Lakas Atenista Remedial Law

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

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

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

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

A: SUPERIOR COURTS, otherwise known as courts of general jurisdiction, are those which take cognizance of
all kinds cases, whether civil or criminal, and possess supervisory authority over lower courts.
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FIRST-LEVEL COURTS (inferior courts), otherwise known as courts of special or limited jurisdiction, are those
which take cognizance of certain specified cases only. (14 Am. Jur. 249)
Q: What courts are superior or inferior?

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

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

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

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

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

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

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

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

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

A: CONSTITUTIONAL COURTS are created directly by the Constitution itself, while STATUTORY COURTS are
created by law or by the legislature.
In our country, there is only one Constitutional court – the Supreme Court. Even the
Sandiganbayan is not considered a Constitutional court because it was not created by the
Constitution directly. The 1973 Constitution ordered Congress to create Sandiganbayan. It was law that
created Sandiganbayan (PD 1486). There is a provision in the 1973 Constitution which says, “There should
be created a Sandiganbayan.”
The CA, RTC, and the MTC are created by the Congress. Thus, Congress has the power to
abolish the said courts but it can never abolish the Supreme Court.
So there is only one Constitutional court. All the rest, from the CA down and all other special courts, are only
creatures of Congress. In political law, the power to create carries with it the power to abolish. That is why, BP
129 abolished all existing courts at that time (CFI, CA, Juvenille, etc.) and RTC, IAC, MTC were created. That was
the judicial reorganization of 1980 under BP 129. But there is only court which the Batasan Pambansa could not
touch – the Supreme Court.
They have no power to abolish the SC because it is created by the Constitution. Pareho lang tayong tabla
eh. Congress is also created by the Constitution. So if you want to abolish the SC, you must call for a
constitutional convention to change the Constitution.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, you must know that the courts of justice have what we call inherent
powers. Just like the State have certain inherent powers, whether written or not, these things are understood to
have them – Police power, power of taxation, and power of taxation.
Courts have also inherent powers. Their very existence automatically necessitates the existence of these
powers. Now, that was already asked in the Bar before – what are the inherent powers of the court?
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Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court of the provides:
Section 5. Inherent powers of courts. Every court shall have the power:
(a) to preserve and enforce order in its immediate presence;
(b) to enforce order in proceedings before it, or before a person or persons
empowered to conduct a judicial investigation under its authority;
(c) to compel obedience to its judgments orders, and processes, and to the lawful
orders of a judge out of court, in a case therein;
(d) to control, in furtherance of justice, the conduct of its ministerial officers, and
of all other persons in any manner connected with a case before it, in every manner
appertaining thereto;
(e) to compel the attendance of persons to testify in a case pending therein;
(f) to administer or cause to be administered oaths in a case pending therein,
and in all. other cases where it may be necessary in the existence of its powers;
(g) to amend and control its process and orders so as to make them conformable
to law and justice;
(h) to authorize a copy of a lost or destroyed pleading or other paper to be filed
and used instead of the original, and to restore, and supply deficiencies in its
records and proceedings.
There are many powers enumerated. Some of them are common sense. Every court has the power to see to
it that everything of his order is enforced; to compel obedience to his order. Common sense yan. You are inutile
if you cannot even enforce your own judgment! So I've been telling some judges here, eh. Sometimes we talk
about this: they say, it seems that I don't have the power under the Rules of Court. It's beyond my power. I
made a decision but I cannot see how was it enforced.
Parang pampalakas-loob ang Rule 135, Section 5 because you can see there the powers that you do not
know you have. These are inherent eh – hindi puwedeng alisin sa iyo iyan. Otherwise, maging inutil ka – I have
the power to decide but I do not know how to enforce my decision. That is a sign of impotence (Charles,
pinaringgan ka ni Dean!). As a matter of fact, the next section (Section 6, Rule 135) tells us how to carry out
your judgment. If you do not know how to carry out your judgment because the law is silent, Section 6 says,
look for a way. Hanapan mo ng paraan!
SITUATION: Suppose I have the power to decide and I render a decision. I want to enforce the decision, how
do I enforce? Well, usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to enforce? For example a judge has rendered a
decision, and the law is silent on how to enforce it, do you mean to say that the order is unenforceable because
the law is silent?
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into effect – When by law jurisdiction is

conferred on a court or a judicial officer, all auxiliary writs, processes and all other
means to carry it into effect maybe employed by such court or officer; and if the
procedure to be followed in the exercise of such jurisdiction is not specifically
pointed out by law or these rules, any suitable process or mode of proceeding may
be adopted which appears conformable to the spirit of said law or rules.
What Section 6 is trying to say is that when you have the power to decide, you have the power to
enforce. And if the law is silent, you have to think how to do it. Be creative. Provided you conform with the
spirit of the rule. So you do not make the order useless simply because there is no rule. In other words, try to
look for a way on how to enforce you judgment. That is part of your power.
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that I want to emphasize before we leave this subject of court is Section 3 of the Interim
Rules.
Question: The court of Davao will issue a writ or a process. Can that writ or process be enforced in Cebu or
Manila? Or only in Davao? Or only in Region IX? Hanggang saan ba ang enforceability ng aking writ or
processes? You have to distinguish what kind of writ or process you are talking about.
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. -

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

A: Under Section 3 of the Interim Rules, you have to distinguish what kind of writ or process you are talking
about:
a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: The issue is, whether the obligation still existing or is it already extinguished by payment. So that is the
issue. So that is where we will know what we will try in this case.
Q: Suppose after the trial, the court said that the obligation has been extinguished by condonation. Now
where did the court get that? Your defense is payment, and the decision now it was extinguished by
condonation. Is the decision correct?
A: The decision is WRONG because the parties did not raise condonation as the issue. The case
was decided on an issue that was not even raised by the parties. So the court never acquired
jurisdiction over the issue. In other words, the court should only rule on what the parties raised in
their pleadings. That is what we call jurisdiction over the issue. The court should only rule on
what the parties claim.
So, the court is supposed to rule on the issue raised and not those not raised by the parties.
Take note that jurisdiction over the issues in civil cases is acquired after defendant has filed an
answer. In criminal cases, jurisdiction over the issues is acquired upon filing of a complaint. For a decision to be
effective, the court must acquire the jurisdiction over the subject matter, the person, the res in case the
defendant is not around, and the last is jurisdiction over the issue.
Q: Distinguish jurisdiction over the subject matter and jurisdiction over the issues.
1.) Jurisdiction over the subject matter is the power to hear and try a particular case, while
Jurisdiction over the issues is the power of the court to resolve legal questions involved in the
case;
2.) Jurisdiction over the subject matter is acquired upon filing of the complaint, while
Jurisdiction over the issues of the case is acquired upon filing of the answer which joins the
issues involve in the case.
EXAMPLE: I am the plaintiff, I will file a case in court to collect an unpaid loan. From the
moment I file the case, the court has acquired jurisdiction over the subject matter. Now, you are
summoned. File ka naman ng sagot mo, “Wala akong utang, bayad na.” Then the court has now
acquired jurisdiction over the issue. One is acquired upon filing of the complaint and the other one
is acquired after the filing of the answer by the defendant.
HIERARCHY OF THE COURTS
In the 1996 BAR: One of the questions in Remedial Law was: State the hierarchy of the Courts in the
Philippines.
a.) Regular courts
SUPREME COURT
COURT OF APPEALS
REGIONAL TRIAL COURTS
MetTC MTCC MTC MCTC
Note:
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Digos, Panabo
MCTC- circuitized areas because it is impractical and expensive to maintain one MTC in every municipalities.
b.) Special courts
There are also Special Courts which are also considered part of the judiciary. These are:
1. Court of Tax Appeals (RA 1125)
2. Sandiganbayan (PD 1486 as amended)
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3. Sharia District Courts and the Sharia Circuit Courts (PD 1083 , also known as the Code of
Muslim Personal Law);
4. Family Courts
We are concerned only of the jurisdiction of the REGULAR COURTS.
JURISDICTION OF THE SUPREME COURT
The highest court of the land is the Supreme Court. It was not affected by the Judiciary Law (BP 129) which
reorganized the judiciary in 1983. Being a constitutional court, its jurisdiction is found in the fundamental law
itself. The SC is both an original and appellate court.
a.) ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5 , paragraph 1 of the 1987 Constitution enumerates the ORIGINAL jurisdiction of the
SC:
Section 5. The Supreme Court shall have the following powers:
[1] Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, over petitions for certiorari, prohibition, mandamus, quo
warranto , and habeas corpus.
Now, it is still premature for us to discuss now what do you mean by certiorari, prohibition, mandamus, quo
warranto because that is discussed exhaustively in the study of Special Civil Actions. But you are more
acquainted with habeas corpus. It is a special proceeding. If you are illegally detained, you can file a petition for
habeas corpus directly before the SC because it has original jurisdiction.
So that is the first provision in the Constitution dealing with the jurisdiction of the SC. However, the SC is
not only an original court, it is also an appellate court.
b.) APPELLATE JURISDICTION OF THE SUPREME COURT
The appellate jurisdiction is found in Section 5, Paragraph (2), Article VIII 1987 Constitution:
2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.
b) All cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto.
c) All cases in which the jurisdiction of any lower court is in issue.
d) All criminal cases in which the penalty imposed is reclusion perpetua or
higher.
e) All cases in which an error or question of law is involved.
a) All cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
So if the RTC in a certain civil case declares the law as unconstitutional since it has the power
to do so, the same has to be appealed directly to the SC. It cannot pass through the CA because
the SC has exclusive appellate jurisdiction regarding the matter.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
This is related to the legality of tax cases – whether a tax or tax penalty is legal or not.
However, whatever decision the lower court gives, it has to be appealed directly to the SC.
(c) All cases in which the jurisdiction of any lower court is in issue
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no jurisdiction over a case. The aggrieved
party, it if wants to raise that joint, it must go to the SC. When the issue is purely jurisdiction, the SC shall
have exclusive appellate jurisdiction.
Now, when the law says all cases in which the jurisdiction of any lower court is in issue, the
cases involve 100% pure jurisdiction as an issue. There are no factual issues involved. If the issue
of jurisdiction is mixed with a factual issue, the appeal should be in the CA without prejudice to the
filing of the same with the SC later. So, this is 100% issue of jurisdiction. No factual issue is
involved.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
We will not dwell on this. This is more on Criminal Procedure. We are only interested in civil cases.
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(e) All cases in which only an error or question of law is involved.
Take note that ONLY an error or question of law is involved. So, if there is a mixed question of
law and a question of fact, appeal must be filed with the CA. You only go to the SC if the appeal is
100% legal. That applies to both criminal and civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
The best example of questions of law where the issues are purely legal are classroom
problems. The question is: Who is right? A or B? Reasons. You apply the law. But as to what
happened, the facts are already given. Based on these facts who is correct? Yun ang tinatawag na
question of law.
Pero if the facts are still vague, that is not a question of law, that is a question of fact. Example:
Lyle filed a case against Aivy to collect an unpaid loan. According to Lyle, Aivy borrowed money from him and
it’s already overdue and she has not paid. Aivy admits she borrowed money from Lyle but says she has already
paid. Now, the question in the exam: Who is telling the truth?
My golly! How can you answer the question who is telling the truth? In other words, I have to hear them.
Yun ang tinatawag na question of fact – what happened, pinag-aawayan pa. When you go to SC in civil cases,
you are not there to ask the SC to determine who is telling the truth. You are asking who is right under the law.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE

JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
“Each Commission shall decide by a majority vote x x x. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof.”
The COMELEC, COA and the CSC act also as courts of justice. They have powers to decide certain cases
within their jurisdiction. Election cases, sa COMELEC man yan ba. Claims against the government – COA. Or
disallowance on disbursement by government officers or removal from government service – CSC.
Now, according to Section 7, any decision, order or ruling of these commissions may be brought to the SC
on certiorari, etc. So you will see that the decisions of the constitutional commissions are reviewable by the SC.
However, Congress amended the Judiciary Law particularly Section 9 on the jurisdiction of the
CA by now making decisions of the CSC no longer appealable to the SC directly but appealable to
the CA. So based on the present law, out of the three constitutional commissions, the only ones
whose decisions are appealable directly to the SC are those of the COMELEC and the COA
When that law was passed where the decisions of the CSC are appealable to the CA, first I was stunned. I
said there is something queer here because the CSC is a constitutional body and the CA is not. So why will a
decision of a constitutional body be reviewable by a non-constitutional body? And I said parang it might violate
the Constitution. Under the Constitution, decisions of the constitutional commissions are appealable to the SC.
Does Congress have the power to change that by making it appealable to the CA?
So I had to look at the provision again to find out whether this is possible. But pwede naman pala. You look
at the provision, “Unless otherwise provided by this Constitution or by law..” Meaning, the decisions are
appealable to the SC unless otherwise provided by law. The Constitution itself gave Congress the power to
change it. So there is no problem.
Article VII, Section 4, last paragraph, 1987 Constitution:
“The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate its
rules for the purpose.”
If there’s an electoral protest for the President and Vice-President, the matter is not to be decided by the
COMELEC but by the SC. This is what is called as the SC acting as the Presidential Electoral Tribunal. The only
case so far was that filed by Defensor-Santiago but which was dismissed, the SC ruled that when she ran for the
Senate, she has already technically abandoned her interest for the Presidency.
Article VII, Section 18 (3), 1987 Constitution – Commander-in-Chief Clause
“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus or extension thereof, and must promulgate its decision
thereon within thirty days from its filing.”
So, the SC, in an appropriate proceeding filed by any citizen review the sufficiency of the factual basis of the
proclamation of martial law. Meaning, the SC can inquire into the basis on why martial law is declared.
Which therefore abandons the Political Question doctrine laid down in many earlier cases that it is the
prerogative of the President to determination, at his discretion, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof.
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So this particular provision of the Constitution came about in 1987 to check the supposed excesses during
the time of Marcos, though it came too late. It may well take another 100 years to produce another Marcos.
Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5 hereof.
Congress may change or even remove the jurisdiction of the RTC or CA. The law can change
them because jurisdiction over the subject matter is conferred by law. However, Congress does not
have the power to lessen or deprive the Supreme Court of its jurisdiction under Section 5, Article
VIII.
However Article VI, Section 30 states:
“No law shall be passed increasing the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advice and concurrence.”
Thus , Congress cannot lessen but it can increase the SC’s powers and jurisdiction, PROVIDED it
is with the latter's advice and concurrence.
The provision under the Ombudsman Law (RA) with regards to the Ombudsman’s disciplining power
appealable directly to the SC, was declared unconstitutional by the SC because it increased the SC’s jurisdiction
and was passed without the advise and concurrence of the SC.
So more or less, these are the scattered provisions of the Constitution dealing with the SC’s jurisdiction.
[Note: PLEASE REFER TO THE HANDOUT HEREIN ATTACHED FOR A COMPLETE OUTLINE OF THE SUPREME
COURT'S JURISDICTION.]
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions for the issuance of writs of certiorari,
prohibition and mandamus as defined in Rule 65 against the following: the CA, the COMELEC, COA,
Sandiganbayan, Central Board of Assessment Appeals, NLRC or the Secretary of Labor under the Labor Code.
The cases where its original jurisdiction is CONCURRENT with the CA are likewise petitions for the issuance
of writs of certiorari, prohibition, mandamus against the following: the SEC, the CSC, the different boards,
tribunals or agencies which replaced the old Public Service Commission (e.g. LTFRB). Also, issuance of writ of
certiorari against the RTC and other quasi-judicial agencies, courts, instrumentalities and commissions.
CONCURRENT with the RTC are those actions affecting ambassadors and other public ministers and consuls.
This is based on the Judiciary Law and the Constitution.
CONCURRENT with the CA and RTC are those involving habeas corpus, quo warranto, and writs of certiorari,
prohibition, and mandamus against inferior courts and bodies. For example, a petition for mandamus against
the MTC of Davao City can be filed with the SC, CA, or RTC although the policy of the Supreme Court is that it
should be filed with the RTC based on the hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA 758)
Finally, with the advent of the new law (RA 8249), there is now a CONCURRENCE between the SC and the
Sandiganbayan in so far as petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and other
ancillary writs in aid of the Sandiganbayan's APPELLATE JURISDICTION. Amended by rule 65 Sandiganbayan
whether or not in its exercise of its appellate jurisdiction
b.) APPELLATE JURISDICTION OF THE SUPREME COURT:
1.) Automatic review of death penalty. So when the RTC imposes the death penalty, whether the accused
appeals or not, the case will be elevated to the SC;
2.) Ordinary appeal from the RTC direct to the SC. This only applies to criminal cases where the penalty of
reclusion perpetua or life imprisonment is imposed or other offenses which arise out of the same
occurrence or committed by the accused on the same occasion;
3.) Appeal by Certiorari under Rule 45. When it comes to appeal by Certiorari, there are three types:
3.1.) From the CA or all appeals from the CA are certiorari which is different from the certiorari in Rule
65.
3.2.) From the RTC direct to the SC. Now, this is not ordinary appeal because this only applies to
criminal cases. In civil cases, if you want to go directly to the SC, you can do so by appeal by
certiorari, provided that the following conditions are met:
a.) If no question of fact is involved and the case involves the constitutionality or
legality validity of any tax, impost, etc., or jurisdiction of the lower courts is in issue
( Article VIII, section 5 par.(2)
b.) only an error or question of law involved (supra);
c.) a judgment rendered upon an award under the Arbitration Law (RA 876)
d.) appeal on pure questions of law in cases of appeal to the RTC from inferior courts.
So, from the MTC to the RTC – ordinary appeal. From the RTC, on pure questions of
law, to the SC – appeal by certiorari.
3.3.) Appeal from other courts or administrative agencies liked appeal from the Sandiganbayan to the
SC, from the Central Board of Assessment Appeal or from the Ombudsman.
JURISDICTION OF THE COURT OF APPEALS
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BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the Judiciary Reorganization Act of 1980. BP 129
was passed in 1983 by the former Batasang Pambansa which practically abolished all the regular courts at that
time, and also with the special courts except the SC which cannot be abolished by Congress. What was also
spared was the Court of Tax Appeals which was likewise not affected.
In lieu of these, other courts were created. The constitutionality of BP 129 was challenged as violative of the
security of tenure of the judges. But its constitutionality was sustained in the case of DELA LLANA vs. ALBA, 112
SCRA 294.
The CA is composed of over 50 justices but I think new divisions were created. They decide cases by a
division of three.
Before BP 129, the court was also called the “Court of Appeals,” the counterpart of the present CA, though
the CA now is different and more powerful than the old one. BP 129 abolished the old CA and created another
court which was called the INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the EDSA Revolution, President Aquino, pursuant to
her law-making powers, issued E.O. #33 amending the Judiciary Law and changed the name of IAC to CA
(referring to the jurisdiction of the IAC).
Many people thought that the CA of President Aquino under E.O. #33 is actually the IAC under another
name only, pinalitan lang ng pangalan. But in a case decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
210 SCRA 589 [1992]
HELD: E.O. # 33 created an entirely new court. Therefore, the IAC existed only for three years –
from 1983 to 1986. Hence, President Aquino not only re-baptized or re-christened the IAC but she
actually abolished the IAC and created a new CA.
“It is the holding of the Court that the present Court of Appeals is a new entity, different and
distinct from the Court of Appeals or the Intermediate Appellate Court existing prior to Executive
Order No. 33, for it was created in the wake of the massive reorganization launched by the
revolutionary government of Corazon C. Aquino in the aftermath of the people power (EDSA)
revolution in 1986.”
So, in effect, Section 9 which defines the second highest court of the land has been amended twice. First, by
E.O. #33. And then on February 1995, it was amended again by RA 7902, known as “The Act expanding the
jurisdiction of the CA.”
The essential features of the CA’s jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
[1] Section 9, paragraph 1, BP 129
Section 9 – Jurisdiction – The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and auxiliary writs or processes whether or not in aid of its
appellate jurisdiction.
Does the language sound familiar to you? “Original jurisdiction to issue writs of mandamus, prohibition,
certiorari, habeas corpus, quo warranto.” Did you hear that before?
Under the original jurisdiction of the Supreme Court the language is the same, eh. Now, we take the same
provision for the second time. So, if I would like to file a petition for habeas corpus, where will I file it?
Q: If I file it with the Supreme Court, is it allowed?
A: Yes, because the Constitution says so.
Q: But suppose I will instead file it with the CA, is it also allowed?
A: Yes, under Section 9, paragraph 1.
So what is the conclusion? The SC and the CA exercises concurrent jurisdiction to entertain
petitions to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto.
Alright, so I will go to a specific SITUATION: I’m a clever lawyer, and I will file a petition for quo warranto. In
order to be sure I will get what I want, I will prepare two identical petitions. Since concurrent man sila, I will file
before the SC and the other one with the CA. Sigurista ba – kung madisgrasya sa isa, meron pang isa.
Q: Can I do that? Meaning, I will file one petition before the SC, I will file another petition, pareho-pareho – I
will invoke the jurisdiction of the two courts at the same time. Now, suppose I will do that, what do you think
will happen to me?
A: The consequence is found in Section 17 of the Interim Rules. That’s why, as I said, the Interim Rules are
still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No petition for certiorari,
mandamus, prohibition, habeas corpus or quo warranto may be filed in the IAC if
another similar petition has been filed or is still pending in the SC. Nor may such
petition be filed in the SC if a similar petition has been filed or is still pending in the
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IAC, unless it is to review the action taken by the IAC on the petition filed with it. A
violation of this rule shall constitute contempt of court and shall be a cause for the
summary dismissal of both petitions, without prejudice to the taking of appropriate
action against the counsel or party concerned.
So, eto, you believe you are a clever lawyer, so you will file two identical petitions. Do you know what will
happen to you according to the provision? Once the CA learns that you filed an identical petition with the SC,
the CA will dismiss the petition before it. And once the SC also learns that you also filed before the CA, the SC
will also dismiss the one you filed before it. So you end up with nothing because both courts will dismiss.
And not only that, both courts will declare you in contempt of court and if you are a lawyer, disciplinary
actions may be taken against you. That is what you will get if you think you are clever. It turns out that you
placed yourself in a frying pan. In other words, this is what is called abhorrent, contemptible practice of FORUM
SHOPPING. Have you heard that term before – forum shopping? ‘Yun bang sabay-sabay kang mag-file ng
case. You will invoke the jurisdiction of two or more courts simultaneously. That is an act of contempt of court
(Rule 7, Section 5).
EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS
(2) “Exclusive” jurisdiction over actions for annulment of judgments of Regional

Trial Courts;
Yes, you will notice again that this type of action belongs to the original jurisdiction of the CA. But there is
something that you will notice. In paragraph 2, it says there – “exclusive jurisdiction.” In paragraph 1, the word
“exclusive” is not present. As already explained earlier in paragraph 1, the jurisdiction of the CA is concurrent
with the SC. In paragraph 2, the original jurisdiction of the CA is exclusive with the CA. You can only file this
type of action before the CA such as an action for annulment of judgments of the RTC’s.
Q: Actions for annulment of judgments of RTC’s, an action to annul a judgment of the RTC. Now, is this
similar to an appeal? Is this the same as appealing the decision of the RTC to the CA?
A: No, because in appeal, you are invoking the appellate jurisdiction of the CA. Here in paragraph 2, it is not
appellate jurisdiction. Original ito, eh. Meaning, you are filing an action before the CA for the first time. And
the nature of the action is to annul a judgment of the RTC.
Well, you are familiar with the Civil Law about actions of annulment of contracts. So, if there is such a case
of annulment of contract, there is also such a case as annulment of judgments of the RTC’s and you come to
wonder:
Q: What would be the ground? What will be the ground to annul the judgment of the RTC and how do you
distinguish it from an appeal?
A: The present 1997 Civil Procedure now contains a specific rule on this. Before 1997, the guidelines on
annulment of judgment of the RTC’s are SC decisions. There is no specific rule, ba. But ‘yung guidelines are
based on jurisprudence.
Right now, starting July 1, 1997, there is now a specific rule on annulment of judgments of RTC. And that is
Rule 47. That is an entirely new rule. So that is enacted precisely to implement Section 9 Paragraph 2. Of
course, we will discuss that rule very much later.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Now we’ll go the 3rd. Paragraph 3 is the most popular jurisdiction of the CA. Appellate, eh. This is what is
often involved. Most of the cases which land in the CA are appealed cases. Alright, so paragraph 3 defines the
appellate jurisdiction of the CA.
(3) Exclusive appellate jurisdiction over all final judgments, decisions,

resolutions, orders or awards of the RTCs and quasi-judicial agencies,
instrumentalities, boards or commissions, including the Securities and Exchange
Commission, the Social Security Commission, the Employees Compensation
Commission and the Civil Service Commission, except those falling within the
appellate jurisdiction of the SC in accordance with the Constitution, the Labor Code
of the Philippines under PD 442, as amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph (4) of the fourth
paragraph of Sec. 17 of the Judiciary Act of 1948.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now, if you will analyze paragraph 3,
you will notice that the CA is a powerful court because it has exclusive appellate jurisdiction over all final
judgments, decisions, resolution, orders or awards of RTC’s. So as a general rule, if the RTC, anywhere in the
country renders a decision and you want to appeal, whether civil or criminal, chances are it will go the to CA. It
is a powerful court, eh – all RTC’s eh – exclusive pa.
And not only RTC’s. The law says “and quasi-judicial agencies, instrumentalities, boards or commissions…”
Not only decisions of the RTC but quasi-judicial, this is what you call administrative bodies. Administrative
bodies are not actually part of the executive branch but they act just like courts of justice. They can decide
cases and there are hundreds of administrative agencies in the Philippines. And therefore, if you lost a case
before anyone of these bodies, or tribunals, you appeal the decision not with the SC, but to the CA.
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The amendments by RA 7902 is even more specific by adding this phrase, “including the SEC, SSS, the
Employees Compensation commission and the Civil Service Commission (CSC).” That is the addition.
Gi-klaro ba.
CSC – this is what I’ve notice before…I told you before. Before this law was passed, under the Constitution,
decisions of the CSC are appealed to the SC together with the COMELEC and the COA. But with the passage of
RA 7902, the appeal from the CSC has been transferred to the CA, so what is left behind in the Constitution is
the COMELEC and the COA na lang.
For a while there I thought that this was wrong because the CSC is a constitutional body and its decisions
shall be appealed to a non-constitutional body like the CA. So, how do we reconcile this with the Constitution,
Article IX-A, Section 7, where it states that the ruling of each commission shall be reviewed by the SC?
However, the same provision states that: “Unless otherwise provided by this Constitution or by law.” And the
law is the RA 7902. So, this is how we reconcile it, in other words, the Constitution and the law can provide for a
different mode.
Obviously, the purpose of this statute is to unburden the SC with so many cases. At least transfer some of
the workload to the CA. That is the obvious purpose.
The phrase “except those falling within the appellate jurisdiction of the Supreme Court…”means all cases
should be appealed to the CA except those which belong to the SC under the Constitution. We know that
already. When the issue is the constitutionality of the law, treaty, legality of any tax, the
jurisdiction of any lower court – yan, hindi puwede sa CA. Diretso yan sa SC.
And also “except those falling under the Labor Code of the Philippines.” A labor case is not supposed to be
filed in court but with a quasi-judicial agency known as the NLRC and you start in the local level – from the
Labor Arbiter, then the decisions of the Labor Arbiter are appealable to the NLRC and then from there, where
will you go?
Q: Is the decision of the NLRC appealable before the CA? Because it is also a quasi-judicial agency and
under the law, all decisions of quasi-judicial agencies are supposed to be appealed to the CA.
A: NO. The decision of the NLRC is an exception – except those under the appellate jurisdiction of the SC
under the Constitution and in accordance with the Labor Code (PD 422). So conclusion: NLRC decisions cannot
be appealed to the CA and the only way to elevate it is to the SC by what we call certiorari, not appeal. Also,
decisions of the Secretary of Labor, under the Labor Code are not reviewable by the CA, but they are reviewable
directly by the SC. - amended
And then there is the phrase, "the provisions of this Act, and of subparagraph (1) of the third paragraph and
subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.” So, in other words, the
new Judiciary Law still makes some reference to the old law. This shows that the entire 1948 Judiciary Law has
not been totally repealed. Some provisions are still intact because of the reference.
Now what is this subparagraph 1 of the third paragraph? It only applies to criminal cases. EXAMPLE: A
person is sentenced to reclusion perpetua, his co-accused is sentenced to reclusion temporal or prison mayor,
and all of them will appeal, all of them should be sa SC na. Otherwise, you will be splitting the appeal into two
parts.
Subparagraph 4 of the fourth paragraph of Section 17. When by appeal from the RTC is on pure
legal question, SC yan.
Q: Suppose nasagulan ng questions of fact, I will appeal questions of fact and questions of law.
A: Under the 1948 Judiciary Law, you cannot appeal directly to the SC. You must appeal to the CA.
The same thing on when the issue is on the constitutionality of a treaty, law, legality of tax,
when the jurisdiction of the lower court is in issue, as explained here in this paragraph of the
Judiciary Act of 1948, if the appeal is 100% constitutional issue, jurisdictional or legality issue –
appeal is to the SC under the Constitution. But if it is mixed with questions of fact, do not go to
the SC. You go first to the CA. That is what the paragraph is all about. Alright, so that takes care of the
jurisdiction of the CA.
[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues raised in cases falling
within its original and appellate jurisdiction, including the power to grant and conduct new trials
or further proceedings. Trials or hearings in the CA must be continuous and must be completed
within three (3) months unless extended by the Chief Justice. (As amended by RA 7902)
This paragraph shows that the present CA that we have now is a more powerful court than before. It is a
unique court. Aside from being an appellate court, it also acts as a trial court. It may receive evidence but only
those evidence which were overlooked by the trial court. It can order a new trial or conduct a new trial itself.
Q: If an issue of fact is tried before the RTC, can I always ask the CA to allow me to present evidence? Does
it mean to say now that since the CA is a very powerful court, it can take the place of the RTC? Meaning, if I’m a
party instead of presenting my case before the RTC, I will not, “Doon na lang sa CA.”
A: That is already interpreted in the case of
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT
125 SCRA 522 [1983]
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HELD: The power of the CA to receive evidence refers only to incidental facts which
were not 100 percent touched upon, or matters which were simply overlooked by the
trial court. You cannot opt not to present evidence before the RTC. It only refers to
incidental facts.
“Evidence necessary in regards to factual issues raised in cases falling within the Appellate
Court’s original and appellate jurisdiction contemplates ‘incidental’ facts which were not
touched upon, or fully heard by the trial or respondent Court. The law could not have
intended that the Appellate Court would hold an original and full trial of a main factual issue in a
case, which properly pertains to Trial Courts.”
JURISDICTION OF THE
REGIONAL TRIAL COURTS
Ito ang third level, ‘no? And by going over their jurisdiction, you will see that it is a court of general
jurisdiction and it is actually the workforce of the whole judiciary. ‘Yan…talagang mabigat ang trabaho nitong
RTC. Their workload is terrible. Before, somebody asked me, “Dean, gusto mong mag-judge sa RTC?” Inyuha na
na! (Burawi nyo!) Inyo na nang trabaho na ‘yan because there are 2 things there when you get the job of the
RTC judge: Of course, you want to excel, you want to do your job properly and efficiently, you will die early
because of the workload. Or, you end up as one who is lazy. You end up with administrative cases for laziness,
left and right. So mabuti pa, huwag ka na lang magtrabaho diyan, kasi mabigat ang trabaho diyan.
Q: How many RTC’s are there in the Philippines, from Northern Luzon to Southern Mindanao? In your
opinion?
A: You look at the opening clause of Section 13:
Section 13 (1) Creation of Regional Trial Courts – There are hereby created thirteen (13)
Regional Trial Courts, one for each of the following regions: x x
So the Judiciary law has divided the country into 13 areas which is called JUDICIAL REGION.
From the 1st to the 12th, the 13th is actually in the National Capital Region (NCR), Metro Manila.
Every division is divided into branches and the number of branches keep on increasing by law.
So, to what region do we belong? We are in the 11th judicial region. So there is one RTC for the 11th judicial
region, pero bakit ‘yun ganoon? Davao City lang, more than 10 na? Well, here is where you will go back to your
fundamentals. A court is not the same as a judge. ‘Yan…
Actually, what the law says is that, there are 13 RTCs, and every court is divided into branches. So, kung
branches siguro, malapit nang maging 1000 throughout the country. So there are 13 courts with almost 1000
judges. Now, as a matter of fact, if you want to know exactly how many there are, you refer to your Section 14.
Actually, this has been amended many times because from 1980 up to the present, Congress passed laws. In
fact when the law took effect, according to Section 14, there are originally 29 RTC judges commissioned for the
11th judicial region – 29 originally.
Now, from what I know, based on the amendment in 1991, it was increased from 29 to 41. So there are
supposed to be 41 RTC judges for the 11th judicial region. As I said, unless from 1991 to the present
dinagdagan na naman nila.
So 41 RTC judges shall be commissioned for the 11th judicial region. There should be 6 branches which sits
thereafter for the province of Davao del Norte, which sits at Tagum, Nabunturan and Panabo. Four branches
which sit thereat for the province of Davao Oriental which sits at Mati, Bagangga and Butuan. Sixteen branches
which sit thereat for the province of Davao del Sur. And the City of Davao which sits at Davao City, Digos,
Malita and Bansalan. Then 10 branches whish sit thereat for the province of South Cotabato and the City of
General Santos which sit at General Santos City, Koronadal [the City of Eumir, Francis and Mortz], Surallah, and
Polomolok. And 5 branches which sit thereat for the province of Surigao del Sur which sit at Tandag, Ginanga,
Bislig and Kantilan. So that is how they are distributed within the 11th the juridical region.
Q: So, since there are 41 of them scattered throughout the 11th judicial region, from Surigao to South
Cotabato, for example, I would like to file a case against my neighbor based in Davao. So i-file ko sa Polomolok,
anyway that’s the same court, eh. Or a criminal in Davao City file-an sa Mati. Anyway, the same court na. Are
you allowed to do that?
A. The answer is NO! Every branch of the RTC has its own area of responsibility. Except in Davao City, or in
chartered cities, the authority of every branch here is throughout Davao City. But sa probinsya, hati-hati ‘yan
eh, and the provision there is Section 18 of BP 129.
BP 129, Section 18 . Authority to define territory appurtenant to each branch – The Supreme
Court shall define the territory over which a branch of the Regional Trial Court shall exercise its
authority. The territory thus defined shall be deemed to be the territorial area of the branch
concerned for purposes of determining the venue of all suits, proceedings or actions, whether
civil or criminal, as well as determining the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts over which the said branch may exercise appellate jurisdiction.
The power herein granted shall be exercised with a view to making the courts readily accessible
to the people of the different parts of the region and making the attendants of litigants and
witness as inexpensive as possible.
‘Yan, so in the province every branch has its own defined area. So, for example if you are from Nabunturan,
you cannot file a case in Panabo. Kalayo-layo niyan. There is a branch there in Nabunturan. Doon ka mag-file.
Kanya-kanya ng responsibility.
Now, the law says, the SC has the power to define the area of its branch for purposes of supervising that
area and the MTC there. Now, as early as 1983, the SC has already come out with administrative order
17
throughout the Philippines defining the area of responsibility of each branch. Sometimes I need that, eh,
because there are cases to be filed outside Davao City, especially Cotabato Province. And you have to be
updated kung sang branch ba ako pupunta nito. Sometimes you have a hard time, eh. For example, the case
originated in Babak, part of Davao del Norte, saan ba ito i-file? Panabo or Tagum? I need to consult that
circular. ‘Yan…that will be very helpful. Now you please correlate Section 18 of the Judiciary Law with the
Interim Rules Section 2 because Section 2 of the Interim Rules is related to this, eh.
Interim Rules, Sec. 2. Territorial Jurisdiction of Courts. -

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

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

201 SCRA 609 [1991]
HELD: “Wth the enactment of Executive Order No. 229, which took effect on August 29,
1987, the Regional Trial Courts were divested of their general jurisdiction to try agrarian reform
matters. The said jurisdiction is now vested in the Department of Agrarian Reform. Said
provisions thus delimit the jurisdiction of the regional trial courts in agrarian cases only to two
instances:
1.) petitions for the determination of just compensation to landowners; and
2.) prosecution of criminal offenses under said Act.
[8] In all cases in which the demand, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs or the value of the property in
controversy exceeds One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in such
other cases in Metro Manila, where the demand, exclusive of the above-mentioned items
exceeds Two Hundred Thousand pesos (P200,000.00)[now P400,000] (exceeds 300k - 400k)
The best example is money claim. Most cases which go to court now are money claims – an action to collect
sum of money.
Q: Unpaid loan – you would like to collect an unpaid loan of your debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over P200,000 outside Metro Manila – RTC, in Metro
Manila, double the amount – P400,000. If the amount that you are collecting is only P200,000 or less obviously,
you file your case in the MTC.
If the value of the claim is > P200,000 – RTC

If the value of the claim is = or < P200,000 – MTC
So this is the same as number [3] and [4] where the jurisdiction of the MTC was raised from P20,000 to
P100,000. And under the present law, it is now P200,000. But again, this is subject to the automatic increase in
jurisdiction by 2004.
Q: Suppose the principal amount that you borrowed from me is P300,000, the interest is P30,000. And you
are collecting P10,000 for moral damages, another P10,000 for expense of litigation, etc. So my total claim is
P350,000. Where will I file the case?
A: MTC pa rin. In determining the jurisdictional limit of P300,000, do not include the interest,
damages, attorney’s fees, etc. So you deduct those from the principal claim even if you put them in
your complaint because the law says, “xxx exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs xxx.”
Q: What are litigation expenses and costs?
A: Costs are not the same as attorney’s fees and litigation expenses. Actually, attorney’s fees and litigation
expenses are part of damages. Costs are governed by Rule 141, while attorney’s fees and litigation expenses
are governed by the Civil Code. Because there is some confusion there, akala ang costs and litigation expense,
pareho. No, they are not the same.
ACTIONS PURELY FOR DAMAGES
SITUATION: Suppose the action is purely for damages, like breach of contract of carriage. Instead of bringing
you to your destination, you ended up in the hospital. You now sue the common carrier for damages and your
claim is P1 million for injuries, moral, exemplary, etc. Now, because the law says the jurisdiction of the RTC is
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above P300,000 but do not include damages. The claim in this case is P1 million, all for damages. Now, where
will you file the case?
Somebody said it should be in the MTC because in determining the jurisdiction of the RTC, you do not
include damages. If that is the interpretation, I said, all damage suits cannot be tried by the RTC because
remember, you pay filing fee for these cases but the jurisdiction is limited to the MTC. That is absurd! I do not
believe that kung puro damages wala ng jurisdiction ang RTC. Otherwise, all damage suits should be filed in the
MTC.
This question has been clarified by SC Circular No. 09-94: “Guidelines in the Implementation of RA 7691
Extending the Jurisdiction of the MTCs” where the SC said that the provision excluding damages applies
only if the damages are INCIDENTAL to the action. If the main cause of action is 100% damages,
you include it in determining the P300,000 jurisdictional limit of the MTC.
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but she survived. She claims for damages for
breach of contract of carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages exceeded P200,000. Since the case is purely for
damages, it is included in determining the jurisdiction of the court.
The rule is, you only exclude the damages if it is a secondary claim. But if damages is the
primary or only claim, you determine whether the total claim for damages is above P300,000, or
equal to or less than P200,000. Yaaann!
The SC said in this Circular, “the exclusive damages of whatever kind” in determining the
jurisdiction under Section 19 paragraph [8] applies to cases where the damages are merely
incidental to or a consequence of the main cause of action. However, if the claim for damages is
the main cause of action, the amount of such claim should be considered in determining the
jurisdiction.
EXAMPLE: Inay will file a case against Janis to recover a piece of land worth P20,000.00 only. But her claim
for damages exceeds P300,000. So, you will notice ang claim for damages is incidental lang. Ang main action is
to recover a piece of land.
Q: In what court will Inay file a civil case where she wants to recover a piece of land with value of only
P20,000?
A: MTC because of paragraph [2]. But ang damages naman is P300,000? MTC pa rin iyan
because such damages, being incidental, is not included in determining the jurisdiction of the RTC.
However, if my actions against you is purely damages, like I will file a case against you for
damages arising from vehicular collision and I will claim P350,000 for damages, it should be in the
RTC. That is the explanation. The term “excluding damages” applies only if the damages are purely
incidental to the case. But if the action is purely damages, then you observe the P300,000
jurisdictional limit.
Now, the law says, “exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses,
and costs or THE VALUE OF THE PROPERTY IN CONTROVERSY exceeds P300,000….”
Q: What is the property in controversy?

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

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

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

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

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

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

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

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

216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute between an operator or dealer and
an Oil company regarding dealership agreement, the case shall be under the jurisdiction
of the Energy Regulatory Board (ERB). So any dispute regarding their relationship
agreement except disputes arising out of the relationship as debtor and creditor. So if
the dispute arose out of the relationship as bebtor and creditor, it should be filed with
the RTC.
Now what happened here is that on December 5, 1990, Bernardo, a dealer of Caltex, ordered
gasoline from Caltex. So he ordered in the morning. At 6:00 at night on the same day, there was a
price increase. So when the gasoline was delivered the following day, Caltex charged Bernardo for
the increased price. Bernardo refused to pay and he he filed a case before the RTC. Caltex argued
that the case should be filed with the ERB.
HELD: The RTC has jurisdiction because “a contract of sale of petroleum products was
here perfected between Caltex and its operator/dealer Bernardo; that in virtue of the
payment admittedly made by Bernardo, Caltex became a “debtor” to him in the sense
that it was obligated to make delivery to Bernardo of the petroleum products ordered by
him; and that the only issue is the manner by which Caltex shall perform its commitment
in Bernardo’s favor. It is rather one cognizable by the Regional Trial Court, as a dispute
indeed ‘arising out of their relationship as debtor and creditor.’”
“What the controversy is all about, to repeat, is simply the prices at which the petroleum
products shall be deemed to have been purchased from Caltex by Bernardo in December 5, 1990.
This is obviously a civil law question, one determinable according to the provisions of the Civil Code
and hence, beyond the cognizance of the Energy Regulatory Board.”
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original
jurisdiction:
[1] In the issuance of writs of certiorari, prohibition, mandamus, quo warranto,

habeas corpus, and injunction which may be enforced in any part of their respective
regions;
Q: What is the difference between the original jurisdiction of the RTC in Section 21 and the original
jurisdiction of the RTC in Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction, whereas in Section 21 you have the original
jurisdiction but CONCURRENT with other courts.
Thus “original” jurisdiction stated in Section 21 is also shared with the SC and CA. Therefore , the SC, CA,
and RTC have original concurrent jurisdiction under Section 21. Like issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus, etc. This is concurrent with the CA and the SC. Such writs may be
issued by (a) the RTC under Section 19; (b) CA under Section 9; and (c) SC under Article VIII Section 5 of the
Constitution. The 3 courts share concurrent jurisdiction over these cases.
However the only difference is that writs issued by an RTC can only be enforced in the same
region where the RTC belongs. Unlike writs issued by the SC and CA, they can be enforced
anywhere in the Philippines.
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[2] In actions affecting ambassadors and other public ministers and consuls.
The SC and RTC have original concurrent jurisdiction in actions affecting ambassadors, other
public ministers and consuls. Section 21 paragraph 2 states only of the concurrent original
jurisdiction of the SC and RTC. Section 19 on the jurisdiction of CA does not include the action
stated in section 21 paragraph 2 as part of its (CA’s) jurisdiction.
APPELLATE JURISDICTION OF THE RTC
Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by MetTCs, MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall be decided on the basis of the entire record
of the proceedings had in the court of origin and such memoranda and/or briefs as
may be submitted by the parties or required by the RTCs. The decision of the RTCs in
such cases shall be appealable by petition for review to the CA which may give it due
course only when the petition show prima facie that the lower court has committed
an error of fact or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.
Now take note that the RTC also has appellate jurisdiction under Section 22. These are cases decided by the
MTC. So they act as a sort of ‘court of appeals.’ The RTC exercises appellate jurisdiction over all cases decided
by the MTC in their respective territorial jurisdiction.
Q: How will the RTC decide on the appeal?

