rentals agreed upon, the proper demand should be "to pay and to vacate". It should not be "to pay or to vacate." The latter demand which is in the alternative does not make out a case for unlawful detainer since it is not in accordance with the required tenor of the demand prescribed by Sec. 2 of Rule 70. Thus, a demand to pay P500,000 by way of unpaid rentals or to vacate if not paid within five days does not make out an action for unlawful detainer but merely one for collection of a sum of money and must be filed with the Regional Trial Court (Sec. 2, Rules of Court). - Where the suit is predicated upon the defendant's noncompliance with the conditions of the lease contract, the proper demand should be "to comply. . . and to vacate" and not "to comply.. or to vacate. The latter type of demand gives rise to an action for specific performance, not unlawful detainer. 3. In Barrazona vs. RTC of Baguio, in an action for a sum of money in the Regional Trial Court, defendant filed with the RTC a Motion to Dismiss on the ground, among others, that the RTC has no jurisdiction over the complaint because the allegations of the complaint clearly indicate that the action is one for ejectment (illegal detainer) which is under the exclusive jurisdiction of MTC. A perusal of the allegations indeed shows that plaintiff made several demands upon petitioner to pay her overdue rentals and to vacate the premises. These allegations make out a case of unlawful detainer and not of an action for a sum of money even if the alleged arrears is over P900,000.00. 4. A demand in the alternative either to pay the increased rental or otherwise to vacate the land is not the demand that gives rise to a cause of action for unlawful detainer. If the lessee decides to stay in the premises, he thereby merely agrees to pay and to assume the new rental and cannot be ejected until he' defaults in said obligation and necessary demand is first made 5. The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand that vests upon the lessor a cause of action.
XIII. Form of demand 1. 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, Rules of Court). 2. It has been ruled however, that the demand upon it tenant may be oral (Jakihaca us. Aquino, 181 SCRA 67). Sufficient evidence must be adduced however, to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. XIV. Effect of non-compliance with the demand - If the demand is not complied with after fifteen (15) days i n the case of land or five (5) days in the case of buildings, the I essor may now proceed against the lessee (Sec. 2, Rule 71, Rules of Court). Illustration (Bar 1990) Juan Santos, who is leasing an apartment unit in Antipolo, Rizal from Maria Cruz, a resident of Quezon City, under a five (5) year contract expiring on October 15, 1991, is in arrears in his rent for three months as of August 15, 1990. Maria Cruz, through counsel, sends a demand letter to Juan Santos. Suppose that Juan Santos, upon receipt of the letter of demand to pay and vacate the apartment unit, immediately pays the rentals in arrears. He claims that he was so busy with his business that he neglected to pay his rent. May Maria Cruz still file an unlawful detainer case against Juan Santos? Discuss with reasons. Suggested answer. Maria Cruz may still file an unlawful detainer case. The failure to vacate after a demand to pay and vacate gave rise to a cause of action in favor of the lessor. The subsequent payment did not cure his unlawful withholding of possession of the premises. XV. When demand is not required in unlawful detainer cases 1. Demand is not required, when (a) there is a stipulation dispensing with a demand (Art. 1169, Civil Code of the Philippines), or (b) when the ground for the suit is based on the expiration of the lease because when the lease expires the cause of action for unlawful detainer immediately arises. Hence the lessor can now file an action for ejectment. As a rule, demand is required only when the ground for ejectment is failure to pay rent or to comply with the condition of the lease. 2. Demand to vacate is, however, required when the lease is on a month-to-month basis to terminate the lease upon the expiration of the month in order to prevent the application of the rule of tacita reconduccion or implied new lease. Illustration (Bar 1997) On 10 January 1990, X leased the warehouse of A under a lease contract with a period of five (5) years. On 08 June 1996, A filed an unlawful detainer case against X without a prior demand for X to vacate the premises. (a) Can X contest his ejectment on the ground that there was no prior demand for him to vacate the premises?
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4. A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which, a summary action for ejectment is the proper remedy against him.