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

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

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

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

A.) As to original jurisdiction – Section 33
B.) As to delegated jurisdiction – Section 34
C.) As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts in civil cases. - Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts shall exercise:
1) Exclusive original jurisdiction over civil actions and probate proceedings,

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

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

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

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

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

180 SCRA 433 [1989]
NOTE: When this case was filed, wala pa yong INSURANCE. The guiding rule was still
MANCHESTER. But while this was pending lumabas na yong SUN INSURANCE.
FACTS: The case was for recovery of land with damages (accion publiciana). So it is not purely
for damages. So how will you assess the filling fees? Based on the value of the land, binayaran ng
plaintiff ang docket fee. Defendant moved to dismiss based on MANCHESTER because the plaintiff
did not specify in the complaint how much damages he was claiming. Now the RTC of Tagum denies
the motion to dismiss. The defendant goes to the SC citing MANCHESTER.
Of course sabi ng SC wala na ang Manchester because of Sun Insurance. But here is another
rule:
27
HELD: Dalawa ang filing fee: the assessed value of the land and for the damages.
There are two (2) options here: (1.) Kung nabayaran ang docket fee for the recovery of
land pero wala ang para sa damages, do not dismiss the entire case! That is crazy if you
will dismiss the entire case kasi nagbayad man siya ng docket fee for the recovery of the
land. Just do not consider the claim for the damages. Or, (2.) second option, citing SUN
INSURANCE, give him reasonable time to pay the balance. So that's the case of TACAY.
“Where the action involves real property and a related claim for damages as well,
the legal fees shall be assessed on the basis of both (a) the value of the property and
(b) the total amount of related damages sought. The court acquires jurisdiction over the
action if the filing of the initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of
the time of full payment of the fees within such reasonable time as the court may grant,
unless, of course, prescription has set in the meantime.”
Now, there are other interesting cases on the issue on docket fees.
FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS

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

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

278 SCRA 284 [August 21, 1997)
FACTS: Mortz filed a case against Charles in Leyte. After filing, the court dismissed the case
because it should be filed in Cebu. Mortz wrote a letter to the Office of the Court Administrator
(OCA) asking that the docket fee paid in Leyte be considered applicable to Cebu. OCA granted his
request.
Charles questioned it because of the rule that the payment of docket fee is jurisdictional.
HELD: “The OCA has neither the power nor the authority to exempt any party not
otherwise exempt under the law or under the Rules of Court in the payment of the
prescribed docket fees. It may be noteworthy to mention here that even in the Supreme
Court, there are numerous instances when a litigant has had to re-file a petition
previously dismissed by the Court due to a technicality (violation of a pertinent
Circular), and in these instances, the litigant is required to pay the prescribed docket
fee and not apply to the re-filed case the docket fees paid in the earlier dismissed case.”
“In the case at bar, in the strict sense, Mortz’s complaint cannot be deemed to have been ‘re-
filed’ in Cebu City because it was not originally filed in the same court but in the RTC Leyte. Thus,
when Mortz’s complaint was docketed by the clerk of court of the RTC Cebu City, it became an
entirely separate case from that was dismissed by the RTC of Leyte due to improper venue. As far
28
as the case in Cebu is concerned, while undoubtedly the order of dismissal is not an adjudication on
the merits of the case, the order, nevertheless, is a final order. This means that when private
respondent did not appeal therefrom, the order became final and executory for all legal intents and
purposes.”
DE LEON vs. COURT OF APPEALS

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

MetTCs, MTCs and MCTCs may be assigned by the Supreme Court to hear and
determine cadastral or land registration cases covering lots where there is no
controversy or opposition, or contested lots where the value of which does not
exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by
the affidavit of the claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declarations of the real property.
Their decisions in these cases shall be appealable in the same manner as decisions
of the RTCs. (As amended by RA 7691)
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Review: These are related to your study of Land, Titles and Deeds (The Property Registration Decree) When
you file a petition for land registration, the object is to have your property registered and fall under the Torrens
System of the Land Registration. Patituluhan ba! Now, what is the difference between a land registration
proceeding and a cadastral proceeding? Cadastral is compulsory registration.
Q: Now, what is this delegated jurisdiction all about?

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

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

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

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

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

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

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

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

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

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

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

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

181 SCRA 9
HELD: “Actions in personam and actions in rem differ in that the former are directed
against specific persons and seek personal judgments, while the latter are directed
against the thing or property or status of a person and seek judgments with respect
thereto as against the whole world.”
Action in personam; EXAMPLE:
ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng court: “Alright
Momma Jessa, you are the winner and you are entitled to the land.” Now, here comes Baby Maya. Momma Jessa
says, “Wala na iyan, tapos na iyan. In the case, that was already decided that I am entitled.” Sabi ni Baby
Maya, “Ah, that is between you (Momma Jessa) and Little Lulu. But I’m different. I have evidence to prove that
my right is better than yours. I am not bound by that decision.”
Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on Baby Maya?
A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment where she is not
a party. Hence, the action between Momma Jessa and Little Lulu is an action in personam.
Action in Rem; Example:
ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage. Suppose
the husband (Joshua) files a case against his wife (Tekla) to annul their marriage. After trial, the court rendered
judgment annulling the marriage of Joshua and Tekla. It became final. Now, the status of the parties is SINGLE
na naman because the marriage is annulled. Joshua meets another girl, Maying, and courted her and told
Maying, “I would like to marry you.” Maying said, “I cannot marry you because I know you are married. How can
I marry you when you are already married?” Joshua said, “Not anymore. I’m no longer married because my
35
marriage with Tekla is already annulled and here is the decision. So, I’m single.” According Maying, “No, I am
not bound by that judgment because I was not a party to that case.”
Q: When the court ruled in the case between Joshua and Tekla that the marriage is annulled and that
now you are single, is the judgment binding on anybody?
A: YES. Your status is single and whether you are a party in the case or not, you are bound by the
judgment because it is directed against the whole world. Your status is to be respected.
ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the Tenor ( most
outstanding student of Pavarotti… ), to be considered a recognized child and the court said, “Yes, you are
declared a child of the defendant,” Rod the Tenor is now compelled to recognize you. Your status as a
recognized child is not only binding on your father but is binding on the whole world. Your status is
no longer unrecognized.
Take note, an action in rem and in personam have often been confused with the classification of real and
personal action. They sound almost the same. That an action in personam is also a personal action, or, when an
action is in rem it is also a real action – it is not true. That is a different classification. An action could be as to
cause – it could be real. As to object, it could be in personam. In the same manner, it could be personal action
but an action in rem. So, these are two different classification.
ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of land. It
is a REAL action. In real action, the subject is possession or ownership of real property. Any
judgment therein binds only the parties, and not the whole world. So, it is also an action IN
PERSONAM. It is a real action as to cause, but as to object, it is in personam.
ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL action
because it does not involved his property. It is about status. But it is also IN REM because the
judgment therein is binding the whole world.
So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges interchange
one with the other. Last year, I was reading the SCRA, I cannot remember the decision where before deciding,
the SC gave a lecture: The trouble with this case, the basic error of the court is that it confused real action with
an action in rem and an action in personam with a personal action a real action could be in personam and a
personal action could be in rem. So do not be confused.
QUASI IN REM
Text writers gave a sort of third classification as to object. This is called action quasi in rem. “ QUASI” means
almost. So, ‘quasi in rem’ is almost in rem. Actually, it is in personam but almost in rem.
Q: Define action quasi in rem.

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

A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which a party seeks to establish a status, a

right, or a particular fact. (2a, R2)
Special proceedings should not be confused with a civil action. Special Proceedings are governed by Rules
72-109 of the Rules of Court. You look at the table of contents and you will see them. That is a third year
subject.
BAR QUESTION: Distinguish a civil action from a special proceeding.

A: The following:
1.) A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong, whereas,
36
A SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right, or a
particular fact;
2.) In a CIVIL ACTION, there are two (2) definite and particular adverse parties, the party who
demands a right, called a plaintiff, and the other whom the right is sought, called a defendant,
whereas,
In a SPECIAL PROCEEDING, while there is a definite party petitioner, there is no definite adverse
party as the proceeding is usually considered to be against the whole world;
3.) A CIVIL ACTION requires the filing of formal pleadings, whereas

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

the original complaint in court. If an additional defendant is impleaded in a later
37
pleading, the action is commenced with regard to him on the date of the filing of
such later pleading, irrespective of whether the motion for its admission, if
necessary, is denied by the court. (6a)
Q: When is a court action deemed commenced?

A: A civil action is commenced by the filing of the original complaint in court . Of course this is
not really complete. The filing of the original complaint in court must be accompanied by the
payment of the correct docket fee. A complaint is not deemed filed until the docket fee is paid. This
is important to determine the exact date that the action has commenced because it is from that
moment that the running of the prescriptive period is interrupted.
The second sentence of Section 5 states that, “If an additional defendant is impleaded in a later pleading,
the action is commenced with regard to him on the date of the filing of such later pleading…”
Example: Today (November 19, 1997), I filed a complaint against A. So, the action is commenced on Nov.
19, 1997. However next month, say, December 19, if there is an additional defendant, the date of the
commencement of the action with regards to the additional defendant is not the date when the original action is
filed, but on the date when he was included in the amended pleading.
Last section. How do you interpret or construe the Rules of Court?
Sec. 6. Construction. - These Rules shall be liberally construed in order to promote

their objective of securing a just, speedy and inexpensive disposition of every action
and proceeding. (2a)
So, the Rules of Court shall be interpreted liberally in order to promote their object which is to promote their
objective of securing a just, speedy and inexpensive disposition of every action and proceeding. The purpose of
Procedural Law is to hasten litigation. So you do not interpret it to prolong a case. That is based on the
principle of liberal construction. According to the SC in one case commenting on this:
DE GUZMAN vs. SANDIGANBAYAN

256 SCRA 171, (en banc)
HELD: “The Rules of Court was conceived and promulgated to set forth guidelines in the
dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise,
courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is
precisely why courts in rendering real justice have always been, as they in fact ought to be,
conscientiously guided by the norm that when on the balance, technicalities take a backseat
against substantive rights, and not the other way around. Truly then, technicalities, should give
way to the realities of the situation.”
So, the purpose of procedure is to help the hand that dispenses justice and not to tie these hands.
Otherwise, the courts will become mere robots. And, as much as possible, courts should avoid technicalities. To
give way to the realities of the situation.
In one case, “Lawsuits, unlike duels, are not to be won by a rapier’s thrust.” (Alonzo vs. Villamor, 16 Phil.
315) Hindi yan espadahan na ang unang magsaksak, daog . That is not the concept of litigation. You do not lie
in ambush. That’s another pronouncement.
That’s why the SC said in another case:
SANTOS vs. COURT OF APPEALS

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

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

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

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

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

which a party violates a right of another. (n)
Now, for the first time, Section 2, which is also a new provision, has incorporated the definition of what is a
cause of action. However, again, it is not a new principle because even under the 1964 Rules we must such
definition is already recognized.
Q: Define cause of action.

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

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

2. a correlative obligations of the defendant; and
3. violation of plaintiff's right by the defendant (also called delict)
39
You remove one of these and there is no cause of action. You think of any case under the sun, it must have
all these elements. Now, there is a fourth element added by some cases and commentators – the element of
damage suffered by the plaintiff. So based on that, these are the elements of a cause of action:
1. a RIGHT pertaining to the plaintiff;

2. a CORRELATIVE OBLIGATIONS of the defendants;
3. a VIOLATION of plaintiff’s right; and
4. DAMAGE suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief are you asking for? There can
be no action where no injury is sustained.
As a matter of fact, in a recent case, the SC remarked that wrong without damage or damage without wrong
does not constitute a cause of action since damages are merely part of the remedy allowed for the injury
caused by a beach or wrong.
There can be damage without injury in those instances in which the loss harm was not the
result of a violation of a legal duty. These equations loss are after all called “damnum absque
injuria.” Another latin maxim, “accio non datur non damnificato”, which means there could be no
action where no injury is sustained. So that is part of the definition of cause of action. Damage
without injury does not create any cause of action.
So the elements are: right, obligation, violation and damage. These are the four elements of a cause of
action. You cannot imagine of any civil case where the 4 elements are not present.
EXAMPLE: A debtor borrows money from creditor. Then, it is already due. Ayaw pa ring magbayad. Let’s
try to find out the elements.
RIGHT - the right of the creditor to get back his money;

OBLIGATION – The defendant has the obligation to pay back the loan under the law on contracts;
VIOLATION or delict or wrong – the account fell due and the debtor is supposed to pay the creditor, but
the former did not pay the latter;
DAMAGE. – the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a complaint against somebody, you do not prepare
the complaint by enumerating the elements. In other words, nasa istorya man yan ba. It is up for the defendant
to analyze. It is the duty of the lawyer to analyze the complaint whether the 4 elements are present.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You are crossing the street and a driver just
bump you there. And you are hospitalized. You fail to report for work.
RIGHT – it is the right of every person not to be molested. You have the right to walk peacefully and not
to be harmed;
OBLIGATION – it is the obligation of every person driving to be careful so that he will not bump other
people. You do not have to enter into a contract with a person saying you will not bump him;
DELICT or wrong – because of your recklessness, you violated his right by injuring him;
DAMAGE – I have to spend money in the hospital and I lost my income.
The 4 elements are present. So there is a cause of action. In other words, you cannot imagine a civil case
where the 4 elements are not present.
ANOTHER EXAMPLE: Defendant borrowed money from you last year payable in November 1998. And
despite demands, still he has not paid you. Now, is there a cause of action?
RIGHT – the creditor has the right to collect;

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

A: Right of action is the right of the plaintiff to bring an action and to prosecute that action to
final judgment. (Marquez vs. Varela, 92 Phil. 373)
Q: What are the ELEMENTS of a right of action?
A: There are two (2) elements:
1.) the plaintiff must have a good cause of action; and
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2.) the must have performed all conditions precedent to the filing of the action.
So, you cannot have a right of action unless you first have a cause of action. That is why the SC said in the
case of
DE GUZMAN, JR. vs. COURT OF APPEALS

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

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

1.) Cause of action is the delict or wrong committed by the defendant, whereas
Right of action refers to the right of the plaintiff to institute the action;
2.) Cause of action is created by substantive law (e.g. rights under the Civil Code), whereas
Right of action is regulated by procedural law;
“Right of action is a remedial right belonging to some persons, while cause of action is a
formal statement of the operative facts that give rise to such remedial right.” (De Guzman vs.
CA, supra)
3.) Right of action may be taken away by the running of statute of limitations, by estoppel or other
circumstances which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His failure to pay is the cause of
action. After 10 years, the right to collect has prescribed and you cannot recover anything.
Actually, what is barred is his right of action, not the cause of action because the
moment he does not pay, there is already a wrong and you cannot erase a wrong. The
cause of action is not affected by prescription. In fact, the Civil Code provides that the
obligation is converted into natural obligation, which is based on equity rather than a
right.
Because sometimes, you say that the action has prescribed. So you are invoking the law on
prescription. But what has prescribed? Is it the cause of action? No. The cause of action does not
prescribe. What has prescribed is the right of action. Yaan!
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action . - A party may not institute more than
one suit for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Q: What is splitting a single cause of action?
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A: Splitting a cause of action is the practice of dividing one cause of action into different parts
and making each part a subject of a different complaint. (Bachrach vs. Icariñgal, 68 Phil. 287)
That practice is expressly prohibited by law as expressed in Section 3, “A party may not institute more
than one suit for a single cause of action.” The rule is simple: If there is one cause of action, you
file only one case. You cannot file two, three or four cases arising out of one cause of action,
otherwise you are splitting it.
EXAMPLE: In a suit under a promissory note, you file a case to collect the principal; another action to collect
the interest; another action to collect attorney’s fees. So, there is only one note and you sue me three times but
there is only one cause of action. Now, under the law, you have split your cause of action. You should file only
one case to recover the principal and the interest as well as the attorney’s fees.
EXAMPLE: Damage (injury) suit: Carlo, while walking was bumped by a vehicle. He filed one case against
the owner of the vehicle for reimbursement of hospital expenses; one case to recover his expenses for
medicine; another one for doctor’s fees; then another case for the lost income. Practical by you have filed four
cases arising from one cause of action. Isang banggaan lang, naging apat ang kaso? Again, the Carlo here has
engaged in the prohibited practice of splitting cause of action. The correct procedure is that he should file one
action and demand the recovery of all these expenses and the lost income.
Sec. 4. Splitting a single cause of action; effect of . - If two or more suits are
instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others.
(4a)
Q: And what are the effects of splitting a cause of action?

A: Under Section 4, the following are the effects:
1.) The filing of one is available as a ground for the dismissal of other. That is what you call
LITIS PENDENTIA – there is another action pending between the same parties for the same
cause. This is one ground for dismissal of a case (Rule 16 – Motion to Dismiss, Section 1 [e])
So you file a case. And while it is pending, you file another case against the same
party with the same cause of action. Under Section 4, one of them is subject to
dismissal.
2.) a judgment upon the merits in any one is available as a ground for the dismissal of the
others. That is what you call barred by prior judgment or RES ADJUDICATA, which is also a
ground for dismissal under Rule 16, Section 1 [f].
EXAMPLE: A case was already decided a long time ago. Now, you are reviving the same case –
you are filing again. Under Section 4, the judgment in the first case years ago would be cited as a
basis for the dismissal of the second case.
Q: What is the reason or philosophy for the rule against splitting a single cause of action?
A: The rule against splitting a cause of action is intended to prevent repeated litigations between the same
parties in regard to the same subject of controversy; to protect the defendant from unnecessary vexation; and
to avoid the costs incident to numerous suits. (Bachrach vs. Icariñgal, supra; Bacolod City vs. San Miguel, Inc.,
L-25134, Oct. 30, 1969)
Actually, the reason is common sense eh – to protect the defendant from unnecessary vexation. Why create
two cases when you have only one cause of action? And why make me spend more? Magasto yung balik-balik
sa court. It becomes an expensive process. And why should you harass somebody when he only committed one
wrong? You file a case against him but do not harass him more than once. Nemo debet vis vesare procuna em
iyadens cusa – “No man shall be twice vexed for one and the same cause.”
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?

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

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

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

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

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

A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the creditor
has not filed any case for the collection of the first installment, this time, when he files for
collection of the unpaid second installment, everything must be integrated. So there should only
be one complaint for P200,000 representing the first and second installments. If you do not file a
claim for one, it is deemed barred.
So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You
should only file one action for P300,000 and you go back to the general rule.
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RULE #4 (Exception to Rule #2):
However, when the failure to comply with one of several
stipulations in a continuing contract constitutes a total breach, a
single cause of action for damages, actual as well as prospective,
arises from such breach. (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)
EXAMPLE: This year the first installment fell due. So the creditor demanded payment for the first installment
from the debtor which the latter denied,! The signature in the note is not mine!”
Now, in that kind of statement, he is not only repudiating the first installment. He is
repudiating the entire note. So under rule #4, the creditor can file a case for the entire loan of
P300,000 because it has been repudiated. If you only file only one for the P100,000 which fell due,
then next year, file na naman, it will be useless because he will still maintain the same position,
“Wala akong utang sa iyo! Tigas ng ulo!” So you do not wait anymore for the 2nd and 3rd
installments to fall due. You file only one case for the entire breach. There is a total breach for a
continuing obligation and there is now only one cause of action for the entire promissory note
So theses are the basic principles of cause of action that I want you to remember.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against an
opposing party, subject to the following conditions:
xxxxx
A party may in one pleading assert, in the alternative or otherwise, as many causes of action as
he may have against an opposing party (opening paragraph of Section 5)
Q: What do you mean by joinder of causes of action?

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

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

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

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

Chams is a passenger riding on a public utility vehicle which collided with another vehicle and she is
not sure who is at fault. If the fault lies with the other vehicle, and the driver of the bus where Chams
was riding is not at fault, then her cause of action against the other vehicle is quasi-delict. But if the
fault lies with the driver of the bus where she was riding, her cause of action is culpa contractual. So
she has 2 possible causes of action.
Q: Is it possible for Chams to file one complaint naming both the drivers or both operators as
defendants?
A: YES. Either of them is liable to her. That is alternative joinder of causes of action.
CUMULATIVE JOINDER; Example:

Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes from the John “The Yellow
Man”. Pches is not claiming from either promissory notes but she is claiming all.
ANOTHER EXAMPLE: Roy “The Councilor,” an illegitimate child files a case against his father for
compulsory acknowledgment as illegitimate child and support. There are two causes of action which are
gained: an action for recognition and also for support. This is not alternative actions but rather, these
are cumulative. The child is asking for BOTH relief.
That is why the manner of joining the defendants alternatively or otherwise should be correlated with Rule
3, Section 13 and Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff is uncertain against
who of several persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief against one may be
inconsistent with a right of relief against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A party may set forth
two or more statements of a claim or defense alternatively or hypothetically, either
in one cause of action or defense or in separate causes of action or defenses. When
two or more statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. (2)
Q: When is joinder of causes of action allowed?

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

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

A: YES because there is a common question of fact or law. They are riding on the same bus, meeting
the same accident, against the same operator. So there is a joinder of parties under Rule 3. And if the joinder of
parties under Rule 3 is proper, then their causes of action can also be joined under Rule 2 because the condition
is: “shall comply with the rules on joinder of parties.”
Q: Suppose these passengers were riding on different buses owned by the one operator. They are on
different trips. One is going to Mati; one is going to General Santos; and one is going to Cotabato. All of them
met an accident. Well of course the same kind of case: damage suit, breach of contract against the same
operator. Now, can their causes of action be joined?
A: NO. They cannot be joined because there is no common question of fact or law. The defense
of the operator here is different from his defense there. Meaning, passenger A has nothing to do
with the complaint of passenger B because there is no common denominator between them. So if
you cannot join them under Rule 3, the joinder of causes of action under Rule 2 is also improper.
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b.) The joinder shall not include special civil actions
or actions governed by special rules
So, a joinder shall not include special civil actions or actions governed by special rules. The
reason here is simple: Special Civil Actions are governed by certain rules which do not apply to
ordinary civil actions. So a special civil action cannot be joined with an ordinary civil action, or, an
ordinary civil action cannot be joined with an action governed by special rules such as Election
cases, naturalization cases, insolvency cases. In the 1983 case of
UNION GLASS AND CONTAINER CORP. vs. SEC

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

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

A: Only natural or juridical persons or entities authorized by law may be parties in a civil action .
So, you cannot sue or be sued unless you are a person. A dead man cannot sue and he cannot be
sued because he has no more personality.
That is why in one case, Brod Pito sued the firm name, “Paningkamot Store.” So, it is “Brod Pito vs.
Paningkamot Store.” The SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng tindahan iyan.
The correct procedure is you sue the owner because he is the real person. But the defect is not really
substantial. It is only a formal defect that can easily be corrected.
“ENTITIES AUTHORIZED BY LAW”
Q: Give an example of an entity authorized by law which can be sued although it is not a person.
A: The best example is Section 15 of this rule.
Section 15. Entity without juridical personality as defendant.- When two or more
persons not organized as an entity with juridical personality enter into u transaction,
they may be sued under the name by which they are generally or commonly known.
In the answer of such defendant the names and addresses of the persons
composing said entity must all be revealed.
Another example of an entity authorized by law which may not be a natural or juridical person
is a labor union under the Labor Code. It is an entity authorized by law to file a case in behalf of
the of its members. Although it may not have been incorporated under the Corporation Law but
registered under the Labor Code.
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Q: Who are the plaintiffs, defendants?
A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant, the
cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word ‘plaintiff’ covers them.
The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim, the
cross-defendant, or other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections 6, 8 & 11.
I. REAL PARTIES IN INTEREST
Sec 2. Parties in interest. - A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted
or defended in the name of the real party in interest. (2a)
Q: Who is a real party in interest?

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

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

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

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

defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall
be included in the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. An agent acting in his own name
and for the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the principal.
(3a)
Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you are not
the real party in interest. But Section 3 allows one who is not a real party in interest to sue and be sued in
behalf of somebody else. It is possible if you can qualify as a representative party.
Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in behalf of
the minor. A minor cannot use and be sued but she is the real party in interest. The law allows the parents to
come in and also be the plaintiff. The parents are what we the representative party. The law still requires for the
minor to be included in the case. The law states that “the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.”
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an express trust, or

executor or administrator of the estate of a deceased person. When a person dies, what survives after him is his
estate which represent everything that is left behind. This later on will be given to his heirs. But for the
meantime under the law on succession, the executor or administrator will take charge of his property.
Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate, you should sue
the estate through the administrator or executor.
CHING vs. COURT OF APPEALS

181 SCRA 9
FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The problem is, she
cannot locate John’s whereabouts. Also, Maya was not certain whether John is dead or alive. So, to
play it safe, what the Maya did was to file a case against the “defendant and/or the estate of
defendant.” Maya obtained a judgment against the ‘defendant and/or the estate of defendant.’
Later on when the judgment was enforced, it turned out that the John was already dead (tsk!
tsk!) but he has properties left behind. So, they started to take hold of their properties. Now, the
heirs of the John challenged the decision.
ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the estate of the
defendant.”
HELD: The decision is void. “The decision of the lower court insofar as the deceased is
concerned, is void for lack of jurisdiction over his person. He was not, and he could not have been
validly served with summons. He had no more civil personality. His juridical personality, that is
fitness to be subject of legal relations, was lost through death (Arts. 37 and 42 Civil Code).”
“The same conclusion would still inevitably be reached notwithstanding joinder of
B’s estate as co-defendant. It is a well-settled rule that an estate can sue or be sued
through an executor or administrator in his representative capacity.”
So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract involves
things belonging to the principal.
The agent cannot sue because the principal is the real party in interest. But when an agent acts
in his own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT
when the contract involves things belonging to the principal. Under the exception, the principal
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has really to be included. The agent cannot file a case where the principal will lose his property
without being named as part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as
provided by law. (4a)
Normally, the husband and the wife should sue and be sued together. Even if the wife borrowed money
alone and you want to sue the woman, still the husband should be included. Why? In the property relationship
between the husband and wife, they are governed by absolute community or conjugal partnership. Whether
you like it or not, the implication of the wife is also the implication of the husband because of the property
relationship.
In the same manner, if the wife wants to collect, even if the husband does not know anything about it, the
husband should still be named as party plaintiff, on the ground again that in the income that she can get
redounds to the benefit of the conjugal partnership.
And there were decided cases in the part where even if for example, a wife sues without the
husband, the defect is not fatal but merely format. The complaint should not be dismissed. All that
is to be done is to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code), and
under Article 111, Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or otherwise

dispose of his or her exclusive property without the consent of the other spouse
and appear alone in court to litigate with regard to the same. (Family Code)
Sec 5. Minor or incompetent persons . - A minor or a person alleged to be

incompetent, may sue or be sued, with the assistance of his father, mother, guardian,
or if he has none, a guardian ad litem. (5a)
Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents and
considered as representative party. Incompetent persons includes insane people or mentally retarded people.
They are supposed to be under the custody of other persons, the guardians. If no guardian, the court has to
appoint a guardian called the guardian ad litem.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or against any right to
relief in respect to or arising out of the same transaction or series of transactions is
alleged to exist, whether jointly, severally, or in the alternative, may, except as
otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such plaintiffs or to all
such defendants may arise in the action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder of
causes of action because when there is proper joinder of parties, necessarily there is also automatic joinder of
causes of action. But there could be joinder of causes of action without joinder of parties.
Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be joined
together as defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against or against the parties joined in respect to
or arising out of the same transaction or series of transactions; and
2.) There is a question of law or fact common to the parties joined in the action.
PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an accident.
All of them want to sue the operator of the carrier for damages arising out of the breach of contract of carriage.
Under the Law on Transportation, it possible for each passenger to file his own case because our causes of
action are different from each other. But can they be joined together in one complaint against the common
carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured
passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the
witnesses for both parties will be the same; the report will be the same; the defense of the
operator against one party will be the same defense as against the other passenger. So, since
there is a common denominator on their causes of action, they can be joined.
It would be different if the passengers were riding on different buses belonging to the same
company, and all of them met an accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is no common denominator – no
common question of fact. Therefore, they cannot be joined.
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PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings. They were
allegedly involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis, Thad and Sheriff. Now, the
five of them want to sue the Inquirer for damages arising from libel. Is it possible for the five (5) people named
in the article to file only one complaint against the editor and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a
different issue. So there is a common question of act law in their cause of action.
PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing injury to other
passengers. So, there are three offended parties : the owner of the vehicle, the driver of the vehicle , and the
passenger. There are three(3) causes of action. Can they join in one complaint against Myra, the owner of the
car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.
Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It is not
mandatory but optional although the law encourages permissive joinder of parities.
Q: Why does the law encourage joinder of parties?

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

2.) to prevent multiplicity of suits;
3.) to expedite the termination of the litigation; and
4.) to attain economy of procedure under which several demands arising out of the same
occurrence may be tried together thus avoiding the repetition of evidence relating to
facts common to the general demands.
Now, take note that when there is joinder of parties, there is automatically a joinder of causes of action.
That is why one of the conditions of limitations in joinder of causes of action is you must observe the rule on
joinder of parties. If joinder of parties is improper under Rule 3, the joinder of causes of action is also improper
under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES OF

ACTION. BUT THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
Paano yun?
EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure three (3) loans
from me.
Q: How many causes of action do I have if Melissa will not pay me?
A: Three (3) man ba!
Q: Now, can I join them in one complaint?

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

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

A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of parties because there is only one
plaintiff and one defendant. But if you join parties in Rule 3, automatically, there is joinder of
causes of action. This is the relationship of these two provisions.
Finally, the last two types of parties to the action are the so-called indispensable parties and necessary
parties. (Section 7 and Section 8, respectively)
INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable parties . Parties in interest without

whom no final determination can be had of an action shall be joined either as
plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not indispensable but
who ought to be joined as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or settlement of the claim subject of
the action. (8a)
Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now they change
the word from ‘proper party’ to ‘necessary party.’ This readopts the old name under the 1940 Rules. Under the
old rules, the parties were either indispensable or necessary. Then under the 1964 Rule, it was changed from
‘necessary’ to ‘proper.’ Now, under the new rule, back to its old name: ‘necessary party.’
Q: Distinguish indispensable from necessary party.

A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence being a sine qua
non of the exercise of judicial power, for without him, no final determination can be had of the action. (Borlasa
vs. Polistico, 47 Phil. 345)
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A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole controversy
and avoid multiplicity of suits, but if for some reason or another he cannot be joined, the court may proceed
without him and the judgment shall not prejudice his rights. (Ibid.)
Q: Give examples of indispensable party.

A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De
Lara vs. De Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be made
parties. (Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership of land, the person
who claims to be the owner of the land is the indispensable party defendant and not the one in
possession as tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)
Q: Give examples of necessary party.

A: In an action for collection of debt instituted by the creditor against the surety, the principal
debtor is merely a necessary party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt
instituted by the creditor against the debtor, the guarantor or surety is merely a necessary
property. (Ibid.) In an action for foreclosure of a real estate mortgage instituted by the first
mortgagee, the second mortgagee is merely a necessary party. (Somes vs. Gov’t of Phil., 62 Phil. 432)
REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to the
creditor is only secondary. Meaning, the guarantor is only liable to the creditor if the principal
debtor cannot pay like when the debtor is insolvent. On the other hand, a surety is principally
liable to the creditor whether or not the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed money from the
creditor, then another acted as the surety. Now, suppose the debtor will not pay, the creditor files now a case
against the surety without the debtor. The debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will he do next?
He will now sue the principal debtor for reimbursement. Meaning, there is still a future case. Thus, there could
be no complete relief between those who are parties. So, the debtor is a necessary party, and not
indispensable. But it is advisable to join the debtor in one case, para pag nag-claim ang creditor from the
surety, the latter can automatically claim from the debtor. Pang-one time ba!
PROBLEM: Kuya Mortz borrowed money from Doña Eugenia a.k.a. Genie. Ate Maya is the guarantor. The
Doña Genie filed a case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be insolvent, the
creditor will now file another case against the guarantor.
REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the creditor can
collect the whole obligation from any of the debtors without prejudice to the right of the latter for
reimbursement of his share in the obligation from his co-debtors. On the other hand, in joint obligation, the
creditor can only get from a debtor the latter’s share in the whole obligation. Meaning, the creditor cannot
compel the debtor to pay the share of his co-debtor. Kanya-kanya tayo.
PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doña Eugenia is the creditor.
Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doña Eugenia can only collect from Manuel up to P50,000 only because of their joint obligation.
Cathy is only necessary insofar as Manuel’s share is concern. But Manuel is indispensable party insofar as his
share is concern.
Q: But if Doña Eugenia wants to collect the entire P100,000, what should she do?
A: She should file a case against both Manuel and Cathy.
PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doña Eugenia is the
creditor. Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doña Eugenia the whole amount of the debt because of solidary
obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely necessary party.
Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading

in which a claim is asserted a necessary party is not joined, the pleader shall set
forth his name, if known, and shall state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause,
shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)
If you do not implead a necessary party, you must give an explanation why did you not implead
him. The law requires as much as possible that all parties be impleaded to avoid multiplicity of suits. EXAMPLE:
Tato “The Hunk” files a case against Andre “The Hippie”, a surety, without including Sheriff “The Punk” as the
debtor. In the complaint of Tato, he shall explain why he is not including Sheriff.
52
Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the
court from proceeding with the action. The judgment rendered shall be without prejudice to the
rights of such necessary party.
However, if the court finds no valid reason for not impleading a party, the court may order the
inclusion of the necessary party under Section 9. And take note that under the new rules, the
failure to comply with the order of inclusion without justifiable cause shall be deemed a waiver of
the claim against such (necessary) party.
EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the court, and
later on, Andre cannot also pay Tato, there is no way now for Tato to go against Sheriff anymore because he
(Tato) failed to comply with the order of inclusion without justifiable cause.
Sec. 10. Unwilling co-plaintiff. If the consent of any party who should be joined as
plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be
stated in the complaint. (10)
This is particularly true with INDISPENSABLE parties – the case cannot proceed without you.
EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover property
which they believe was owned by their parents. Then, brother 4 say to sister 1, “Let us file a case.” But sabi ni
sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi mo ako pinilit eh!” Meaning, all of them will
suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?

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

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

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

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

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

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

72 SCRA 347 [1976]
FACTS: This concerns the big property of the Araneta’s in Quezon City. It has been the subject
matter of litigation for the past years – 3 or 4 decades. It is a big track of land in Quezon City
occupied by so many people who want to acquire it. They are questioning the title of the Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the Araneta is
very big, they subdivided it – kanya-kanyang lote. Then a case was filed by Sulo ng bayan
Association against Araneta to annul the title of the latter.
ISSUE #1: Whether or not the action was file in the name of the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 – “the action must be
prosecuted and defended in the name of the real parties in interest.” The members occupying the
land are the plaintiffs. The association is not the one occupying the lot. So, the first question is, who
should be the plaintiff? It should be the members.
ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a class suit:
In a class suit, the subject matter is of common interest to all. Meaning, lahat tayo is
interesado. To illustrate:
You are Occupant No. 1, which lot do you occupy? “Here (a particular lot).” Meron ka
bang interest diyan? “Meron.” Do you have an interest in that (another lot)
portion? “Wala.” If that is so, then the subject matte is not of common interest. The
interest of one occupant is only on the lot he occupies. Meaning, “My neighbor does not
have an interest on the lot I occupied.”
What should be done is that all of them to sue together to cover the entire property, for each
one has a lot. So, in that case, Section 6 should be applied – permissive joinder of parties because
there is a common question of fact. This is more of permissive joinder of Parties rather than a
class suit. That’s why you can confuse Section 6 with Section 12. But the permissive joinder of parties
kailangan, lahat kayoi nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but they
can join together. Unlike in a class suit, the subject matter is of interest to everybody and we
cannot all be joined because we are so numerous.
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BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO LINES
May 19, 1989
RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines.
FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was an
attempt to file a class suit in behalf of everyone who were drowned including those who were not
identified.
HELD: That cannot be. The survivors have no interest in the death of other
passengers. The interest in this case is individual. What would have been proper is
permissive joinder of parties because of common question of tact or law, but not class
suit.
OPOSA vs. FACTORAN

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

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

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

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

257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of hundreds of employees. Is
this a representative suit or a class suit?
HELD: “What makes the situation a proper case for a class suit is the circumstance
that there is only one right or cause of action pertaining or belonging in common to
many persons, not separately or severally to distinct individuals. The object of the suit
is to obtain relief for or against numerous persons as a group or as an integral entity,
and not as separate, distinct individuals whose rights or liabilities are separate from and
independent of those affecting the others.”
In a representative suit, there are different causes of action pertaining different persons.
“In the present case, there are multiple rights or causes of action pertaining separately to
several, distinct employees who are members of respondent Union. Therefore, the applicable rule is
that provided in Rule 3 on Representative Parties. Nonetheless, as provided for in the Labor Code, a
legitimate labor organization has the right to sue and be sued in its registered name. This
authorizes a union to file a representative suit for the benefit of its members in the interest of
avoiding an otherwise cumbersome procedure of joining all union members in the complaint, even if
they number by the hundreds.” For convenience, the Labor Code allows a union to file a
representative suit.
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It is important to note the following:
1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit
in behalf of the entire corporation because intra-corporate remedy is useless.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of
several persons he is entitled to relief, he may join any or all of them as defendants
in the alternative, although a right to relief against one may be inconsistent with a
right of relief against the other. (13a)
Alternative defendants is also related to alternative causes of action – even if your right against one is
inconsistent with your right to relief against the other party, you may file a suit against the alternative
defendant. (c.f. Rule 2, Section 5 – Joinder of Causes of Action)
You filed a case against the operators of two vehicles. In effect, your cause of action is either culpa
aquiliana or culpa contractual. Is that not inconsistent? The law says, “although a right to relief against one may
be inconsistent with a right against the other.” In other words, even if the two causes of action is inconsistent
with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only question is, who
among the two will be held liable.
Although the law is silent, if there is such a thing as “alternative defendants,” there is no reason why the
grounds for “alternative plaintiffs” should not be allowed.
Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of
defendants. When several persons are uncertain as to who among them is entitled to relief from a
certain defendant, they may join as plaintiffs in the alternative. This is also sanctioned by the rule on
permissive joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the principal and his agent may
join as plaintiffs in the alternative against a defendant. If the agency is proved, the relief is
awarded to the principal. If not, award is then made to the agent.
Sec. 14. Unknown identity or name of defendant . Whenever the identity or name of a
defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other
designation as the case may require; when his identity or true name is discovered, the pleading
must be amended accord. (14)
Q: Can you sue somebody who is unknown?

A: YES, under Section 14.
BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a car, say a Toyota
Altis, 2001 model, color blue. Now, so far, he could not determine who is the owner. If you are the lawyer of the
Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my
complaint, “Leyva ‘the rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with
plate number so and so.” And later if you discover the true identity of the owner, we can amend
the complaint to place the name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an unknown accused.
RULE 110, SEC. 7. Name of the accused. – The complaint or information must state the
name and surname of the accused or any appellation or nickname by which he has been or is
known. If his name cannot be ascertained, he must be described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other
manner to the court, such true name shall be inserted in the complaint or information and
record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. When two or more persons
not organized as an entity with juridical personality enter into a transaction, they may be sued
under the name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said
entity must all be revealed.
Rule 1, Section 1 provides that only natural of juridical persons may be sued.
Entity without juridical personality as defendant. Under the old law, this was known as suing two or more
persons involved in a business under a common name. When two or more persons transact in a business under
a common name, they may be sued under their common name.
Q: Who are really the defendants here? A: The persons involved.

56
Now, it is worded in this manner: “When two or more persons not organized as an entity with juridical
personality,” instead of a ‘common name.’ You cannot sue the entity because it has no juridical personality. But
you do not also know the members of that entity, so the law allows you to file a case against the entity.
Under the second paragraph of Section 15, when the defendants file an answer, they must file under their
names as they are really the real parties in interest. When the lawyer answers the complaint, he is duty-bound
to provide the names of all the defendants.
Q: How do you summon this kind of defendant?

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

rendered against two or more persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in interest.

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

2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action
dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to
inform the court within thirty (30) days after such death of the fact thereof, and to
give the name and address of his legal representative or representatives. Failure of
counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or administrator and the court may
appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if
the one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be recovered as
costs. (16, 17a)
First of all, there are cases when a party to a pending action dies and the claim is not thereby extinguished
(this is what they called an action which survives as we will explain later) and there are certain actions where
if a party dies, the claim is automatically extinguished. Meaning, the death of a party causes death of the
action. But these are very few. Majority of cases when the party dies, the case or the cause of action continues.
It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of
the party thereof. He must inform the court and give the name and address of his legal
representative/s (e.g. administrator of executor of the estate)
Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically
terminated by the death of the client because the lawyer-client relationship is personal. But
procedurally, you must tell the court and you must give the name of the legal representative. The
latter may re-hire the lawyer but under a new contract.
The purpose there is for substitution so that the legal representative will be ordered substituted. And there
is a new provision under the new rules. That is, failure of the counsel to comply with his duty shall be a ground
for disciplinary action. That is not found in the prior rule. So, the lawyer can be subjected to disciplinary action.
So the provision continues, “the heirs of the deceased may be allowed to be substituted for the
deceased without requiring the appointment of an executor or administrator. And the court may
appoint a guardian ad litem for the minor heirs.
So, other than the legal representative, before anything else, the representative refers to the
executor or administrator, and the other alternative will be the heirs, such as the surviving
children, wife or spouse.
Although there was a case decided by the SC way back in 1986 in the case of
57
LAWAS vs. COURT OF APPEALS
146 SCRA 173
HELD: “The priority of substitution would be the executor or administrator not the
heirs. The heirs would only be allowed to be substituted if there is an (1) unreasonable
delay in the appointment of administrator or executor, or (2) when the heirs resort to
extrajudicial partition. But outside of those two reason, the law always gives priority to
the administrator or executor.”
Under the rule, priority is given the legal representative of the deceased. That is, the executor
or the administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito ang
heirs o!” “OK! Substitute!” Actually, that is wrong based on LAWAS case. The priority is given to the admin-
istrator or executor. It is only when there is unreasonable delay in the appointment, or when the heirs resort to
extrajudicial partition because there is no more administrator or executor in extrajudicial settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment. case. The defendant died while the case is going on. What is the
procedure? There should be substitution. But there was no substitution in the case for ten years,
until it was decided. The court was not informed of the death of the defendant. Until finally, there
was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of
judgment, is the judgment jurisdictionally detective? Because here, the case continued eh, in which
somebody is already dead.
HELD: NO, “the judgment is valid where the heirs themselves appeared before the trial court
and participated in the proceedings. Therein, they presented evidence in defense of the deceased
defendant. It is undeniably evident that the heirs themselves sought their day in court and
exercised their right to due process.”
In other words, when there was a defect the heirs however cannot used that because they themselves
appeared and continued the case. So, in effect, there was estoppel.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules is the effect of the death of the
defendant in a money claim – action to collect a sum of money.
Sec. 20. Action on contractual money claims. When the action is for recovery of
money arising from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was pending at the time of
such death, it shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. A favorable judgment obtained by the plaintiff therein shall
be enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (21a)
The best example here is an action to collect an unpaid loan. And while the case is pending the defendant
died. What will happen to the case? The law says: If the defendant dies before the entry of the final
judgment in the court at the time of death, it shall not be dismissed but it shall instead be allowed
to continue until entry of final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it will be
dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased under the Rules on
Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na iyon when the defendant dies.
Now, under the NEW RULE, the case will not be dismissed but rather, the case will now continue
until entry of final judgment. That is a radical change of procedure! So case will not be dismissed.
It shall be allowed to continue until entry of final judgement. Meaning, until it becomes final and
executory.
Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute? Can you move
to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment obtained by the plaintiff therein
shall be enforced in the manner specially provided in these Rules for prosecuting claims against
the estate of a deceased person.”
Q: And what is that procedure?

A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there
will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies, what
will happen to the case?
A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE or an ACTION
WHICH SURVIVES?
1.) ACTION WHICH DOES NOT SURVIVE
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An action which does not survive is an action which is abated upon the death of a party. The
case cannot go on once a party dies. And normally, that refers to actions which are purely
personal in character like an action for annulment of marriages, an action for declaration of the
nullity of marriage or, an action for legal separation, or an action for support. These are the
cases arising from the Family Code.
Example: The husband files a case against the wife for annulment of marriage or legal
separation. One of them dies. Wala nang substitution, TAPOS NA! When one of the parties dies,
the marriage is dissolved. There is nothing to annul because the marriage is already dissolved.
So, these are the actions which are purely personal .
Q: So, what is the effect of the death of the party in actions which does not
survived?
A: The case is dismissed!
However, these cases are very few. Majority of the cases are damage suit, recovery of possession, recovery
of land, recovery of unpaid loans, etc. So, these are what you call actions which survive. Meaning , if a party
dies, you cannot say that the case is terminated upon the death of the party. So, ano ang mga kaso na
iyan?
2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If it is a

contractual claim, who died – is it the plaintiff or is it the defendant? If the defendant is the
one who died, when did he die?
2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal representatives will
proceed. So, there is substitution.
2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry of
final judgment or after entry? This is where Section 20 will come in.
2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of
Rule 3. Meaning, the case shall not be dismissed but shall be allowed to continue until
entry of final judgment. And the favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in these Rules for prosecuting
claims against the estate of a deceased person, and that is Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment but before
execution (after the judgment became final but before there could be levy or execution)
you cannot move to execute. Again, you apply Section 5 of Rule 86 which is the
governing rule – you file your judgment as a claim against the estate of the deceased
defendant. [Section 5, Rule 86 - Please refer to your codals.] The purpose there is, so
that the creditor will share with the other creditors pro-rata in the distribution of the
estate.
2a2c) If the defendant died after levy or execution but before the auction sale –
meaning, the property was already levied by the sheriff bago pa namatay – we will now
apply Section 7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of the death of
party, execution may issue or be enforced in the following manner:
xxxxxx
(c) In case of the death of the judgment obligor, after execution is actually
levied upon any of his property, the same may be sold for the satisfaction of the
judgment obligation, and the officer making the sale shall account to the
corresponding executor or administrator for any surplus in his hands. (7a)
Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is
an excess, the excess shall be delivered to the administrator of executor.
2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:

EXAMPLE: an action for recovery of property, real or personal like replevin,
forcible entry, unlawful detainer, action publiciana, action reinvidicatoria, or
action for damages, (damages that is not the same for transaction of money
because damages arising from culpa aquiliana is one not arising from contract.)
If a party dies in an action which survives which is a non-contractual money

claim, obviously, there is substitution of parties. So, what are these non-contractual
money claims which survive? These are those mentioned in Section 7 of Rule 86 and
Section 1 of Rule 87. That is in the study of Special Proceedings on settlement of the
estate of a deceased person.
So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO THE OUTLINE
HEREIN ATTACHED.]
Note: What Section 20 says is that: before the case can be decided and the defendant dies (in
actions involving money claims) the case shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased?
Now, to my mind, you correlate this with Section 16 --- there should still be substitution.
59
But assuming, there was no substitution and the heirs fought in the case; there is waiver
because the defect is procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what
Section 20 emphasized is that, the action shall not be dismissed but shall continue – to emphasize that it is now
different compared with the prior RULE. But obviously, there will always be a substitution
Sec. 17. Death or separation of a party who is a public officer. When a public
officer is a party in an action in his official capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor
takes office or such time as may be granted by the court, it is satisfactorily shown to
the court by any party that there is a substantial need for continuing or maintaining
it and that the successor adopts or continues or threatens to adopt or continue the
action of his predecessor. Before a substitution is made, the party or officer to be
affected, unless expressly assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard. (18a)
This applies only when the public officer is party to an action in his official capacity. If he (1)
dies; (2) resigns; or (3) cease to hold office, there will be a succession.
Q: What will happen to the case?

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

EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere as a hazard. If
Mayor Pascua dies, Vice-Mayor Angeles becomes the mayor. If Vice-Mayor Angeles who is
now the mayor says that he will continue with the demolition, he will be substituted
and he is given 30 days to comment.
2.) If the successor does not adopt the policy, the case will be dismissed.
Sec. 18. Incompetency or incapacity. If a party becomes incompetent or

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

property, or interest therein, shall be commenced and tried in the proper court which
has jurisdiction over the area wherein the real property involved, or a portion
thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property involved, or
a portion thereof, is situated. (1[a], 2[a]a)
While it is true that the rule on venue is new however, the rule on venue even before 1997 as earlier as
August 1, 1995, Rule 4 of the 1964 Rules has already been amended by the administrative Circular No. 13 -95,
but now it incorporated under the Rules of 1997.
Now, when the action is real, we distinguish whether it is forcible entry and unlawful detainer
or action publiciana or action reinvidicatoria. If it is accion publiciana or reinvidicatoria, the proper
venue is the one which has jurisdiction over the area wherein the real property involved or a
portion thereof is situated. Of course, the RTC is divided into areas. every branch has its own
designated area of responsibility.
Q: Why does the law say “tried in the proper court?”

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

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

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

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

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

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

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

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

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

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

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

83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a shipping company with the
head office in Cebu. The respondent Teves is the former City Fiscal of Davao City, former Mayor and
became judge of CFI of Cagayan de Oro City.
There was a group of passenger who rode on the Sweet Lines bound for Cebu City. During the
trip, they were given a crude treatment by the officers of the vessel. When they came back in
Cagayan de Oro City, they filed a suit for damages against Sweet Lines. They file dht ecase in the
former CFI, now RTC, of Cagayan de Oro City because the plaintiffs are residents of Cagayan de Oro
City.
Sweet Lines filed a motion to dismiss questioning the venue of the action because in the ticket
issued by Sweet Lines, it is stipulated that “…in case of a civil action arising from the contract of
carriage, the venue of the action shall be the City of Cebu ONLY and in no other place.” So there is a
restrictive word. Obviously the lawyers of Sweet Lines knew about Polytrade because they moved to
dismiss the case citing this case.
Judge Teves denied the motion to dismiss the case despite the stipulation. According to him, it is
unfair. If I will dismiss the case based on this stipulation, the aggrieved parties will be discouraged
in going to Cebu. It is very expensive and they will be inconvenienced. But, if the case will go on in
Cagayan de Oro, it will not inconvenienced Sweet Lines because they have their branch office, their
manage and their own lawyer.
ISSUE: Whether or not Cagayan de Oro is the proper venue.
HELD: YES. Judge Teves was correct in not dismissing the case.
First of all, the stipulation is placed in the ticket. These people never even bothered
to read this. Nakalagay na iyan diyan eh. So either you take it or you leave it. Therefore,
the passengers did not have a hand in preparing that stipulation. So the contract is a
contract of adhesion.
Second, again for the sake of equity, to be fair that these poor people will be compelled to go to
Cebu to file a case there. They will be discouraged. It is very expensive to go back and forth to
Cebu. Whereas, Sweet Lines has the resources, the means, the lawyers here in Cagayan to litigate.
Therefore, it would be inequitable to compel them or to apply the stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite the exclusive stipulation. The SC said that
the refusal of the court to apply it is correct. There is no grave abuse of discretion on the part of Judge Teves.
ARQUERO vs. FLOJO

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

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

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

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

VENUE limits plaintiff’s rights.
BAR QUESTION: State in what instance the jurisdiction and venue coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial jurisdiction. But in civil cases,
jurisdiction and venue are two different things. They do not coincide.
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Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure – The procedure in Municipal Trial Courts shall be

the same as in the Regional Trial Courts, except
(a) where a particular provision expressly or impliedly applies only to either of

said courts, or
(b) in civil cases governed by the Rule on Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in Regional Trial
Courts. However, by express provisions in Section 1, the procedure in the Regional Trial Court and the
procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except when a
particular provision expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to apply to RTC or MTC. A good example of this
is paragraph (a) is Rule 40 which governs appeals from MTC to RTC. It is only applicable to MTC. It does not
apply to appeals from RTC to Court of Appeals.
The second example would be in civil cases governed by Rules on Summary Procedure. That would be the
last law that we will take up. Rules on Summary Procedure applied only to MTC. They do not apply to RTC.
Sec. 2 Meaning of Terms. – The term “Municipal Trial Courts” as used in these
Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Court, and Municipal Circuit Trial Courts. (1a)
In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in Manila.
Municipal Trial Courts are in cities and municipalities. When the Rule says ‘Municipal Trial Court’, it already
includes Metropolitan Trial Courts, MTCC, MCTC. So that we will not be repetitious.
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PROCEDURE IN THE REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court for appropriate judgment. (1a)
Actually, we already touched the word “PLEADING” before. In the Constitution when we were asking what is
the basis of the authority of the Supreme Court to enact the Rules of Court or Procedural Law. The Constitution
says, the Supreme Court shall have the authority to promulgate Rules on pleadings, practice and procedure.
Then we discussed jurisdiction over the issues. Jurisdiction over the issues is determined by the allegations in
the pleadings.
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the parties submitted
to the court for appropriate judgment. (Section 1)
This is the document where a party will state his claim against the defendant; or where the defendant will
state also his defense. Pleadings merely tell a story. You tell your story there, the other party will tell his story.
And how do you assert your claim in court? Not by calling up a judge over the telephone or writing a letter
to the judge, “Dear judge….” but through the appropriate pleadings. How do they look like? The rules are laid
down. It becomes clearer in the 3rd year subject known as Legal Forms. In that subject you will study particular
forms. They have patterns. In pleadings, you do it in legal manner. You do not say, “Once upon a time…”
The counterpart of pleadings in criminal procedure is information, or the criminal complaint where a
prosecutor will tell what crime you are being accused – what you did, time, the victim, etc.
Sec. 2 – Pleadings allowed – The claims of a party are asserted in a complaint,

counterclaim, cross-claim, third (fourth, etc.) – party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against
him.
An answer may be responded to by a reply. (n)
Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there are actually two
(2) contending parties: (1) the person suing or filing claim; and (2) the person being sued.
Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint, etc.
These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that you are
familiar with is the complaint. As we go over the Rules, you will understand what do you mean by those
pleadings.
On the other hand, if you are the party sued, you also have to file your pleading or your defense. It is known
as the ANSWER. The defenses of a party are alleged in the answer to the pleading asserting a claim against
him. If I file a complaint against you, in response, you will file an answer.
In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an answer invoking
your defenses. If I want to respond to your defenses, I will file a REPLY.
COMPLAINT ANSWER REPLY
That is the pattern.
Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) – Party Complaint;
7.) Complaint-in-Intervention.
Let us go over each one of them. How do they function?
A.) COMPLAINT
Sec. 3. Complaint – The complaint is the pleading alleging the plaintiff’s cause or
causes of action. The names and residences of the plaintiff and defendant must be stated in the
complaint.
Q: Define complaint.
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A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A complaint is
also called the INITIATORY PLEADING. Because it is actually the first pleading filed in court. It is the pleading
that starts the ball rolling. It is the pleading that initiates the civil action.
Of course, the names and residences of the defendants must be stated in the complaint. Do you know the
pattern for a complaint?
For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton borrowed money from
Mr. Pito and refused to pay. Normally, it starts with an introduction: “Plaintiff, through counsel, respectfully
alleges that…” Then it is followed by paragraphs which are numbered. For instance:
Illustration:
1.) Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City; whereas defendant Mr.
Peloton also of legal age, a resident of Bajada, Davao City;
2.) On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of P30,000.00 payable
within one (1) year form said date with legal interest;
3.) The account is already due. Despite repeated demands, defendant failed to and refused to
pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be rendered against the

defendant ordering him to pay the loan of P30,000.00 and interest in favor of the plaintiff.
It is simple. The complaint is composed of 3 paragraphs only – humiram siya ng pera, ayaw magbayad.
That’s all. That is the pattern of a complaint. Your allegations must contain the four (4) elements of a Cause of
Action – the Right, the Obligation, the Delict or Wrong or Violation of Your Right, and the Damage. Hindi
kailangang mahaba ang complaint.
It becomes clearer in the subject of Legal Forms. That is the last subject in the Bar Exam, Legal Ethics &
Practical Exercises. The examinee will be asked, for instance, to prepare a Contract of Mortgage, or prepare a
Complaint for Unlawful Detainer. There are hundreds of forms and you must be prepared to write down a
sample.
B.) ANSWER
Sec. 4 – Answer – An answer is a pleading in which a defending party sets forth

his defenses. (4a)
I am the plaintiff. I file the complaint. You received the complaint. You are now required to respond.
Q: What is the pleading where you respond?

A: It is called the ANSWER. That is where you will state your defenses. That is why an ANSWER is called
a Responsive Pleading.
Q: Why is it called “Responsive Pleading”?

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

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

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

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

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

A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while the
defendant may admit the material allegation in the complaint, however, he will plead a new matter
which will prevent a recovery by the plaintiff. I admit what you are saying in the complaint but still
you are not entitled to recover from me.
EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed money
from you – admitted! The account is due – admitted! I have not paid you – admitted. “However,
you cannot collect from me because the account has already prescribed.” Meaning, I will admit what
you are saying but just the same, I am not liable. Kaya nga, you confess, eh. I confess to what you say but I
still avoid liability.
Examples of affirmative defenses are:
1. fraud,
2. statute of limitations,
3. release,
4. payment,
5. illegality,
6. statute of frauds,
7. estoppel,
8. former recovery,
9. discharge in bankruptcy, and
10. any other matter by way of confession and avoidance.
Suppose, you sue me for damages arising from breach of contract. I admit I entered into a contract but I
have no obligation to comply because the contract is null and void. Or, the contract is illegal. Or, the
stipulation is contrary to public policy, therefore, I am not bound. I admit what you say but I am not liable
because of the illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract and I refused to comply. So, you file a
case against me for specific performance or for damages. Then I say: “It’s true that I entered into a contract
with you. It’s true I did not comply. But there is nothing you can do because the contract is oral and the
contract is covered by the statute of frauds. In order to be enforceable, we should have reduced it into writing.
Since we never reduced it into writing, I am not bound to comply.”
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a defending party may

have against an opposing party. (6a)
EXAMPLE: You file a case against me for damages to your car. According to you in your complaint, while
you were driving your car along the highway carefully. I came along driving recklessly and bumped your car
causing damages amounting to P50,000.00 for repair. Your allegation is based on negligence on my part.
My answer is denial: “That is not true! I deny that! I was the one driving carefully and you were driving
carelessly and negligently. Therefore, if you are the proximate cause of the accident, I’m not liable for the
damage of your car.” That’s my answer – I’m not liable because you are negligent. Because you were the one
negligent, my car was also damaged. I am not liable for the damage on your car. As a matter of fact, you are
the one that should be held liable to pay for the damage of my car. I am now claiming for the damage of
P50,000.00. That is called COUNTERCLAIM.
According to a lawyer who is fluent in Cebuano, he called it balos. He was explaining to his client that they
have counterclaim. That’s a legal term, eh.
Therefore, there is one civil case but there are two (2) causes involved – the main cause of action in the
complaint and that in the counterclaim. There are two (2) issues to be resolved by the court.
Q: If your complaint against me is to recover a sum of money, should my counterclaim also involve
recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in nature. (De Borja vs. De Borja,
101 Phil. 911) It is possible for you to file case for recovery of a piece of land and my counterclaim is recovery of
damages arising from a vehicular accident.
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Q: Suppose your claim against me is One (1) Million, is it possible that my counterclaim against you is Two
(2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount you are claiming. A
counterclaim need not diminish or defeat the recovery sought by the opposing party, but may
claim relief exceeding in amount or different I kind from that sought by the opposing party. (De
Borja vs. De Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My counterclaim is, rescission of partnership
contract. Is the counterclaim proper?
A: Yes although there is no connection between what you are asking and what my answer is.
But what is important is tayong dalawa ang naglalaban. If you will not allow me to file my
counterclaim against you, that will be another case in the future. Since nandito na rin tayo, so
lahat ng ating reklamo, we might as well have to finish it. That is allowed.
Q: Why is it that law allows the defendant to counter sue by way of counterclaim the plaintiff?
A: The purpose there is apparently TO AVOID MULTIPLICITY OF SUITS. If you have a cause of action
against me, I will sue you, in the future it will also lead to another case where you will also sue me.
DEBORJA vs. DEBORJA

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

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

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

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

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

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

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

A: A compulsory counterclaim must be invoked in the same action. Iit cannot be the subject
matter of a separate action. Unlike in permissive where you have the choice of invoking it in the
same case, or in a separate action, compulsory counterclaim must be invoked in the same action
otherwise it will be barred. That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. - A

compulsory counter-claim or a cross-claim, not set up shall be barred. (4a)
So if I do not file a counterclaim against you in the same action, under Rule 9, the counterclaim is barred
forever. I cannot claim it against you in any other case in the future. But if the counterclaim is permissive and I
will not raise it as a counterclaim, it is not barred. It can still be invoked in another case against you. It can be a
subject matter of a separate action.
Let us try to apply that principle to the case cited.
PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her car is damaged,
my car is damaged. In my answer, I denied negligence but I did not claim from her the damage to my vehicle.
After the trial, court found the plaintiff at fault. So, the complaint of Vanessa was dismissed. So panalo ako.
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Balikan ko siya ngayon. This time I will file a case against her to recover damages for the damage to my car
since I was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a counterclaim.
Compulsory yan eh. So since you did not raise, is barred forever.
PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako. The court said
that I should return the land to her. So isinauli ko na. Ngayon, kailangan bayaran niya naman ako for the
necessary expenses. So, I will file a case against her. She moved to dismiss – barred, because I should have
raised that as a counterclaim. I cannot file another case involving that cause of action. That is the effect of
failure to raise the compulsory counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for recovery of land.
My cause of action against her is damages arising against a vehicular collision. Obviously, the counterclaim is
permissive.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: Pauline will file a case against me for damages arising from vehicular collision. My decision is not to file
a counterclaim but to file another case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is
permissive. I am permitted to raise it as a counterclaim but I am not obliged. I may decided to file
another action against you. That is the importance between a compulsory counterclaim and a
permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF THIRD
PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an indispensable party
who is, let’s say, abroad, and therefore, the court cannot acquire jurisdiction over him, and since it
involves an indispensable party, I will not raise it as a counterclaim.
Q: Will it be barred?
A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The
trouble is, he is not around. Therefore, the counterclaim is not barred because the third element is
missing.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE JURISDICTION OF

THE COURT BOTH AS TO THE AMOUNT AND NATURE THEREOF.
Q: I will file a case against you for forcible entry. I want to recover a piece of land. Where is the jurisdiction
of that case?
A: MTC. Squatting. I will recover a land from a squatter.
Review: In the Law on Property, even if you are a possessor in bad faith, he is entitled to reimbursement for
necessary expenses. The theory there is, even if he is a possessor in bad faith, the expenses redounded to the
benefit of the land owner. Anyway, you will spend them just the same as the land owner will have to spend for
them. So it will not be fair if he is not reimbursed. That’s our premise, noh?
PROBLEM: Now, the defendant would like to claim for reimbursement for the necessary expenses that he
spent in my lot. The case I filed against you is forcible entry in the MTC. Your necessary expenses amount to
P300,000.
Q: Should you raise it as a compulsory counterclaim in the forcible entry case?
A: NO.
Q: Does it arise out of or connected with the transaction which is the subject matter of the main action?
Why not compulsory?
A: Because the MTC has no jurisdiction over the P300,000 amount for the necessary expenses.
This time, that is the missing element.
Q: How will the defendant claim reimbursement?

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

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

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

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

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

271 SCRA 392, en banc
NOTE: Here, the Javier ruling was set aside.
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HELD: “The logic and cogency of Javier notwithstanding, some reservations and concerns were
voiced out by members of the Court during the deliberations on the present case. These were
engendered by the obvious lacuna in the Rules of Court, which contains no express provision for the
adjudication of a counterclaim in a civil action impliedly instituted in a criminal case.”
“By the foregoing discussion, we do not imply any fault in Javier. The real problem lies in the
absence of clear-cut rules governing the prosecution of impliedly instituted civil actions and the
necessary consequences and implications thereof. For this reason, the counter-claim of the
accused cannot be tried together with the criminal case because, as already discussed,
it will unnecessarily complicate and confuse the criminal proceedings. Thus, the trial
court should confine itself to the criminal aspect and the possible civil liability of the
accused arising out of the crime. The counter-claim (and cross-claim or third party
complaint, if any) should be set aside or refused cognizance without prejudice to their
filing in separate proceedings at the proper time.”
“At balance, until there are definitive rules of procedure to govern the institution, prosecution and
resolution of the civil aspect and the consequences and implications thereof impliedly instituted in a
criminal case, trial courts should limit their jurisdiction to the civil liability of the accused arising
from the criminal case.”
This means SC admitted that the Javier doctrine put more problems and confusions in the absence of
specific rules. The counterclaim should not be tried together in a criminal case. The trial court should
confine itself in the criminal action and that the counterclaim should be set aside without prejudice
to its right in setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of Section 1, paragraph
[a], Rule 111 of the 2000 Revised Criminal Procedure:
“No counterclaim, cross-claim or third-party complaint may be filed by the

accused in the criminal case, but any cause of action which could have been the
subject thereof may be litigated in a separate civil action.”
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any claim by one party against a co-party

arising out of the transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein. Such cross-claim may include a claim
that the party against whom it is asserted is or may be liable to the cross-claimant
for all or part of a claim asserted in the action against the cross-claimant.(7)
A cross claim is a claim by one party against a co-party. It may be a claim by defendant against his co-
defendant arising out of the subject matter of the main action.
EXAMPLE: Jet and Pao are solidary debtors for the sum of P100,000. Jet and Pao signed a promissory note in
favor of Dean to collect the sum of P100,000. However, although Jet signed the promissory note, he did not get
a single centavo. Everything went to Pao. Both of them are now sued. According to Jet, “Actually there is a
possibility that I will pay the P100,000 to Dean when actually I did not even get a single centavo out of it.
Everything went to Pao [bwiset!]!” Therefore, Jet will now file a case against Pao where he will allege that if Jet
will be held liable to Dean, Pao will reimburse him (Jet). So, Jet will also file a claim in the same action against
Pao.
Now, the claim filed by Jet against his co-defendant Pao is called a CROSS-CLAIM where Jet is called
defendant in the case filed by Dean and a cross-claimant against Pao. Pao is also the defendant in the case filed
by Dean and a cross-defendant with respect to the cross-claim filed by Jet. So that is another case which a
defendant is filing against another defendant.
The law says that the “cross-claim arises out of the transaction or occurrence that is the subject
matter of the original action.” In other words, the cross-claimant will assert that the cross-
defendant is liable to him for all or part of the claim asserted in the main action against the cross-
claimant.
Take note that the cross-claim of Jet against Pao is merely an off-short of the case filed by Dean against Jet
and Pao. Meaning, it arises out of the same transaction or occurrence that is the subject matter of the case filed
by Dean against them.
PROBLEM: Suppose Dean files a case against Jet and Pao to collect a promissory note signed by Jet and Pao.
Tapos, sinabi ni Jet in his cross-claim, “Well, since we are already here, I also have a claim against Pao for
damages arising from a vehicular collision.”
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the complaint of Dean against Jet
and Pao. A cross-claim must always arise out of a transaction or occurrence that is the subject
matter of the main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-CLAIM.

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

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

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

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

212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a cross-claim against Pao. After a while,
the case against Jet and Pao was dismissed.
ISSUE: What happens to the cross-claim of Jet against Pao?
HELD: When the main action was dismissed, the cross-action must also be dismissed.
The life of a cross-claim depends on the life of the main action. If the main action is
dismissed, the cross-claim will have to be automatically dismissed.
“A cross-claim could not be the subject of independent adjudication once it lost the nexus upon
which its life depended. The cross-claimants cannot claim more rights than the plaintiffs
themselves, on whose cause of action the cross-claim depended. The dismissal of the complaint
divested the cross-claimants of whatever appealable interest they might have had before and also
made the cross-claim itself no longer viable”
Whereas, the counterclaim can exist alone without the complaint.
EXAMPLE: Pao filed a case against Jet for the recovery of a piece of land. Jet’s counterclaim is damages
arising from a vehicular accident. Na-dismiss ang kaso ni Pao – wala na yung recovery of a piece of land. The
counterclaim of Jet can still remain alive even if the main action is dead.
But in a cross-claim, once the main action is dead, the cross-claim is also automatically dead
too. What is there to reimburse when the complainant has been dismissed? Aber?!
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
Sec. 9. Counter-counterclaims and counter-cross-claims. A counterclaim may be

asserted against an original counter-claimant.
A cross-claim may also be filed against an original cross-claimant.(n)
Section 9 is a new provision. There is such a thing as counter-counterclaim and counter-cross-claim. The
concept of counter-counter-claim is not new. As a matter of fact, that was asked in the bar years ago.
EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim against her to
recover a piece of land. Of course, she have to answer your counterclaim. But she will say, “Actually you have
been molesting me with your claim when actually you have no right over my land.” So, nag-file siya ng
injunction to stop you from molesting her. In other words, based on your counter-claim against her to recover
my land, she will file a counterclaim to stop you from molesting her. In effect, there is counter-claim to a
counter-claim.
COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo.
E.) REPLY
Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D files his answer
and raises a new matter, affirmative defense. According to the defendant, the obligation is already paid. Plaintiff
said that you have paid the other loan. In other words, the plaintiff would like to deny or dispute the defendant’s
affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?

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

A: It is a responsive pleading because it is the response of the plaintiff to the affirmative
defense raised in the defendant’s answer.
An answer is a response to the complaint and the reply is a response to the answer.
Q: Halimbawa, you would like to answer my reply, what pleading would you file?
79
A: None. That is the last pleading. Otherwise, walang katapusan and pleading natin. So, reply
is considered as the last pleading.
Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to reply. What is the effect if
the plaintiff fails to reply? Is he admitting the correctness of the defense?
A: No. The failure to file a reply has no effect. Section 10 says that if a party does file such
reply, all the new matters alleged in the answer are deemed controverted. Meaning, all the
affirmative defenses raised in the answers are automatically denied.
So, whether you file a reply or not, the defenses are deemed automatically disputed. The filing of a reply
is OPTIONAL.
A reply should not be confused with the answer to a counterclaim which is also filed by the plaintiff.
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and REPLY.

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

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

77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of a third-party complaint. In
order for it to be allowed, it must pass one of them. That is the reason when you file it, you need the
permission of the court to determine whether it is proper or not and the original plaintiff may object to
the propriety of the third-party complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of the same transaction on which

plaintiff is based;
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EXAMPLE: A creditor sued only one solidary debtor. So you can file a third-party complaint
for contribution. Anyway, there is only one loan and our liability arises out of the same
promissory note
2. A third-party complaint is proper if the third-party’s complaint, although arising out of

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

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

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

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

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

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

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

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

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

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

that:
1. x x x x x x;
2. x x x x x x;
So, there must be a caption, title. Take note, the title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in the subsequent pleadings, it shall be sufficient if
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the name of the first party of each side be stated without the others. You only write the first name of plaintiff
and defendant and followed by the word ‘ET AL”.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties. Now is
it necessary that they shall be named?
A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3
or more pages.
BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of
everybody. What the law requires is to write the name of the first plaintiff followed by the term ‘ET
AL”. Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al, defendants.
So the rule is, it is only in the complaint where the name of all the parties are required to be
stated, but in subsequent pleadings, no need. But there is an EXCEPTION to this rule. There are
instances where the law does not require the name of the parties to be stated even in the
complaint.
Q: What are the instances where the law does not require the name of the parties to be stated even in the
complaint?
A: These are the following: SCIEO
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule 3, Section 15);
5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar
vs. City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Sec. 2. The body. - The body of the pleading sets forth its designation, the
allegations of the party's claims or defenses, the relief prayed for, and the date of
the pleading. (n)
a) Paragraphs - the allegations in the body of a pleading shall be divided into

paragraphs so numbered as to be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number in all succeeding
pleadings. (3a)
(b) Headings - When two or more causes of action are joined, the statement of
the first shall be prefaced by the words "First cause of action", of the second by
"second cause of action," and so on for the others.
(c) Relief - The pleading shall specify the relief sought, but it may add a general
prayer for such further or other relief as may be deemed just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the end, you state the relief which we call
PRAYER – what you are asking the court: “Wherefore, it is respectfully prayed that judgment be rendered
ordering defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from this date until fully paid.”
Then, you end up with the date of the pleading: “Davao City, Philippines, December 10, 1997.”
A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a complaint starts :
“Plaintiff, thru counsel, respectfully alleges that x x x.” Then first paragraph, second paragraph and so on. The
first paragraph is normally the statement of the parties and their addresses which is required under Rule 6
where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro
Bautista, is also of legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff in the amount of so much
payable on this date.
3. The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the subsequent pleadings. Pag-sagot
ng Answer, he will just refer to the #, “I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint embodying two
or more causes of action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes. So, there are
three causes of action. The lawyer of Angelo decided to file only one complaint collecting the three promissory
notes. Now, how should he prepare the complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so much and it is not
paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second loan…became payable and is not
paid.
THIRD CAUSE OF ACTION: x x x x.
In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is how you prepare
your complaint. On the other hand, the defendant will answer:
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ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you present your exhibits,
you might get confused because you combined all the three causes of action in one paragraph. But
with this one, the presentation is clearer, the outline is clearer and it is more scientifically
arranged than joining them in one story.
Under paragraph [c], the pleading must state the relief sought. But it may add a general prayer for such
further other relief as may be just and equitable like yung mga pahabol na “Plaintiff prays for such further or
other relief which the court may be deemed just or equitable.” Meaning, aside from the relief sought, Kung
meron ka pang gustong ibigay, okay lang. That is the general prayer.
Q: Is the prayer or relief part of the main action?

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

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

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

"information and belief," or upon "knowledge, information and belief," or lacks a
proper verification, shall be treated as an unsigned pleading. (6a)
Q: What do you understand by verification in a pleading?

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

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

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

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

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

294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to permissive

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

A: Ultimate facts are those which is are essential to one’s cause of action or defense.
Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the
statement in the pleading cannot be deleted. Because if you delete it, the statement of your cause
of action or defense become incomplete, a certain element of cause of action disappears then it
must be a statement of ultimate fact. Pagtinanggal mo, wala ka ng cause of action. But if you
delete it and there is still a cause of action, then it is not an ultimate fact.
Q: What are the essential elements of a cause of action?
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A: The following:
1.) Statement of the right;
2.) Statement of the obligation;
3.) Statement of the violation; and
4.) Statement of damage.
You analyze a complaint from the first to the last paragraph, you find out whether the four are present. Now,
for example a complaint has 20 paragraphs. Yan bang 20 paragraphs, importante ba lahat? We will shorten it by
analyzing sentence by sentence. I will remove paragraph #2. Are the elements of the cause of action still
present out of the remaining paragraph? If the answer is yes, then, paragraph #2 is not a statement of ultimate
fact. We will remove paragraph #5, the story is still complete, there is still a cause of action, then, the
paragraph or the statement that you removed is not a statement of ultimate facts. Suppose I will remove
paragraph #7, kulang na man, the allegation of the violation of the right is no longer present, then, the
paragraph #7 cannot be deleted, otherwise, if you delete it the statement or the story or the cause of action
disappear. Then, that is an ultimate fact.
So if the statement can be deleted and the cause of action is still complete, then it is not a
statement of ultimate fact. It is only a statement of evidentiary fact.
Q: What are evidentiary facts?

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

58 SCRA 559
HELD: “A bare allegation that one is entitled to something is an allegation of a conclusion. Such
allegation adds nothing to the pleading, it being necessary to plead specifically the facts upon
which such conclusion is founded.”
You must plead the facts upon which your conclusion is founded. To say that you are entitled to something
is not actually a statement of fact but merely a conclusion of the pleader. It adds nothing to the pleading.
For EXAMPLE: The complaint alleges that the defendants are holding the plaintiff’s property in Trust for the
plaintiff. Trustee ba – you are holding the properties in trust for me without any explanation of the facts from
which the court could conclude whether there is a trust or not. The SC in the case of MATHAY said that that
statement is merely a conclusion of the plaintiff. You must state the basis of your statement that they are
holding your property in trust.
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Frankly speaking, there are numerous complaints which are convincing but upon reading them thoroughly,
you will realize that majority of the statements are not statements of facts but conclusions of law. Tatanggalin
yung conclusion. It is bad complaint when you say that you are entitled to this without stating your basis.
So statement of law is not allowed although there is an exception under the second paragraph
of Section 1 which says that “if a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely stated.” At least now you can
quote the law. Sometimes a defendant when he files his answer, his answer is purely based on law.
He must cite the legal provision in his answer and explain WHY is it applicable to him.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES
Sec. 2. Alternative causes of action or defenses. - A party may set forth two or
more statements of a claim or defense alternatively or hypothetically, either in one
cause of action or defense or in separate causes of action or defenses. When two or
more statements are made in the alternative and one of them if made independently
would be sufficient, the pleading is not made insufficient by the insufficiency of one
or more of the alternative statements. (2)
Q: May a plaintiff in his complaint state two or more claims alternatively or hypothetically?
A: Yes.
Q: What happens if one cause of action is insufficient? Will it cause the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated. The
insufficiency of one will not affect the entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about passenger who was about to board a bus. Of course when you are a
passenger and you get hurt, that is culpa contractual. If you are not a passenger and you get hurt due
to the negligence of the driver, that is culpa aquiliana. So it depends whether there is a contract of
carriage or none.
In that case, the passenger was about to board a bus. As a matter of fact, the left foot had
already stepped on the bus. The bus suddenly sped up. He fell. He was not able to ride because
umandar man bigla. He was injured. What is the basis against the carrier? Is there a contract or
none? There is! Nandoon na nga ang kaliwang paa, eh. Sabi ng iba, wala pang contract. Well, may
mga kaso talaga na malabo. You don’t really know whether your cause of action is culpa contractual
or culpa aquiliana. You want to claim damages but you are not sure whether your case is based on
culpa contractual or culpa aquiliana. It’s either one of the two. It sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may allege 2 possible
alternative causes of action. I will draft the complaint in such a way that I will show to the court that my cause
of action is either culpa contractual or culpa aquilana. I will make sure that both allegations are covered. You
cannot be wrong because the law does not require you to make a choice.
Q: You are the defendant. You are confronted with the same problem. There is a complaint against you and
you have 3 possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively. Meaning,
each is my defense or not.
Suppose your defenses are inconsistent, takot ka. There is a lawyer I met na takot maging inconsistent. I
told him to look at Section 2, Rule 8 very well. The law allows defendant to plead his defenses hypothetically or
alternatively. He asked, what if they are inconsistent with each other? I said, you look at SC decisions. The SC
said a party may plead 2 or more causes of action or 2 or more defenses alternatively. They may
be inconsistent with each other but what is important is each defense is consistent in itself.
Meaning, each defense, when taken alone, is a good defense. You look at them separately. Do not
compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan. The basic allegation is that
the defendant obtained a sum of money by way of loan and never paid it. Here is defendant’s
answer:
a.) “That is not true. I never borrowed any money from the plaintiff.” That is a defense of
denial.
b.) “Assuming that I received money from the plaintiff, that money was not a loan but plaintiff’s
birthday gift to me.” In other words, it was a donation.
c.) “Assuming that the money I received from the plaintiff was really a loan. However, such
amount was completely paid.” Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with each other but
it should not be taken against the defendant. What is important is that each defense is consistent in itself.
Look at them separately. That is also called a “SHOTGUN ANSWER”. Sabog ba! In all directions.
However, during that trial, you have to choose among them which you think is true based on evidence. The
problem is that you choose one but it turned out that a different defense would be correct. Hindi mo na
magamit. There is a prejudice because during the trial, I will choose among them with the evidence I have.
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Anyway, pleading man lang yon. I can abandon the others. And that is even better because you might confuse
the plaintiff of what really is your defense. Thus, a lawyer should not be afraid to hypothetically or alternatively
plead defenses which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader may show the best one
rather than not stating it in the pleading and during the trial you waive the best defense because
according to the next rule, Rule 9, defenses or objections not pleaded in the answer are deemed
waived.
Take note that you have to correlate this topic on the related provisions we have already taken up: For
EXAMPLE:
1.) Rule 2, Section 5 – where a party may, in one pleading state in the alternative or
otherwise, as many causes of action;
2.) Rule 3, Section 6 – on permissive joinder of parties. When may 2 persons or more be
joined as plaintiffs or defendants and how are they joined? They are joined jointly,
severally, or alternatively; and
3.) Rule 3, Section 13 – on alternative defendants. When you are uncertain who is the real
defendant, you may join them alternatively although the relief against one may be
inconsistent with the other.
Remember this provisions because they are interrelated. Thus, when you study the Rules, don’t limit
yourself to a particular provision. Look for other related provisions so you may see the entire picture. That’s
called co-relation – “You don’t only see the tree but the entire forest.” This is very helpful in the bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can you do it in a general manner or do you
need to be specific? How do you allege your ultimate facts? Is it in particular or general terms?
A: It depends on what matters you are alleging in your complaint – whether is a condition precedent,
capacity to sue or be sued, fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment of the

performance or occurrence of all conditions precedent shall be sufficient. (3)
Sometimes in a pleading, you have to allege that the conditions precedent have already been complied
with. Can you still remember, one of the elements of a right of action is that before you can go to court, you
must comply with all the conditions precedent?
Q: When you allege compliance with the conditions precedent, is it necessary for you to be specific what are
those conditions precedent?
A: NO. Section 3 says that in every pleading, a general averment for the performance of all
conditions precedent shall be sufficient. A general allegation will suffice.
For EXAMPLE, in Administrative Law, you have the doctrine of exhaustion of administrative remedies.
Where a law provide for the exhaustion of administrative remedies, court should not entertain cases without
complying said remedies first. If the rule on exhaustion of administrative remedies is violated, do you think
your case will prosper? NO, it will not.
Specific EXAMPLE: You started with a quarrel over a parcel of land where you applied for homestead.
May kalaban ka. Where will you file first? Bureau of Lands. You may then appeal to the Secretary of
Agriculture. From the Secretary of Agriculture, you may go to the Office of the Presidential who can reverse
the decision of the secretary. Now, talo ka pa rin but you believe there is a good ground to reverse the
decisions in the executive department, you can now go to the court. That is called the doctrine of judicial
review of administrative decision. Yan!
Definitely, from the Bureau of Lands, you cannot directly go to the court because you have not yet complied
with conditions precedent before filing the case. And the condition precedent is that you must comply with the
rule on exhaustion of administrative remedies.
Q: Now, suppose I have already complied with all these remedies. I will then go to court. Definitely, I will
allege that I have already exhausted remedies in the executive level. Is that allegation sufficient? “I have
already exhausted my remedies in the administrative level.” Do I have to emphasize - “I started with the
Bureau of Lands. From there, I went to Department of Agriculture. From there, I went to the Office of the
President”?
A: According to Section 3, a general averment will be sufficient. You need not specifically
allege compliance of conditions precedent. Therefore, an averment of the performance or
occurrence of all conditions precedent may be made generally and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to be sued or the
authority of a party to sue or to be sued in a representative capacity or the legal
existence of an organized association of persons that is made a party, must be
averred. A party desiring to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a representative capacity, shall do so
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by specific denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge. (4)
When you file a case against somebody you must have capacity to sue and defendant must have capacity
to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has capacity to be
sued?
A: YES because Section 4 says you must show capacity to sue and be sued. It means that capacity to
sue and be sued must be averred with particularity. A general statement of it is not sufficient. As a
matter of fact, that is the first paragraph of a complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a
resident of Davao City…” There is no presumption of capacity or incapacity to sue.
You may say, “I am suing as guardian of the plaintiff.” That is a representative party – to sue and be sued in
a representative capacity. Can you say, “I am suing as a guardian?” NO. Neither can you say, “I am appointed
as the guardian.”
Q: How should it be done?