Suggested answer: (a) X cannot successfully contest his ejectment on the ground of absence of a demand. By the time the action was filed, the lease had already expired. Demand to vacate is not required when the ground for the suit is based on the expiration of the lease because when the lease expires the cause of action for unlawful detainer immediately arises. XVI. Tacita reconduccion 1. Under Art. 1670 of the Civil Code of the Philippines, if at the end of the lease, the lessee continues to enjoy the property leased for fifteen days with the consent of the lessor, and no notice to the contrary hart been given, it is understood that there is an implied new lease, not fir the period in tlw original contract, but for the time established in Articles 1682 and 1687 of the same code. 2. The terms of the contract which are revived in the implied new lease are those terms which are germane to the lessee's right of continued enjoyment of the property leased. The option to buy the property in the original lease is not germane to possession of the premises and is not deemed revived. 3. When there is tacita reconduccion, the lessee cannot be deemed as unlawfully withholding the property. There is no unlawful detainer. XVII. Defense of tenancy 1. Jurisdiction is determined by the allegations of the complaint. Hence, the defenses in the answer do not determine jurisdiction. 2. If the defendant raises the issue of tenancy as a defense and alleges lack of jurisdiction as a defense because a tenancy case falls within the jurisdiction of the Department of Agrarian Reforms Adjudicatory Board (DARAB), it would be error for the court to dismiss the complaint on that ground alone. The mere raising of the issue of tenancy does not automatically divest the court of jurisdiction because as earlier pointed out, the jurisdiction of the court is determined by the allegations of the complaint and is not dependent upon the defenses set up by the defendant. - In an ejectment case, the jurisdiction of the court is determined by the allegations of the complaint. 3. Where tenancy is raised as a defense, the court must conduct a preliminary hearing on the matter to determine the veracity of the allegations of tenancy. If during the hearing, it is shown that tenancy is the real issue, then the court shall dismiss the case for lack of jurisdiction. XVIII. Defense of ownership 1. The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved.
2. When the defendant raises the issue of ownership, the court may resolve the issue of ownership but only under the following conditions: (a) when the issue of possession cannot be resolved without resolving the issue of ownership; and (b) the issue of ownership shall be resolved only to determine the issue of possession (Sec. 16, Rule 70, Rules of Court, Duran vs. Court ofAppeals). Such judgment would not bar an action between the same parties respecting title to the land or building. The resolution of the McTC on the ownership of the property is merely provisional or interlocutory. Any question involving the issue of ownership should be raised and resolved in a separate action brought specifically to settle the question with finality. 3. It bears stressing that in unlawful detainer cases, the only issue for resolution, independent of any claim of ownership by any party litigant, is: who is entitled to the physical and material possession of the property involved? The mere fact that defendant raises the defense of ownership of the property in the pleadings does not deprive the MTC of its jurisdiction to take cognizance of and decide the case.. In cases where defendant raises the question of ownership in the pleadings and they question of possession cannot be resolved without deciding the issue of ownership, the court may proceed and resolve the issue of ownership but only for the purpose of determining the issue of possession. However, the disposition of the issue of ownership is not final, as it may be the subject of separate proceeding; specifically brought to settle the issue. Hence, the bare fact that petitioners, in their answer to the complaint, raised the issue of whether they owned the property as trustors of a constructive trust did not divest the MTC of its jurisdiction to take cognizance of the case and decide the same on its merits. 4. The summary nature of the action is not changed by the claim of ownership of the property of the defendant. The McTC is not divested of its jurisdiction over the unlawful detainer action simply because the defendant asserts ownership over the property. XIX. How to obtain possession of the premises during the pendency of the action 1. When the action is filed, the plaintiff in an ejectment case is not in possession of the property. To obtain possession, Sec. 15 of Rule 70 permits the plaintiff to present a motion, within five (5) days from the filing of the complaint, for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. This motion shall be resolved within thirty (30) days from its filing (Sec. 15, Rule 70, Rules of Court). 2. If the judgment of the MTC is appealed, the Regional Trial Court may issue a writ of preliminary mandatory injunction to restore the plaintiff in his possession, upon motion of the plaintiff filed within ten (10) days from the perfection of the appeal, if the court is satisfied that the defendant's appeal is frivolous or dilatory or that the plaintiff's appeal is prima facie meritorious (Sec. 20, Rule 70, Rules of Court). XX. Judgment not binding on ownership