A: “I am the court’s appointed guardian of the plaintiff minor having been afforded guardian by the court in
this case based on an order.” You have to emphasize that the court appointed you.
Section 4 says, “the legal existence of an organized association of persons that is made a party...” It means
that the defendant is a corporation existing by virtue of the Philippine Corporation Law. There is no
presumption that you are corporation. That is the reason why facts showing capacity to sue and be sued, etc.
must be averred with particularity.
There’s a case which you will study in Corporation Law whether a foreign corporation can sue in Philippine
court. Under the law, it can sue provided it is licensed to do business in the Philippines. The SC emphasized
that if a foreign corporation is suing somebody in Philippine courts, the complaint must specifically allege that a
foreign corporation is doing business in the Philippines with a license to do. Otherwise, it cannot sue. Yaan!
“A party desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall do so by
specific denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge…” (section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant. Suppose I will deny
your capacity to sue. I will deny that you are a corporation licensed to do business in the Philippines. Now, the
law requires me to deny your legal capacity and I must state the reason or basis of such denial – why you are
not of legal age, why you are not a corporation.
This is so because the law says that when you deny or when you question the legal existence of
a party or the capacity of any party to sue and be sued, you shall do so by specific denial which
shall include such supporting particulars as are peculiarly within the defendant’s knowledge. You
cannot plead a general statement that you deny. Your denial must be particular. You must be
more specific about what you are denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of fraud or mistake,
the circumstances constituting fraud or mistake must be stated with particularity.
Malice, intent, knowledge or other condition of the mind of a person may be

averred generally. (5a)
EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent was secured through fraud
and plaintiff files a case that the defendant employed fraud in obtaining his consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake must be stated with
particularity. The complaint must state how the fraud was committed. It must be described in
detail how the fraud took place.
Q: In the second sentence, why is it that malice, intent, etc. may be averred generally?
A: A general averment of malice or intent suffices because one cannot describe or particularize
what is in the mind of a party. I cannot describe in detail the malice or the knowledge in your mind.
I can only say it in general terms.
Fraud, on the other hand, is employed openly, by overt acts. How you are deceived is not only in the mind.
Those are manifested by external acts. Therefore, one can describe how a fraud was committed by the other
party.
Sec. 6. Judgment. In pleading a judgment or decision of a domestic or foreign

court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver
the judgment or decision without setting forth matter showing jurisdiction to render
it. (6)
Sometimes a party invokes a judgment of a court or cite a previous case like res adjudicata to dismiss a
case.
Q: Suppose you will ask the court to dismiss the case because there was already judgment rendered by the
court years ago and you simply says, “There was a previous judgment.” Is this sufficient?
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A: YES because the law presumes that the judgment is valid. And the presumption is that the
court had jurisdiction. You do not have to say that the court had jurisdiction over the subject
matter, issues, etc. when it tried the case years ago. So, it can be averred generally.
Sec. 9. Official document or act. In pleading an official document or official act, it is

sufficient to aver that the document was issued or the act done in compliance with
law. (9)
One can just plead the existence of a document made by the government. EXAMPLE: official letter of the
President, or official communication by a government agency. It is sufficient to aver that the document was
issued or an act done.
SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?

A: The following: CMJO
1.) Rule 8, Section 3– Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind;
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act
Q: What averments must be done with PARTICULARITY?

A: The following: CLF
1.) Rule 8, Section 4, first sentence – Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence – Legal existence of any party to sue or be sued;
3.) Rule 8, Section 5, first sentence – Fraud or mistake
ACTIONABLE DOCUMENTS
Sec. 7. Action or defense based on document. Whenever an action or defense is based

upon a written instrument or document,
1. the substance of such instrument or document shall be set forth in the pleading, and the original or a
copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the
pleading, or
2. said copy may with like effect be set forth in the pleading. (7)
Not every document that is needed in trial is actionable document.
Q: What is an actionable document?

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

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

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

2. On Dec. 31, 1997 def. A secured a loan from plaintiff B which is covered by a
promissory note worded as follows:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later

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

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

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

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

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

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

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

A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material allegation of fact the truth
of which he does not admit and, whenever practicable, shall set forth the substance
of the matters upon which he relies to support his denial
Meaning, you deny the allegation in the complaint but you must state the basis of your denial –
that, that is not true because this is what is true. So you state your own side, your own version. The
purpose there is to lay your cards on the table to make it fair to the other side. Yaan!
Q: What happens if a denial violates this first mode? Meaning, the pleader did not set forth the substance of
the matters relied upon to support his denial.
A: That is know was GENERAL DENIAL and it will have the effect of automatically admitting the
allegations in the complaint.
Q: Suppose the pleader will say, “Defendant specifically denies the allegations in paragraph 2,4,7…”
without any further support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used the word ‘specific.’ (Cortes vs. Co Bun
Kim, 90 Phil. 167) What makes a denial specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only a part of an averment,

he shall specify so much of it as is true and material and shall deny only the
remainder.
Sometimes an allegation may consist of 2 or more parts. Therefore the answer may admit part 1 but part 2
is denied. Or, the substance of the allegation is actually admitted by the qualification there is denied.
EXAMPLE: Plaintiff alleges that the “Defendant is in possession of the property under litigation in bad faith.”
Now, the defendant may admit that the property is in his possession but he denies the qualification in bad faith
– possession is not in bad faith. Based on that, the defendant should say, “Defendant admits that portion of
paragraph no. 2 that he is in possession of the property in question; but denies that he is a possessor in bad
faith” or something to that effect.
Therefore, when you say “I deny the entire paragraph” when actually you are not denying the
entire paragraph but only the qualification, that is called a NEGATIVE PREGNANT. Actually, in the
legal point of view, what is only denied is the qualification to the averment. The substance of the
allegation is actually admitted.
THIRD MODE: Where a defendant is without knowledge or information sufficient

to form a belief as to the truth of a material averment made in the complaint, he
shall so state, and this shall have the effect of a denial
Meaning, I am not in a position to admit or to deny because I have no knowledge. How can I admit or deny
something which I do not know?
EXAMPLE: Plaintiff claims for moral damages because Defendant destroyed his reputation. Defendant does
not know that Plaintiff had sleepless nights, wounded feelings, serious anxiety, etc. Here, Defendant cannot
admit or deny those.
I have read pleadings where the pleader would say, “Defendant has no knowledge or information sufficient
to form a belief as to the truth of the allegation in paragraphs 6, 7, 8, 9… of the complaint and therefore he
denies the same.” Actually, there is something wrong there. How can you deny something that you have no
knowledge of. Just state, “I have no knowledge.” Then period! And is has the automatic effect of a denial.
However, the SC warned that he third mode of denial should be done in good faith. If the fact
alleged is such that it is within your knowledge, it is impossible that it is not within your
knowledge, you cannot avail of the third mode of denial. Otherwise, if you will avail of the third
mode in bad faith, your denial will be treated as an admission. That is what happened in CAPITOL
MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you, “Defendant borrowed money from plaintiff in the
sum of P10,000 payable one year from said date.” And then you say, “I have no knowledge or information…”
There is something wrong there. What you are trying to say there is “I do not know whether I borrowed money
from you or not.”
How can that be? It is either you borrowed money or you did not! That is why the SC said in CAPITOL
MOTORS, if you borrowed money, you say so. And if you did not, deny it. And then I will allege there, “The
defendant have made partial payments.” Then you will say, “I have no knowledge.” My golly! You do not even
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know whether you paid me? In other words, talagang evasive bah! You are trying to be clever and evasive. And
if you do that, all your denials will be treated as admissions. That is the warning in the third mode.
Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the
complaint, other than those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under oath. (1a, R9)
While the law says ‘material averment in the complaint,” this rule extends to counterclaims, cross-claims
and third-party complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a material averment in the complaint and was
not specifically denied, it is deemed admitted. However under Section 11, there are averments in the complaint
which are not deemed admitted even when not specifically denied.
GENERAL RULE: Material averment in a complaint shall be deemed admitted when not
specifically denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted even when
not specifically denied:
1.) Amount of unliquidated damages;

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

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

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

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

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

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

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

214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the defendant filed a motion to
dismiss on the 8th day. It was denied. So there is still 7 days to file an answer. On the 15th day,
instead of filing an answer, he filed a motion for reconsideration and the such motion was denied.
Then he filed an answer.
HELD: NO MORE. The filing of the motion to dismiss interrupted the period to file an answer.
When you receive an order, you still have the balance to file your answer. And you did not file an
answer instead, you file a motion for reconsideration. You took the risk. So defendant’s motion for
reconsideration which merely reiterated his ground in the motion to dismiss did not stay the running
of the period to file an answer.
(a) Effect of order of default. - A party in default shall be entitled to notice of

subsequent proceedings but not to take part in the trial. (2a, R18)
So if you are declared in default, you cannot take part in the trial. You lose your standing, you cannot cross-
examine the witness of the plaintiff assuming there is a reception of evidence. You cannot object to his
evidence. You cannot even present your own evidence when you are in default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings which
abrogates the old rule. Under the old rules, you are not entitled to service of notice, orders, except
substantially amended pleadings, supplemental pleadings, final orders or judgments or when you file a motion
to set aside an order of default.
106
But NOW, wala na yan. You are now entitled to service of everything. You only lose you standing in court but
for the purpose of notice, you are entitled to service of every motion, every pleading, every order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may at any time after
notice thereof and before judgment file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a meritorious defense. In such case,
the order of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in default?

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

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

reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
107
FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan evidenced by a
promissory note. Bentong filed an answer but Bayani defaulted. The case was tried based on
Bentong’s answer. Gary move to drop Bentong from the case but retained Bayani, the defaulted
defendant so that Gary can secure an immediate judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more defendants, if you
drop the case against one, you drop the case against all. Selection is not allowed. To drop
Bentong means that the cause of action against him is weak. Why should one drop somebody if a
case against such person is meritorious? If such is the fact, necessarily the cause of action against
the other is also weak the fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]

239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino Truck causing injury
to Imson and totally wreaking his car. So he filed an action for damages against several defendants.
He impleaded all of them – the driver, the bus company owner and the insurance company . The
insurance company filed an answer but the owner and the driver did not. So both the owner and the
driver were declared in default.
Subsequently, lmson and the insurance company entered into a compromise agreement
wherein the latter paid him P70,000 which was its total liability under the insurance contract. The
claim was very big so the insurance company offered to give the amount, “Bahala ka sa sobra.”
So when the case (between Imson and the insurance company) was eventually dismissed
because of the compromise agreement, the bus company owner also moved to dismiss the case
against him and the driver, arguing that since they are all indispensable parties under a common
cause of action, the dismissal of the case against the insurance company should likewise result to
the dismissal of the case against them citing the case of ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause of action
against the driver is based on quasi-delict under Article 2178 of the Civil Code. The
liability against the owner is also based on quasi-delict but on another provision of the
Civil Code – Article 2180 (the liability of the employer for the delict or wrong of the
employee) So, the liability of the owner and the driver is based on quasi -delict but
under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not based on quasi-delict
but based on contract because he seeks to recover liability from the insurance company
based on the third-party liability clause of the insurance contract with the company.
So, there no common cause of action among them. Yaaann!
ISSUE #2: Is the insurance company an indispensable party? Because if it is so and he is

removed from the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
“It is true that all of Imson’s claims in civil case is premised on the wrong committed by
defendant truck driver. Concededly, the truck driver is an indispensable party to the suit. The other
defendants, however, cannot be categorized as indispensable parties. They are merely necessary
parties to the case. It is easy to see that if any of them had been impleaded as defendant (meaning,
the insurance company or the owner were impleaded), the case would still proceed without
prejudicing the party not impleaded.”
“Thus, if petitioner did not sue the insurance company, the omission would not cause the
dismissal of the suit against the other defendants. Even without the insurer, the trial court would
not lose its competency to act completely and validly on the damage suit. The insurer, clearly, is
not an indispensable party.” It is a necessary party.
(d) Extent of relief to be awarded. - A judgment rendered against a party in default

shall not exceed the amount or be different in kind from that prayed for nor award
unliquidated damages. (5a, R18)
This is what we call LIMITATIONS on a default judgment:

1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the
complaint;
3.) The default judgment should not award unliquidated damages.
Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff to
present his evidence and during the trial, the latter proved P500,000 total claim. Can the court award P500,000
claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default
judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the
complaint although it may be less than it. Yaannn!
FUNDAMENTAL REASON ON THE RULE ON DEFAULT

108
What is the reason behind this? You have to know the philosophy on default to understand the reason
behind paragraph [d]. Default means the defendant failed to file an answer despite the fact that he
was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not file an
answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.) Defendant deliberately did not answer because he believed that he had no good defense, and that
the claim is fair. And if he will make an answer, still he will not win and would just incur expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or another beyond his
control, he failed to file his answer.
Q: In the second possibility – the defendant had a defense and wanted to file an answer but failed to file an
answer, what is the remedy of such defendant?
A: It is paragraph [b] – file a motion to lift the order of default and state the reasons beyond
one’s control – fraud, mistake, accident, or excusable negligence (FAME) and that there is a
meritorious defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then, the
contingency is paragraph [d] – rest assured that the judgment will not exceed the amount or be different in kind
from that prayed for. At least, you will not be surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I allowed
myself to be defaulted because anyway its only P200,000 because if I file my answer, the costs could increase.
And then during the trial, you proved that the damages were in fact P2 million. So, when I received the
judgment it was already P2 million when the complaint was only for P200,000. Now, if you knew that would be
the case, then you would have fought it out. In other words, its unfair. Hence, the reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence will be
ordered.
MANGELIN vs. COURT OF APPEALS

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

A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly
be awarded such as the presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the
same are not required. An example is an obligation with a penal clause like an agreement to
construct a house and upon failure to finish the same within a stipulated period, the contractor is
liable for P10,000 for every day of delay. The amount is already fixed based on the contract price
and the penalty provided and such other circumstances as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here. Something is wrong
here. Last September 1997 during the BAR exams, the secretary of the committee which drafted this, the
former clerk of court of the SC, Daniel Martinez asked for comments on the New (1997) Rules. I told him about
the new Rules on Default, asking him who placed the provision there. He said it was Justice Feria’s idea.
J. Feria said, “Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated damages.” But I
said that there is something wrong here. For EXAMPLE: You filed a case against me na puro damages –
109
compensatory , moral , etc. and I believe I will lose the case if I go to trial. So, my strategy now would to have
myself declared in default because anyway, those unliquidated damages cannot be awarded by default.
In other words, they have placed the defaulted defendant in a better position when he will file an answer
because if he files an answer and goes to trial, he might lose. So, if he allows himself to be defaulted, the court
can never award the damages. This is the effect of the new limitation. That is why I’m against this change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court can never award those
damages. Because if I will answer, eh baka ma-award pa. In other words, I will win the case simply because
there is no way for the court to award the damages. And most damages are usually those unliquidated
damages.
(e) Where no defaults allowed. - If the defending party in an action for annulment or
declaration of nullity of marriage or for legal separation fails to answer, the court
shall order the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration of nullity
of marriage; Legal Separation. And the policy of the State is to preserve the marriage and not encourage break-
ups.
Now, in the absence of this provision, husband and wife quarrels and then they decide to separate. Wife will
file a case for legal separation with the agreement that the husband will not answer. Being in default, there will
be a judgement in default and in a month’s time marriage will be severed for the meantime. The provision then
prohibits default in marital relations cases to preserve and uphold public policy.
Q: What if the party did not really file an answer?

A: The court is bound to find out whether there is a collusion between the parties – whether the act is
deliberate without agreement. We already know that there should be presentation of evidence. And the law
requires the State to intervene. The fiscal is responsible to see to it that the evidence is not fabricated, the
same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of absolute nullity
of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed.
110
Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings may be amended by adding or striking

out an allegation or the name of any party, or by correcting a mistake in the name of
a party or a mistaken or inadequate allegation or description in any other respect, so
that the actual merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and inexpensive manner. (1)
What do you understand by amendment? The general meaning of amendment is change. Now can we
amend pleadings, change it? Yes.
Q: How do you amend a pleading?

A: Well, any type of change – you can add a word or a sentence or you strike out an allegation or you add or
strike out a party; you correct a mistake in the name of a party or inadequate allegation or description in any
other respect. As a matter of fact, if you correct only one letter, that is already an amendment.
So you can amend by removing something, adding something, or changing something by substituting
another word. You can amend by removing an entire paragraph, an entire sentence, a phrase, or a word. So
that is what amendment is all about. As a matter of fact, before reaching Rule 10, there are provisions where
amendments have already been touched upon, one of which is Rule 1, Section 5:
Sec. 5. Commencement of action.- A civil action is commenced by the filing of the

original complaint in court. If an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him on the date of the filing of
such later pleading, irrespective of whether the motion for its admission, if
necessary, is denied by the court.
So in other words, if I file a complaint against A, then later on I will include another defendant, the inclusion
of an additional defendant party is an amendment.
Q: Suppose I will file a case against Jacques today, January 9, then one month from today I will file another
complaint to include an additional defendant, Tikla. When is the case deemed commenced?
A: According to Rule 1, Section 5, as far as Jacques is concerned, the original defendant, the case against
him is commenced today. But as far as Tikla is concerned, the additional defendant, the case is commenced not
upon the filing of the original complaint, but on the date when he is included in the amended complaint. So, the
amendment does not retroact to the date of the filing of the original action.
Q: What is the policy of the law on amendments? Should it be encouraged or discouraged? If a party wants
to amend his complaint or answer, should the court be liberal in allowing the amendment or should it restrict,
as a general rule, and not allow the amendment?
A: Section 1 says that the purpose of amendment is that the actual merits of the controversy may speedily
be determined without regard to technicalities, and in the most expeditious and inexpensive manner. According
to the SC, amendments to pleadings are favored and should be liberally allowed in order (a) to
determine every case as far as possible on its actual merits without regard to technicalities, (b) to
speed up the trial of cases, and (c) to prevent unnecessary expenses. (Verzosa vs. Verzosa, L-25603,
Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)
EXAMPLE: The plaintiff files his complaint or the defendant files his answer and then later on he realizes
that his cause of action is wrong or that his defense is wrong. He would like to change his complaint or change
111
his answer. All he has to do is amend his complaint or answer. The court cannot stop him from changing his
complaint or changing his answer because the purpose of litigation is: the real nature of controversy will be
litigated in court. You cannot normally stop the party from ventilating his real cause of action or his real defense
so that the rule is that amendments should be liberally allowed in the furtherance of justice and that the real
merits of the case will come out in court. That is what you have to remember about concept of amendments
and the policy of the rules on amendments.
TYPES OF AMENDMENTS:
The following are the important points to remember here:
FIRST, there are two types of amendment of pleadings under the rules:
1.) An amendment as a matter of right; or
2.) An amendment as a matter of judicial discretion
SECOND, an amendment could be

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

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

1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a reply expires (Answer);
3.) Any time within 10 days after it is served (Reply); and
4.) Formal amendment
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AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
So we will now go to substantial amendments which are a matter of judicial discretion, that is Section 3:
Sec. 3. Amendments by leave of court. - Except as provided in the next preceding

section, substantial amendments may be made only upon leave of court. But such
leave may be refused if it appears to the court that the motion was made with intent
to delay. Orders of the court upon the matters provided in this section shall be made
upon motion filed in court, and after notice to the adverse party, and an opportunity
to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?

A: The amendment must be substantial and the adverse party has already filed and served a
copy of his responsive pleading.
PROBLEM: I will file my complaint against you and you will file your answer. After you have filed your
answer, I want to amend my complaint and my amendments is not merely formal but something substantial,
like my cause of action will not be the same anymore.
Q: Can it still be done?
A: YES, BUT this time it is a matter of judicial discretion. It must be with leave of court. So I will
have to file a motion in court to allow or admit the proposed amended complaint. I will furnish a
copy of the motion to my opponent together with a copy of the amended complaint and the other
party has the right to oppose the amendment. So the court will hear and decide whether to allow
the amendment or not.
Q: Assuming that the amendment is a matter of judicial discretion, how should the court resolve it?
Assuming that the argument is 50-50 and the court is deliberating whether or not to allow the amendment.
A: Based on established jurisprudence, the court should always allow the amendment because of
the liberal policy of the rules. Amendments of pleadings should be liberally allowed in order that
the real merits of the case can be ventilated in court without regard to technicalities. So the court
will always lean on allowing a pleading to be amended. That is the liberal policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing amendments? Meaning, when can the court
refuse to allow the amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the complaint confer jurisdiction
upon the court (Rosario vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a premature or non-existing cause of
action (Limpangco vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
The second sentence of Section 3 says that such leave may be refused if it appears that the motion was
made with intent to delay. Meaning, the motion to amend is dilatory. Example: a case is filed against the
defendant based on a cause of action then trial…trial…then the case is already about to end. Then the plaintiff
says he wants to amend his complaint and change his cause of action. I don’t think the court will allow it.
That’s too much.
Or, the defendant will say that he would like to change his defense. I don’t think the court will agree with
that situation because it appears that the motion to amend is already dilatory. Why did it take you one year to
realize that your cause of action or your defense is wrong? So that is a limitation where the court may refuse to
apply the principles on liberality. The liberal policy becomes weaker or is working against you the longer you
delay your amendment because it might already be interpreted to be dilatory.
Now if you will notice, there is another limitation found in the old rules that is gone here, and that is : That
the amendment will not be allowed if it will SUBSTANTIALLY alter the cause of action or defense (Torres vs.
Tomacruz, 49 Phil. 913) The implication here is that, since amendment is favored, even if you alter you cause of
action or defense, you should not prevent the other party provided that it is not dilatory. And the definition of
this limitation is a confirmation of what the SC said in some cases like the case of
MARINI-GONZALES vs. LOOD
148 SCRA 452
HELD: “While the Rules of Court authorize the courts to disallow amendment of pleadings when
it appears that the same is made to delay an action or that the cause of action or defense is
substantially altered thereby, the rule is not absolute.” It is discretionary.
“Courts are not precluded from allowing amendments of pleadings even if the same will
substantially change the cause of action or defense provided that such amendments do not result in
a substantial injury to the adverse party. This is due to the permissive character of said rule [which
provides: “may refuse”]. In fact, this Court has ruled that amendments to pleadings are favored and
should be liberally allowed in the furtherance of justice.”
That is why these are enough reason to delete that limitation. But if you are going to change your cause of
action or defense when the trial is almost over, hindi na puwede because that will be dilatory. But if you want to
change it before the trial, that it still allowed, even if it is substantial in nature. That’s why this limitation
disappeared. But despite the fact that there is only one limitation now left, it is conceded that there are still
limitations not found in the law which have remained intact.
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2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER
JURISDICTION UPON THE COURT
In other words, based on the original complaint the court has no jurisdiction over the subject matter. So I
will amend the complaint so that the court will have jurisdiction. Well, that will not be allowed. So,
jurisdiction by the court cannot be conferred by amendment when the original complaint shows
that the court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000 only. Where
should I file the complaint? MTC. But by mistake I file it in the RTC and later I realized that the case should
have been filed in the MTC because the jurisdiction of the RTC should be above P200,000. So I will amend my
complaint and change the complaint and say that my claim is P100,001.00. The obvious purpose of the
amendment is to make the case fall within the jurisdiction of the RTC. According to the SC, it cannot be done.
The rule here is when in its face, the complaint shows that the court has no jurisdiction over
the subject matter, the court has no authority to act in the case. And if you move to amend it and
ask the court to allow the amendment, you are assuming that the court has the authority to act on
the case. But the court can’t allow it because the court has no authority to act. So the court even is
not authorized to allow the amendment because it has no authority to act in the first place. How can
you allow something when you do not have the authority to act? My golly!
So according to the SC, when its on very face the complaint shows that the court has no
jurisdiction, the court has only one authority and its only authority is to dismiss the case. So with
that an amendment cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NON-EXISTING
CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no case. There is no delict or there is no
wrong. Now how can you create a delict or wrong by amending your complaint? In effect, you are creating
something out of nothing.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from IMPERFECT cause of action?
1.) In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by the
defendant (Limpangco vs. Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already been committed and alleged in
the complaint, but the cause of action is incomplete (Alto Surety vs. Aguilar, L-5625, March 16,
1945); and
2.) a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs. Mercado, 10
Phil. 508; Surigao Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar, L-5625, March
16, 1945; Ramos vs. Gibbon, 67 Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file the complaint
today so the running of the period will be interrupted. Suppose I will amend my complaint next month, on
February. Question: Is prescription properly interrupted? When an original complaint is amended later, when is
the prescriptive period for filing the action interrupted? Upon the filing of the original complaint or upon the
filing of the amended complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause of action, then the prescriptive
period is deemed interrupted upon the filing of the amended complaint; (Ruymann vs. Dir.
of Lands, 34 Phil. 428)
b.) But where the amendment has not altered or changed the original cause of action, no
different cause of action is introduced in the amended complaint, then the interruption
of the prescriptive period retroacts on the date of the filing of the original complaint.
(Pangasinan Trans. CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago vs. Mallari, 52 O.G. 180, October
31, 1956)
EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two months from now
I will amend my complaint from damages arising from culpa aquiliana to damages arising from culpa
contractual. Is that a different cause of action? Yes, so the prescriptive period for culpa contractual is deemed
filed next month, not this month, because that is a different cause of action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one million. Next month
I amend my complaint for damages from one million pesos to two million pesos. Did I change my cause of
action? No, it is still the same cause of action—culpa aquiliana. Therefore, the prescriptive period is deemed
interrupted as of the date of the filing of the original complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal procedure are the same because there is
such a thing as amendments on the criminal complaints or informations as a matter of right on the part of the
prosecution and amendments as a matter of judicial discretion. And under the rules of criminal procedure, an
amendment can either be formal or substantially received. There is some difference in the rules.
114
How do you differentiate the amendment of a pleading, under the rules on civil procedure and the
amendment of a criminal complaint or information in criminal cases? Take note that there is no Answer in
criminal cases. The accused is not obliged to file answer but the counterpart of answer in criminal cases is the
plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the arraignment or before he enters
plea, the amendment of information is a matter of right, either in form or in substance. EXAMPLE:
The prosecution files an information against you for homicide and then the prosecution wants to agree to
murder. Can it be done? YES, for as long as the accused has not yet entered his plea.
So it is almost the same as in civil cases. For as long as there is no responsive, pleading the amendment is a
matter of right whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already entered his plea to the original charged, is
amendment still allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment. Substantial amendment is 100%
prohibited in criminal cases. But in civil cases, puwede.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of evidence. - When issues

not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform

to the evidence and to raise these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does not affect the result of the
trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may grant a continuance to
enable the amendment to be made. (5a)
Q: May issues not raised in the pleadings be tried in court during the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that is
not raised in the pleadings based on Rule 9, Section 1. The court has no jurisdiction over the
issue. That’s why there is no such thing as surprise defense because a defense that is not raised is
deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be relaxed?

A: YES. Section 5 is a relaxation of the rule specifically the first sentence: “when issues not
raised in the pleadings are tried with the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.”
EXAMPLE: In a collection case, the defendant in his answer raised a defense that the money obtained from
the defendants was not a loan but a donation. During the trial, he attempted to prove that it was a loan but it
was already fully paid. So he is now proving the defense of payment. He is practically changing his defense. If
you follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that the defendant will prove that the obligation
is paid, then it can be done because issues now raised in the pleadings are tried with the express consent of the
parties. They shall be treated in all respects as if they had been raised in the pleadings.
In the case of implied consent, the best example is when the defendant attempts to prove
payment and the plaintiff FAILED TO OBJECT. So there is now an implied consent by the parties.
Therefore, the case can now be tried in the issue as if they had been raised in the pleadings. That
is what we call the principle of estoppel. The parties are in estoppel because they expressly or impliedly
agreed to try an issue which is not raised in the pleadings. The court will now render judgment and discuss the
evidence and discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you read the complaint and the answer,
there is no mention of payment but in the decision resolved the case on that issue. The pleadings are not in
harmony with the decision.
Q: So how will you harmonize the two – pleadings and the decision?
A: The remedy according to Section 5 is to amend the pleadings. We can amend the pleadings
to make them conform with the evidence. That is why the law says: “such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment.”
So even after the judgment, you can amend the pleading in order to harmonize with the evidence.
Normally, the evidence should conform to the pleading under Rule 9. In this case, baliktad! – it is the pleading
which is being amended to conform to the evidence. It is the exact opposite.
Normally that is for the benefit of the appellate court in case the decision will be the case will be appealed.
The CA will read the complaint and the answer, “wala mang payment dito!” But when you read the decision,
the main issue was payment not found in the complaint and the answer. So there might be confusion. So
amendment is necessary at anytime, even after judgment.
115
Q: But suppose the parties never bothered to amend the pleadings, is there a valid judgment?
A: YES because the law says, “but failure to amend does not affect the result of the trial of
these issues.” So, there is a valid trial and the court acquires jurisdiction over the issues because
of their implied or express consent. The best example is FAILURE TO OBJECT.
“if the evidence is objected to at the trial on the ground that it was not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall do so
with liberality if the presentation of the merits of the action and the ends of substantial
justice will be subserved thereby.”
EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid. The lawyer of the
plaintiff is alert and objected thereby, “You cannot prove that defense because you never raise a defense of
payment in your answer.” Is the objection correct? YES because of Rule 9, Section 1. The court affirmed the
plaintiff that one cannot prove the defense of payment because you never raised it in your answer. There is no
express or implied consent.
Q: But the defendant said, “If that is so your honor, may we be allowed to amend our answer so that we
will now raise the defense of payment and prove it in court?” Can the court allow the defendant to amend his
answer in the middle of the trial just to prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby.
That is why you can say that the power of the court in enforcing the Rules of Court is very wide. For
example, I am the judge and the defendant never raised the issue of payment in his answer and he is now
rising such defense. The plaintiff’s lawyer will now object and alleged that he cannot prove such defense for he
never raised it in his answer. The judge sustained the objection, “You cannot prove a defense that is never
raised in your answer.” Q: Is my ruling correct? A: YES because of Rule 9, Section 1 – objections and defenses
not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading so that I raised that defense. The
plaintiff will object to the amendment. The judge will ask the plaintiff, “is the obligation paid?” “NO. The
defendant never paid it,” answered the plaintiff. So if the defense is false, why are you afraid? Anyway, he
cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already paid the obligation but that he never
raised such matter in his answer. The plaintiff now will be in bad faith. So I will allow the amendment.
So in other words, in any way my ruling is correct because I know how to apply the rule. So the court will
allow the amendment and shall do so with liberality… so LIBERALITY should be the rule on amendment. Section
5 is a rule more on equity. While, Rule 9, Section 1 is a rule of law. Section 5 is a relaxation of that law on
technicality.
The last sentence, “the court may grant a continuance to enable the amendment to be made.”
‘Continuance’ means postponement. It means, postponement of the case to allow the defendant
to amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events which have
happened since the date of the pleading sought to be supplemented. The adverse
party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading. (6a)
The second part of Rule 10 is the supplemental pleading, for the first part is the amended pleadings.
Q: How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?

A: Of course, the similarity between the two is the existence of ORIGINAL PLEADING. The following are the
distinctions:
FIRST DISTINCTION: As to the allegations

An AMENDED pleading contains transactions, occurrences or events which already happened at the
time the original pleading was filed and could have been raised at the original pleading, but which the
pleader failed to raise in the original pleading because, oversight or inadvertence or inexcusable
negligence. If he wants to raise it, he must amend the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or events which were not in existence
at the time the original pleading was filed but which only happened after the filing of the original pleading
and therefore, could not have been raised in the original pleading.
That is the distinction emphasized in the New Rule – Rule 11, Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after answer. – A counterclaim

or cross-claim which either matured or was acquired by a party after serving his
pleading may, with the permission of the court, be presented as a counterclaim
or cross-claim by supplemental pleading before Judgment.
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Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a pleader fails to
set up a counterclaim or a cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he may, by leave of court, set up the
counterclaim or cross-claim by amendment before judgment.
These provisions emphasize the difference between an amended pleading and a supplemental pleading –
how do you raise a counterclaim or cross-claim which was not raised earlier? Is it by amending the pleading
or by filing d supplemental pleading ? And that applies also to an answer where the defense or the
transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect

In an AMENDED pleading, the amended pleading supersedes the original pleading. The original
pleading is deemed erased. The amended substitutes the original. So from the viewpoint of the law, the
original pleading no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading. In effect, there
are now two (2) pleadings which stand side by side in the case – the original and the supplemental
pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly installments. Mortz failed
to pay the first installment. Nanding filed a case. While the case is pending, the other installment
became due. Nanding will now file a supplemental pleading and as a result, there will be two (2)
complaints for P100,000 each.
Rule in EVIDENCE: In an amended pleading, all your admissions and evidence no longer exist
because remember under the rules on Evidence, any admission that you make in your pleading binds
you under the doctrine of judicial admission where the evidence need not be given - as if it is taken
judicial notice of. The rule is, if a pleading is amended and the amended pleading does not contain the
admissions contained in the original pleading, the judicial admission is now converted into an
extra-judicial admission and therefore the court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an admission which is not found there (in the
amended pleading), I have to formally offer in evidence the original pleading. Normally, you do not offer
in evidence a pleading because the court takes judicial notice of everything stated in there. But if the
original pleading is now superseded, the original must be offered in evidence to prove an admission
found in the original but not anymore in the amended one. That principle in now found in Section 8:
Section 8. Effect of amended pleadings. - An amended pleading supersedes the

pleading that it amends. However, admissions in superseded pleadings may be
received in evidence against the pleader; and claims and defenses alleged
therein not incorporated in the amended pleading shall be deemed waived.
That is related to the rule in evidence that what need not be proved: judicial notice, judicial
admissions.
THIRD DISTINCTION: The filing of an AMENDED pleading could be a matter of right or of

judicial discretion under Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under Section 6.
There is always leave of court.
Now, let us cite cases which are relevant to our topic on supplemental pleadings.
LEOBRERA vs. COURT OF APPEALS

170 SCRA 711
FACTS: Karen went to the bank and obtained a loan – housing loan. A promissory note was
issued payable next year. After few months, Karen went back to the bank and secured a second
loan – agricultural loan with another promissory note.
When the first note became due, Karen failed to pay. So the bank sued Karen on the first
promissory note. When the case was still going on, the second loan became due. So the bank
sought to file a supplemental complaint against Karen to collect the second loan. The maturity of
the second loan happened after the filing of the first pleading sought to be supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the defendant are the same,
there are two separate loans independent of each other as a matter of fact the
stipulations are not identical. It cannot be the subject matter of a supplemental
complaint. In this case, there are many types of loans secured in different terms and
conditions.
“A supplemental complaint must based on matters arising subsequent to the original

complaint RELATED to the claim presented therein and founded on the same cause of
action.” It cannot be used to try of another matter or a new cause of action.
A good EXAMPLE for a supplemental complaint is when I borrow money from you for P600,000 payable in
three installments. First installment is on February for P200,000; second installment is on April; and the last
installment is on June for the last P200,000. There is no acceleration clause. When the first installment fell due,
I did not pay. So the plaintiff filed a case against me to collect the first installment. In April, the case is still not
yet decided. In fact the second installment again fell due. Plaintiff moved to file for the supplemental pleading.
117
While the two cases are still pending, the last installment fell due and again there is failure to pay, so there is
another supplemental complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and the installments are
interrelated.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS

258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in janitorial services. A government

corporation, the Home Development and Mutual Fund (HDMF) sought a public bidding on who will
be the company who shall provide janitorial services to the offices of the HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was suppose to start providing the service for the
year 1990. However, the HDMF refused to honor the award. So, on November 8, 1989, Superclean
filed in the RTC of Manila a complaint for mandamus and certiorari against HDMF alleging that at
public bidding for janitorial services for the year 1990, it won as the lowest bidder but HDMF refused
without just cause, to award the contract to 'hem,
The problem was that 1990 already ended and the case was still on-going. So it was already
rendered moot and academic. What Superclean did was to file a supplemental complaint in 1991
alleging that because the contract of service was the furnishing of janitorial services for the year
1990, the delay in the decision of the case has rendered the case moot and academic without
Superclean obtaining complete relief to redress the wrong committed against it by HDMF which
relied now consists of unrealized profits, exemplary damages and attorney’s fees.
So, money claim na lang dahil moot and academic na eh. Instead of pursuing its prayer for
mandamus, Superclean sought the payment of damages to it.
ISSUE: Is the filing of supplemental complaint proper in order to seek a different relief in view of
developments rendering the original complaint impossible of attainment?
HELD: “The transaction, occurrence or event happening since the filing of the
pleading, which is sought to be supplemented, must be pleaded in aid of a party's right
of defense as the case may be. [That’s the purpose of the supplemental pleading – in aid
of the party’s cause of action or defense] But in the case at bar, the supervening event
is not invoked for that purpose but to justify the new relief sought.”
“To begin with, what was alleged as a supervening event causing damage to
Superclean was the fact that the year for which the contract should have been made had
passed without the resolution of the case. The supervening event was cited not to
reinforce or aid the original demand, which was for the execution of a contract in
petitioner's favor, but to say that, precisely because of it, petitioner's demand could no
longer be enforced, thus justifying petitioner in changing the relief sought to one for
recovery of damages. This being the case, petitioner's remedy was not to supplement,
but rather to amend its complaint.” You are actually changing the relief so that the
correct remedy is not a supplemental complaint but an amended complaint.
“Be that as it may, the so-called Supplemental Complaint filed by petitioner should simply be
treated as embodying amendments to the original complaint or petitioner may be required to file an
amended complaint.” So, meaning, you call it a supplemental complaint, the court will call it as an
amended complaint or the other alternative, require him to file an amended complaint.
Sec. 7. Filing of amended pleadings. - When any pleading is amended, a new copy of
the entire pleading, incorporating the amendments, which shall be indicated by
appropriate marks, shall be filed. (7a)
When a party files an amended pleading, the amendments should be indicated by appropriated marks,
normally, the amended portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be underlined. The
purpose for such marking is for the court and the opposing party to immediately see and detect the
amendment. If no appropriated mark is provided the court and the lawyer has to compare everything,
paragraph by paragraph, sentence by sentence, line by line. Now, if there are underlines, the court will just
concentrate on the underlined portion. This is for convenience for the parties and the court.
Section 8. Effect of amended pleadings. - An amended pleading supersedes the

pleading that it amends. However, admissions in superseded pleadings may be
received in evidence against the pleader; and claims and defenses alleged therein
not incorporated in the amended pleading shall be deemed waived.
(Section 8: See discussion on Section 6 on distinctions between an amended and supplemental pleading;
second distinction)
The first sentence is one of the distinctions between an amended pleading and a supplement pleading.
From procedural viewpoint, the original pleading is already non-existent. The court will no longer consider
anything stated there.
EXAMPLE: You say something favorable to me. However, in his amended pleading, he removes such
statement, so that the court will not consider it anymore. Such statement is out of the picture. Now, if you want
to bring to the attention of the court the statement found in the original pleading, you must offer the original
pleading in evidence to consider it all over again. This rule will be considered in the study of EVIDENCE.
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Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
What are discussed in this rule are periods. The question when a defendant wants to file an answer is, “How
many days does he have?” There must be a deadline. Rule 11 applies to all persons – natural and juridical such
as a corporation.
SECTION 1. Answer to the complaint. The defendant shall file his answer to the
complaint within fifteen (l5) days after service of summons, unless a different period
is fixed by the court. (1a)
Section 1 is the GENERAL RULE – the defendant has a period of 15 days after service of summons within
which to file his answer. The procedure is when a plaintiff files a complaint in court, the court will issue
summons (which is the counterpart of warrant of arrest in criminal cases). The sheriff of the court will look for
the defendant and serve him a copy of the complaint. From that day on, the defendant has 15 days to file his
answer.
The rules says, “unless a different period is fixed by the court.” That would be the EXCEPTION to the 15-day
period to file answer. Now, when are these instances when the court may fix a different period? They are those
mentioned in Rule 14, Sections 14, 15, and 16 – yung tinatawag service of summons by publication.
Let’s give example to the general rule. EXAMPLE: If the defendant is served with a copy of the complaint
and summons today (January 13,1998), the last day to file an answer will be January 28, 1998. Just add 15 days
to January 13.
In computing the a period, you follow the rule known as “exclude the first, include the last day rule”
under Article 13 of the New Civil Code. I think you know how to apply that. When you receive the complaint
today or when you are summoned today, you start counting the period tomorrow. Such rule is also
found in Section 1 of Rule 22 on Computation of Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of time prescribed
or allowed by these Rules, or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period of time begins to run is to
be excluded and the date of performance included. If the last day of the period, as
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thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the next working day. (n)
(The following discussions on Rule 22 are taken from the Remedial Law Review Transcription [1997-1998]:)
So you see, ito (Section 1, Rule 22) yung the act itself from which the designated period of time where the
case will run is to be excluded. Meaning, when you receive the summons, you count one but today is excluded
and of course the last day is included. And if the last day is the next working day. A: It is done on the next
business day. Here, there is an automatic extension.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts

the running of the period, the allowable period after such interruption shall start to
run on the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the
computation of the period. (n)
Alright, a good example of this is period to file an answer which is 15 days. And then you filed a motion to
dismiss under Rule 16 somewhere in between. Now, what is the principle to be remembered here?
The filing of the motion to dismiss will now be interrupt the running of the 15 -day period. And when your
motion is denied, if you receive the order of the denial now, you continue computing the balance within the
remaining period to file your answer.
Now, some people can’t understand this second sentence – “The day of the act that caused the interruption
shall be excluded in the computation of the period.” Many are wondering kung ano ba ang ibig sabihin nito! The
meaning of this is exemplified in the case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:
We will assume that on November 30 (end of the month), you were served with summons by the court. So
you have 15 days to file your answer from November 30. Let us say, on December 10, you filed a motion to
dismiss under Rule 16. So, the remaining of the period to file an answer is interrupted. And let us say on
December 15 or 5 days thereafter, your motion was denied, you receive a copy of the order of denial.
My QUESTION is, how many days more do you have or left to file your answer? Five days?
How many days did you consume? From November 30 to December 10 = 10 days. Tapos, December 10 to
December 15 = not counted. And you still have 5 days, so December 20, di ba?
Now if you ask majority of lawyers here, they will give the same answer. BUT according to LABITAD, that
computation is wrong. You actually have six (6) days.
So your deadline to file you notice to appeal is December 21. Why? Akala ko ba the filing of the
motion to dismiss interrupts? Now, when did you file your motion? December 10. Therefore,
December 10 is not counted because it is already interrupted.
So actually, you did not consume 10 days but only 9 days. That is the explanation of the SC in the case of
LABITAD – the day you filed your motion to dismiss is already excluded. So you only count December 1
to 9. This is the illustration of the sentence “the day the act which caused the interruption is excluded in the
computation of t tie period.”
ILLUSTRATION:
November 30 December 10 December 15 December 21

Defendant received Defendant filed a Motion to Dismiss is Deadline to file the
Summons Motion to Dismiss denied. Answer
Alright, let’s go back to Rule 11:
Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a
foreign private juridical entity and service of summons is made on the government
official designated by law to receive the same, the answer shall be filed within thirty
(30) days after receipt of summons by such entity. (2a)
The defendant here is a foreign private juridical entity. Meaning, a foreign corporation doing business in the
Philippines. In the first place, one cannot sue a foreign private corporation which is not doing business in the
Philippines because there is no way that the court can acquire jurisdiction over the person of such corporation.
If the foreign private corporation is doing business in the Philippines, then one can sue it here in the Philippines.
EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay Pacific, etc.
Q: Now, what is the period to answer when the defendant is a foreign private corporation doing business in
the Philippines?
A: It DEPENDS:
a.) When the foreign corporation has a designated resident agent, the summons shall be
served to the resident agent, and he has 15 days to answer, just like any defendants in
Section 1.
b.) On the other hand, if the foreign corporation does not have any designated resident
agent in the Philippines, then under the Corporation Code, the summons shall be served
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to the government official designated by law to receive the same, who is duty bound to
transmit it to the head office of the corporation abroad. And the corporation now has 30
days from receipt of summons to file its answer.
So it is either 15 or 30 days.
Q: Now, who is this proper government official designated by law to receive summons?
A: Generally, it is the Secretary of the Department of Trade and Industry. But for some types of
business, the law may designate any other official. Like the foreign corporation to be sued is a foreign insurance
company (e.g. Sun Life of Canada), under Insurance Code, you serve it to the Insurance Commissioner.
Or if it is a foreign bank which has branch here, you serve the summons to the Superintendent of
the Bangko Sentral ng Pilipinas.
Sec. 3. Answer to amended complaint.
Where the plaintiff files an amended complaint as a matter of right, the

defendant shall answer the same within fifteen (l5) days after being served with a
copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended
complaint within ten (10) days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the amended complaint if no new
answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-
claim, amended third (fourth, etc.) party complaint, and amended complaint-in-
intervention. (3a)
Now, what is the period to file an answer to an amended complaint? Under Section 3, there are two (2)
periods – first paragraph, 15 days; second paragraph, 10 days. Now what is the difference?
Suppose the complaint is amended as a matter of right because defendant has not yet filed an answer.
Meaning, the complaint is served on you and even before you answer it was amended and another complaint is
served, then you have 15 days to file your answer counted from the day of service of the amended complaint.
So forget the original period and you have 15 days all over again.
But suppose the defendant has already answered the original complaint and then the plaintiff decides to
amend his complaint which under the previous rule, is a matter of judicial discretion. Now, suppose the court
issued an order admitting the amended complaint and the defendant is furnished of the copy of the order
admitting the amended complaint. Therefore, if he wants to answer the amended complaint, he has 10 days to
do it and not 15 days. The 10-day period will be counted from service of the order admitting the
amended complaint, not from the service of the amended complaint because the same may not be
admitted. You wait for the order of the court admitting the amended complaint.
So, there are two (2) periods to file an answer to an amended complaint.
Q: Suppose I will not file an answer to the amended complaint. I filed an answer to the original complaint
but I did not file an answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed may serve as an answer to the
amended complaint if no answer is filed. Like when the amendment is only formal, why will I
answer? In other words, my defenses to the original complaint is still applicable.
So the principle is: if no answer is filed to the amended complaint, the answer to the original complaint
automatically serves as the answer to the amended complaint and therefore the defendant cannot be declared
in default.
Alright, the third paragraph of Section 3 is new. So, kasama na iyung amended counterclaims, amended
cross-claims.
Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be

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

answered within ten (10) days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental answer is filed. (n)
It follows the same rule as in Section 3, second paragraph. A supplemental complaint may be
answered in ten (10) days. The computation is again from notice of the order admitting the same.
Suppose I will not answer the supplemental complaint? The same principle – the answer to the
original complaint shall serve as the answer to the supplemental complaint. So it follows the same
principle as the amended complaint in the second paragraph of Section 3.
Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-

claim that a defending party has at the time he files his answer shall be contained
therein. (8a, R6)
One of the requisites to make a counterclaim compulsory is that the defending party has the counterclaim
at the time he files his answer. This is related with Section 7, Rule 6.
Sec. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-

claim which either matured or was acquired by a party after serving his pleading
may, with the permission of the court, be presented as a counterclaim or a cross-
claim by supplemental pleading before judgment. (9, R6)
Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a

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

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

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

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

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

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

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

A: YES. If it is the information which is vague, you cannot understand the allegations in the information, you
cannot plead, “Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko maintindihan eh” the accused
can file a motion for bill of particulars to require the prosecution to clarify vague portions of a complaint or
information.
There is an identical provision in Rule 116, Section 9 of the Rules on Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. – The accused may, before arraignment, move for
a bill of particulars to enable him properly to plead and prepare for trial. The motion
shall specify the alleged defects of the complaint or information and the details desired.
(10a)
The concept is the same. If the allegations in the information are also vague and ambiguous, “I cannot
understand it, so I cannot intelligently enter my plea.” The accused, before arraignment, can move for a bill of
particulars to enable him to prepare properly for the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case)
202 SCRA 726 [1991]
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscal’s
office when the case was under preliminary investigation. (In preliminary investigation, you are
given the affidavit of the complainant and his witnesses. And then you are given 10 days to submit
your counter-affidavits.) Here, the affidavit is vague according to the accused, so he is filing a bill of
particulars. He wanted to compel the complainant to make his affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary
investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot understand what the complainant is
saying in his affidavit?” The SC said, that is simple! If you cannot understand what the complainant
is saying in his affidavit, chances are, the fiscal also will not understand it. And consequently, he will
dismiss the case. Eh di mas maganda! Wag ka na lang mag-reklamo! [tanga!]
Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court which may either deny or grant it
outright, or allow the parties the opportunity to be heard. (n)
So pag-file mo ng motion for bill of particulars, the clerk has the obligation to bring it immediately to the
attention of the court and the court can deny or grant the motion immediately. But of course, it is up to the
court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do you think is this provision here, which is not
found in the old rules?
A: Many lawyers have abused Rule 12. In what way? A complaint is filed. The allegations are clear. Pero
sadyain niya – he will file a motion for bill of particulars that he cannot understand. Then, pag file niya ng
motion, he will set the motion for hearing 2 weeks from now. Then the motion is denied because it has no merit,
then, file ka ng answer. In other words, the period to file for an answer has been denied because it has no merit.
Then, file ka ng answer. The period to file for an answer has been delayed. The defendant has succeeded in
delaying the period for filing an answer by pretending that he cannot understand pero actually klaro man ba.
So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to
immediately act on the motion without delaying the filing of the answer. That is the reason why this provision
was inserted because the filing of the motion for bill of particulars can cause delay.
Sec. 3. Compliance with order. If the motion is granted, either in whole or in part,
the compliance therewith must be effected within ten (l0) days from notice of the
order, unless a different period is fixed by the court. The bill of particulars or a more
definite statement ordered by the court may be filed either in a separate or in an
amended pleading, serving a copy thereof on the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the bill
of particulars. How will you comply with the order to file a bill of particulars?
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A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole complaint and clarify the vague paragraphs
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient

compliance therewith, the court may order the striking out of the pleading or the
portions thereof to which the order was directed or make such other order as it
deems just. (1[c]a)
Q: Alright, suppose the motion is granted, the court ordered the plaintiff to submit a bill of particulars. The
plaintiff refused to comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions thereof which is the object of the bill of
particulars. Like for example: Ayaw mong i-clarify ang complaint mo, ayaw mo. Alright, I will now issue an order
to strike out the entire complaint. It is as if the complaint was never filed. Practically, your complaint was
dismissed. In effect your complaint was dismissed because if the complaint was ordered stricken out, then it is
equivalent to dismissal of the case itself.
Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars
or of a more definite pleading, or after notice of denial of his motion, the moving
party may file his responsive pleading within the period to which he was entitled at
the time of filing his motion, which shall not be less than five (5) days in any event.
(1[b]a)
Q: What is the effect for a motion for a bill of particulars when you file a motion? What is the effect on that
on the 15-day period to file the answer?
A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for bill of
particulars. The period continues to run from the date that you received the bill of particulars, if
your motion is granted, or from the receipt of the order denying your motion if it was denied. From
there, the period to answer will run again so you have to file your answer within the balance of the
remaining period.
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I filed a motion for a bill of particulars. Pag-
file mo on the 8th day , the running of the period automatically stops and then after several days, you receive
the order. For example, denying your motion, you still have 8 days to go because the period during which your
motion was pending will not be counted. Na- interrupt ang takbo ng 15 days.
Q: Suppose, you file your motion for a bill of particulars on the 14th day and your motion is denied. You
received the order today. How many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days. Kahit one day to go na lang, balik ka
naman sa 5. At least minimum. So, it is 5 days or more but never be less than 5 days.
Therefore, if a defendant filed the motion for bill of particulars within 15 days, he cannot be declared in
default. The plaintiff cannot declare the defendant in default for failure to file an answer because 15 days had
already lapse. Pag file ng motion, itigil mo muna ang takbo ng araw. It will be interrupted by the filing of the
motion and the period commences to run again from the time he received the bill of particulars or the order
denying his motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of particulars becomes part of the pleading for
which it is intended. (1[a]a)
Ah, yes. It is very clear ‘no? When you file a bill of particulars clarifying the paragraphs in the complaint
which are vague, the bill of particulars becomes part of the complaint with its supplements.
Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all pleadings and other
papers, as well as the service thereof, except those for which a different mode of
service is prescribed. (n)
126
As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings “except
those for which a different mode of service is prescribed.” An example of the exception is the service of
complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined.
Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is ordered by
the court. Where one counsel appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side. (2a)
When you say FILING, you present the pleading in the office of the clerk of court. When you say
SERVICE, you furnish a copy of the pleading to the party concerned, or if he is represented by a
lawyer, you must furnish a copy of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to the
lawyer and not to the party. Service to a party is not valid. What is valid is service to the counsel.
Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless the
court orders direct service to the party.
Q: What is the reason for requiring service upon the lawyer if the party is so represented?
A: The reason for the rule is to do away with the subsequent objection which the party served may raise to
the effect that he knows nothing about court procedure and also to maintain a uniform procedure calculated to
place in competent hands the orderly prosecution of a party’s case. (Hernandez vs. Clapis, 87 Phil. 437; Javier
Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
So, the purpose there is to avoid any complaint later that the party did not know what to do. Since the
lawyer is presumed to know the rules, at least it is on competent hands. But if you got to the party himself, the
problem is he might start complaining later, “My golly, kaya nga ako kumuha ng abogado kasi hindi ako
marunong.”
There was a even a case when the client volunteered to get the copy of the decision. But he
party failed to give it to his lawyer. Is the lawyer bound, or is the party also bound? NO, because
the rule is service to lawyer binds the client and not the other way around.
So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON THE
PARTY HIMSELF IS ORDERED BY THE COURT. Example is in the case of
RETONI, JR. vs. COURT OF APPEALS

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

258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible cannot be
considered as notice to his client. The application to the given case of the doctrine that notice to
counsel is notice to parties should be looked into and adopted, according to the surrounding
circumstances; otherwise, in the court’s desire to make a short cut of the proceedings, it might
foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It would then be
easy for one lawyer to sell one’s rights down the river, by just alleging that he just forgot every
process of the court affecting his clients, because he was so busy.”
So, sasabihin lang niya, “Sorry ha, nakalimutan ko,” and then you are bound – Masyadong masakit naman
iyan.
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the lawyer
entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, “Where one counsel
appears for several parties, he shall only be entitled to one copy of any paper served upon him by
the opposite side.” But if the 5 defendants are represented by different lawyers, that is another
story. Every lawyer has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat abogado
ba may kopya?
A: NO, service on one is sufficient. Section 2 says, “…service shall be made upon his counsel or
one of them…” Service to one is service to all. You can do it if you want to but service on one will
suffice.
127
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances, motions, notices,

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

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

233 SCRA 597 [1994]
HELD: “Where a pleading is filed by ordinary mail or by private messengerial service, it is

deemed filed on the day it is actually received by the court, not on the day it was mailed or
delivered to the messengerial service.”
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.

April 18, 1997
HELD: “Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of

Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original, there is no way of determining on its
face whether the facsimile pleading is genuine and authentic and was originally signed by the party
and his counsel. It may, in fact, be a sham pleading.”
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is filed –
128
Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its
existence in the record of the case.
If it is not in the record, but is claimed to have been filed personally, the filing
shall be proved by the written or stamped acknowledgment of its filing by the clerk
of court on a copy of the same;
if filed by registered mail, by the registry receipt and by the affidavit of the
person who did the mailing, containing a full statement of the date and place of
depositing the mail in the post office in a sealed envelope addressed to the court,
with postage fully prepaid, and with instructions to the postmaster to return the mail
to the sender after ten (10) days if not delivered. (n)
Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I filed it in
court personally. So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is not yours
but with the clerk of court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the post
office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, containing a full statement of
the date and place of depositing the mail in the post office in a sealed envelope addressed to the court. It must
be stressed that the affidavit is very important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment, resolution, order,
pleading subsequent to the complaint, written motion, notice, appearance, demand,
offer of judgment or similar papers shall be filed with the court, and served upon the
parties affected. (2a)
Let us now go to service. Under the law, before you file, there must be service to the opposing party’s
counsel. And all documents, as a rule, shall be filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint…. bakit ba ‘subsequent’? Meaning, answer, counterclaim, cross-claim.
Q: Do you mean to tell me the complaint does not have to be served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does not
really have to go to the defendant to serve the complaint. The complaint is brought to the court
because the summons will be issued.
But if you are the defendant’s lawyer, you go directly to the plaintiff’s lawyer to serve the answer because
an answer is a pleading ‘subsequent’ to the complaint. Moreover, the manner of serving complaint is not
governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people do not understand this – “Every
judgment, resolution, order… shall be filed with the court and served to the parties...” Well of course, iyang mga
pleadings, motions, etc., you file and serve because there must be proof of service to the adverse party.
Now, judgments. It must be filed. Why will the court files its own judgment before itself? Actually, the judge
has to file his decision before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments and final orders. A judgment or final order
determining the merits of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of the court. (1a)
So, the judge has to file his own decision to make it official.
Sec. 5. Modes of service. Service of pleadings, motions, notices, orders, judgments

and other papers shall be made either personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party?

A: Either:
1.) personally or
2.) by mail; or
3.) Substituted service under Section 8 in case of failure of the personal service or by
registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers may be made by delivering

personally a copy to the party or his counsel, or by leaving it in his office with his
clerk or with a person having charge thereof. If no person is found in his office, or his
office is not known, or he has no office, then by leaving the copy, between the hours
of eight in the morning and six in the evening, at the party's or counsel's residence,
if known, with a person of sufficient age and discretion then residing therein. (4a)
How are pleadings served personally? You deliver it personally to the party if he is not represented by a
counsel. And if he is represented, then to his counsel. You don’t have to look for his lawyer – you way leave it to
his office with the clerk or any person charged thereof and that is already personal service. Most lawyers have a
receiving clerk authorized to receive pleadings.
129
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC

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

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

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

2. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court
otherwise provides.
3. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from
the date he received the first notice of the postmaster, whichever date is earlier. (8a)
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by registered mail shall be made by depositing

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

A: Section 10:
130
Sec. 10. Completeness of service. Personal service is complete upon actual delivery.
Service by ordinary mail is complete upon the expiration of ten (10) days after
mailing, unless the court otherwise provides. Service by registered mail is complete
upon actual receipt by the addressee, or after five (5) days from the date he received
the first notice of the postmaster, whichever date is earlier. (8a)
So that is for the people who refuse to claim their mail even if they are already notified. He knows it is an
order he expects to be adverse so he will try to defeat the service by not claiming it. NO, you are at a
disadvantage because after the expiration of so many days, service is deemed completed. That is what you call
CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the process of the law by simply not
claiming his mail. You can be bound by a decision which you never read. That is constructive
service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions,

orders and other papers cannot be made under the two preceding sections, the office
and place of residence of the party or his counsel being unknown, service may be
made by delivering the copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is complete at the time of such
delivery. (6a)
Kung somehow there was an attempt of personal service or registered service at walang nangyari, you can
resort to by serving a copy to the clerk of court with proof of failure of personal and mailing service. And by
fiction of law, the adverse party has already been served.
SERVICE OF DECISIONS, ORDERS, ETC.
Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or

resolutions shall be served either personally or by registered mail. When a party
summoned by publication has failed to appear in the action, judgments, final orders
or resolutions against him shall be served upon him also by publication at the
expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication
So court orders or judgments orders have to be served also, either personally or by registered mail. That’s
why if you go to the court, there are employees there who are called process servers. Everyday, they go around
from law office to law office to serve court orders, notices and judgments. And that is personal service. But if
the lawyer is a Manila lawyer, or is out of town, chances are the clerk of court will apply registered mail.
Under Section 9, there is a third mode of service of court orders and judgments and that is service by
publication. That is if the parties were summoned by publication under Rule 14 and they did not appear. The
judgment is also served to them by publication at the expense of the prevailing party.
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service
and filing of pleadings and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was not done
personally. A violation of this Rule may be cause to consider the paper as not filed.
(n)
That is a radical provision. In other words, there are two (2) ways of service: personal or by mail. And the
law says, personal service is preferred to mail. Meaning, personal service is prioritized.
Q: Suppose you served the opposing counsel by mail.

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

A: The law says, “A violation of this rule may be cause to consider the paper as not filed.” And that is a very
radical rule..
For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail to you the pleading
or motion and then, nakalagay doon sa pleading : “Explanation: I have to resort to registered mail because it is
expensive for me to resort to personal service. It is expensive if I will send my messenger to Davao just to serve
whereas if I send by registered mail, it will only cost me P5.00.” They have to state that. Takot sila eh because
without it, the pleading is not considered as filed. Of course this rule should be interpreted based on common
sense.
To my mind, the rule should be construed reasonably. If I am the judge, even if there is no explanation, I will
allow it. Common sense eh! Alangan papuntahin pa dito ang messenger at pa-eroplanuhin mo pa!
Now, I think the purpose of this new provision has been provoked by some malpractices of the lawyers.
There were some instances before which have been confirmed especially in Metro Manila. The opposing counsel
is just across the street ang opisina. He will send a motion to be received today. Instead of serving you, he will
mail it. Mas malayo pa ang Post Office para hindi mo matangap. They will deliberately do it because it could not
reach you on time. I think if you do that, I will not consider your motion. Or, kunwari may motion ka. You will
send me a copy by mail and you are along C.M. Recto St. Bakit ka nag-mail eh mas malayo pa ang Post Office
kaysa office ko? Unless you explain, I will deny your motion.
131
Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero para maniguro, you
explaint na lang: “Explanation: Because of time constraint and distance, I had to resort to registered mail.” That
is now the standard explanation which appears in many pleadings or motions. It is a radical provision.
Take note that courts are not covered by Section 11. It only applies to lawyers and parties. The
court does not have to explain why it resorted to registered mail because Section 11 says,
“Whenever practicable, the service and filing of pleadings and other papers shall be done
personally EXCEPT WITH RESPECT TO PAPERS E EMANATING FROM THE COURT.”
So the court is not obliged to give any explanation, only the parties and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORTE

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

201 SCRA 768 [1991]
FACTS: The CA Johnson and Johnson Philippines a decision in an envelope by registered

mail. After a while, the same envelope was returned to the CA. On the face of the envelope, it as
written, “Return to Sender, Unclaimed.” On the back of the envelope, there is an annotation “Return
to CA”.
With that, the CA applied the rule on constructive service – considered the decision as already
served. Johnson and Johnson Philippines questioned it. It never received any notice from the post
office. But according to the CA, it is very obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive service?
HELD: There is NO constructive service because there is no certification by the

postmaster that is claimed. This is what the law requires not just a one sentence
statement. One cannot even ascertain who wrote the statement. Certification should
include the details of delivery and not just state that notice was issued.
“A certification from the postmaster would be the best evidence to prove that the
notice has been validly sent. The mailman may also testify that the notice was actually
delivered. The postmaster should certify not only that the notice was issued or sent but
also as to how, when and to whom the delivery thereof was made.”
“There is nothing in the records of the present case showing how, when and to whom the
delivery of the registry notices of the subject registered mail of petitioner was made and whether
said notices were received by the petitioner. The envelope containing the unclaimed mail merely
bore the notation “RETURN TO SENDER: UNCLAIMED” on the face thereof and “Return to: Court of
Appeals” at the back. The respondent court should not have relied on these notations to support the
presumption of constructive service.”
The case of JOHNSON was reiterated in

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

A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed without the
order from the court and generally the court cannot issue the order until the case is finished or
until the final issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the notice of lis pendens
even when the case is not yet terminated. One of which is contemplated under Section 14: “After proper
showing that the notice is: [a] For the purpose of molesting the adverse party; or [b] It is not
necessary to protect the rights of the party who caused it to be recorded.” In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a piece of land registered in the
name and possessed by the defendant. The case has been going on for more than 1 year, the
plaintiff has been presenting evidence he plaintiff has not yet shown that he has right over the land.
HELD: So there is no more basis of notice of lis pendens because your purpose is to harass the
defendant for over a year litigation without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is pending
and unresolved, the proper court has the authority to determine whether to cancel it under peculiar
circumstances, e.g., where the evidence so far presented by the plaintiff does not bear out the main
allegations in the complaint.”
more in detail when we reach Rule 16 on Motion to Dismiss.
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Rule 14
SUMMONS
Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment
of the requisite legal fees, the clerk of court shall forthwith issue the corresponding
summons to the defendants. (1a)
Ano ang plural ng “summons”? Meron bang plural yan? “Summonses”? I think it is still “summons,”
whether singular or plural. The verb is, of course, to summon – tawagin mo. Summons is a noun, a legal
term. But actually, there is a similarity in meaning because you are being called to answer in a case.
Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on Criminal
Procedure, when an information is filed in court, the judge will issue a warrant of arrest. In civil cases, when a
complaint is filed in court, the court will issue what is known as a summons under Section 1.
Section 2 states the contents of a summons:
Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk
of court under seal, and contain: (a) the name of the court and the names of the
parties to the action; (b) a direction that the defendant answer within the time fixed
by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any,
shall be attached to the original and each copy of the summons. (3a)
Q: Define Summons.
A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the purpose of
securing his appearance therein. (Ballentine’s Law Dict., 2nd Ed., p. 1250)
Q: What is the purpose of summons?
A: The service of summons enables the court to acquire jurisdiction over the person of the defendant.
(Echevarria vs. Parsons Hardware, 51 Phil. 980)
Q: How does the court acquire jurisdiction over the person of the plaintiff?
A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing
his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil.
523)
Q: What is the effect if a defendant is not served with summons?
A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Bal-latan, 13
Phil. 135; De Castro vs. Cebu Portland Cement Co., 71 Phil. 479)
Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing new
summons on the additional defendant?
A: YES. When an additional defendant is included in the action, summons must be served upon
him for the purpose of enabling the court to acquire jurisdiction over his person. The case is
commenced against the additional defendant upon the amendment in the complaint (Fetalino vs.
Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party
(under Rule 3), his legal representative was substituted in his place, is there a necessity of issuing new
summons on the substituted defendant?
A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is
only a continuation of the personality of the original defendant. Just serve the copy of the order,
where he is ordered to be substituted. (Fetalino vs. Sanz, 44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by the
plaintiff, is there a necessity that another summons be issued and served based on the amended complaint? Or
is the summons of the original complaint sufficient?
ANS: It depends on whether the amendment was made before or after defendant’s appearance in the
action:
Q: What do you mean by the phrase “appearance in the action”?
A: The best example is, whether the defendant files an answer to the complaint.
Appearance in civil cases does not mean that you are there and show your face to the judge.
That is not the meaning of the word “appearance”. Appearance means filing something in court
which would show that the court has jurisdiction over your person, like the filing of an answer.
When the defendant filed an answer through his lawyer, there is now appearance of the
defendant.
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a.) If the defendant has not filed answer to the original complaint there must be another
summons issued on the amended complaint. A new summons must be served all over again
based on the amended complaint. (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b.) If the defendant has already filed an answer to the original complaint or he has already
appeared in the action, and after that the complaint is amended, there is no need of issuing
new summons on the amended complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March 1961)
Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was served
with summons on the original complaint and before he could answer, there is now an amended complaint, so
there will be new summons on the amended complaint, what is the period to file an answer?
A: The period to file an answer is 15 days all over again. there will be another period of 15 days to file an
answer to the amended complaint upon receipt of the amended complaint and the summons.
Q: Suppose the defendant has already filed an answer to the original complaint and after that there is an
amended complaint, what must the plaintiff do?
A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a copy of
the amended complaint together with the motion to admit it. Just serve the defendant a copy of the amended
complaint with a copy of the order admitting the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the amended complaint, what is the period for the
defendant to file an answer to the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the
amended complaint, but from receipt of the order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an answer by the defendant.
However, according to the SC in the case of:
PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS

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

L-11580, July 20, 1959
FACTS: The summons was served by a policeman in a remote area and the question that was
asked is whether he is authorized.
HELD: NO, he is not authorized. The policeman is not a sheriff, he is not a deputy
sheriff, and he is not a proper court officer. He belongs to the PNP. And PNP is under
the executive branch and not a part of the judiciary.
However, there is no problem if he is the only one in that area whom we can depend on. All you have to
do is get a court order deputizing the police officer. So he will fall under no. 3. But without such
court order, he is not among those mentioned in Section 3.
Q: When summons is served, lets say, by the sheriff, must it be on a weekday and not on Saturday, Sunday,
or holiday, and must be within office hours? Can you challenge the validity of the service of summons on the
ground that it was not effected on a working day or during office hours?
A: In the case of
LAUS vs. COURT OF APPEALS
214 SCRA 688
137
HELD: The service of summon is valid because the service of summons is
MINISTERIAL. Service of summons may be made at night as well as during the day, or
even on a Sunday or holiday because of its ministerial character.
SEC. 4 Return – When the service has been completed, the server shall, within
five (5) days therefrom, serve a copy of the return, personally or by registered mail,
to the plaintiff’s counsel and shall return the summons to the clerk who issued it,
accompanied by proof of service (6a)
The person who served the summons is the sheriff or his deputy. After that, it is the duty of the sheriff to
inform the court what has happened – was he able to serve the copy of the complaint, together with the
summons to the defendant? If so, on what day? The duty of the sheriff after service of summons is that he
should make a report to the court as to what happened. That is what is called a sheriff's return. EXAMPLE:
“Respectfully returned to the court with the information that defendant was personally served with summons
on this date and on this time as shown by his signature on the face of this original copy.” Or, “Respectfully
returned to the court with the information that defendant cannot be served with summons because the
defendant had already moved from the address indicated in the complaint and therefore he cannot be located.”
There must be a report because that will determine when the period to file an answer will start to run. Or, if
he failed to serve it for one reason or another, like for example, the defendant is no longer residing in that place
and you cannot find him, at least you must also return the summons to the court and make a report that you
cannot serve the summon. That is what you call the Sheriff’s Return under Section 4, Rule 14.
He must also furnish a copy of his report to the plaintiff’s lawyer so that the plaintiff’s lawyer can determine
what is the deadline for the defendant to file his answer.
SEC. 5 Issuance of Alias Summons – if a summons is returned without being served

on any or all of the defendants, the server shall also serve a copy of the return on
the plaintiff’s counsel, stating the reasons for the failure of service, within five (5)
days therefrom, in such case, or if the summons has been lost, the clerk, on demand
of the plaintiff, may issue an alias summons (4a)
Now Section 5 contains this new requirement that the serving officer shall also serve a copy of the
return on the plaintiff's counsel stating the reasons for the failure of service within 5 days therefrom. Because
most sheriff, they did not tell the lawyer what happened eh! They should tell the lawyer what happened so that
if the summons was not served, the lawyer can file a motion for issuance of an alias summons, like he cannot
serve the summons because the defendant is not already in the address given, lumipat na. That becomes the
problem of the plaintiff and his lawyer. So that is now the requirement.
Q: What happens if the summons is returned unserved on any or all of the defendants?
A: The server shall serve also a copy of the return on the plaintiff’s counsel, stating the reasons for the
failure of service
Q: For what purpose?

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

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

2.) Section 7 – Substituted service (Section 7); and
3.) Sections 14, 15, 16 – Service by publication;
First Mode: SERVICE IN PERSON (Section 6)
SEC. 6. Service in person on defendant – Whenever practicable, the summons shall

be served by handing a copy thereof to the defendant in person, or if he refuses to
receive and sign for it, by tendering it to him (7a)
Q: How is service in person done?

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

A: NO. You can serve it wherever he may be found. And the law does not care where to do it.
EXAMPLE: I am the sheriff. I’m looking for you to serve summons in a case and while walking along New
York Street, I saw you inside a restaurant. I entered the restaurant and served the summons there. Then you
say, “Not here. Give it to me at home”. Under the law, service is in person. There is no need for me to go to
your house. I can serve the summons wherever I find you.
138
Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but he refuses,
what will I do?
A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under the law,
you are served. The court has already acquired jurisdiction over your person.
The common impression kasi of laymen na pag hindi tanggapin, walang sabit. No, that is of course false.
You cannot defeat a court process by refusing to accept it. May mga sheriff pa nga na bastos: “Dili ka
magtanggap? Basta ilagay ko ito sa tabi mo, i-report ko sa court na binigyan kita, ayaw mong tanggapin, ayaw
mong mag-pirma.” And under the law, from that moment, you are bound. So, matakot man yang defendant ba.
Kunin niya yun tapos mag-consult siya ng lawyer. Then his lawyer will tell him na he is bound despite his
refusal to accept it.
Now, under the 1964 rules, this mode of service of summons was called PERSONAL SERVICE. Under the
1997 Rules, the ’personal service’ was changed to ‘SERVICE IN PERSON’. They just changed the words so that
it cannot be confused with Rule 13 because in Rule 13, there is also personal service. But that is not service of
summons but service of pleadings, motions, etc. Para huwag magkagulo, the personal service was changed to
service in person. Because service under Rule 13 is also personal service to the secretary but here in Rule 14, it
is literal. That is to avoid confusion. Dapat pinalitan din iyong Section 7 –substituted service – because in Rule
13, there is also substituted service. Why did they not change to avoid confusion? Maybe they overlooked it.
Second Mode: SUBSTITUTED SERVICE (Section 7)

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

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

A: Substituted service of summons can only be applied by the sheriff if there is failure of
personal service within reasonable time for justifiable causes [under Rule 14, Section 7]. So is the
wife says, “come back tomorrow,” so you have to come back tomorrow and you cannot yet serve
substituted service of summons.
139
Q: But suppose, the sheriff has gone to your house 5 times, everytime he goes there you are not around, is
substituted service of summons allowed?
A: YES. I will now serve it on you (through your wife) and that is valid. The law prefers service in person
than substituted. Substituted service according to SC, should only be resorted to if there is failure of personal
service within reasonable time for justifiable causes. (Mapa vs. CA, 214 SCRA 417)
MAPA vs. COURT OF APPEALS

214 SCRA 417
HELD: If a sheriff resorts to substituted service under Section 7 and when he makes his return,
his return must specify that “I have tried many times to resort to personal service, but he cannot do
it”. He must outline his efforts to apply Section 6, otherwise the return is defective.
“Impossibility of prompt service should be shown by stating the efforts failed. This statement
should be made in the proof of service. This is necessary because substituted service is in
derogation of the usual method of service.”
Now, of course, if I tried several times to serve you personally but I failed, and then I make a return but I
did not explain, there is still a valid service but you must explain in court. There is a presumption that you did
not exert efforts. To make it a complete return, you must outline several attempts to make personal service.
[Substituted service of summons may still be considered as VALID even if the sheriff failed to
state in his return of the facts of the impossibility of prompt service if the server subsequently
explains in court, by giving testimony, the facts why he resorted to a substituted service. The
plaintiff should not be made to suffer for the lapses committed by an officer of the court]
TOYOTA CUBAO INC. vs. COURT OF APPEALS

October 23, 1997
HELD: “A law prescribing the manner in which the service of summons should be effected is
jurisdictional in character and its proper observance is what dictates the court’s ability to take
cognizance of the litigation before it. Compliance therewith must appear affirmatively in the return.
It must so be as substitute service is a mode that departs or deviates from the standard rule.
Substitute service must be used only in the way prescribed, and under circumstances authorized by
law.”
DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]

AND SERVICE OF SUMMONS [RULE 14]
Now, do not confuse substituted service of summons under Rule 14 with substituted service of pleadings,
orders and other papers under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service of the papers may be made by
delivering personally a copy to the party or his counsel, or by leaving it in his office
with his clerk or with a person having charge thereof. If no person is found in his
office, or his office is not known, or he has no office, then by leaving the copy,
between the hours of eight in the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient age and discretion then
residing therein. (4a)
FIRST DISTINCTION: In Rule 13, that is known as personal service. In Rule 14, that is known as
substituted service. Service of summons is governed by a different rule (Rule 14) from service of pleadings,
judgments and other papers (Rule 13).
Now, what is substituted service in Rule 13? Let us go back to Section 8, Rule 13.
Rule 13, SEC. 8. Substituted service. - If service of pleadings, motions, notices,

resolutions, orders and other papers cannot be made under the two preceding
sections, the office and place of residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail. The service is complete at the
time of such delivery. (6a)
SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in
person, then you serve the summons at the residence of the defendant with some person of suitable age and
discretion residing therein or by leaving copies at the defendant’s office or regular place of business with some
competent person in charge thereof. That is substituted service of summons under Rule 14.
But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or service
by registered mail have failed, then serve it on the clerk of court. And that is known as substituted service.
In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons
be served to a defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who will
serve the summons to the defendant in Manila.
So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because of the
similarity of terms. Substituted service of summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16)
140
SERVICE BY PUBLICATION UNDER SECTION 14
(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final orders or resolutions. - Judgments, final
orders or resolutions shall be served either personally or by registered mail. When a
party summoned by publication has failed to appear in the action, judgments, final
orders or resolutions against him shall be served upon him also by publication at the
expense of the prevailing party. (7a)
Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning the
defendant failed to file an answer, the decision can also be served upon him by publication.
Q: What are the instances where a defendant may be served with summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or whereabouts are unknown. That
is what you call suing an unknown defendant. Or, the defendant is known pero hindi na makita.
He may be in Davao, Cebu or in Manila. Bali-balita lang. But definitely, he is in the Philippines.
That is the important condition. So, let us read Section 14:
Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any
action where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the court
may order. (16a)
Under this provision, service of summons is allowed:
1.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 – when
you file a case against an unknown defendant is allowed. But of course, he is unknown, you have no
idea where he is staying; and
2.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by diligent
inquiry.
EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not know
where he moved. Maybe you have been receiving reports that he is in Manila or Cebu but the exact address is
unknown and you want to sue him.
Q: In the above case, is the plaintiff authorized to have the summons effected by publication?
A: Take note that to avail of summons by publication, there must be leave of court. You must
file a motion, under Rule 14, for permission to have defendant summoned by publication and the
court will issue an order allowing the defendant be served with summons by publication where the
complaint and the summons be ordered published. The service may be effected upon him by publication
in a newspaper of general circulation and in such places and for such time as the court may order.
“Of general circulation and in such places and for such time as the court may order.” Hindi naman
kailangan sa Daily Inquirer. Puwede man sa local paper, ba. For example, sabihin mo: “We learned that he is in
Cebu pero saan sa Cebu, we do not know.” The court may order the publication to be published in a local
newspaper of general circulation in Cebu. Of course, kasama diyan ang complaint. How many times? Bahala
na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the presumption is mabasa yan ng
defendant or at least somebody who must have read it will inform the defendant. So, the law requires that you
must file a motion and ask the court to allow service of summons by publication.
Now, one thing that you have to remember is, the whereabouts of the defendant is unknown,
but he is in the Philippines. That is the condition. If he is in the United States, this will not apply.
What is contemplated by Section 14 is that the address of the defendant is unknown but it is
positive that he is in the Philippines.
ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just disappeared and
the last time you heard, he is residing somewhere in General Santos City. So you wanted to sue by having the
summons under Section 14 because his exact whereabouts is unknown. So you file a motion for leave to serve
summons by publication under this rule. The question is, should the court allow it? Of course the tendency is to
say “yes” because his whereabouts is unknown and cannot be ascertained by diligent inquiry.
Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be located
anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in personam, can
the plaintiff resort to service summons by publication?
A: In the cases of
FONTANILLA vs. DOMINGUEZ
73 Phil. 579
HELD: In this case, SC said service of summons is possible even if the action is in personam
because service by publication when the whereabouts of the defendant is unknown is allowed
whether the case is in personam or in rem. It is proper in all actions without distinction provided,
the defendant is residing in the Philippines but his identity is unknown or his address cannot be
ascertained.
141
So if we will follow this case what will be our answer? YES, because it is allowed in any action without
distinction.
PANTALEON vs. ASUNCION

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

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

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

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

A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem.
If the action is in personam, like of collection of a sum of money, service of summons by
publication to the defendant is improper. The action should be action in rem or quasi in rem.
Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find the
defendant and you want to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any
property of the said defendant and have it attached under Rule 57 [i], the last ground for attachment. Now,
your action is converted to quasi in rem. You can now file a motion for service of summons by publication.
(Pantaleon vs. Asuncion, 105 Phil. 765; Citizen’s Surety & Insurance Co., vs. Melencio-Herrera, 38 SCRA 369;
Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166 SCRA 589)
In all these cases, the SC ruled that to validly serve summons by publication on a defendant
who is in the Philippines but whose name is not known or whereabouts is not known, the action
must be in rem or quasi in rem.
But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine. Why?
You read the opening of Section 14: “In any action…” you notice, “in any action where the defendant is
designated as an unknown… ” You look at the old rules. Can you find the phrase “in any action”? You look and
compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 “Whenever the defendant is designated as an

unknown owner, or the like, or whenever the address of a defendant is unknown and
cannot be ascertained by diligent inquiry, service may, by leave of court be effected
upon him by publication in a newspaper of general circulation and in such places and
for such time as the court may order.”
142
In other words, there is a case and the defendant is unknown, but what kind of cases? It is not stated there
(Section 16, old rules). Kaya nga, it was clarified in the cases of MAGDALENA ESTATE, PANTALEON, etc. that the
action must be in rem or quasi in rem.
But look at the new rule on Section 14 – “in any action.” What does that mean – na puwede na ang action in
personam? Is the intention of this clause to abrogate the previous ruling in PANTALEON, MAGDALENA ESTATE,
CONSOLIDATE PLYWOOD? If that is the intention, we are going back to the original ruling laid down in the earlier
case of FONTANILLA vs. DOMINGUEZ which preceded all the other cases.
In the FONTANILLA case, the SC said that service of summons by publication is proper in all actions without
distinctions provided the defendant is residing in the Philippines but he is unknown or his address cannot be
ascertained. But the FONTANILLA ruling was abrogated by PANTALEON vs. ASUNCION, CITIZEN’S SURETY,
MAGDALENA ESTATE cases. That is why to me, this is a very controversial issue whether Section 14 of Rule 14
applies only to cases in rem or quasi in rem in these decisions or it is now obsolete, or it is now applicable
whether in personam or in rem or quasi in rem.
Actually, I asked that question in remedial law review. I don’t care how they answered it. I just want to find
out if they can detect the amendment ba. Pagsabi nila it is only applicable in rem, OK, tama ka. Pagsinabi nila
“in any action,” OK, tama ka rin. Some even said, based on decided cases but there is an amendment in the
law, in other words nakita niya. But 70% did not say the issue. Kung ano-anu ang sinagot! 30% saw the point.
Some answered based on MAGDALENA, some on FONTANILLA by saying with the amendment, the ruling in
MAGDALENA is wala na yan. To my mind, either way, I will take it as a completely correct answer because it is
not pointed out what is the really correct answer.
So I was wondering what is the meaning of this – “in any action” – whether there is an intent to return to the
old rule and cancel the rulings in MAGDALENA. To me, this is a question mark. Even Justice Jose Feria, in his
note, cannot answer it. Sabi niya, “in any action but there is a case, decided in MAGDALENA...” He is the author,
one of the authors, but he cannot explain the intention. Sabi niya: “the SC earlier ruled…” I asked, “but why did
you insert that?” Kaya to my mind, it is still a question mark. Maybe it is just an inadvertent amendment
without any intention to abrogate the ruling in MAGDALENA, PANTALEON, etc. But maybe that is the intention.
So, let us wait for the proper case at the right time to find what is the intention of the phrase “in any action -
.”
BALTAZAR vs. COURT OF APPEALS

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

(Extraterritorial Service)
When the defendant is not residing in the Philippines and he is not physically around he must be served
with summons even if he is abroad and that is what is called extraterritorial service. We go back to the
basic question:
Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not around
physically?
A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person
EXCEPT when action is in rem or quasi in rem, like when the action is the personal status of the
plaintiff who is in the Philippines or the properties of the defendant are in the Philippines. And the
venue is where the plaintiff resides or where the property is situated. That is found in Section 3,
Rule 4:
Rule 4, SEC. 3. Venue of actions against nonresidents – If any of the defendants do not
reside and is not found in the Philippines, and the action affects the personal status of
the plaintiff or any property of said defendant located in the Philippines, the action may
be commenced and tried in the court of the place where the plaintiff resides, or where
the property or any portion thereof is situated or found.
Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule 4, how
will you serve summons?
A: This is answered by Section 15:
143
Sec. 15. Extraterritorial service. When the defendant does not reside and is not
found in the Philippines, and the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service
as under section 6; or by publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant must answer. (17a)
Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not found
in the Philippines? The other way of asking is, when may a defendant be sued and served with summons by
extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and is not
found in the Philippines may be sued and summons served by extraterritorial service, provided the case is in
rem or quasi in rem:
1.) the action affects the personal status of the plaintiff;
EXAMPLE: A child left behind files a case against his father for compulsory recognition or
acknowledgement at least to improve his status because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent;
3.) when the action relates to or the subject of which is, property within the Philippines in
which the relief demanded consists, wholly or in part, in excluding the defendant from any
interest therein; or
4.) When the property of the defendant has been attached within the Philippines – that is the
MAGDALENA case.
NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be
filed against a non-resident defendant. That is the similarity between Section 14 and 15 on the assumption of
the ruling in the MAGDALENA is still intact. Even if the defendant is not in the Philippines, the action must be in
rem or quasi in rem. That is their similarity – the action must be classified as in rem or quasi in rem. That is if
we follow the MAGDALENA ESTATE ruling.
Q: What is the difference between Section 14 and Section 15?