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(b) xxx
2. The decision in an ejectment case does not bind the title to or ownership of the land or building. It does not also bar an action between the same parties respecting title to the property. 3. The judgment rendered in an action for forcible entry or unlawful detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building (Sec. 18, Rule 70, Rules of Court). XX. Damages recoverable - The damages recoverable in a case of forcible entry and unlawful detainer are those corresponding to the "sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises." The court may also award attorney's fees and costs (Sec. 17, Rule 70, Rules of Court). XXI. Immediate execution of judgment 1. A judgment on a forcible entry and detainer action is immediately executory to avoid injustice to a lawful possessor, and the court's duty to order the execution is practically ministerial. 2. The rule mandating the immediate execution in an ejectment case, applies when the judgment is against the defendant. It does not apply when it is the defendant that prevails. Under Sec. 19 of Rule 70, execution shall issue immediately upon motion "If judgment is rendered against the defendant. . ." - If the judgment is in favor of the defendant, obviously, the judgment is not immediately executory. XXII. How to stay immediate execution of the judgment 1. The defendant must take the following steps to stay the execution of the judgment: (a) perfect an appeal; (b) file a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from; and (c) deposit periodically with the Regional Trial Court, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises. - The periodic deposits are designed to cover all rentals from the judgment of the MTC until the final judgment of the appellate court. Thus, even if an appeal has been perfected but the required periodic deposits are not made, execution may be obtained upon proper motion with notice despite the posting of a supersedeas bond because said
bond covers only back rentals declared in the judgment of the Municipal Trial Court. The bond does not answer for rentals that accrue during the appeal process. 2. The supersedeas bond shall be equivalent to the unpaid rentals, damages and costs which accrued down to the time of the judgment (Sec. 19, Rule 70, Rules of Court). In other words, the supersedeas bond covers the monetary judgment of the lower court. If the judgment does not make any pronouncement the pecuniary liability of the defendant, the bond should not be required. Attorney's fees are not covered by a supersedeas bond. Illustration (Bar 1997) On 10 January 1990, X leased the warehouse of A under a lease contract with a period of five (5) years. On 08 June 1996, A filed an unlawful detainer case against X without a prior demand for X to vacate the premises. (a) (b) In case the Municipal Trial Court renders judgment in favor of A, is the judgment immediately executory? Suggested answer: (b) The judgment in favor of A, the plaintiff is immediately executory. In no uncertain terms, the rule provides that if judgment is rendered against the defendant, execution shall issue immediately unless an appeal is perfected, a supersedeas bond when applicable is posted and the required periodic deposits are made (Sec. 19, Rule 70, Rules of Court). Illustration (Bar 1990) While the ejectment suit was pending before the Municipal Court, Juan Santos religiously deposits all current rentals. In due time, the judge ordered Juan Santos to pay all rents until he vacates the premises as well as attorney's fees in the amount of P5,000.000. Maria Cruz moves for immediate execution on the ground that Juan Santos did not deposit the attorney's fees of P5,000.00 and he did not put a supersedeas bond for the award. Should the court grant immediate execution? Decide with reasons. Suggested answer: The court should not grant immediate execution. A supersedeas bond covers rentals in arrears up to the time of the judgment. Since there are no unpaid rentals, there is no reason for the bond. Also, the Rules do not require a deposit for attorney's fees so execution may be stayed. XXIII. Where to appeal 1. The judgment or final order of the court shall be appealable to the appropriate Regional Trial Court which shall decide the same in accordance with Sec. 22 of BP 129. The decision of the Regional Trial Court shall be immediately executory, without prejudice to a further appeal (Sec. 21, Rules on Summary Procedure; Sec. 21, Rule 70, Rules of Court). 2. The mode of appeal is the same as in ordinary civil actions under Rule 40 of the Rules of Court where a notice of appeal is filed with and the docket fee paid in the court of origin, which is the Municipal Trial Court.