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

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

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

IN SUCH PLACES AND FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A COPY OF THE
SUMMONS AND ORDER OF THE COURT SHALL BE SENT BY REGISTERED MAIL TO THE LAST KNOWN
ADDRESS OF THE DEFENDANT
The second manner is by publication which is similar to Section 14. The court will order the summons and
complaint to be published in a newspaper of general circulation in such places and for such time as the court
may order. In which case a copy of the summons and order of the court shall be sent by registered mail to the
last known address of the defendant.
144
So, aside from publication, another copy will be sent by registered mail to his last known address. So, meron
ng publication, meron pang registered mailing of copy of the summons.
SAHAGUN vs. COURT OF APPEALS

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

HELD: NO, he is wrong because nothing in the law requires the publication to be in a foreign
newspaper. What is says is a newspaper of general circulation in such places and for such time as
the court may order. Well, if the court will order that it should be published in a newspaper in LA,
puwede rin. If it orders that it should be in a local newspaper, puwede rin because the law does not
say ‘only such places’.
ISSUE #2: What would happen if we will follow the argument of the defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we will require courts to order the
publication in a foreign newspaper, then we will require the court to have a list of all the newspaper
in LA and our courts will be required to know the rules and rates of publication in LA and suppose
the same thing happens to a defendant in San Francisco, the courts are required to have a list, rules
and rates of publication in said place. And you can imagine if we have to do that in every city in
every country in the world. Naloko na. Imagine the trouble? It is requiring the court too much.
“In fine, while there is no prohibition against availing of a foreign newspaper in extraterritorial
service of summons, neither should such publication in a local newspaper of general circulation be
altogether interdicted since, after all, the rule specifically authorizes the same to be made in such
places and for such time as the court concerned may order. If the trial court should be required to
resort to publication in a foreign newspaper it must have at hand not only the name and availability
of such newspaper or periodical. we can very well anticipate the plethora of problems that would
arise if the same question on nonresident defendants is replicated in the other countries of the
world.”
ISSUE #3: Is extraterritorial service of summons under Section 15 a mode of acquiring

jurisdiction over the person of the defendant?
HELD: NO, even if you will publish the summons a hundred times in a newspaper, still
the Philippine court will not acquire jurisdiction over the person of the defendant
because it is simply out of the country. Even if he is served with summons, our
processes have no effect outside Philippine territory.
Actually, there is no need to acquire jurisdiction over the person of the defendant.
What is important is that res is in the country so we can enforce the judgment so that
ownership may be transferred to plaintiff. So, hindi kailangan ang jurisdiction over his
person.
ISSUE #4: What is then the purpose of the requirement of publication? Why will I be required to
publish but just the same the court will not acquire jurisdiction over his person?
HELD: The purpose of publication is to comply with the requirement of due process.
He should be informed before he loses his property. Remember that he has properties in the
Philippines which you can want to take away form him. Remember the principle that if there is no
way for the court to acquire jurisdiction over the person of the defendant, the substitute is
jurisdiction over the res, and the res is property here. So, the judgment will not be useless and it
can be enforced. But at least, the owner who is abroad should be informed about it.
“Service of summons on a nonresident defendant who is not found in the country is required,
not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the
requirements of fair play, so that he may be informed of the pendency of the action against him and
the possibility that property in the Philippines belonging to him or in which he has an interest may
be subjected to a judgment in favor of a resident, and that he may thereby be accorded an
opportunity to defend in the action, if he be so minded. The only relief that may be granted in such
an action against such a nonresident defendant, who does not choose to submit himself to the
jurisdiction of the Philippine court, is limited to the res.”
That is why also in the case of SAHAGUN, the SC emphasized that if the summons is served by publication,
any judgment that the court can render is only good for the res. But if he submits now to the jurisdiction of the
court by filing an answer or by hiring a lawyer in the country, the court can now render also a judgment in
personam against him. But if he will not submit, ok lang because anyway, the res is here. [bahala siya… kung
san siya masaya, ti suportahan ta!]
EXAMPLE: I will file a case against a non-resident defendant for recovery of a piece of land and
damages. Well, the claim for recovery of land is in rem. The claim for damages is in personam. He
is summoned by publication and based on the SAHAGUN ruling, the court can only render judgment
insofar as the land is concerned. It cannot render judgment on the damages because that is in
personam. But if he files an answer, he is now submitting his person to the jurisdiction of the court.
There could now be a valid judgment not only on the res but also on the damages. That was the
explanation in the case of SAHAGUN.
The relief is limited to the res so there could be no relief for damages unless he voluntarily submits himself
to the jurisdiction of the court.
145
c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY DEEM
SUFFICIENT
That is a very general term. A good example of that was what happened in the case of
CARRIAGA, JR. vs. MALAYA

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

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

252 SCRA 92 [1996] J. Mendoza
FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is residing
abroad. Her husband, Alfredo Valmonte, who is also her attorney, has a law office in the Philippines.
He is Atty. Valmonte – yung mga Valmonte sa checkpoint cases in Constitutional law. He is an
activist-lawyer. So, his wife is residing abroad but he is here, because he is practicing in the
Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for partition of real property. You know
that you have to implead all the co-owners. The summons intended for Lourdes was served on her
husband in the latter’s law office because anyway, the husband is here.
ISSUE : Was there a valid service of summons on Lourdes Valmonte?
HELD: There is NONE. There was no valid service of summons.
REASON #1: First of all, the case at bar is an action for partition and accounting under Rule 69.
So, it is an action quasi in rem. Since this is an action quasi in rem and Lourdes Valmonte is a
non-resident who is not found in the Philippines, summons on her must be in accordance with Rule
14, Section 15. So you must follow the modes of service under Section 15 because the action is
quasi in rem.
146
In this case, the service of summons was not effected personally because it was served on the
husband. There was also no publication. The only possibility is the third one, “in any other manner
the court may deem sufficient.”
But the third mode applies only when you are serving the summons abroad. You cannot apply
this when you are serving the summons in the Philippines. So it does not also fall under the third
mode. This mode of service, like the first two, must be made outside of the Philippines such as
through the Philippine Embassy in the foreign country where the defendant resides.
REASON #2: Under Section 17, leave of court is required when serving summons by publication.
There must be a motion where the court will direct that the summons be served in that manner.
In this case, was there any motion filed here? Wala man ba. Was there any order of the court
authorizing it? Wala rin. So it does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when the defendant is a non-resident and
being served abroad under Section 15, the law guarantees a minimum of sixty (60) days to answer
the complaint pursuant to Section 15.
And here, she was only given fifteen (15) days to file the answer. Therefore, there was an
erroneous computation of the period to answer.
“Finally, and most importantly, because there was no order granting such leave, Lourdes
Valmonte was not given ample time to file her Answer which, according to the rules, shall be not
less than sixty (60) days after notice. It must be noted that the period to file an Answer in an action
against a resident defendant differs from the period given in an action filed against a nonresident
defendant who is not found in the Philippines. In the former, the period is fifteen (15) days from
service of summons, while in the latter, it is at least sixty (60) days from notice.”
So those are the three main reasons cited by the SC on why there was improper service of summons on
Lourdes Valmonte under the rules.
SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
Sec. 16. Residents temporarily out of the Philippines. When any action is
commenced against a defendant who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of court, be also effected out of
the Philippines, as under the preceding section. (18a)
Q: What is the main difference between defendant in Section 15 and in Section 16?
A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section 16
defendant is residing in the Philippines but temporarily out of the Philippines.
EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily out of
the Philippines. I can sue her but it will take months before she come back. The problem is, your action will
already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in Section 15 – through personal
service, by publication, and in any other manner the court may deem sufficient. So one option is to
wait for him to come back and then serve the summons personally.
One of the leading case on this type of defendant was in the old case of:
MONTALBAN vs. MAXIMO

22 SCRA 1070
FACTS: In this case, the defendant is residing in the Philippines but on a world tour and he will
be out for so many months. Naga-tour ba! It was at that time when the summons was served in his
residence. Well of course, he is not there. But there was somebody left in the house. So, the sheriff
said, “Who are you?” And the person said that he is the one in charge here. “When is your boss
coming back?” Mga four or five months pa.
So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to
substituted service under Section 7. And there was a default judgment. Pagbalik ng tao, defaulted
na siya, meron ng execution. So he questioned the service of summons because under Section 16,
in relation to Section 15, summons must be served with leave of court by personal, publication or in
any other manner.
ISSUE #1: Can substituted service of summons be applied to a defendant who is residing in the
Philippines but temporarily out?
HELD: YES. Substituted service is also applicable. Unlike Section 15 where the
defendant has no residence here, you have a residence man. The sheriff resorted to
substituted service by leaving it to the person in charge, a person of sufficient age and
discretion because for justifiable reasons, substituted service is also applicable even if
the defendant is outside of the Philippines.
It is true that personal service of summons is preferred. But if the personal service
cannot be effected within a reasonable time, the sheriff can resort to substituted
service. And in your case, the sheriff cannot serve personally because you will be out of
the country for the next four or five months. So the sheriff has to resort to substituted
service.
ISSUE #2: Second, sabi niya, “Equity na lang. That is unfair, eh, because I really had no
knowledge about the case. I failed to answer because you see, during the five months when I was
abroad, I never had the opportunity to call up the one I left behind. So there was no opportunity for
me to ask him what has been happening there. He has also no opportunity to tell me about what
happened because he does not know where I was. So I only learned about it after five months. So in
the name of equity please set aside the judgment.”
147
HELD: In the name of equity, we will not set aside the judgment. You did not even bother to call
and tell the person left where you were. When you called up perhaps the person left could notify
you about the summons. You are very irresponsible! What kind of a person are you? You will leave
for abroad and you will not even bother to call up to find out what is going on. So, wala!
So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant
doesn’t prevent the application of Section 7 in addition to Section 15. Summons can be served abroad just like
in Section 15 but it does not mean to say that you cannot apply Section 7 because anyway it does not say
MUST, it uses MAY.
And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely
an action for damages. So in Section 16, when residents are temporarily outside of the Philippines,
there could be also substituted service of summons in addition to Section 15 and the action could
be in personam as distinguished from Sections 14 and 15 where the action must be in rem or quasi
in rem.
So the action in Section 16 need not be an action in rem or quasi in rem because he is actually residing in
the Philippines and only temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL PERSONALITY
Sec. 8. Service upon entity without juridical personality. When persons associated in an
entity without juridical personality are sued under the name by which they are
generally or commonly known, service may be effected upon all the defendants by
serving upon any one of them, or upon the person in charge of the office or place of
business maintained in such name. But such service shall not bind individually any
person whose connection with the entity has, upon due notice, been severed before
the action was brought. (9a)
Section 8 is related to Rule 3, Section 15:
Rule 3, Sec. 15. Entity without juridical personality as defendant. When two or more
persons not organized as an entity with juridical personality enter into a transaction,
they may be sued under the name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed. (15a)
Q: Since you can sue someone without juridical personality, how do serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any of those
defendants is service for the entire entity already. You may also serve summons upon the person in charge of
the office of the place of business. He may not necessarily be the owner but in-charge of the office, he can be
served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER
Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him by the officer having the management
of such jail or institution who is deemed deputized as a special sheriff for said
purpose. (12a)
Q: How do you serve summons to somebody who is a prisoner?

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

A: You serve the summons to the father or mother in the case of minor. For a legal guardian, in
the case of incompetent people or to the minor himself.
Q: The law says that “service shall be made upon him (the minor) personally” when he may not understand
what it is all about? Baka itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE JURIDICAL ENTITY.
148
Sec. 11. Service upon domestic private juridical entity. When the defendant is a
corporation, partnership or association organized under the laws of the Philippines
with a juridical personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a)
PMGCTI
What do you mean by domestic? A corporation or association organized under Philippine laws.
Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like banks –
BPI, Security Bank - they can be sued because they are persons in the eyes of the law.
Now, how do you serve summons to a corporation? Actually, they have no physical existence, they only
exist by legal friction. Ordinarily summons must be served to a human being, to somebody who is supposed to
be the representatives. Therefore, common sense will tell that in case of a corporation, you have to serve the
summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?

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

A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply “manager.” Now they added the word
“general.” But even in the old law, the word “manager” is interpreted as general manager. In a corporation,
there are so many managers like branch managers. General manager is the over-all manager of the
corporation throughout the Philippines. He is usually based in the head office.
CORPORATE SECRETARY. The prior law only used the word “secretary” but it has been interpreted as
corporate secretary, not the typist secretary. The corporate secretary is the custodian of the records of the
corporation. He is also a stockholder, because you cannot be a corporate secretary unless you are a
stockholder. The new law has already emphasized ‘corporate secretary.’ Before illiterate sheriffs used to serve
summons on secretary-typist.
TREASURER. The prior law says “cashier” now they have changed the word to ‘treasurer.’ It is because
treasurer is actually an officer also. He is just like a budget secretary of the government. Cashiers are ordinary
employees which is more on clerical works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the corporation. He
takes care of the legal problems. In Manila, for instance, most of the corporations there have in-house counsels.
Not so much here in Davao. Like Ayala Corporation in Manila, they have internal legal counsel more or less 10
while Bank of Philippine Island has around 15. But these corporations hire lawyers from the outside when it
comes to sensitive cases. They are referred as external legal counsel.
The rule that summons may be served on internal legal counsel, although appearing for the first time in the
1997 rules, is actually an old rule. It has been ruled already in some cases that service of summons upon an in-
house counsel of a corporation is valid. It binds the corporation under the ruling in the case of PHILIPPINE OIL
MKTG. CORP. vs. MARINE DEV’T CORP. (117 SCRA 879) and FAR CORPORATION vs. FRANCISCO(145 SCRA
197) that the in-house counsel if served with summons, there is a valid service, because anyway, if you serve it
to the general manager or the President, chances are it will also be referred to him kay siya man ang abogado.
So the in-house counsel is new and it confirms what the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the summons on any of the directors of the
corporation – MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the Board here
is the Corporate Secretary. So, the directors, hindi na puwede.
But here is the most radical change. The word ‘AGENT,’ nawala na! Did you notice under the old law, there
is agent. The word agent was so broad and so general that the SC has actually included there so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons was served
to the Operations Manager of the corporation and the SC said the service was valid because he is considered as
an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant
General Manager of the corporation and the SC said that the service was valid because he is an agent.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on the Chief
of Finance and Administrative Section of the corporation and the SC said that he will fall under the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs. BUENCAMINO
(124 SCRA 434) the service of summon an employee employed in a corporation does not bind the corporation
because an ordinary employee who is not an officer is not considered as agent.
However, there are cases were the service of summons to an ordinary employee who is not an officer was
valid. Among which are:
149
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served on the
confidential secretary of the President and the SC said the service is valid. She is qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of GOLDEN
FARMS vs. SUN BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was served on a mere
clerk of the corporation. So, he is not even an officer. But the clerk gave it to the President. The SC said that the
defect is cured. The clerk could be considered as an agent. The need for speedy justice must prevail over
technicality. So, the word ‘agent’ has become very broad and it practically covers all corporate officers who are
presumed to be responsible.
Now, in the 1997 rules, the word ‘agent’ disappeared. And the law is very clear: President, managing
partner, general manager, corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there is no
valid service of summons. OK, it is void. But look at the case of GESULGON, etc. But that is under the 1964 rules
when you are deemed to be an agent. But now, it is very specific. The intention of the new rules is to limit the
service to anyone of these. That is why they removed the word ‘agent.’
And if that interpretation prevails that the intention of the rules is to limit to these people, it is now very
difficult to sue a corporation based in Makati if you are here in Davao because your summons has to be coursed
through them. And these people are not here! The President is not here; The General Manager, etc. They are all
based in the head office. Corporate Secretary, treasure, in-house counsel – Doon man ang opisina nila ba. The
ones based here are branch managers and they are now disqualified. If that is the intention of the law, my
golly! That is another headache!
It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should not
give way.
Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano pa
ngayon ang reklano ninyo? Anyway you already acquired it, you learned about it. Can you insist that the court
has no jurisdiction when actually you are well aware already of the suit? You can say, let us go to reality. But it
can also be argued under the old law. Precisely, if the intention is to make everybody a responsible officer, then
the word ‘agent’ should have been retained. The intention of the law is to limit only to these people. So, both
sides can be defended.
Section 11 thus becomes another controversial provision. Whether this change has abrogated GESULGON,
FAR EAST CORP., SUMMIT TRADING na pwede. All those doctrines have now been rendered obsolete because of
this change. All those cases were decided based on the word ‘agent’ – are they agents? At least there is basis,
eh. Now, the word ‘agent’ is no longer there. That is why this is a controversial provision.
E.B. VILLAROSA LTD vs. BENITO

312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at 102 Juan
Luna St., Davao City and with branch offices at Parañaque and Cagayan de Oro City (CDO). Villarosa
and Imperial Development (ID) executed an Agreement wherein Villarosa agreed to develop certain
parcels of land in CDO belonging to ID into a housing subdivision. ID, filed a Complaint for Breach of
Contract and Damages against Villarosa before the RTC allegedly for failure of the latter to comply
with its contractual obligation.
Summons, together with the complaint, were served upon Villarosa, through its Branch Manager
Wendell Sabulbero at the address at CDO but the Sheriff’s Return of Service stated that the
summons was duly served "E.B. Villarosa & Partner thru its Branch Manager at their new office Villa
Gonzalo, CDO, and evidenced by the signature on the face of the original copy of the summons."
Villarosa prayed for the dismissal of the complaint on the ground of improper service of
summons and for lack of jurisdiction over the person of the defendant. Villarosa contends that the
RTC did not acquire jurisdiction over its person since the summons was improperly served upon its
employee in its branch office at CDO who is not one of those persons named in Sec. 11, Rule 14
upon whom service of summons may be made. ID filed a Motion to Declare Villarosa in Default
alleging that Villarosa has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the
summons and the complaint, as shown in the Sheriff's Return.
HELD: “We agree with Villarosa. Earlier cases have uphold service of summons upon a
construction project manager; a corporation's assistant manager; ordinary clerk of a corporation;
private secretary of corporate executives; retained counsel; officials who had charge or control of
the operations of the corporation, like the assistant general manager; or the corporation's Chief
Finance and Administrative Office. In these cases, these persons were considered as "agent" within
the contemplation of the old rule.”
“Notably, under the new Rules, service of summons upon an AGENT of the corporation is NO
LONGER authorized.”
“The designation of persons or officers who are authorized to accept summons for a domestic
corporation or partnership is now limited and more clearly specified in Section 11, Rule 14. The rule
now states "general manager" instead of only "manager"; "corporate secretary" instead of
"secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is
conspicuously deleted in the new rule.”
“A strict compliance with the mode of service is necessary to confer jurisdiction of the court
over a corporation. The officer upon whom service is made must be one who is named in the
statute; otherwise the service is insufficient. . . The liberal construction rule cannot be invoked and
utilized as a substitute for the plain legal requirements as to the manner in which summons should
be served on a domestic corporation. .”
“Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old
rule) has been held as improper. Accordingly, we rule that the service of summons upon the branch
manager of Villarosa at its branch office at CDO, instead of upon the GM at its principal office at
150
Davao City is improper. Consequently, the RTC did not acquire jurisdiction over the person of
Villarosa. The fact that Villarosa filed a belated motion to dismiss did not operate to confer
jurisdiction upon its person. There is no question that the Villarosa’s voluntary appearance in the
action is equivalent to service of summons.”
“Before, the rule was that a party may challenge the jurisdiction of the court over his person by
making a special appearance through a motion to dismiss and if in the same motion, the movant
raised other grounds or invoked affirmative relief which necessarily involves the exercise of the
jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the
court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. CA which
became the basis of the adoption of a new provision in Section 20 of Rule 14.”
“Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.
The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the
rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by
the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court
over the person of the defendant can by no means be deemed a submission to the jurisdiction of
the court.”
“There being no proper service of summons, the trial court cannot take cognizance of a case for
lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court
will consequently be null and void.”
“WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent
trial court are ANNULLED and SET ASIDE.”
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY
Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign
private juridical entity which has transacted business in the Philippines, service may
be made on its resident agent designated in accordance with law for that purpose,
or, if there be no such agent, on the government official designated by law to that
effect, or on any of its officers or agents within the Philippines. (14a)
Q: What is the difference between corporation or entity in Section 11 and Section 12?
A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a
foreign corporation but doing business in the Philippines because the law says, when the defendant is a foreign
private juridical entity which transacted business in the Philippines…”
When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-
resident defendant. The best example of a foreign corporation doing business in the Philippines are air line
companies, foreign banks.
Q: To whom do you serve summons in this case?

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

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

241 SCRA 192 [1995]
HELD: When there is a designated resident agent to receive summons, service of

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

168 SCRA 354 [1988]
FACTS: The summons was to be served on the corporation at an address. But when the sheriff
went to that address, he was told by the security guard that the corporation was no longer holding
office there. Lumipat na sa ibang lugar. Therefore, we do not know already.
So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff filed a motion in court to be allowed
to serve summons by publication under Section 14 when the whereabouts of the defendant is
unknown. So there was service of summons by publication.
ISSUE: Was there a valid service of summons by publication?
HELD: There was NONE. The deputy sheriff should have known what every law school student
knows! – that defendant, being a domestic corporation must have been registered with the SEC and
that the SEC records would therefore reveal, not just the correct address of the corporate
headquarters of the defendant, but also the address of its officers.
A litigant or process server who has not gone through the records of the SEC cannot claim to
have carried out the ‘diligent inquiry’ required under the law for valid service of summons by
publication upon a domestic corporation.”
151
So there was no diligent inquiry. You should have gone to the SEC and look at the records kung saan
lumipat. Also with the address of the officers like the President, you can go to his place and serve the summons
to him. So there was improper service of summons by publication. Another case was
REBULIDO vs. COURT OF APPEALS

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

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

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

G.R. No. L-7154. October 23, 1954
HELD: “‘Doing business’ is construed to mean such continuity of conduct and

intention to establish a continuous business. An isolated transaction, or transactions
which are occasional, incidental or casual and which do not evince intent to conduct
continuous business do not constitute ‘doing business in the Philippines.’”
“In order that a foreign corporation may be regarded as doing business in the Philippines, there
must be continuity of conduct and intention to establish a continuous business, such as the
appointment of a local agent, and not one of a temporary character.”
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.

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

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

A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that
summons can be served by other person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the service has been made by publication,
service may be proved by the affidavit of the printer, his foreman or principal clerk,
or of the editor, business or advertising manager, to which affidavit a copy of the
publication shall be attached, and by an affidavit showing the deposit of a copy of
the summons and order for publication in the post office, postage prepaid, directed
to the defendant by registered mail to his last known address. (21)
Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action
shall be equivalent to service of summons. The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the defendant shall
not be deemed a voluntary appearance. (23a)
The first mode of acquiring jurisdiction over the person of the defendant is service of summons. However,
even when there is no service of summons, or if there is improper service of summons, if the defendant files an
answer, then in effect, he is submitting himself to the jurisdiction of the court and the court acquires jurisdiction
over his person by voluntary appearance.
Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file
an answer, or a motion for bill of particulars – that is indicative of his submission to the
jurisdiction of the court.
That is why we said, lack of jurisdiction over the person of the defendant because of absence of service of
summons or improper service of summons, can be waived by voluntary appearance. That is the second mode.
Now, of course, when a defendant files a motion to dismiss on the ground that the court has not
acquired any jurisdiction over his person, that is not a voluntary appearance. That is a SPECIAL
APPEARANCE precisely to question the jurisdiction of the court over his person.
A special appearance is not indicative of the intention to submit to the jurisdiction of the court. Otherwise, it
becomes absurd if I will file a motion to dismiss questioning the jurisdiction of the court over my person and
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then the court will say, “Well, by filing the motion to dismiss, you are also voluntarily submitting to the
jurisdiction of the court.” Definitely, that is not the appearance contemplated by Section 20.
Now, the second sentence, “The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.” What is the
meaning of that? Well, that principle is taken from the ruling of the SC in the leading case of LADAVAL DRUG
CORPORATION vs. CA, 236 SCRA 28, which we will discuss more in detail when we reach Rule 16 on Motion to
Dismiss.
Rule 15
MOTIONS
What is a motion? Define a motion.
SECTION 1. Motion defined. A motion is an application for relief other than by a

pleading. (1a)
In a motion, the party is asking the court for a favor other than what is contained in the pleading. Usually,
the main relief is prayed for in the pleading, like “Judgment be rendered in favor of the plaintiff,” or, “Judgment
be dismissed.” That is what you pray in your complaint or in your answer.
A pleading however is directly related to the cause of action or the defense. But a motion prays for
something else. In a motion, you are asking for another relief other than the main cause of action or the main
defense. Example is a motion to postpone trial or a motion for extension of time to file answer. You do not do
that by a complaint but by way of a motion because you are praying for a relief other than by a pleading.
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Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim, counterclaim,
etc. But if you look at a motion, it looks like a pleading. In form, it looks exactly like a pleading but under the
law, it is not a pleading.
However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of a motion,
for a relief which normally should be prayed for in a pleading such as a motion is praying for a judgment
already. The exceptions are:
1.) Motion for Judgment to the Demurrer to Evidence (Rule 33);

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

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

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

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

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

Counsel for plaintiff
Greetings! Please take notice that the undersigned is submitting the

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

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

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

attacking a pleading, order, judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed waived. (8a)
The word “omnibus” means “all embracing or all encompassing.”
Q: Define omnibus motion.

A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall include
all objections then available and objections not so included shall not deemed waived. (Section 8; Ins. Co. of
North America vs. Delgado Brokerage, L-22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to file a
motion to based on one ground, if denied, second motion to dismiss based on the second ground, denied, third
motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or more grounds, you file
only one motion to dismiss invoking those grounds because the rule is, any ground not so invoked is deemed
waived.
EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37 prohibits the
filing of a second motion for new trial based on grounds available to the movant when he filed his first motion.
Well, if the grounds came later, that is different.
So, the principle there is, if you have two or more grounds you should only file one motion where you invoke
all your grounds.
Now, obviously there is an EXCEPTION because the opening clause of section 8 is “Subject to the provision
of Section 1 of Rule 9.”
Rule 9, Section 1. Defenses and objections not pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior judgment
or by statute of limitations, the court shall dismiss the claim. (2a)
Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not raise
them in a motion to dismiss, which can be even motu propio proceeded by the court.
Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer.
(Exceptions to the omnibus motion rule)?
A: The following:
1.) Lack of jurisdiction over the subject matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.
Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted. (n)
EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2) Options under
the old rules. The first option is to file a motion for leave to file amended complaint. And when it is granted, that
157
is the time for to you file your amended complaint. The second option is you file your amended complaint
together with the motion to admitted it.
The same thing iyong sa intervention under the OLD rules. In a motion to intervene, “Motion to intervene.
Granted, I will file my pleading in intervention.” The same thing for certain types of motion like motion for leave
to file third-party complaint: “Motion for leave. Granted, I will file my third-party complaint.” That is under the
previous rule.
NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be admitted
must already be included in your motion. Pag-file mo nng motion, kasama na iyong pleading. The pleading
sought to be amended must already be included in the motion. One-time filing ba!!
Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so
far as concerns caption, designation, signature, and other matters of form. (9a)
The rule on pleadings also applies to written motion as far as caption, designation, signature and other
matters of court. So in appearance there is difference between the appearance of a pleading and the
appearance of a motion. But definitely, a motion is not a pleading although it looks like a pleading.
Rule 16
MOTION TO DISMISS
Motion to dismiss is the counterpart of motion to quash (Rule 117) in criminal procedure. In criminal
procedure, before the arraignment or before entering a plea the accused may instead file what is known as
motion to quash. The proceedings are quashed on the ground that: (1) the court has no jurisdiction over the
subject matter of quashed on the ground that: (1) the court has no jurisdiction over the subject matter of the
case or over the person of the accused; (2) the person who field it has no authority to do so; (3) the complaint
or information charges more than one offense; (4) because of double jeopardy; or (5) the criminal liability has
already been extinguished.
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Section 1. Grounds. Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made on any of
the following grounds:
xxxxx
Q: When do you file a motion to dismiss?

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

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

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

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

236 SCRA 78 [en banc]
HELD: When you file a motion to dismiss citing lack of Jurisdiction over your person
together with other grounds, there is no waiver on the defect of lack of jurisdiction. So,
you can file a motion to dismiss on that ground together with other grounds. There is no
more waiver in effect that is the recent decision. The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance.
Obviously the ruling in NAVAL is incorporated in the Rules of Court. Let’s go back to Rule 14 Section 20:
Sec. 20. Voluntary appearance. - The defendant's voluntary appearance in the

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

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

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

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

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

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

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

252 SCRA 259, January 24, 1996
Third Division, J. Artemio Panganiban.
HELD: “Forum-shopping originated as a concept in private international law, where non-resident

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

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

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

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

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

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

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

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

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

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

FACTS: Cholo is a resident of Manila; Lew is a resident of Davao. There was contract between
them. Cholo filed a case against Lew on lets say, January 5 in Manila where he resides, based on
that contract. The venue is proper because the plaintiff is a resident of Manila.
Now, let’s say on January 10, Lew not knowing about the Manila case filed an identical action
against Cholo in Davao City. So hindi alam ni Lew na mayroon na palang kaso. So dalawa na. And
then on January 15, Lew received summons in Manila case. By January 20, Cholo filed a motion to
dismiss the Davao case on the ground of litis pendentia.
According to Lew, there is no litis pendentia because when I filed may case against Cholo, there
is no pending action to talk about because hindi ko alam. I received the summons very much later.
ISSUE: Was there litis pendentia? Is Lew correct?

166
HELD: There was litis pendentia. Lew is wrong. Why? When does an action, become pending?
An actions becomes pending upon the filing of a case in court and the payment of docket
fee. The actions does not become pending only from the time you receive the summons.
It is pending form the moment it was filed. Therefore when it was filed on January 5, t is
already pending although you did not know about it. That is the reasoning in this case.
ANDRESONS GROUP vs. COURT OF APPEALS

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

1.) Barred by prior judgment (RES ADJUDICATA) and
2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also related to splitting of cause of action. The only
difference is: there is already a judgment in the first action which has become final and executory. That is why,
you have to go back to Rule 2, Section 4 – what is the effect of splitting a cause of action? The pendency of one
case or judgment in one case is a ground f or the dismissal of the other.
So, if there is a case on appeal, the proper ground for dismissal would be litis pendentia rather
than res adjudicata because the case is still pending before the CA – the judgment is not yet final.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of time.
167
The grounds on motion to dismiss are waivable based on Rule 9, Section 1 – defenses and objections not
pleaded whether in a motion to dismiss or in the answer are deemed waived. HOWEVER when it appears from
the pleadings or the evidence on record:
1.) that the court has no jurisdiction over the subject matter (Rule 16, Section 1 [b]);
2.) that there is another action pending between the same parties for the same cause (Rule 16, Section 1
[e]); or
3.) that the action is barred by a prior judgment (Rule 16, Section 1 [f]); or
4.) that the action is barred statute of limitations (Rule 16, Section 1 [f]),
the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM

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

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

211 SCRA 144 [1992]
HELD: “The hypothetical admission is however limited to the relevant and material
facts well pleaded in the complaint and inferences fairly deductible therefrom. The
admission does not extend to conclusions or interpretations of law; nor does it cover
allegations of fact the falsity of which is subject to judicial notice.”
Meaning, you allege there something which is 100% false and the court knows it, but you filed a motion to
dismiss, are you deemed to hypothetically admit something which everybody knows is false? NO. When you file
a motion to dismiss, you are deemed to admit everything there is true except matters which are 100% false and
which the court itself knows to be false, or the conclusions of the pleader because in the first place, conclusions
have no place in the pleading.
168
ROSITA TAN vs. COURT OF APPEALS
295 SCRA 247 [Sept. 9, 1998]
FACTS: The controversy centers on 2 parcels of land, Manila previously owned by one Alejandro
Tan Keh and which were then covered by TCT 35656.Fernando Tan Kiat claimed that he bought the
land from Tan Keh in 1954, but was unable to effect immediate transfer of title in his favor in view of
his foreign nationality at the time of the sale. Nonetheless, as an assurance in good faith of the
sales agreement, Tan Keh turned over to Kiat the owner's duplicate copy of TCT 35656 and, in
addition, executed a lease contract in favor of Kiat for 40 years.
However, in 1958, Tan Keh sold the subject properties to Remigio Tan, his brother and father of
Rosita Tan, with the understanding that the land are to be held in trust by Remigio for the benefit of
Kiat and that Remigio would execute the proper documents of transfer in favor of Kiat should Kiat at
anytime demand recovery of land.
TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was issued in the name of Remigio.
Another contract of lease was executed by Tan Keh and Remigio in favor of Kiat to further safeguard
Kiat's interest on the land, but Kiat never paid any rental and no demand whatsoever for the
payment thereof had been made on him.
Remigio was killed in 1968. At his wake, Rosita was reminded of Kiat's ownership of the land
and she promised to transfer the land to Kiat who by then had already acquired Filipino citizenship
by naturalization.
Rosita, however, never made good their promise to convey the land despite repeated demands
by Kiat. In fact, Rosita had the land fraudulently transferred to her name under TCT 117898. Thus,
the filing of the complaint for recovery of property.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint, claiming that: the complaint
stated no cause of action; the cause of action has long prescribed; the cause of action has long
been barred by a prior judgment; and, the claim has been waived, abandoned and/or extinguished
by laches and estoppel.
The RTC issued an order dismissing Kiat's complaint, acceding to all the grounds set forth by
Rosita in her motion to dismiss. CA set aside the dismissal and ordered the remand of the case for
further proceedings.
HELD: There is merit in the petition. “There being no trust, express or implied, established in
favor of Kiat, the only transaction that can be gleaned from the allegations in the complaint is a
double sale, the controlling provision for which is Art. 1544 of the Civil Code. Kiat alleged that he
bought the subject properties from Tan Keh in 1954 but nonetheless failed to present any document
evidencing the same, while Remigio, as the other buyer, had in his name TCT 53284 duly registered
on Oct 13, 1958.”
“Remigio, beyond doubt, was the buyer entitled to the subject properties since the prevailing
rule is that in the double sale of real property, the buyer who is in possession of a Torrens title and
had the deed of sale registered must prevail. Rosita is in possession of TCT 117898 which evidences
her ownership of land. Kiat relies simply on the allegation that he is entitled to the properties by
virtue of a sale between him and Tan Keh who is now dead. Obviously, Kiat will rely on parol
evidence which, under the circumstances obtaining, cannot be allowed without violating the "Dead
Man's Statute" found in Sec. 23, Rule 130. Clearly then, from a reading of the complaint itself, the
complaint indeed does not spell out any cause of action.”
“We also agree with Rosita's submission that Kiat's cause of action has prescribed. TCT 53284 in
the name of Remigio was registered on Oct 13, 1958, while TCT 117898 in the name of Rosita, was
issued on Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA held that the 10-year
prescriptive period for the reconveyance of property based on an implied trust cannot apply in this
case since Kiat was in actual possession of the subject properties.”
“However, Kiat's occupation of the land was never in the concept of an owner since he was a
mere lessee who is estopped from denying the title of Remigio as owner-lessor. It thus becomes
evident that the filing of Kiat's complaint in 1993 — 35 years after TCT 53284 in the name of
Remigio was registered and 18 years after the issuance of TCT 117898 in the name of Rosita — was
way beyond the 10-year time limit within which reconveyance of property based on an implied trust
should be instituted. Kiat's cause of action, assuming that it exists, has clearly prescribed.”
“Finally, Kiat is guilty of laches. Kiat's possession of the land cannot be made the basis to
deflect the effects of laches because he is a mere lessee who, to repeat, cannot assert any adverse
claim of ownership over the subject properties against the lessor-owner. What ought to be in focus
is that, Kiat was not able to effect the transfer of title over the subject properties in his favor upon
his purchase thereof from Tan Keh in 1954 because he was still a foreigner at that time. But Kiat
later on claimed that he was already a Filipino national when he reminded Rosita of his ownership of
the subject properties during Remigio s wake sometime in 1968.”
“It may be reasonably deduced from these allegations that Kiat acquired Filipino citizenship by
naturalization, thus entitling him to own properties in the 1960's, more or less. His mistake, if it is
one, is that he tarried for 30 years before formally laying claim to the subject properties before the
court. Considerable delay in asserting one's right before a court of justice is strongly persuasive of
the lack of merit of his claim, since it is human nature for a person to enforce his right when the
same is threatened or invaded. Thus, Kiat is estopped by laches from questioning the ownership of
the land.”
“WHEREFORE, the assailed decision of CA is SET ASIDE, and a new one is rendered DISMISSING
Fernando Tan Kiat's complaint.”
Q: Now, is there an exception to the rule that when the court determines whether there is a cause of action
or not, the court cannot look at the evidence – all must be based on the complaint and there should be no
appreciation of any evidence?
A: Based on the EXCEPTION in the case of
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK

157 SCRA 100 [1987]
169
FACTS: The plaintiff filed a complaint against defendant with a prayer for a preliminary
injunction. So, it is not only a complaint but plaintiff applied for a provisional remedy. And under the
law in provisional remedy, that must be heard immediately because that is urgent, eh! And in a
preliminary injunction, there must be a hearing because preliminary injunction cannot be granted
ex parte.
So even before the answer could be filed, nagkaroon na ng hearing and the plaintiff already
presented evidence on his cause of action during the hearing for the issuance of the writ of
preliminary injunction. Then after the hearing, here comes now the defendant moving to dismiss the
entire case because there is no cause of action based on the evidence you presented.
Plaintiff: No, the cause of action is determined only based on the allegations in the complaint
and you do not look at the evidence.
HELD: That is the general rule. If nag-present ka na ng ebidensiya in the preliminary

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

2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle or compromise the suit at the
barangay level before raising the action in court. If nothing will happen then proceed the case to
court.
3.) Article 151 of the Family Code contemplates suit between family members.
It must be alleged in the complaint that earnest efforts towards a compromise is made between:
husband and wife, parents and children, ascendants and descendants, brothers and sisters, whether full or
half blood. So you are not allowed to file a case directly between family members in order to preserve the
family as a basic social institution being the foundation of the nation.
So it should appear form a verified complaint or petition that earnest efforts toward a compromise have
been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must
be dismissed.
170
Q: What about a suit to a nephew?
A: Article 151 will not apply. One can file directly to the court because even though he is your relative he is
not a member of your family.
Q: How about a suit against a brother and a stranger?

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

2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
So hindi nyo pwedeng pag-usapan na lang ang mga bagay na iyan. If a person claiming to be the son of
your father and you wish to avoid delay, you will seek to compromise, this cannot be done. As well as saying
you are single even if you are married in order to facilitate things, this cannot be done.
Under the 1964 Rules, this last ground (non-compliance with a condition precedent requirement) is not
found therein. However, there is a ground that is no longer found in the present Rules of Court, that the suit
between members of the family and that no earnest efforts towards a compromise has been made, this was
stated as the last ground. It does not mean, however, that it can no longer be applied. This has been
incorporated under paragraph [j] of the new rules. It is already a broader ground.
Sec. 2. Hearing of motion. At the hearing of the motion, the parties shall submit
their arguments on the questions of law and their evidence on the questions of fact
involved except those not available at that time. Should the case go to trial, the
evidence presented during the hearing shall automatically be part of the evidence of
the party presenting the same. (n)
During the hearing of a motion to dismiss, the movant is allowed to present evidence to prove his claim.
Like for example: the venue is not properly laid or the action is already extinguished by payment or the action is
already barred by a prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the defendant is allowed to present

evidence to prove the ground for his dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter (paragraph [b]); or
2.) The pleading asserting the claim states no cause of action (paragraph [g])
When these are the grounds invoked, the defendant is not allowed to present evidence because you are
hypothetically admitting all the allegations in the complaint as true and correct. You are not allowed to dispute
or deny those allegations. It shall be based purely on the allegations of the complaint so you are not allowed to
prove that those allegations are not true.
And should the case go to trial, the evidence presented shall automatically form part of the evidence of the
party presenting the same. There is no need to present those evidence again during the trial because the
evidence during the hearing is automatically part of the evidence during the trial. This is similar to the rule on
Bail in Criminal Procedure.
Sec. 3. Resolution of motion. After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons
therefor. (3a)
Q: How will the court rule on the motion to dismiss?

A: The following:
1.) The court will dismiss the action. (motion is granted);
2.) The court will deny the motion (proceed to trial); or
3.) The court will order the amendment of the pleading
When the court orders the amendment of the pleading, in effect the motion to dismiss is also denied. So,
the rule is when the ground for the dismissal can be cured by amending the complaint, do not dismiss but
require the party to amend the complaint. That is a polite way of denying your motion to dismiss.
Like for example, the cause of action is imperfectly stated, kulang ng allegation ba. So the plaintiff would
say: “Your Honor, we will add one sentence para makumpleto.” Sabi ng judge: “No! no! no! We will dismiss.” No,
the judge cannot do that. Curable yon eh! And amendment of the pleading is favored.
Q: Suppose the plaintiff filed a complaint and the defendant files a motion to dismiss, can the plaintiff still
amend his complaint? Otherwise stated, can the plaintiff still amend his complaint when there is already a
motion to dismiss?
171
A: Ah YES! Because it is the right of the plaintiff to amend his complaint before a responsive
pleading is served upon him. And a motion to dismiss is not a responsive pleading. It is not even a
pleading (Guirao vs. Ver, April 29, 1966) The responsive pleading to the complaint is the Answer.
Q: Now, suppose there is already an order of dismissal in which the court has already ordered the dismissal
of the case, because it does not state the cause of action of the complaint. Plaintiff: “Alright! Motion to amend
the complaint to state the cause of action and set aside the order of dismissal.” Can that still be done at that
stage where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become final and executory because the
rule is absolute: for as long as there is still no responsive pleading, the right of the plaintiff to
amend his complaint is a matter of right.
The second paragraph of the section “The court shall not defer the resolution…” is an amendment of the
previous rule. Under the previous rule, the court had four options: 1) grant the motion; 2) deny; 3)order
amendment; and 4) defer the resolution for the reason that the ground relied upon is not indubitable. What
does it mean?
‘Indubitable’ means without a doubt, thus the ground was not without a doubt, it is doubtful, it is not
indubitable. EXAMPLE: Defendant filed a motion to dismiss the case and the court analyzed the ground. After
analyzing, the court is not sure. The ground seems to be valid but the court also doubts. Parang 50-50 ba.
Now the previous rule allows the court not to act—it will not act, it will not deny. The court will just
postpone the resolution of the motion to dismiss, until the trial, because the ground is doubtful. In the course of
the trial, the court may realize whether the ground is correct or not. When the ground becomes clearer, the
court may say, “All right, I will grant the motion”. That was allowed under the previous rule.
NOW, that is not allowed anymore. The court really has to act on the motion: either grant it,
deny it, or order the amendment.
Even under the previous rule, there were already instances where the SC said that the courts should not
postpone the resolution, especially when the ground of dismissal is lack of jurisdiction over the subject matter,
or that the complaint states no cause of action. Why? The court only has to read the complaint and there is no
need of presentation of evidence to rule on the motion. There were decided cases along that line, and
obviously that reasoning predominated the committee.
The last paragraph is self-explanatory, whether the Court denies or grants the Motion, it must support its
Order.
Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer
within the balance of the period prescribed by Rule 11 to which he was entitled at
the time of serving his motion, but not less than five (5) days in any event, computed
from his receipt of the notice of the denial. If the pleading is ordered to be amended,
he shall file his answer within the period prescribed by Rule 11 counted from service
of the amended pleading, unless the court provides a longer period. (4a)
Q: Suppose defendant files a motion to dismiss and the court granted the motion. The case is dismissed.
What happens to the case?
A: No more case. The defendant has no more problem because the case has been ordered dismissed.
Q: Suppose the court denies the motion to dismiss?

A: Defendant is now obliged to file his answer. Under Rule 11, he has 15 days to file his answer.
Q: But instead of filing his answer, he files a motion to dismiss. Like for example, after consuming 8 days,
he files a motion to dismiss, the running of the period stops. After a while, he receives an order denying his
motion. How many more days does he have?
A: Seven (7) days only. He must file his answer within the remaining balance of the period.
This is a radical departure from the previous Rule. Under the 1964 Rules, when you file a motion to dismiss
on the eight day, and the motion is denied, you have 15 days all over again to file an answer. NOW, no more –
you only have the remaining balance of the 15-day period.
Q: Now, suppose you file your motion to dismiss on the 13th day, so, two days to go. If your motion is
denied, do you only have two days to file your Answer?
A: NO. You are entitled to not less than five (5) days. This is identical with Rule 12, Section 5
on Bills of Particular:
Rule 12, Sec. 5. Stay of period to file responsive pleading. - After service of the bill of
particulars or of a more definite pleading, or after notice of denial of his motion, the
moving party may file his responsive pleading with the period to which he was
entitled at the time of filing his motion, which shall not be less than five (5) days in
any event. (1[b]a)
Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a

motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar
the refiling of the same action or claim. (n)
Normally, when the motion to dismiss is granted, it does not prevent the plaintiff from re-filing the case.
Like for example, the case is dismissed for lack of jurisdiction over the subject matter. I can re-file that in the
proper court. Or, suppose the case is dismissed for improper venue, so I will file it in the proper venue.
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But there is a new provision, that is, if the ground for a motion to dismiss are the following you cannot re-file
it anymore. That is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata, statute of limitations,
prescription of the claim or statute of frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh kasi res judicata na, tapos magpa-file ka
na naman ng panibago? Hindi na puwede yan. Or, it is already dismissed because the obligation has already
been paid, then you will file? That cannot be done anymore. So, in other words, it is res judicata already. So to
summarize:
GENERAL RULE: A case that has been dismissed can be re-filed.

EXCEPTIONS: When the case was dismissed on the following grounds:
1.) That the cause of action is barred by a prior judgment or by the statute of limitations;
2.) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned or otherwise extinguished; or
3.) That the claim on which the action is founded is unenforceable under the provisions of
the Statute of Frauds.
Q: For example, the court says: “Your action is barred by res judicata.” But actually, the court is wrong,
what is your REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not to re-file the case because that would
already be res adjudicata. That is common sense.
Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been

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

214 SCRA 456 [OBSOLETE!]
HELD: “A compulsory counterclaim is so intertwined with the complaint that it would not remain
pending for independent adjudication by the court after the dismissal of the complaint which had
provoked the counterclaim in the first place. As a consequence, the dismissal of the complaint
operated also to dismiss the counterclaim questioning the complaint. When defendant moved to
dismiss the main action, he also moved, in effect, for the dismissal of the counterclaim.”
That is the prior rule. That ruling is already OBSOLETE because of this new paragraph, “The dismissal of the
complaint under this section shall be without prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer.”
NOW, you can move to dismiss the complaint. Ang counterclaim mo buhay pa rin. And you can continue to
insist that on a trial.
Rule 17
DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the

plaintiff by filing a notice of dismissal at any time before service of the answer or of
a motion for summary judgment. Upon such notice being filed, the court shall issue
an order confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an adjudication upon
the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim. (1a)
Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he dismiss his
own complaint?
A: YES. And it is a matter of right.
Q: How?
A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for
Summary Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the
right to dismiss his own complaint by simply sending the court what is known as a notice of dismissal.
This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as there is no
answer yet.
Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the dismissal.
The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until
confirmed by the court. This is keeping with the respect due to the court.
Under the rules on civil procedure, there are two types of dismissal:
1. Dismissal with prejudice – the case can no longer be re-filed;
2. Dismissal without prejudice –the case can be re-filed.
Q: Is the dismissal under Section 1 with or without prejudice?

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

234 SCRA 455 [1994]
HELD: It DEPENDS on whether the order of dismissal has already become final.
a.) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask
the court to set aside the order of dismissal and re-vive the case because the order of
dismissal have not yet become final.
b.) However, if the order of the court dismissing the complaint based on your own notice
has become final after 15 days, then the only way you can revive it is to file an entirely
new action.
Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding

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

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

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

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

A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning,
res adjudicata applies, as if the case has already been decided. Therefore the elements of res
adjudicata should also be present. The dismissal is with prejudice unless otherwise declared by the
court.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice.
EXCEPTION: Unless the court provides otherwise.
EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to dismiss under
Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice.
(General Rule)
Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without
prejudice.” Can the case be re-filed? YES. (Exception)
On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when we say
res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be
summoned because his whereabouts is now unknown. Several attempts made by the plaintiff to
look for him failed. After a while the court dismissed the complaint for RBP’s failure to prosecute.
And the order of dismissal was silent. So, following Section 3, the dismissal is with prejudice.
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed
the compliant. Defendant moved to dismiss because when the first complaint was dismissed and
the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res
adjudicata under Rule 39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction
over the case both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the
defendant because he was never served with summons. Therefore, such dismissal did
not have the effect of res adjudicata.
Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of
the case, and the parties in the previous case in order that the dismissal be with prejudice.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. The provisions of

this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this
Rule, shall be made before a responsive pleading or a motion for summary judgment
is served or, if there is none, before the introduction of evidence at the trial or
hearing. (4a)
It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint – at any
time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may dismiss
his claim under Section 1, Rule 17.
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Rule 18
PRE-TRIAL
Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note that no
case can reach the trial stage without undergoing Pre-Trial after the issues have been joined.
Section 1. When conducted. After the last pleading has been served and filed, it
shall be the duty of the plaintiff to promptly move ex parte that the case be set for
pre-trial. (5a, R20)
In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound to move
ex parte that the case be set for pre-trial. No civil action can reach the trial stage without passing the pre-trial
period.
Pre-trial in criminal cases is only optional—the accused and his lawyer have to agree. In civil cases, the
pre-trial is MANDATORY – no case can reach the trial stage without undergoing Pre-Trial. And it is
the duty of the plaintiff and not of the clerk of court to move to set the pre-trial. A motion for pre-
trial can be filed ex parte, an exception to the rule that no motion can be filed ex parte.
Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative
modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
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(g) The propriety of rendering judgment on the pleadings, or summary judgment,
or of dismissing the action should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action. (1a,
R20)
(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE

MODES OF DISPUTE RESOLUTION
Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you get
something from me and I get something from you. Then we will submit out agreement to the court. In an
amicable settlement, walang panalo and wala ring talo. So everybody goes home happy.
There was an article where it says that one of the best gauge of a good lawyer is not that he has many
cases, but that he knows how to settle a case because he saves his client from a lot of trouble. While a bad
lawyer is one whose cases always end up in trial – he has many cases and he does not have the time anymore
to study each cases. So, he ends up inefficient.
As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents of the
United State, gave an advice to lawyers: “Discourage litigation. Persuade your neighbors to compromise
whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste
of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be
business enough.” Meaning, if you are a lawyer, you have a strong influence to convince your client to settle
the problem with his opponent. You do not have to worry about losing fees for there are still cases to come.
Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and
effort.
“…of a submission to alternative modes of dispute resolution.” – how to dispose of the case without passing
to court, ba. This is similar to voluntary arbitration in the Labor Code – mas mabilis!. Kung sa court yan,
matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng building. You quarrel
with your contractor whether the building is properly constructed or not. That kind of dispute has to pass
through arbitration like contractors. They will be the one to judge because they are experts in construction. So
it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag na alternative modes of dispute
resolution.
Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pre-trial
was a failure? NO, go to [b] to [i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or lessened/reduced to the most important and relevant
ones.
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS;
Take note that there is already a complaint and answer and yet during the pre-trial, the parties can still
amend their complaint or answer. That means that amendments of pleadings are favored even at this stage.
Amendment is necessary which is favored by the liberality principle, to adjudicate the case upon proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC

21 SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a necessity
for amending the complaint. It was amended. Is there a need for a new pre-trial for the amended
complaint?
ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does
not mean the need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the
parties agree to conduct another pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there is no need of proving them in court
because we already agreed. Such will hasten the trial because matters validly agreed upon can be dispensed
with (e.g., size of the land, improvements thereon, stipulations, due execution of documents, etc.)
Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate facts
under the threat of dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO.
160 SCRA 333
HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on the facts
and issues that may possibly crop up in a particular case, upon pain of dismissal of such case. The
process of securing admissions whether of facts or evidence is essentially voluntary, since
stipulations of facts, like contracts, bind the parties thereto who are not allowed to controvert
statements made therein.
(e) THE LIMITATION OF THE NUMBER OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask, “Mr. Plaintiff, how many witnesses will you
present?” The plaintiff will say that he will present one hundred witnesses. So the court will start asking, “Why
179
so many? Will it be possible to limit the number of witnesses from 100 to 15 or 10? Anyway, what one witness
will say will just be the same as what the other witness will say.”
That is allowed and that is part of the pre-trial because it will be shortened if the number of witnesses will
be reduced in number.
(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER;
This refer to Rule 32 the title of which is “Trial by Commissioners.” A commissioner is a person who may be
appointed by a judge to assist the court in determining certain issues.
EXAMPLE: Two people dealing with each other ended up suing each other because according to plaintiff,
“You secured these amounts from me and ito lang ang binayad mo. So, may utang ka pa.” But defendant said,
“No, no, no! Based on my record, overpaid pa ako.” That can happen where there has be confusion already on
the invoices and receipts. Now, if we will try this case in court it will take time because you have to present to
the judge every receipt, every invoice. And these invoices may number by hundreds. And what is worse is that
the judge is not an accountant so he will have a hard time reconciling these receipts and invoices.
Suppose the judge will say, “Alright, since this is a matter of accounting, I will appoint a CPA to assist me.
You can choose whoever this accountant or he may be appointed by this court. Then you go to him and
present all your documents. And then he will now analyze and then submit to me his findings. Based on his
findings we will find out whether the defendant still owes the plaintiff or there is no more utang.”
That is what you call, reference of issues to a commissioner. That will shorten the proceedings because if
the judge will go over the documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, “Your fence has already
encroached on my property.” Defendant answers, “No, no, no. This is the boundary.” So bakbakan na naman
kayo. The court will ask,” Is it true you encroached on his property?” How will the court know that? I think that
is very technical. It is a geodetic engineer surveyor to resolve the issue. He will plot the measurement and
then he will submit a sketch. Then we will find out if there is an encroachment or not.
As far as the judge is concerned, he does not know anything about description of the land, he is not a
surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be appointed. What
do you call this surveyor? He is a commissioner.
(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT, OR

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

provisions of the Civil Code. (n)
Actually, Section 8 points to Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:

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

169 SCRA 409
NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is actually the
bible on pre-trial. And this is what exactly Justice Narvasa said:
HELD: “Everyone knows that a pre-trial in civil actions is mandatory, and has been so since
January 1, 1964 (effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of
things is not fully appreciated, and it receives but perfunctory treatment in many courts [Meaning, it
is only complied with for the sake of compliance.] Some courts consider it a mere technicality,
serving no useful purpose save perhaps, occasionally to furnish ground for non-suiting the plaintiff,
or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial device
is not thus put to full use. Hence it has failed in the main to accomplish the chief objective for it: the
simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great
pity, because the objective is attainable, and with not much difficulty, if the device were more
intelligently and extensively handled.”
The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of Rule 18.
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on

the party who has no counsel. The counsel served with such notice is charged with
the duty of notifying the party represented by him. (n)
This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to comply
with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case be set
for trial and you will be given a notice of pre-trial from the clerk of court. The notice of pre-trial shall be served
on counsel or on the party who has no counsel.
Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party –
dalawang notice – notice to the lawyer is not notice to the party, as an exception to the Rule 13. But NOW, to
simplify the job of the court processor, the rule is, notice to the counsel is now notice to the party.
ARCILLA vs. ARCILLA

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

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

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

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

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

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

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

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

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

169 SCRA 409 [1989]
HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the
plaintiff continue and just let the defendant cross-examine the plaintiff’s witnesses. As a
general rule a second pre-trial cannot be granted, the remedy instead is to go to trial.
183
Exception: YOUNG vs. COURT OF APPEALS
204 SCRA 584 [1991]
HELD: “The pre-trial stage is completed after a party had been ordered non-suited and the
complaint is dismissed or after the court allows the plaintiff to present his evidence ex-party. The
order lifting it does not revert the action to its pre-trial stage, or authorize, much less, a
second pre-trial UNLESS the parties themselves had voluntarily agreed that the case be
set anew for pre-trial. Neither the Rules nor the doctrine bars the parties from agreeing, after
such lifting, to hold a pre-trial and to effectively accomplish its objectives.”
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse
party, in such manner as shall ensure their receipt thereof at least three (3) days
before the date of the pre-trial, their respective pre-trial briefs which shall contain,
among others:
(a) A statement of their willingness to enter into amicable settlement or
alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves
of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their
respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at
the pre-trial. (n)
This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is not new
because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The submission
of pre-trial briefs by lawyers has been required by that Circular. This circular is now incorporated.
Take note that at least three(3) days before the date of pre-trial the parties’ lawyers should file
pre-trial briefs to be furnished with each other. In that brief, you summarize everything covered by
your pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and
answer, only the document where you condensed everything will be read. It contains: Cause of action;
defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or exhibits
you would like the present; or who are the witnesses and what are they going to testify, etc. That’s a summary
of everything that is going to happen from the beginning of the trial up to the end.
Q: What happens if a party fails to file a pre-trial brief?

A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect as failure to
appear a the pre-trial conference.” So, if it is the PLAINTIFF who failed to file a pre-trial brief, his
complaint may be ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that
would be a cause for the court to allow the plaintiff to present his evidence ex-parte.
Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be penalized
by the court with a dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to
prove his cause of action (Rule 17, Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be allowed to
present his evidence ex parte and judgment be rendered based purely on such evidence?
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon
the termination thereof, the court shall issue an order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the amendments
allowed to the pleadings, and the agreements or admissions made by the parties as
to any of the matters considered. Should the action proceed to trial, the order shall
explicitly define and limit the issues to be tried. The contents of the order shall
control the subsequent course of the action, unless modified before trial to prevent
manifest injustice. (5a, R20)
A pre-trial conference although it is less formal than a trial, that’s why in most cases, pre-trial is not done in
open court but inside the chamber of the judge where the atmosphere is more relaxed because you are going to
talk about settlement, eh. However, do not believe that that is just a decoration. That is an official proceeding.
Everything there is recorded. According to section 7, after a pre-trial conference is terminated, the court will
issue what is known as pre-trial order. That is now expressly required by the rules.
A pre-trial order should state or should summarize everything what was taken up in a pre-trial
conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the
third sentence: “Should the action proceed to trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall control the subsequent course of the action,
184
unless modified before trial to prevent manifest injustice.” It may be an ordinary sentence but the
effect of that is terrible.
Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can
determine the issues based on the admissions and denials in the answer. For instance, there are five issues,
they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject other issues which
are not important with the agreement of the parties. Thus, there may be only one real issue like whether or not
the loan has been paid. The court may then issue a pre-trial order containing such issue. The defendant may
have also several defenses in his answer. After the pre-trial order is issued, such order should be followed.
Forget the complaint and the answer.
In effect, the complaint and the answer has already been superseded by the pre-trial order.
This section in effect says that the pre-trial order supersedes the pleadings.
That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the
importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed Rule 18
religiously, during the trial the judge will not have a hard time in determining what is the issue to be resolved.
And babasahin lang niya ay ang pre-trial order. Everything is to be based there. Without the pre-trial order, you
will still have to look at the pleadings of both parties. The pre-trial order is a very important piece of document.
There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the plaintiff is
claiming damages from the defendant. His allegations naturally would point out that all fault and negligence is
caused by the defendant. As usual, when the defendant files his answer, he is denying that. As a matter of
fact, he will claim that the one negligent is the plaintiff. Chances are, since his vehicle was also damaged, the
defendant will file a counterclaim. So, pasahan yan!
What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The
plaintiff’s lawyer asked the defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable for actual
damages on defendant’s counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim for
exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorney’s fees and
expenses for the litigation?”
So, those were the issues. The plaintiff’s lawyer, siguro hindi nakikinig ba. Judge asked, “O, do you agree
panyeros?” Yes, Okay. When the pre-trial order was issued, those issues were contained. Where’s the
defendant’s liability to the plaintiff? Wala na! The issue is whether or not the plaintiff is liable to the defendant.
During the trial, the plaintiff presented his evidence to prove the defendant’s liability. The defendant’s lawyer
objected on the ground that there was no issue contained in the order on the liability of the defendant. The
only issue is whether plaintiff is liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang pre-trial
order is not important.
(Dean did not know how the case ended, but commented: “The plaintiff asked for the amendment of the
pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be held liable.
Now, if I were the judge, I will really modify because it’s unfair no! You are the one suing and now you end up as
a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa pre-trial! [gago!])
Now, an example of the last sentence of Section 7 – “UNLESS modified before trial to prevent
manifest injustice – is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does
not recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a pre-
trial order and no one objected to the issue raised, it can be tried and later the pre-trial order can be amended
to conform with issue/s raised.
KATARUNGANG PAMBARANGAY
For now, we will leave the rules on civil procedure. We will go to another law which is also connected with
the study on civil procedure. This is the Barangay Conciliation Law. It is appropriate to discuss what the law is
all about because under Rule 18 on pre-trial, you will notice it has emphasized that the primary purpose of a
pre-trial is the possibility of amicable settlement. That is usually encouraged. No case may reach the trial
stage without passing through the Pre-trial Rule. We have to exhaust all avenues and settlement.
There is a law known as the BARANGAY CONCILIATION LAW which mandate that before an
action can be filed by an individual complainant against another individual defendant, both of
them are residing in the same city or municipality, there should be a prior attempt to conciliate in
the barangay level – under the rules, the barangay of the defendant. And if the action if filed
without observing that procedure, the action is dismissible.
Suppose a case will be filed in court, according to the SC, the plaintiff must allege in a complaint that before
filing the case he exerted or complied with the Baranagay Law. It is a condition precedent. Normally, after you
exhaust in the barangay level but is not successful, the Barangay Chairman will issue a certification t file an
action. That should be stated in the complaint.
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY (126 SCRA 217), the failure of a
complaint to allege compliance with the requirement of the barangay law is fatal. He must make an allegation
that before filing his complaint, he complied with the barangay law. Otherwise, his complaint will be ordered
dismissed.
If the action is filed without observing that procedure, the action is dismissible. But as clarified by the SC in
many cases, among them are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA 289) the defect
is NOT JURISDICTIONAL. You do not say the court has no jurisdiction.
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The ground for dismissal is more on PREMATURITY OF THE ACTION. You can cite the new ground now as
“the condition precedent required by law has not been observed.” Actually, it
will also affect the cause of action- Based on decided cases, there must be an allegation in the complaint that
before filing a case, there has been an attempt to undergo a conciliation in the barangay level.
Now, this law used to be the Katarungang Pambarangay Law, PD 1508. However, it was superseded on
January 1, 1992 by RA 7160, otherwise known as the Local Government Code Of 1991 (LGC). The Barangay
Conciliation requirement is now embodied in RA 7160. The barangay requirement is found in Sections 399-422
and also Section 515. It is around 25 sections of the law.
To help you, the SC in 1993 issued Administrative Circular No. 14-93 where the SC tried to condense the
important requirements of the law – who are covered and who are not. It is addressed to all RTC and MTC
judges. Subject: Guidelines on the Katarungang Pambarangay conciliation Procedure to prevent circumvention
on the Revised Katarungang Pambarangay Law.
We will summarize the law and discuss some important features. Under the law, you cannot file a case
against somebody without attempting to settle matters before the barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION LAW:
The law applies only when you are suing somebody who resides in the same city or municipality
where you reside. Or in the event of different municipalities, they are adjacent. So when two
towns are near each other, you are suing somebody there, the law will apply. Generally, when you
(from Davao City) sue somebody from General Santos City, the law is inapplicable because it is a different city.
The law will not apply if one of the parties in the dispute is a juridical person – i.e. corporation.
It only applies to suits between natural persons.
Under the law, it is where the barangay where the barangay where the defendant resides. Unless, the
dispute arose in a workplace or in school, the venue is the barangay where the workplace or the school is
located.
Q: If I’m from Sasa and you are from Toril, but we are residing in the same city, which barangay is the
proper venue?
A: Under the law, it is the barangay where the defendant resides, unless the dispute arose
in a workplace or in school.
If the dispute refers to REAL property, it is where the property is situated. If the dispute refers
to Real Property (e.g. land), and I’m from Matina, and you are from Sasa, but the case involves a
land in Toril, then the correct venue is the place where the land is situated – i.e. the barangay in
Toril.
When you say, both the parties reside in the same city or municipality, what do you mean by RESIDENCE?
The same interpretation as laid down by the SC in
GARCES vs. COURT OF APPEALS

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

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

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

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

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

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

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

Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now replaced by
Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and prior recourse
thereto is a pre-condition before filing a complaint in court or any government
offices, EXCEPT in the following disputes:
1. Where one party is the government, or any subdivision or instrumentality

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

cities or municipalities, except where such barangay units adjoin each
other and the parties thereto agree to submit their differences to
amicable settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one (1) year or a fine over five thousand pesos
(P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from
being committed or further continued, specifically the following:
NOTE: “Urgently.” A good example in civil action is where the action is coupled with
a provisional remedy such as preliminary injunction, attachment, replevin or support.
Or, actions which may be barred by the statute of limitations.
a.) Criminal cases where accused is under police custody or detention

(See Sec. 412 (b)(1), Revised Katarungang Pambarangay Law);
b.) Petitions for habeas corpus by a person illegally deprived of his
rightful custody over another or a person illegally deprived of his
liberty or one acting in his behalf;
c.) Actions coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support
during the pendency of the action; and
d.) Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest
of justice or upon the recommendation of the Secretary of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law
(CARL) (Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee
relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code,
as amended, which grants original and exclusive jurisdiction over
conciliation and mediation of disputes, grievances or problems to certain
offices of the Department of Labor and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation
there is in the Department of Labor.
12. Actions to annul judgment upon a compromise, which may be filed

directly in court (See Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation,

as implemented by the Katarungang Pambarangay Rules and Regulations
promulgated by the Secretary of Justice, the certification for filing a complaint in
court or any government office shall be issued by Barangay authorities only upon
compliance with the following requirements: aisa dc
1.) Issued by the Lupon Secretary and attested by the Lupon Chairman
(Punong Barangay), certifying that a confrontation of the parties has
taken place and that a conciliation or settlement has been reached, but
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the same has been subsequently repudiated (Sec. 412, Revised
Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang
Pambarangay Rules);
2.) Issued by the Pangkat Secretary and attested by the Pangkat Chairman,
certifying that:
a. a confrontation of the parties took place but no

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

shall be effective immediately.
Manila, Philippines. July 15, 1993.
(Sgd.) ANDRES R. NARVASA

Chief Justice
189
Rule 19
INTERVENTION
This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of particulars.
And Intervention has been moved to Rule 19. What happened to the original Rule 19? The original Rule 19 on
Judgment on the Pleadings was moved closer to Summary Judgment, to Rule 34.
Q: Define intervention.
A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the case, is
permitted by the court to make himself a party to the case. (33 C.J.S. 447)
EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Rayda signed a promissory note in favor
of Leo.
Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself?
A: Rucel should file a CROSS-CLAIM against her co-party Rayda.
Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself?
A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda.
Q: What if Rucel does not file a third party complaint against Rayda? What can Rayda do to
be able to join the case?
A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should come
from her.
So an intervention is related to a third-party complaint. It is a process by which a stranger or a third party is

included in a case, but with the difference that in a third-party complaint, it is the party who brought you in.
While in intervention, the initiative comes from the third person and he is known as the intervenor. And the
process of entering is called intervention. And take note that a person cannot simply intervene for the sake of
intervening. There must be a legal ground for intervention which can be found in Section 1:
Section 1. Who may intervene. A person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both, or is
so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court,
be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor's rights may be fully protected in
a separate proceeding. (2[a], [b]a, R12)
Q: What are the grounds for intervention?

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

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

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

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

A: Under Section 2, at any time before rendition of judgment by the trial court. So, you cannot intervene
when there is already a decision. Tapos na ang kaso. The trial is already terminated. So the earlier, the better.
And when you file a motion to intervene, the pleading-in-intervention that you want to file should already be
included. Now, under the old procedure, first, you file a motion to intervene. After filing your motion and your
191
motion is granted, then you file your pleading in intervention. So, motion first before pleading. That was the old
rule.
NOW, sabay na. The copy of the pleading and intervention shall be attached to the motion and served on
the original parties. That is also in consonance with Rule 15 Section 9 on motions in general.
Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a pleading or motion
shall be accompanied by the pleading or motion sought to be admitted. (n)
So, in other words, when you file a motion for leave, the pleading must already be included in your motion.
An example is a motion to intervene where it must already be accompanied by the pleading-in-intervention.
Now, what are these PLEADINGS-IN-INTERVENTION? It’s there in Section 3. It’s either a complaint-in-
intervention or an answer-in-intervention. So it DEPENDS:
If you are joining forces with the plaintiff, or you are asserting a claim against both, then you file a
COMPLAINT-IN-INTERVENTION. If you are uniting with the defendant to resist the plaintiff, you file an ANSWER-
IN-INTERVENTION.
So, these are among the pleadings recognized by the rules. Let’s try to go back to the basic. What are the
types of pleadings allowed by the rules of court? Rule 6, Section 2:
Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint,

counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-
intervention.
xxxxx
Did you notice that “complaint-in-intervention”? So, we are wondering, ano ba itong complaint-in-
intervention? Actually, that is the pleading referred to now in Rule 19.
Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in

-intervention shall be filed within fifteen (15) days from notice of the order admitting
the same, unless a different period is fixed by the court. (2[d]a, R12)
In other words, just like any other complaint, it should be answered within 15 days. A complaint-in-
intervention must be answered within fifteen (15) days from notice of the order admitting the same, unless a
different period is fixed by the court. So you have 15 days.
Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to answer?

A: Let us go back to Rule 11, Section 3:
Sec. 3. Answer to amended complaint. Where the plaintiff files an amended

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

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

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

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

253 SCRA 30 [February 1, 1996]
FACTS: There was a motion to intervene and the trial court denied it.
ISSUE: Is a writ of MANDAMUS available to compel a trial court to grant a motion for
intervention?
HELD: “As provided under Rule 19, Section 1, intervention shall be allowed in the exercise of
discretion by a court. Ordinarily, mandamus will not prosper to compel a discretionary act. But
where there is gross abuse of discretion, manifest injustice or palpable excess of authority
equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain,
speedy and adequate remedy, the writ shall issue.”
Rule 20
CALENDAR OF CASES
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Section 1. Calendar of cases. The clerk of court, under the direct supervision of
the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials
were adjourned or postponed, and those with motions to set for hearing. Preference
shall be given to habeas corpus cases, election cases, special civil actions, and those
so required by law. (1[a], R22)
The clerk of court has a calendar of cases – cases for pre-trial, trial cases, which were postponed. When will
be the continuation of the trial? May scheduling yan eh. Of course, the law says, preference shall be given to
certain type of cases like habeas corpus. It is very important because that involves the freedom of an
individual.
Sec. 2. Assignment of cases. The assignment of cases to the different branches of a

court shall be done exclusively by raffle. The assignment shall be done in open
session of which adequate notice shall be given so as to afford interested parties the
opportunity to be present. (7a, R22)
For example, in Davao City, there are more than 10 branches. Now, when you file a case, how will we
determine whether the case will be assigned to Judge Malcampo or Judge Quitain or Judge Torres? Raffle ‘yan.
Niraraffle ‘yan. I remember the ordinary raffling day in Davao City is every Tuesday. They raffle the cases. All
representatives of the different branches are there and then they have a system of raffling. Which case will go
to you? Para hindi ka makapili. So, that is how cases are assigned.
So, pag-raffle ng kaso, there should be adequate notice to the parties. This is one section where the clerk of
court had a hard time applying it. Do you know why?
Because the present practice, pag-file mo ng kaso, they will immediately raffle it and then i-assign na sa
branch. The branch clerk of court will now issue the summons. Meaning, by the time it reaches the defendant,
naka-assign na. Suppose the defendant will object, “When that raffling was done, I was not notified. I will
question the raffle because it would seem that the requirement is that the plaintiff and the defendant should be
notified of the raffling.” Yaan!
Rule 21
SUBPOENA
Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a

person requiring him to attend and to testify at the hearing or the trial of an action,
or at any investigation conducted by competent authority, or for the taking of his
deposition. It may also require him to bring with him any books, documents, or other
things under his control, in which case it is called a subpoena duces tecum. (1a, R23)
Rule 21 applies to both civil and criminal cases.
Q: What are the types of subpoena under the law?

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

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

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

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

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

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

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

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

A: The best answer is Section 10 of this rule – if your residence is more than 100 kilometers from the
place of trial. So, you cannot subpoena someone from Cebu to come to Davao because that is
more than 100 kms. But suppose you are willing to pay for his transportation? Never mind, even if
he is willing to pay the transportation. Pag ayaw niya, wala kang magagawa because it is more
than 100 kms.
In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, “You must also
tender the witness fees and kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I think that’s Rule
141, ‘yun bang pamasahe. There is a computation there. How much you have to pay the witness for his
transportation and witness fees. That is different from the reasonable cost and reproduction in the first
paragraph. So, these are the grounds for questioning a subpoena.
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as

provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for
the issuance of subpoenas for the persons named in said notice by the clerk of the
court of the place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person without an order of the
court. (5a, R23)
Now, let’s us skip Section 5 for the meantime because that is deposition.
Sec. 6. Service. Service of a subpoena shall be made in the same manner as

personal or substituted service of summons. The original shall be exhibited and a
copy thereof delivered to the person on whom it is served, tendering to him the fees
for one day’s attendance and the kilometrage allowed by these Rules, except that,
when a subpoena is issued by or on behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be made. The service must be made so
as to allow the witness a reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered. (6a, R23)
The first sentence says, “Service of the subpoena shall be made in the same manner as personal or
substituted service of summons.” That is a new provision. So, the mode of service of summons, personal or
substituted is also the manner of serving subpoena. So there is now a substituted service of summons. You can
leave it to the wife.
Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no such
thing as substituted service of subpoena because in most cases, when you subpoena somebody, you go to the
house, the witness is not there but the wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo ito.”
That is substituted service of subpoena. You must serve it personally to the witness. There is no such thing as
substituted service of subpoena Under the prior rule.
But NOW, the rule has changed because Section 6 is very clear: “It shall be made in the same manner as
personal or substituted service of summons.” Alright.
And take note that You exhibit it to the witness. Then bayaran mo ‘yong kanyang pamasahe. You must
serve the subpoena with a reasonable time to me to allow him to travel. It’s very unbecoming that the witness
be serve a subpoena today and he is suppose to testify tomorrow. Suppose he has other commitments, bigyan
mo siya ng time. And of course, as we discussed earlier, the reasonable cost of producing the books,
documents or things demanded shall also be rendered.
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Sec. 7. Personal appearance in court. A person present in court before a judicial
officer may be required to testify as if he were in attendance upon a subpoena issued
by such court or officer. (10, R23)
GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena.
EXCEPTION: Section 7 – a person present in court before a judicial officer maybe required to testify as if he
is under subpoena.
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And then the
lawyer will say, “Our first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was not under
subpoena.” NO, You can be compelled because you are present in court. Any person present inside the
courtroom can be compelled to testify as if he is under subpoena.
So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag kang
magtingin-tingin doon. It happened several times. There was an instance I wanted to call a witness several
times to surprise him. If I will have him subpoena, baka makabantay. Alam din niya. And then I’ll talk to him.
“O punta ka bukas ha? Sigurado ha.” In other words, I’ll have to trick him into going into courtroom and then
once inside, my first witness is that guy. Wala kang magawa. Because any person present in court can be
compelled to testify because if I will have him subpoena, he will be forewarn. So I do not want to forewarn him.
FAILURE TO APPEAR; CONSEQUENCES
Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not show up.
What are the consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.
Sec. 8. Compelling attendance. In case of failure of a witness to attend, the court or

judge issuing the subpoena, upon proof of the service thereof and of the failure of
the witness, may issue a warrant to the sheriff of the province, or his deputy, to
arrest the witness and bring him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his failure to answer the
subpoena was willful and without just excuse. (11, R23)
Sec. 9. Contempt. Failure by any person without adequate cause to obey a

subpoena served upon him shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a court, the disobedience
thereto shall be punished in accordance with the applicable law or Rule. (12a, R23)
Q: What are the consequences if the witness refuses to appear after he was subpoenaed>
A: The following:
1.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. That’s what
you call a warrant to arrest a recalcitrant witness. You move to arrest the witness para puwersahin
mo ba;
2.) Declare him in contempt of court for failure to obey the subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply
to a witness who resides more than one hundred (100) kilometers from his residence
to the place where he is to testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is pending was obtained. (9a,
R23)
Q: When is a witness not bound by a subpoena?

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

1.) SUBPOENA is directed to a witness; whereas

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

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

In SUMMONS, there is no distance limitation.
Rule 22
COMPUTATION OF TIME
Section 1. How to compute time. In computing any period of time prescribed or

allowed by these Rules, or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period of time begins to run is to
be excluded and the date of performance included. If the last day of the period, as
thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where
the court sits, the time shall not run until the next working day. (n)
This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE LAST DAY” rule. That is how it has
always been done even before this new rule. However, it was not expressed, there is nothing in the previous
rules mentioning that rule but that was really the rule followed.
So, if you received the summons today, for example and you have 15 days to answer, you start counting
1(one) tomorrow, not today because the day of the act or event from which the designated period of time
begins to run is to be excluded.
Q: Now what happens if the last day to answer falls on a Saturday, Sunday or a legal holiday?
A: Then, the time shall not run until the next working day. So there will be an automatic extension to
Monday or the next working day.
So at least, the new rules now embody the rule of computation of time.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the
running of the period, the allowable period after such interruption shall start to run
on the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the
computation of the period. (n)
EXAMPLE: The defendant received the summons and the complaint on a certain day. He has 15 days to file
his answer. An example of an act in between which effectively interrupts the running of the 15-day period is
when the defendant files a motion to dismiss instead of filing an answer, or a motion for a bill of particulars. In
which case, the running of the 15-day period stops. And since it is stopped, you cannot declare the defendant
in default.
Q: Now, when will it start to run again?
A: It will start to run again when the defendant receives a court order denying his motion to dismiss.
For example: A motion to dismiss is filed on the 7th day (instead of filing an answer). Then after several
weeks, the court denied the motion to dismiss and he received the order of denial.
Q: So how many days more to go?
A: Meron pa siyang eight (9) days to go. But the minimum guaranteed is five(5) days under Rule 12 and 16.
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Now, what is the meaning of the last sentence “The day of the act that cause the interruption shall be
excluded in the computation of the period.” Let’s try to illustrate that:
FACTS:
January 31 – defendant is served with summons
February 8 – defendant files a motion to dismiss
February 15 – defendant receives order denying motion to dismiss
Q: What is the deadline for defendant to file his answer?

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

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

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

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

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

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

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

A: Under the law, there are two (2) recognized modes:
1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
The deposition upon oral examination is more popular because it is just like how you question a witness in
court: Questions and answers, then it is recorded. And then later on, the other counsel would ask his questions
and answer. Deposition upon written interrogatories should not be confused with Rule 25 because the former is
governed by Rule 23. Although they use the same words.
Now, as we shall see, there must be a deposition officer and under the law, even a notary public is
qualified to act as deposition officer because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is located
along San Pedro Street. How can I force Ms. A to go to the office of that notary public? Can I force her?
A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this
questioning for the purpose of deposition. Section 1 says, “the attendance of witnesses may be compelled by
the use of a subpoena as provided in Rule 21.”
Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process
directed to a person requiring him to attend and to testify at the hearing or the trial
of an action, or at any investigation conducted by competent authority, or for the
taking of his deposition. It may also require him to bring with him any books,
documents, or other things under his control, in which case it is called a subpoena
duces tecum. (1a, R23)
PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in Davao
to help you and you are even willing to shoulder her transportation, but she refuses.
Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and
testify even if the distance is more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and
take her deposition.
Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the deposition?
A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and under
Rule 21, Section 5:
Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:
xxxxx
b) the court of the place where the deposition is to be taken;
xxxxx
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as

provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for
the issuance of subpoenas for the persons named in said notice by the clerk of the
court of the place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person without an order of the
court. (5a, R23)
In other words, I will send the notice to my opponent, “I am going to take the deposition of my witness in
Cebu.” And based on that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a
subpoena based on the notice to take deposition on the Davao case. And under the Rules, the Cebu RTC has to
issue a subpoena even if the case is not pending in that (Cebu) court because this is only deposition. Kaya nga
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under Rule 21, Section 2 [b], a subpoena may be issued by the court of the place where the deposition is to be
taken.
There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in Davao.
Then he applied for a subpoena to require the deponent to appear before a notary public here. At least, tama
siya doon. Ang mistake niya, he applied for a subpoena in the Manila court where the case is pending and the
judge there, maybe he did not read Rule 21, issued a subpoena addressed to the person in Davao to appear
before the notary public in Davao and the witness did not appear. So the lawyer realized na mali siya. So he
had to do it all over again in Davao, not in Manila. The subpoena has no more effect beyond 100 kilometers. It
should be filed not where the case is pending but at the court of the place where the deposition is to be taken.
In other words, the error was corrected, but can you imagine the waste of time and effort.
Generally, depositions are taken at the start of the case before the trial. But in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]
ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can
you still resort to deposition under Rule 23 when the trial is already ongoing or it is only at the
pre-trial?
HELD: “Depositions may be taken at any time after the institution of any action, whenever
necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial
or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law
authorizes the taking of depositions of witnesses before or after an appeal is taken from the
judgment of a Regional Trial Court to perpetuate their testimony for use in the event of further
proceedings in the said court and EVEN during the process of execution of a final and executory
judgment.”
Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated.
This is called with another name in Rule 39 on execution, satisfaction or effects of judgments. ( c.f. Rule 39,
Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by

section 16 or 18 of this Rule, the deponent may be examined
1. regarding any matter, not privileged,
2. which is relevant to the subject of the pending action,
3. whether relating to the claim or defense of any other party,
4. including the existence, description, nature, custody, condition, and location of any books, documents, or
other tangible things and
5. the identity and location of persons having knowledge of relevant facts. (2, R24)
Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into?
A: The law says, the deponent may be examined regarding any matter whether related to the claim or
defense of any other party.
Example: Suppose if there is a case between me and somebody and I suspect Pedro knows
something about the facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro
wherein practically I’m groping in the dark. I just start asking questions left and right hoping that, I may
stumble into something about the case.
Q: Is that allowed? Pataka lang ba ang style of asking questions.

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

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

A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good example
is the remedy of summary judgment under Rule 35. Under this Rule, a party can file a motion for summary
judgment to demonstrate that the party has no cause of action. In that sense, I will support my motions with
affidavit, depositions or documents.
USE OF DEPOSITIONS
Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an

interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
xxxxx
Q: In what proceedings may a deposition be used?

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

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

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

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

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

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

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

A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only
presenting one side of the story. But definitely the other party is not precluded from testifying to present the
other half of the story. If the other party fails to present the other half of the story, that is their problem. Do not
blame me. [hmp!]
Sec. 5. Effect of substitution of parties. Substitution of parties does not affect the
right to use depositions previously taken; and, when an action has been dismissed
and another action involving the same subject is afterward brought between the
same parties or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in the latter as if
originally taken therefor. (5, R24)
Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there
was substitution. Is there a need of taking depositions again? Will the deposition already taken be also
applicable to the same case although the parties are now different?
A: YES. The substitution of parties does not affect the right to use depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without
prejudice. Jolina re-filed the case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need
of repeating the whole process.
Sec. 6. Objections to admissibility. Subject to the provisions of section 29 of this

Rule, objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying. (6, R24)
Q: Can you object to the evidence which is being offered during the deposition taking?
A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule
on the objection later during the trial.
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Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person
his own witness for any purpose by taking his deposition. (7, R24)
We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows
nothing, then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa
appendix ng tao!] You are not my witness.
If after taking your deposition, it turns out that everything you say is against me, am I bound by your
testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my
witness.
Sec. 8. Effect of using depositions. The introduction in evidence of the deposition or

any part thereof for any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the deposition,
but this shall not apply to the use by an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule. (8, R24)
GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer your
deposition in court, you are now my witness, especially if your are dead or when you are residing more than 100
kilometers.
EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.
1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your
deposition to show the court that you are a liar, I am not making you as my witness;
2.) When you offer the deposition of your opponent (adverse party), you are not making him your
witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent
says in the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you
precisely because he is not your witness – he is not expected to say something in your favor.
Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut any
relevant evidence contained in a deposition whether introduced by him or by any
other party. (9, R24)
It is just like a witness in court. If a witness says something in court, you can always prove that that is not
true. If it is a deposition, the same thing – you can always rebut the truth of what he said in his deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer?
Section 10:
Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the
Philippines, depositions may be taken before any
1. judge,
2. notary public, or
3. the person referred to in section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken?
A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a
judge in Manila to be the deposition officer and he will not be the one to decide. He is only
the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all
lawyers are notary public. To be a notary public, you have to apply for commission in the court of the
place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public
in any other place. And usually, a commission for notary public is only good for 2 years. After 2 years,
you have to re-apply.
3.) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of depositions. If the parties so stipulate

in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules, and
when so taken may be used like other depositions. (24a, R24)
So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary public. It
can be other person who is authorized to administer oath such as prosecutors, clerk of court who is a
lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:
Sec. 11. Persons before whom depositions may be taken in foreign countries. In a foreign
state or country, depositions may be taken
(a) on notice before a secretary of embassy or legation, consul general, consul,

vice-consul, or consular agent of the Republic of the Philippines;
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(b) before such person or officer as may be appointed by commission or under
letters rogatory; or
(c) the person referred to in section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under Section 14.
So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as
well as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking of
deposition abroad, because this time leave of court is required, you course it to the Department of Foreign
Affairs. The parties are not supposed to communicate directly to the Philippine Embassy.
Q: How about in places where we do not have embassy?

A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case,
the person who is authorize to take the deposition may be the one who is authorized by commission, or if not by
commission, by letters rogatory.
What do you mean by commission or a letters rogatory? Section 12:
Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be

issued only when necessary or convenient, on application and notice, and on such
terms and with such direction as are just and appropriate. Officers may be
designated in notices or commissions either by name or descriptive title and letters
rogatory may be addressed to the appropriate judicial authority in the foreign
country. (12a, R24)
By COMMISSION, somebody other than Philippine consul… like in Taiwan, we have Philippine Trade
Department in Taiwan because of our trade relations. The court will issue a commission to the head of the trade
mission there to act as deposition officer. Or any other person appointed by the judge by court order.
So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have
no consulate but I know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer
abroad be authorized to take the deposition of a person there. If the court agrees, it will issue what is known as
a commission.
But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.
Q: Define letters rogatory.