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1. If an issue of ownership is raised in an action for forcible entry or unlawful detainer and the court makes a determination of ownership, such determination is only initial and is made merely for the purpose of settling the issue of possession. The lower court's adjudication of ownership in the ejectment case is only provisional and would not bar any action between the same parties involving title to the property, if and when such action is brought seasonably before the proper forum.
X. Contempt (Rule 71) I. Meaning of contempt 1. > Contempt of court - disobedience to the court by acting in opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience of the court's orders but also conduct tending to bring the authority of the court and the administration of law into disrepute or, in some manner to impede the due administration of justice. 2. The power to declare a person in contempt of court and in dealing with him accordingly is an inherent power lodged in courts ofjustice, to be used as a means to protect and preserve the dignity of the court, the solemnity of the proceedings therein, and the administration of justice from callous misbehavior, offensive personalities, and contumacious refusal to comply with court orders. 3. Contempt of court is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigants or their witnesses during litigation. It is defined as disobedience to the Court by acting in opposition to its authority, justice, and dignity. It signifies not only a willful disregard or disobedience of the court's orders, but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice. II. Functions of contempt - Contempt proceedings has a dual function: (1) vindication of public interest by punishment of contemptuous conduct; and (2) coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also to secure the rights of the parties to a suit awarded by the Court. III. Kinds of contempt according to nature l. Contempt may be civil or criminal depending on the nature and effect of the contemptuous act.
2. > Criminal contempt - "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an obstructing the administration of justice which tends to bring the court into disrepute or disrespect." 3. On the other hand, > civil contempt - the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil. 4. The distinction between criminal and civil contempt is so thin as to be almost imperceptible. But it does exist in law. It is criminal when the purpose is to vindicate the authority of the court and protect its outraged dignity. It is civil when there is failure to do something ordered by a court to be done for the benefit of a party. 5. Criminal contempt proceedings should be conducted in accordance with the principles and rules applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt proceedings. Hence, the strict rules that govern criminal prosecutions apply to prosecutions for criminal contempt that the accused is to be afforded many of the protections provided in regular criminal cases and that proceedings under statutes governing them are to be strictly construed. However, criminal proceedings are not required to take any particular form as long as the substantial rights of the accused are preserved. 6. Civil contempt proceedings on the other hand, are generally held to be remedial and civil in nature, that is, for the enforcement of some duty, and essentially a remedy resorted to, to preserve and enforce the rights of a private party to an action and to compel obedience to a judgment or decree intended to benefit such a party litigant. The rules of procedure governing contempt proceedings or criminal prosecutions, ordinarily are inapplicable to civil contempt proceedings. IV. Kinds of contempt according to the manner of commission - There are two kinds of contempt under this classification: (a) direct, and (b) indirect. V. Direct contempt - Direct contempt in general is committed in the presence of or so near the court or judge as to obstruct or interrupt the proceedings before the same. Indirect contempt is one not committed in the presence of the court. It is an act done at a distance which tends to belittle, degrade, obstruct or embarrass the court and justice VI. Acts constituting direct contempt 1. Any of the following acts constitutes direct contempt: (a) Misbehavior in the presence of or so near the court as to obstruct or interrupt the proceedings befor-J the same; (b) Disrespect toward the court; (c) Offensive personalities towards others; (d) Refusal to be sworn as a witness or to answer as a witness; (e) Refusal to subscribe an affidavit or deposition when lawfully required to do so (Sec. 1, Rule 71, Rules of Court).
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XXIV. Persons bound by the judgment in ejectment cases 1. As a rule, the judgment in an ejectment case is binding only upon the parties properly impleaded and given an opportunity to be heard. This is because an ejectment suit is an action in personam. However, the judgment becomes binding on anyone who has not been impleaded in certain instances as in the following: (a) A sublessee is bound by the judgment against the lessee because his right to the premises is merely subsidiary to that of the lessee (b) A guest or a successor in interest, the members of the family of the lessee or his servants and employees are likewise bound by the judgment even if not impleaded in the suit for ejectment. (c) Trespassers, squatters or agents of the defendant fraudulently occupying the property to frustrate the judgment; and (d) Transferees pendente lite and other privies of the defendant.
3. Unfounded accusations or allegations or words tending to embarrass the court or to bring it into disrepute have no place in a pleading. If a pleading containing derogatory, offensive and malicious statements is submitted in the same court or judge in which the proceedings are pending, it is direct contempt, equivalent as it is to a misbehavior committed in the presence of or so near a court or judge as to interrupt the administration of justice. A finding of contempt on the part of a lawyer does not preclude the imposition of disciplinary sanctions against him for his contravention of the ethics of the legal profession. VII. No formal proceeding required - No formal proceeding is required to cite a person in direct contempt. The court may summarily adjudge one in direct contempt (Sec. 1, Rule 71, Rules of Court). VIII. Penalty 1. The penalty for direct contempt depends upon the court against which the act was committed. (a) If the act constituting direct contempt was committed against a Regional Trial Court or a court of equivalent or higher rank, the penalty is a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both. (b) If the act constituting direct contempt was committed against a lower court, the penalty is a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both (Sec. 1, Rule 71, Rules of Court). 2. If the contempt consists in the refusal or omission to do an act which is yet within 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, Rules of Court). IX. Remedy of a person adjudged in direct contempt l. A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt (Sec. 2, Rule 71, Rules of Court). 2. Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct contempt shall be suspended. The suspension however, shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered the judgment. This bond is conditioned upon his performance of the judgment should the petition be decided against him (Sec. 2, Rule 71, Rules of Court). X. Indirect contempt in general is committed by a person who commits any of the following acts: (a) disobedience or resistance to a lawful writ, process, order or judgment of a court; (b) any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; and
(c) any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice. XI. Examples of specific acts constituting indirect contempt 1. A person guilty of the following acts may be punished for indirect contempt: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto (Bar 1995); (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3, Rule 71, Rules of Court). 2. The failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3 of Rule 71 since it constitutes an improper conduct tending to impede the administration of justice. It also is a ground for disciplinary action under Sec. 16 of Rule 3 of the Rules of Court. Illustration (Bar 1995) Suppose that by virtue of an execution_ of the judgment in an ejectment case, defendant was successfully ousted from the property in litigation and plaintiff was lawfully placed in possession thereof, but seven (7) years later defendant re-entered the property and forcibly took over possession, can plaintiff move that defendant be declared in indirect contempt? Explain. Suggested answer. The defendant may be declared in contempt. The act of the defendant constitutes indirect contempt defined in Sec. 3(b) of Rule 71 of the Rules of Court. However, unless the charge is initiated by the court, the defendant may be declared in contempt only after a verified petition is filed and heard in the proper court. A mere motion under the present rules is not a mode of initiating indirect contempt. Note: It has been ruled that contempt by re-entry upon the land is punishable even if no party litigant has been adversely affected because the act is an open defiance of the authority of the court. Illustration (Bar 1993) In an action for injunction and damages, the plaintiff applied for a temporary restraining order (or "TRO") and preliminary injunction. Upon filing of the complaint, the
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2. The acts of a party or a counsel which constitute willful and deliberate forum shopping constitute direct contempt (Sec. 5, Rule 7, Rules of Court).
Suggested answer. The defendant is not guilty of indirect contempt because on January 28, 1993, there was no TRO that could be legally violated. The court (which under the facts is impliedly a Regional Trial Court because injunction is incapable of pecuniary estimation), had no authority to extend the TRO for another twenty days. The extension was null and void. Sec. 5 of Rule 38 is explicit. ". . . The effectivity of a temporary restraining order is not extendible without need for any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued." XII. Contempt in relation to execution of judgments 1. Generally, contempt is not a means of enforcing a judgment. For example, the mere refusal or unwillingness of the judgment debtor to vacate the property is not a sufficient ground to hold him in contempt. The writ of possession was not directed to the judgment debtor but to the sheriff who was directed to deliver the property to the prevailing party. As the writ did not command the judgment debtor to do anything, he cannot be guilty of the acts described in Rule 71 which is "disobedience of or resistance to a lawful writ, process, order, judgment or command of any court." The proper procedure is not for the court to cite the debtor in contempt. What the officer should do is to dispossess him of the property but if after the dispossession, the judgment debtor should execute acts of ownership or possession or in any manner disturb the possession of the judgment creditor, then and only then may he be punished for contempt. - It is not the refusal to vacate which constitutes contempt but the act of re-entry after the ouster. The contempt proceedings in this case will be pursuant to Sec. 3(b) of Rule 71. 2. If the judgment is one for the payment of money, the sheriff shall demand from the judgment obligor the immediate payment of the full amount stated in the writ of execution (Sec. 9, Rule 39, Rules of Court). If the judgment obligor does not comply with the demand, it is believed that no contempt charges could lie against the judgment obligor because the writ is not directed to the obligor but to the sheriff. If the obligor is unable to pay in cash, certified check or any acceptable mode of payment, the remedy of the sheriff is not to initiate contempt proceedings but to levy upon the properties of the obligor for the satisfaction of the judgment. 3. When the subject of execution is a special judgment which directs the performance of an act other than the payment of money or the sale or delivery of property, the judgment can
be complied with only by the judgment obligor or by the officer so directed by the judgment and not by anyone else. This kind of judgment is specifically directed to the person required to obey the same and against whom the judgment was rendered. If he disobeys the judgment, he may be punished for contempt (Sec. 11, Rule 39, Rules of Court). The refusal would constitute a violation of a writ or order directed to the party required to obey the same and falls squarely within the purview of Sec. 3(b) of Rule 71 in relation to Sec. 11 of Rule 39. Thus, an officer against whom a writ of certiorari, prohibition and mandamus was issued who disobeys the writ may be punished for contempt (Sec. 9, Rule 65, Rules of Court). Also, a litigant against whom a temporary restraining order was issued may be liable for indirect contempt if he defies the order. XIII. How a proceeding for indirect contempt is commenced 1. Unlike direct contempt which is summary, an act constituting an indirect contempt is to be punished only after a charge in writing and a hearing (Sec. 3, Rule 71, Rules of Court). The requirement of a written charge and a hearing shall not however, be construed to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending the proceedings (Sec. 3, last paragraph, Rule 71, Rules of Court). 2. The procedural requisites before the accused may be punished for indirect contempt: (1) a charge in writing to be filed; (2) an opportunity for the person charged to appear and explain his conduct; and (c) to be heard by himself or counsel. 3. There are only two ways a person can be charged with indirect contempt, namely: (a) through a verified petition; and (b) by order or formal charge initiated by the court motu proprio (Sec. 4, Rule 71, Rules of Court). (a) If the charge is initiated motu proprio by the court against which the contempt was committed, it is commenced by an order of the same court or any formal charge requiring the respondent to show cause why he should not be punished for contempt. (b) If initiated by someone other than the court, the charge is commenced by a verified petition. This petition shall be accompanied by supporting particulars and certified true copies of documents or papers involved therein. It shall likewise comply with the requirements or the filing of initiatory pleadings for civil actions in the court concerned (Sec. 4, Rule 71, Rules of Court). Since it is considered an initiatory pleading and must comply with the requirements for the filing of initiatory pleadings, the petition must hence, contain a certification against forum shopping described 4. The provisions of the Rules are worded in very clear and categorical language. In case where the indirect contempt charged is not initiated by the courts, the filing of a verified petition which fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question is the mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Prior to the 1997 amendment of the Rules, a mere motion was tolerated by the courts in initiating indirect contempt proceedings. At the onset of the 1997 Revised Rules on Civil Procedure, however, such practice can no longer be countenanced and a conviction for indirect
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court issued a TRO and set the application for preliminary injunction for hearing. As the 20-day lifetime (January 3 to 23) of the TRO was about to expire, the court issued an order dated January 21, 1993 extending the effectivity of the TRO for another twenty days (January 24, 1993 to February 13, 1993). On March 5, 1993, the court, after hearing, denied the application for preliminary injunction. Supposing that on January 28, 1993, the defendant committed an act in violation of the TRO, is he guilty of indirect contempt? Explain.
5. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege such fact but the petition shall be docketed, heard and decided separately from the principal action. The court however, in the exercise of its discretion may order the consolidation of the contempt charge and the principal action for joint hearing and decision (Sec. 4, Rule 71, Rules of Court). XIV. Necessity for hearing 1. A respondent in a contempt charge must be served with a copy of the petition. Unlike in civil actions, the court does not issue summons on the respondent. While the respondent is not required to file a formal answer similar to that in ordinary civil actions, the court must set the contempt charge for hearing on a fixed date and time on which the respondent must make his appearance to answer the charge. On the date and time of the hearing, the court shall proceed to investigate the charges and consider such answer or testimony as the respondent may make or offer. 2. If he fails to appear on that date after due notice without justifiable reason, the court may order his arrest, just like the accused in a criminal case who fails to appear when so required. The court does not declare the respondent in default. 3. If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon the filing of a bond for his appearance at the hearing (Sec. 6, Rule 71, Rules of Court). XV. Court where the charge for indirect contempt is to be filed - Where the charge for indirect contempt is to be filed depends upon the level of the court against which the contempt was committed. (a) Where the act was committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. (b) Where the act was committed against a lower court, the charge may be filed with the Regional Trial Court in which the lower court is sitting. It may also be filed in the lower court against which the contempt was allegedly committed. The decision of the lower court is subject to appeal to the Regional Trial Court (Sec. 5, Rule 71, Rules of Court; En Bane Resolution, SC, July 21, 1998). (c) Where the act was committed against persons or entities exercising quasi-judicial functions, the charge shall be filed in the Regional Trial Court of the place wherein the contempt was committed (Sec. 12, Rule 71, Rules of Court). XVI. Punishment for indirect contempt - The punishment for indirect contempt depends upon the level of the court against which the act was committed. (a) Where the act was committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both.
(b) Where the act was committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month or both. Aside from the applicable penalties, if the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Sec. 7, Rule 71, Rules of Court). (c) Where the act was committed against a person or entity exercising quasi judicial functions, the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for contempt against such persons or entities. XVII. Imprisonment 1. Sec. 8 of Rule 71 of the Rules of Court provides for indefinite incarceration in contempt proceedings to compel a party to comply with the order of the court. "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." This may be resorted to where the attendant circumstances are such that the noncompliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. When a person or party is legally and validly required by a court to appear before it for a certain purpose, and when that requirement is disobeyed, the only remedy left for the court is to use force to bring such person or party before it. 2. The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey although able to do so. In effect, it is within the power of the person adjudged guilty of contempt to set himself free. 3. It is only the judge who orders the confinement of a person for contempt of court who could issue the Order of Release. XVIII. Remedy of a person adjudged in indirect contempt - The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not however, have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against him (Sec. 11, Rule 71, Rules of Court). XIX. Contempt against quasi judicial entities 1. The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasi judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily (Sec. 12, Rule 71, Rules of Court).
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contempt by mere motion suffers from a serious procedural defect.
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2. Quasi judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper Regional Trial Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the Regional Trial Courts. The requirement for a verified petition must also be complied with. The DARAB for example, has no power to decide the contempt charge filed before it. 3. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12, Rule 71, Rules of Court).