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

225 SCRA 622 [1993]
ISSUE #1: Distinguish a commission from letters rogatory.

HELD: “A COMMISSION may be defined as an instrument issued by a court of justice, or other
competent tribunal, to authorize a person to take depositions, or do any other act by authority of
such court or tribunal.”
“LETTERS ROGATORY, on the other hand, may be defined as an instrument sent in the name
and by the authority of a judge or court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a cause pending before the former, a witness who is within the
jurisdiction of the judge or court to whom such letters are addressed.”
“A COMMISSION is addressed to officers designated either by name or descriptive title, while
LETTERS ROGATORY are addressed to some appropriate judicial authority in the foreign state.”
“Noteworthy in this connection is the indication in the Rules that letters rogatory may be
applied for and issued only after a commission has been ‘returned unexecuted’ as is
apparent from Form 21 of the Judicial Standard Forms appended to the (1964) Rules of Court.” So
as a matter of practice, the court should first resort to commission. You must allege that the
commission has been returned unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that
the deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in
view of its one-China policy. Can a deposition be taken in Taiwan where the Philippines has no
diplomatic relations because of the one-Chine policy?
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HELD: YES. What matters is that the deposition is taken before a Philippine official acting by
authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued
by the Philippine Court.
Sec. 13. Disqualification by interest. No deposition shall be taken before a person

who is
1. a relative within the sixth degree of consanguinity or affinity, or
2. employee or counsel of any of the parties; or who is a relative within the same degree,
3. or employee of such counsel;
4. or who is financially interested in the action. (13a, R24)
You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get
somebody who is not related.
Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to
take the deposition of any person upon oral examination shall give reasonable notice
in writing to every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each person to be
examined, if known, and if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs. On motion of any
party upon whom the notice is served, the court may for cause shown enlarge or
shorten the time. (15, R24)
There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written
interrogatories. The latter is governed by Section 15 which is the most popular: Question-answer and
everything is recorded.
Take note that before deposition is take, there should be notice to the adverse party. The notice shall state
the time and place for taking the deposition and the name and address of each person to be examined.
The last sentence, “On motion of any party upon whom the noticed is served, the court may for cause
shown enlarge or shorten the time.” Suppose you will send me a notice that you are going to take the
deposition of a witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go to
court and complain. That should be reduced. The court may come in and enlarge or shorten the time. The court
may also do this even if leave of court is not required.
Sec. 16. Orders for the protection of parties and deponents. After notice is served for
taking a deposition by oral examination, upon motion seasonably made by any party
or by the person to be examined and for good cause shown, the court in which the
action is pending may make an order that the deposition shall not be taken, or that it
may be taken only at some designated place other than that stated in the notice, or
that it may be taken only on written interrogatories, or that certain matters shall not
be inquired into, or that the scope of the examination shall be held with no one
present except the parties to the action and their officers or counsel, or that after
being sealed the deposition shall be opened only by order of the court, or that secret
processes, developments, or research need not be disclosed, or that the parties shall
simultaneously file specified documents or information enclosed in sealed envelopes
to be opened as directed by the court; or the court may make any other order which
justice requires to protect the party or witness from annoyance, embarrassment, or
oppression. (16a, R24)
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary, any
party who is aggrieved can go to court and complain. Deposition is purely your concern provided nobody would
come here and complain. That is one of the limitations of deposition taking.
Q: What orders may court issue for the protection of parties and deponents; when may orders be issued;
what court has power to issue the orders?
A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any
party or by the person to be examined and for good cause shown, the court in which the action is pending may
issue the following orders:
1.) That the deposition shall not be taken;

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

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

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

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

A: In the court of the place of the residence of any expected adverse party because there is still no case. So
you have to file an independent petition under Rule 24
Sec. 2. Contents of petition. The petition shall be entitled in the name of the
petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the

Philippines but is presently unable to bring it or cause it to be brought;
(b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse parties
and their addresses so far as known; and
(e) the names and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be examined
named in the petition for the purpose of perpetuating their testimony. (2, R134)
Sec. 3. Notice and service. The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the court, at a time and place
named therein, for the order described in the petition. At least twenty (20) days
211
before the date of the hearing, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner provided for service of
summons. (3a, R134)
Sec. 4. Order and examination. If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order
designating or describing the persons whose deposition may be taken and specifying
the subject matter of the examination and whether the depositions shall be taken
upon oral examination or written interrogatories. The depositions may then be taken
in accordance with Rule 23 before the hearing. (4a, R134)
If the petition is granted, the court will now allow the deposition of these people to be taken and they are
taken simply by following Rule 23.
Sec. 5. Reference to court. For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court in which the action is
pending shall be deemed to refer to the court in which the petition for such
deposition was filed. (5a, R134)
Rule 23 says, “the court in which the action is pending.” But there is still no pending action here. So it
automatically refers to the court in which the petition for the perpetuation was filed.
Sec. 6. Use of deposition. If a deposition to perpetuate testimony is taken under

this Rule, or if, although not so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter subsequently brought in
accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134)
Q: How do you use the perpetuation of testimony?

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

A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he discovered a
material witness whom he failed to present. So this is a newly discovered evidence (NDE). Had K known of his
existence, he would have won the case. So, K will file a motion for new trial based on NDE. If his motion is
granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells him
that he will be leaving for Afghanistan and will come back no more. So, K will use Section 7. He will file a motion
asking to take the deposition of a witness pending appeal in the event that his motion for new trial is granted,
because the witness has to go and cannot wait for the new trial.
So in the event that if I win the appeal, the case will go back. I can present the testimony because by that
time he may already be dead. In effect, para na ring deposition before appeal. So it is also perpetuating the
testimony of a possible witness, in the event the appeal is decided in your favor. That’s why it is called
deposition pending appeal. [oo nga ano?]
Rule 25
INTERROGATORIES TO PARTIES
Q: Going back to Rule 23, what are the modes of deposition taking?
A: The following:
(1) Deposition upon oral examination; and
(2) Deposition upon written interrogatories.
Rule 25 should not be confused with Rule 23, Section 25 – yung tinatawag na Deposition Upon Written
Interrogatories.
In written interrogatories under Rule 23, questions are already prepared beforehand and they are going to
be submitted to a deposition officer who will propound the questions to the deponent and record the answers
under oath. EXAMPLE is, if you want to take the deposition of somebody abroad through a deposition officer
212
abroad. Of course, it would be very expensive to go there and conduct an oral examination. So, the best thing is
to resort to deposition upon written interrogatories under Rule 23.
That is not the same as interrogatories to parties under this rule. We are going to distinguish one from the
other later.
Interrogatories mean written questions. EXAMPLE: I file a case against Frudo. Frudo filed an answer and of
course, he has his affirmative defenses which are statements of ultimate facts. alang details, no evidentiary
facts. But I am interested to find out what are these evidentiary facts I will write a letter addressed to Frudo
under Rule 25 and direct him to answer the following interrogatories:
According to your answer, you already paid, please answer the following
questions:
Q1: When did you pay?
Q2: Place?
Q3: Who was present when you paid?
Or
Q1: Mr. Frudo, you have been in continuous possession of this piece of land for 30
years, would you kindly narrate the improvements that you introduced in the
property?
Q2: What year did you introduce them?
Q3: Who are your witnesses? etc…
Now, under Rule 25, you are obliged to answer me also in writing. Then you sign your answer and you
swear to the truth of it. So I will ask you directing a question – How will you prove this? Who are your
witnesses? I will compel you to reveal the evidentiary facts. And that process is called written interrogatories to
parties. Di para na ring deposition?
I can also ask the same questions through deposition taking under Rule 23. Why do I have to resort to Rule
25? The trouble is under Rule 23, kukuha pa ako ng deposition officer and I will have to course
everything to him. In Rule 25, walang deposition officer. Diretsahan na ito. I will ask you a question
and you will answer me. So, less expensive.
But take note, under Rule 25, you can only ask questions to your opponent. You cannot ask
questions to a stranger. Unlike in Rule 23, you can take the deposition of any person whether a
party or not. In Rule 25, the questioning is direct. Plaintiff questions the defendant, defendant questions
the plaintiff. So, these are the differences between deposition upon written interrogatories and interrogatories
to parties.
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from DEPOSITION UPON WRITTEN

INTERROGATORIES (Rule 23).
1.) Under Rule 23 on Depositions upon written interrogatories, the deposition is taken
before a deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no deposition officer;
2.) Under Rule 23 on Depositions upon written interrogatories, questions are prepared
beforehand. They are submitted to the deposition officer who will ask the deponent
the questions and he will record the answers.; whereas
Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions
defendant, defendant questions the plaintiff. There is no third person who will
intervene; and
3.) Under Rule 23 on Depositions upon written interrogatories, the deposition of any
person may be taken, whether he is a party or not, may be taken; whereas
Rule 25 on Interrogatories to Parties applies to parties only. You can send
interrogatories only to parties. You cannot ask question to a stranger.
SEC. 1. Interrogatories to parties; service, thereof – Under the same conditions

specified in section 1 of Rule 23, any party desiring to elicit material and relevant
facts from any adverse parties shall file and serve upon the latter written
interrogatories have been served shall file and serve a copy of the answers on the
party submitting the interrogatories within fifteen (15) days after service thereof
unless the court, on motion and for good cause shown, extends or shortens the time.
(1a)
Q: Is leave of court necessary to apply Rule 25? Do I have to apply for a court permission before I can send
interrogatories to parties?
A: IT DEPENDS. The Rule says “under the same conditions specified in Section 1 of Rule 23.” So the manner
of resorting to interrogatories are done under the same conditions for taking of depositions.
So if an answer has already been served, leave of court is not necessary. If no answer has been
served, although the court has already acquired jurisdiction over the defendant, leave of court is
necessary. That is the same under the rule on deposition.
213
SEC. 2. Answer to Interrogatories - The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the person making them. The party upon
whom the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15) days after
service thereof, unless the courts, on motion and for good cause shown, extends or
shortens the time. (2a)
As I have mentioned, you are mandated by law to answer fully in writing my questions and signed and
sworn by you. As a general rule, you are given 15 days to answer my interrogatories.
SEC. 3. Objections to Interrogatories – Objections to any interrogatories may be

presented to the court within ten (10) days after service thereof, with notice as in
case of a motion; and answers shall be deferred until the objections are resolved,
which shall be at as early a time as is practicable. (3a)
Q: Suppose you do not want to answer my questions because you believe my questions are improper, you
want to object to my questions, what is your remedy?
A: You go to the court where the case is pending and object. Let the court decide whether you will have to
answer or not.
SEC. 4. Number of Interrogatories - No party may, without leave of court, serve more
than one set of interrogatories to be answered by the same party. (4)
It means, I send to you interrogatories and I thought tapos na. Then I remembered kulang pa pala iyon, so
another set – ahh hindi na pwede! Dapat once lang unless the court allows me to send to you another set.
So, as a general rule, when you send questions to your opponent, you better compile. Lahat ng gusto mong
itanong, itanong mo na because no party is given, as a rule, the privilege of securing more than one
set of interrogatories.
SEC. 5. Scope and Use of Interrogatories - Interrogatories may relate to any matters
that can be inquired into under section 2 of Rule 23, and the answers may be used
for the same purposes provided in section 4 of the same Rule (5a)
Q: What kind of questions can you ask under Rule 25 to your opponent?
A: The same questions that you can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided it is relevant; and
2.) it is not privileged.
Q: Suppose there are already answers to the interrogatories given by your opponent, how do you use those
answers?
A: They have the same uses under Rule 23 Section 4 – you can use it for impeachment, or any other
purpose like to prove an admission already made by the adverse party.
SEC. 6. Effect of Failure to serve written interrogatories – Unless thereafter allowed by

the court for good cause shown and to prevent a failure of justice, a party not served
with written interrogatories may not be compelled by the adverse party
1. to give the testimony in open court, or
2. to give a deposition pending appeal (n)
This is entirely a new question. It has no counterpart in the old rules. Now, this is a very controversial
section. Actually, you will not understand this until you study Evidence where you can compel the adverse party
to testify. This is actually related to Rule 132, Sec. 10 (e) of the Rules of Evidence.
[The following discussions are taken from the Remedial Law Review Transcription 1997-98]
This is related to the rule on Evidence particularly Rule 132, Section 10 [e]:
Rule 132, Sec. 10. Leading and misleading questions. – A question which suggests to
the witness the answer which the examining party desires is a leading question. It is
not allowed except:
xxxxxx
xxxxxx
(e) of a witness who is an adverse party or an officer, director, or managing agent
of a public or private corporation or of a partnership or association which is an
adverse party.
xxxxxx
Rule 132, Section 10 [e] is the provision in the Rules which authorizes a party to call the adverse party to
the witness stand. A party may call the adverse party to the witness stand and interrogate him by leading
questions – as an element of surprise. I can call my opponent to the witness stand and he cannot refuse.
I can conduct direct examination on the adverse party and I am entitled under the Rules to ask leading
questions as if he in under cross-examination because he is the adverse party. He is not actually my witness.
The purpose here is to actually secure admissions from him while he is in the witness stand because anything
that he says against me does not bind me even if I were the one who called him to the witness stand. But
anything he might say that is against himself binds him.
214
Under Section 6, if I intend during the trial to call him to the witness stand, I am obliged to
send him ahead written interrogatories. I have to follow Rule 25. Now, if I do not send written
interrogatories to him, then I have no right to call him to the witness stand. That is why Section 6
is a very radical provision.
So, if I am the lawyer of a party, then binigla mo ako dahil there is really that element of surprise as it has
happened several times before. The lawyer is caught by surprise when the opposing party says that it would
present the adverse party to the witness stand. The lawyer is then caught off-guard as he has not talked to his
client yet.
Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by arguing that written interrogatories were
not sent under Rule 25. Hence, you can object to the opposing counsel’s motion to call your client to the
witness stand.
This practically compels the lawyers to avail of the modes of discovery because if you will not compel him,
chances are Filipino lawyers do not make much use of the modes of discovery. So now, if the opposing counsel
suddenly sends interrogatories to you, the he must be planning to call you in the witness stand later.
Rule 26
ADMISSION BY ADVERSE PARTY
Rule 26 is also known as REQUEST FOR ADMISSION. Admission by adverse party or request for admission
is similar to interrogatories. You send questions to your opponent and he’s bound to answer in writing within 15
days under oath but the framing of the questions are different.
In a request for admission, you are requiring the opposing party to admit the truth or
authenticity of certain documents. For example: “Do you admit the genuineness of the documents marked
as Annex A?” We are talking here of DOCUMENTS which are NOT ACTIONABLE because if the document is
actionable then it has to be pleaded properly.
In other words, if I have 20 documents, to find out whether you will admit them or not, I will send you a
copy and ask, “Do you admit the genuineness of this? Do you admit the truth?” [secreeet!]
So, the main difference between Rule 26 and Rule 25 is in the framing of the question. If the question is
framed in such a way that the premise is laid down and I ask you whether or not you admit, then the question is
proper under Rule 26. BUT if the question if framed in such a way that it is not answerable by yes or no, then
apply Rule 25.
Example: Suppose my question is like this – “who was with you?” That is proper under Rule 25. Pero sabi
ko, “A and B were with you, admitted?” That is Rule 26. Kaya nga the way the questions were framed
determines what kind of mode of discover are you going to apply.
Section 1. Request for admission. At any time after issues have been joined, a party
may file and serve upon any other party a written request for the admission by the
latter of the genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant matter of fact
set forth in the request. Copies of the documents shall be delivered with the request
unless copies have already been furnished. (1a)
Q: So, what will you request the other party to admit?

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

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

A: It is totally UNNECESSARY but a request for admission under Rule 26 can only be started according to
Section 1, “At any time after issues have been joined.” So it presupposes that there is already an answer. Unlike
in interrogatories, you can do it even before an answer is served provided there is leave of court. This is the
second difference between Rule 25 and Rule 26.
Sec. 2. Implied admission. Each of the matters of which an admission is requested

shall be deemed admitted unless, within a period designated in the request, which
shall not be less than fifteen (15) days after service thereof, or within such further
time as the court may allow on motion, the party to whom the request is directed
files and serves upon the party requesting the admission a sworn statement either
denying specifically the matters of which an admission is requested or setting forth
in detail the reasons why he cannot truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to the court by the
party requested within the period for and prior to the filing of his sworn statement
as contemplated in the preceding paragraph and his compliance therewith shall be
deferred until such objections are resolved, which resolution shall be made as early
as practicable.(2a)
Q: So, if I send to you a request for admission, what is your duty?

A: Within 15 days, you must answer my request under oath, whether admitting or denying my request.
Take note, ‘under oath’ also, parang interrogatories.
215
Q: Suppose you ignore my request within 15 days. You did not do anything. You did not bother to file any
answer to my request for admission. What is the effect of failure to answer the request?
A: You are deemed to have admitted. There is an implied admission of all the things that I asked you to
admit. Section 2 says, each of the matters of which an admission is requested shall be deemed unless you file
your answer to the request. Meaning, if you will not answer my request, under the law, all the matters which I
request you to admit are deemed impliedly admitted. That is the penalty for not bothering to file your reply
under Rule 26.
BAR QUESTION : A sends a request for admission to B and B made an admission. However, during the trial,
A did not offer in evidence the answers to the request. Can the court take judicial notice of the answers?
A: Based on THE OLD RULES, it would seem NO because a request for admission is purely an extrajudicial
matter between the parties. But if the same question is asked,
NOW, the answer would be YES, because under the NEW RULES, you are already required to file
and serve. Therefore the court may now take judicial notice because it already forms part of the
record.
BAR QUESTION: Suppose, I will file a case against you and I will attach to my complaint a Promissory
Note – actionable document. In your answer, you deny the genuineness and due execution of the Promissory
Note. Meaning, as a defense you allege that your signature is forged. There was a proper denial because it was
under oath.
After a week, I will now send to you a request for admission under rule 26, where I attach the same
promissory note, and I will ask you, “Do you admit the genuineness and due execution of this promissory
note?” Now, when you receive the request, you ignore it because you already denied the promissory note
under oath in your answer. So you argue, “Why do I have to deny it again under Rule 26 when I already denied
it under Rule 8? There is no need for me to deny it all over again.” I can also argue, “Even if you denied it
under Rule 8, under Rule 26 you are obliged to deny it all over again. Otherwise, you are deemed to have
admitted the genuineness and due execution of the document.” Who is right between the two of us?
ANSWER: There was an old decided case where the SC seemed to imply that even if the matter is already
denied in your pleading, if it is reiterated under Rule 26 (request for admission) it has to be denied all over
again otherwise you’re impliedly admitting it. To my mind, that is already answered in the 1988 case of:
PO vs. COURT OF APPEALS

164 SCRA 668
FACTS: There was an allegation made by the plaintiff in his complaint which allegation was
specifically denied in the answer. Plaintiff asked the same question in a request for admission. Inulit
niya ang tanong and this time the defendant did not answer the request for admission.
Now, under Section 2, if the party as requested to make an admission does not make so within
15 days, the matter requested is deemed admitted - impliedly admitted - that is the penalty.
If you do not want to respond to my request, everything that I requested will be impliedly
admitted. Now, you already denied the allegation in my complaint specifically in your answer, I
repeated it in a request for admission and this time, you failed to respond.
Now, under Rule 26, the plaintiff can claim, “Well, since you did not respond, then it is already
deemed admitted.” Suppose the other party would say, “No, I already denied that in my answer.
There is no obligation for me to the deny the same all over again under Rule 26.”
ISSUE: Is there a need for another denial in the request for admission?
HELD: NO NEED. When a matter is already effectively denied in the pleading, then
there is no need to ask it all over again. In other words, what has already been denied is
denied and therefore you cannot say that for failure to deny it is already deemed admitted.
“A request for admission is not intended to merely reproduce or reiterate the allegations of the
requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to establish said party’s cause of
action or defense. Unless it serves that purpose, it is pointless, useless, and a mere redundancy.”
If we have to answer the same question under the ruling in PO, it would seem that the defendant is correct.
Why do I have to deny, if I have already denied it? So, there is no implied admission.
Sec. 3. Effect of admission. Any admission made by a party pursuant to such

request is for the purpose of the pending action only and shall not constitute an
admission by him for any other purpose nor may the same be used against him in
any other proceeding.(3)
Section 3 is for the purpose of evidence. An admission made by a party pursuant to a request for admission
in only good for that case. It cannot be used in any other case or proceeding. It limits therefore the effectivity of
an admission. It is only valid for the pending case.
Sec. 4. Withdrawal. The court may allow the party making an admission under this
Rule, whether express or implied, to withdraw or amend it upon such terms as may
be just. (4)
Admissions made, expressly or impliedly (failure or refusal to respond) are nevertheless binding.
Q: Is the party admitting allowed to withdraw, change or amend his previous admissions?
A: YES, but with leave of court.
Sec. 5. Effect of failure to file and serve request for admission. Unless otherwise
allowed by the court for good cause shown and to prevent a failure of justice, a party
who fails to file and serve a request for admission on the adverse party of material
216
and relevant facts at issue which are, or ought to be, within the personal knowledge
of the latter, shall not be permitted to present evidence on such facts. (n)
This is one of the more controversial sections in the new Rules. This is a mandatory mode of discovery. “A
party who FAILS to FILE and SERVE a request for admission on the adverse party of material and relevant facts
in issue which are or ought to be within the personal knowledge of the latter shall not be permitted to present
evidence on such facts.” This is A VERY HARSH RULE – a new rule which again shows the intention of the law to
compel the lawyers to avail of the modes of discovery.
An example of the section: Let’s assume that there is a fact which I want to prove and I know that you know
but I do not know whether you’ll admit it or not. Under the rules, I have to send you a request for admission to
confirm it.
Suppose I do not send you a request because anyway there are very few lawyers who do that.
So, I did not send a request and then during the trial, I will just try to prove it. Then the adverse
party says, “Teka muna, what are you trying to prove? You should have sent me a request for
admission.” And then you say that you forgot to send one.
So, the adverse party here objects because he argues that I cannot present evidence to prove
something which he could have admitted in a request for admission. This is something which the
party could have admitted had I resorted to a request for admission under Rule 26, and since I did
not, then he can now prevent me from proving it.
Hence, this is a very dangerous provision. Though, we still have to see a judge applying this rule because it
is practically placing the other party in estoppel. Basically the argument will go like this:
NASTY MACK: “Why did you not send me a request for admission? Had you sent me, I would
have easily admitted that but since you did not, then I will bar you form proving it.”
(practically every fact aimed to be proved can be objected to
BEN-DEATHA: “How could I have known what facts you will admit and not admit?”
NASTY MACK: “Precisely, that is why you should have sent me a copy, STUPID!”
See how dangerous this provision is? I can bar you from proving anything simply because you failed to avail
of the modes of discovery. This was not found in the Old Rules.
Generally, matters which are objectionable should be pushed by the party concerned or affected. That is
because it is for his benefit. I do not think it involves public policy that’s why even if you invoke it, the court
may still refuse to apply it. Look at the opening of the first paragraph: “Unless otherwise allowed by the court
for good cause and to prevent a failure of justice.” So that’s an exception.
So, even if you are correct, the judge may say that it’s too much. Even if you invoke it, the judge may still
say that there will be failure of justice if he will apply it. With more reason, no judge will use it if you will not
invoke it. It is practically barring the party from proving his case. That is why even if you invoke this, judges are
very careful not to apply this. So, you have to invoke this at least, to call the attention of the judge though the
judge may still refuse because there might be a failure of justice.
The only purpose I see for these is to compel the parties and lawyers to avail of the Modes of Discovery.
Let’s go to some interesting cases on request for admission.
REBONERIA vs. COURT OF APPEALS

216 SCRA 627 [1992]
FACTS: A request for admission was sent by a party (Plaintiff) to the lawyer of the defendant
(because anyway, under Rule 13, the general rule is that everything should be coursed through the
lawyer) So, the request was sent to the lawyer. Since there was no response, can there be an
implied admission?
HELD: NONE. In a request for admission, since we are questioning the party, we
should address it to him, and not to the lawyer. A request for admission should be
served upon the party, not his counsel. The general rule under Rule 13 cannot apply where the
law expressly provides that notice must be served upon a definite person.
In such cases, service must be made directly upon the person mentioned in the law and upon
no other in order for the notice to be valid.
But the case of REBONIA should not be confused with the case of
PSCFC FINANCING CORP. vs. COURT OF APPEALS

216 SCRA 838 [1992]
FACTS : A request for admission was sent to a party. The party told his lawyer to answer the
request. So, it was the lawyer who answered the request for admission under oath.
ISSUE: Was there an effective answer or reply to the request for admission as it was the lawyer
who made the reply ?
HELD : YES, because under the Rules, a client can always act through the lawyer and he is
bound by the actuations of his lawyer. This is practically the rule on Agency. If we will say that the
lawyer has no authority even if ordered by the client , then we are altering the Rules on Agency and
also the rule that the lawyer can always act in behalf of his client.
217
And assuming that a lawyer is not authorized to make the complaint, then why is the adverse
party the one complaining? It is the client who has the authority to impugn the acts of his lawyer
and not the adverse party. Timang!!
Principles to remember in the case of REBONERIA and PSCFC:
1. A request must be directed to the party whose admission is sought. Service of request to
any other person is not a valid request at all.
2. A request must always be directed to the party whose admission is sought, but the latter
may delegate to his lawyer the right to answer the request. Such is valid so long as there is a valid
authorization.
Rule 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
SEC. 1. Motion for Production or inspection; order – Upon motion of any party showing
good cause therefore, the court in which an action is pending may
(a) Order any party to produce and permit the inspection and copying or
photographing by or on behalf of the moving party, of any designated documents,
papers, books, accounts, letters, photographs, objects or intangible things, not
privileged which constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control; or
(b) Order any party to permit entry upon designated land or other property in his
possession for control for the purpose of inspecting, measuring, surveying or
photographing the property of any designated relevant object or operation thereon.
The order shall specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and conditions as are
just (1a)
EXAMPLE: Harry Potter sued Voldemortz. The case involves accounting. Voldemortz is in possession of
several invoices and receipts which he would present in trial. Harry wants to get hold of and inspect all these
documents. Since these are not actionable documents, Voldemortz is not required to show or include them in
the pleadings. No need to plead. So, Harry want to see these books, photographs, accounts, objects which
Harry know Voldemortz will present during the trial. If Harry will ask Voldemortz to show these things, I don't
think Voldemortz will accommodate Harry.
Q: In the above example, what is the remedy of Harry?

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

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

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

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

Rule 21 on subpoena duces tecum may be directed to any person, whether a party or
not;
3.) The order under Rule 27 is issued only upon motion with notice to the adverse party,
whereas
A subpoena duces tecum under Rule 21 may be issued upon an ex-parte application.
Rule 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This is the fifth and last mode of discovery.
So in order to even things, I will have to request you to submit to a neutral doctor or psychiatrist for a
physical or mental examination. So the court will issue an order. Konti man lang ang kasong ganito. For
example, damage suit in damage cases, the plaintiff may be exaggerating his injuries.
The only way to confirm it is to have another doctor examine him to find out whether his injury is really
genuine or sinadya may be for the purpose of securing a bigger mount of damages. Remember the joke which
we mentioned in Evidence about the plaintiff who met an accident na na-dislocate yung shoulder, so
permanent ang injury. So when he testified in court, he was asked to raise his arm – higher, higher please! No
more – the injury is permanent.
Sabi ng court, “So that was after the accident. What about before the injury? How high can you raise you
arm?” A, ganito o! So there is no more need for a physical examination because he has already demonstrated it
(he was just exaggerating his injury).
SEC. 1. When Examination may be ordered – In an action in which the mental or

physical condition of a party is in controversy, the court in which the action is
pending may in its discretion order him to submit a physical or mental examination
by a physician (1)
SEC. 2. Order for examination – The order for examination may be made only upon
motion for good cause shown and upon notice to the party to be examined and to all
other parties, and shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made. (2)
Rule 28 applies in all actions where the mental or physical condition of a party is in question or
controversy. EXAMPLES:
a.) annulment of marriage on the ground psychological incapacity. Under the Family Code, however,
the state of psychological incapacity must not have been existing only now for the first time. It
must have existed at the time of the marriage;
b.) annulment of marriage on the ground of impotency. The court can issue an order to subject the
party to undergo physical or medical examination by a doctor to test whether the allegation is true
or not;
c.) annulment of contract on the ground of insanity at the time of execution (lack of consent);
d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am the defendant and I believe
that you are merely exaggerating the extent of your injury so that your claim for damages will be
higher, and diskumpiyado ako sa doctor mo, I will ask the court to issue an order for you to undergo
physical examination by another doctor, so that we will know whether your claim is really valid or
not.
Q: Give the requisites of physical and mental examination of persons under Rule 28:
A: The following are the requisites:
1.) The physical or mental condition must be a subject of controversy of the action;
2.) A motion showing good cause must be filed; and
3.) Notice of the motion must be given to the party to be examined and to all other parties.
Sec. 3. Report of findings. - If requested by the party examined, the party causing
the examination to be made shall deliver to him a copy of a detailed written report of
the examining physician setting out his findings and conclusions. After such request
and delivery, the party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If the party
examined refuses to deliver such report, the court on motion and notice may make
an order requiring delivery on such terms as are just, and if a physician fails or
refuses to make such a report the court may exclude his testimony if offered at the
trial. (3a)
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Sec. 4. Waiver of privilege. - By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the examiner,
- the party examined waives any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined or may thereafter
examine him in respect of the same mental or physical examination. (4)
Example: Maya is subjected to examination by a doctor upon motion by Dino under Rule 28. So Maya asks
for a copy of the finding after examination. When Maya asks for the finding, Dino can also ask for Maya’s
examination by the personal doctor of Maya, previously made or thereafter.
The doctor cannot be compelled to relay what the patient told her. So if the doctor refuses to deliver such
report, then under Section 3, he cannot testify. He cannot give evidence.
Also, once a party asks for a report of the examination, he automatically waives the privilege of physician-
patient relationship. So if Dino does not want to waive the privilege, he should not ask a copy of the report of
the physician.
Q: Going back to the different modes of discovery, when is leave of court required? Not required?
A: In the following cases:
1.) Depositions – pending action, no answer filed yet REQUIRED

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

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

204 SCRA 212
HELD: “It appears to the Court that among far too many lawyers (and not a few judges), there
is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and
operation of the modes of discovery, at least a strong yet unreasoned and unreasonable
disinclination to resort to them— which is a great pity for the intelligent and adequate use of the
deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other
jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up
adjudication.”
“Evidentiary matters may be inquired into and learned by the parties before the trial. The
desideratum is that civil trials should not be carried on in the dark. The Rules of Court make this
ideal possible through the deposition-discovery mechanism set forth. The experience in other
jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one
of the most necessary ends of modern procedure: it not only eliminates unessential issues from
trials thereby shortening them considerably, but also requires parties to play the game with the
cards on the table so that the possibility of fair settlement before trial is measurably increased.”
“The various modes or instruments of discovery are meant to serve (1) as a device, along with
the pre-trial hearing under Rule 18, to narrow and clarify the basic issues between the parties, and
(2) as a device for ascertaining the facts relative to those issues.”
“Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No
longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into
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the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by
both parties is essential to proper litigation. To that end, either party may compel the other to
disgorge whatever facts he has ill his possession. The deposition-discovery procedure simply
advances the stage at which the disclosure can be compelled from the time of trial to the period
preceding it, thus reducing the possibility, of surprise.”
SEC. 1. Refusal to answer. - If a party or other deponent refuses to answer any

question upon oral examination, the examination may be completed on other
matters or adjourned as the proponent of the question may prefer. The proponent
may thereafter apply to the proper court of the place where the deposition is being
taken, for an order to compel an answer. The same procedure may be availed of
when a party or a witness refuses to answer any interrogatory submitted under
Rules 23 or 25.
If the application is granted, the court shall require the refusing party or
deponent to answer the question or interrogatory and if it also finds that the refusal
to answer was without substantial justification, it may require the refusing party or
deponent or the counsel advising the refusal, or both of them, to pay the proponent
the amount of the reasonable expenses incurred in obtaining the order, including
attorney's fees.
If the application is denied and the court finds that it was filed without
substantial justification, the court may require the proponent or the counsel advising
the filing of the application, or both of them, to pay to the refusing party or
deponent the amount of the reasonable expenses incurred in opposing the
application, including attorney's fees. (1a)
Q: If a party or deponent refuses to answer a question on oral examination or written interrogatories under
Rule 25, what is your remedy?
A: You go to court and get an order to compel him to answer. And he can be held liable for the reasonable
expenses incurred in obtaining the order including attorney’s fees.
SEC. 2. Contempt of court. - If a party or other witness refuses to be sworn or

refuses to answer any question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal may be considered a
contempt of that court. (2a)
SEC. 3. Other consequences. - If any party or an officer or managing agent of a

party refuses to obey an order made under section 1 of this Rule requiring him to
answer designated questions, or an order under Rule 27 to produce any document or
other thing for inspection, copying, or photographing or to permit it to be done, or to
permit entry upon land or other property, or an order made under Rule 28 requiring
him to submit to a physical or mental examination, the court may make such orders
in regard to the refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action in accordance with the claim
of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence
designated documents or things or items of testimony, or from introducing evidence
of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing
the arrest of any party or agent of a party for disobeying any of such orders except
an order to submit to a physical or mental examination. (3a)
These are other consequences in addition to Section 1. These refer to the refusal to obey an order under
Rule 27 and Rule 28 which can even cost your case. The court will make an order that would make the
disobedient party suffer. If he is the plaintiff, his complaint will be stricken out.
Or if he is the defendant, judgment of default can be rendered against him although the
judgment of default can only be done if he failed to file an answer. But his refusal to comply with a
mode of discovery is the exception to the case. This is one instance when a judgment by default
can be rendered against a defendant who filed an answer. And that is the worst penalty for
refusing to cooperate.
SEC. 4. Expenses on refusal to admit. - If a party after being served with a request
under Rule 26 to admit the genuineness of any document or the truth of any matter
of fact, serves as sworn denial thereof and if the party requesting the admissions
thereafter proves the genuineness of such document or the truth of any such matter
of fact, he may apply to the court for an order requiring the other party to pay him
the reasonable expenses incurred in making such proof, including attorney's fees.
Unless the court finds that there were good reasons for the denial or that admissions
sought were of no substantial importance, such order shall be issued. (4a)
Section 4 pertains to Rule 26 on request for admission. If X was able to prove something that Y refused to
admit, Y can be held liable for expenses and attorney's fees for refusing to admit something which turned out to
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be true. If it is something true, you might as well admit it. Do not put the other party into trouble for you might
be held liable for the expenses later on.
SEC. 5. Failure of party to attend or serve answers. - If a party or an officer or

managing agent of a party willfully fails to appear before the officer who is to take
his deposition, after being served with a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper service of such interrogatories,
the court on motion and notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof, or enter a judgment
by default against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees. (5)
Section 5 is identical to previous consequences. If a party is served with interrogatories and he refuses to
answer under Rule 25, he can be penalized with the ultimate penalty of dismissal of the case or judgment by
default. Thus, the ultimate effect is that, a party who refuses to cooperate may lose the case ultimately.
Normally, default judgment applies only to a defendant who failed to file an answer. But Rule
29 allows a default judgment even if you filed an answer for failure to comply with the modes of
discovery. So, this is one instance when a judgment by default can be rendered against a
defendant who filed an answer.
INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF APPEALS

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

229 SCRA 355
ISSUE: Are the 5 modes of discovery cumulative or exclusive? Can a party resort to any modes
of discovery or are they intended to be an exclusion of the other?
HELD: “The various methods of discovery as provided for in the Rules are clearly INTENDED TO
BE CUMULATIVE, as opposed to alternative or mutually exclusive.”
“Under the present Rules the fact that a party has resorted to a particular method of discovery
will not bar subsequent use of other discovery devices, as long as the party is not attempting to
circumvent a ruling of the court, or to harass or oppress the other party.”
There was a time when I did this. I used a variety or combination of the different modes. I was interested in
knowing some evidence from the other party. So, interrogatories, then sagot. I asked them on how they were
going to prove it and whether they going to present witnesses and documents. Yes daw. So, I used production
and inspection na naman. So may order na naman. If they have witnesses to be presented, then deposition na
naman. In other words, we can avail all of this.
There was this veteran practitioner who was one of my idols. He’s already retired but his style was that he
handled only about four cases a year para total effort and attention ang maibigay niya. But he charges big. In
the millions for his fees, aaraw-arawin ka niyan ng modes of discovery. So the other counsel will have no time.
That’s why pag-sinabi ng cliente na si Atty. so and so ang kalaban, dino-double nila ang charge because they
know na maraming trabaho kapag siya ang kalaban. After a while, the lone case will become 10 cases already
para sa iyo sa dami ng trabaho if he is the counsel of your opponent.
So the modes of discovery can be used to really squeeze everything out of your opponent.
Q: To summarize, what are the instances when a defendant shall be considered in default even if such
defendant has already filed an answer?
A: The following are the instances:
1.) Failure to appear at the pre-trial conference (Rule 18); and
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2.) Failure to cooperate in the mode of discovery (Section 5, Rule 29).
Rule 30
TRIAL
Section 1. Notice of trial. Upon entry of a case in the trial calendar, the clerk shall
notify the parties of the date of its trial in such manner as shall ensure his receipt of
that notice at least five (5) days before such date. (2a, R22)
Of course, after the Pre-trial, the next step now is trial. And it is the duty of the clerk of court to send notices
to the parties about the date of the trial in such manner as shall insure his receipt of that notice at least five (5)
days before such date. But actually in real practice, it will even take more than a month to give you ample time
to prepare for it.
Now, it is mandatory that the notice should reach the party or its lawyer at least five (5) days before such
date. So, you should mail it earlier. Do not mail it on the day of or one day before the trial because he may
already have other engagement. Well, that is only a very minor provision but it is now emphasized by the Rules.
Q: Define trial.
A: TRIAL is an examination before a competent tribunal of the facts or law put in issue in a case, for the
purpose of determining such issue. (Ballentine’s Law Dict., 2nd Ed., p. 1299) In a trial, there is always an issue
where we cannot agree. Therefore, the purpose of a trial is for the court to resolve that issue.
Sec. 2. Adjournments and postponements. A court may adjourn a trial from day to
day, and to any stated time, as the expeditious and convenient transaction of
business may require, but shall have no power to adjourn a trial for a longer period
than one month for each adjournment, nor more than three months in all, except
when authorized in writing by the Court Administrator, Supreme Court. (3a, R22)
“A court may adjourn a trial from day to day” means that if the trial is not finished on the scheduled date,
that will be postponed on another day. That is how trials are being conducted. It is by staggered basis. That is
what you call adjournment. But everything is recorded anyway. If you look at the transcript stenographic notes,
it would seem that the trial is continuous because everything unfolds there. But actually, these occurred on
different dates.
Now, Section 2 also provides that no party shall be allowed a postponement of more than one (1) month per
postponement and not more than three (3) postponements in all. As a GENERAL RULE: Not more than one (1)
month for its adjournment BUT a maximum of three (3) postponements. In effect, it will be exactly 90 days.
And that jives with the SC Circular 3-90 which contains a mandatory continuous trial for 90 days. In other
words, the case must terminate in 90 days.
The ONLY EXCEPTION is when authorized in writing by the court administrator. Meaning, the judge can go to
the court administrator to allow the court to go beyond the period allowed by law. And I do not know if this
provision is being followed strictly. There are cases which have been here for more than a year. But you can do
it provided you are authorized in writing by the court administrator. Yan!
Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to

postpone a trial on the ground of absence of evidence can be granted only upon
affidavit showing the materiality or relevancy of such evidence, and that due
diligence has been used to procure it. But if the adverse party admits the facts to be
given in evidence, even if he objects or reserves the right to their admissibility, the
trial shall not be postponed. (4a, R22; Cir. No. 39-98)
Generally, there are two main reasons why parties ask for postponement. One is, (1) absence of evidence
like when the witness is not available or the document is not available, or (2) somebody is sick – either the
party or counsel is sick.
Now, of course the requirements of the Rules are really strict although courts and lawyers are very liberal
on this. First of all, if you want to postpone a trial on the ground of absence of evidence, there must be a
verified affidavit. The affidavit must show the materiality or relevancy of the evidence which is not available and
that due diligence was used to procure it. In other words, you tried your best to secure it earlier.
Now, what is the meaning of the second sentence: “If the adverse party admits the facts to be given in
evidence, even if he objects or reserves the right to their admissibility, the trial shall not be postponed”?
EXAMPLE:
LAWYER: “We are asking for postponement because our witness is not present. He is not available
and his testimony will be very material.”
ADVERSE PARTY: “Alright, what is going to be his testimony? What will he testify about in court?
LAWYER: “Well, this is his testimony …. he will prove this or he will prove that….”
ADVERSE PARTY: “OK. Admitted. I admit that if he is here, this is what he will say. Although I may
object to the admissibility of such testimony.”
Meaning, the other party may admit the evidence but object to its admissibility. That is two
different things – admitting the evidence but objecting to its admissibility in court. Meaning, objecting to the
admissibility of the witness in court. Just like under the Constitution, if a confession is made by a suspect
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without being afforded with the Miranda warnings, such confession is not admissible. But such confession is
evidence. Only, it is inadmissible.
So, I admit that, although I reserve my right to its admissibility. Then in such case, you have no more reason
for postponement because in the first place, there is no need to present your witness because the other party
already admitted what will be the substance of his testimony. Yaannn!
Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to
postpone a trial on the ground of illness of a party or counsel may be granted if it
appears upon affidavit or sworn certification that the
1. presence of such party or counsel at the trial is indispensable and
2. that the character of his illness is such as to render his non-attendance excusable. (5a, R22)
The same thing for illness (2nd ground). Kung may sakit, there must be affidavit or sworn statement. So you
must have a sworn medical certificate and that the presence of such party or counsel is
indispensable and the character of his witness is such as to render his non-attendance excusable.
Now, of course the SC has already stated in some cases that when the sickness is sudden and unexpected
such as accident, you cannot require on the spot a medical certificate. Meaning, how can I produce something
if he got sick only an hour ago? So, the court should take that into consideration. They cannot object to the
requirement of medical certificate.
So, a motion for postponement which is not verified upon the ground of illness of a party or counsel without
a medical certificate should be granted if it appears that the claim of the movant is meritorious.
Normally, we just say that if the other party insists on a medical certificate, we will submit it this afternoon
or tomorrow because there are things in which we cannot get a medical certification on time unless he has been
sick for so long.
In the ultimate analysis, what is the policy of the SC on postponements? Motions for postponements is
always addressed to the sound discretion of the court (Casilan vs. Gancayco, 56 O.G. 2799, March 28, 1960;
People vs. Martinez, 57 O.G. 7923, Oct. 30, 1961).
So if the motion for postponement is denied or granted or either way, it is so hard to have it overturn
because the SC will always give way to the discretion and rarely will it happen in court where it will interfere
without discretion unless there is grave abuse of discretion.
ORDER OF THE TRIAL
The order of trial in civil cases is a little bit more complicated compared to criminal cases.
Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless
the court for special reasons otherwise directs, the trial shall be limited to the issues
stated in the pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their defense, in the order to be prescribed by
the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce
evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective
memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate
defenses appear by different counsel, the court shall determine the relative order of
presentation of their evidence. (1a, R30)
Take note that the law says “the trial shall be limited to the issues stated in the pre-trial order.” That is now
emphasized under the Rule 30. That jives with Rule 18, Section 7 on what is the importance of a pre-trial order:
Sec. 7. Record of pre-trial. - The proceedings in the pre-trial shall be recorded.

Upon the termination thereof, the court shall issue an order which shall recite in
detail the matters taken up in the conference, the action taken thereon, the
amendments allowed to the pleadings, and the agreements or admissions made by
the parties as to any of the matters considered. Should the action proceed to trial,
the order shall explicitly define and limit the issues to be tried. The contents of the
order shall control the subsequent course of the action, unless modified before trial
to prevent manifest injustice. (5a, R20)
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The pre-trial order shall limit the issues and shall control the subsequent course of the action. We already
emphasized that the pre-trial order prevails over the pleadings. The pre-trial order has the effect of superseding
the complaint and the answer. Whatever issues are stated in the pre-trial order shall be the issues to be tried
during the hearing on the case.
Now going back to Rule 30, that is now emphasized. The trial shall be limited to the issues stated in the
pre-trial order. So, the pre-trial order will be a very important document to determine what are the issues to be
tried.
Q: How will the trial proceed? In what order?

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

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

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

A: GENERAL RULE: NO, because paragraph [f] provides that the parties may then respectively adduce
rebutting evidence only. In other words, you do not go back to paragraphs [a] and [b]. If you have evidence to
prove your cause of action or defense, you should have done it earlier.
So generally, evidence in chief is not allowed during the rebuttal stage. But there is an exception:
EXCEPTION: “Unless the court, for good reasons and in the furtherance of justice permits them to adduce
evidence upon their original case.” Meaning, it permits them to adduce evidence in chief. But you need the
permission of the court because normally, you should have done that under paragraphs [a] and [b] and not in
paragraph [f].
Q: Give instances when the court may allow the party to present additional evidence in chief during rebuttal
to prove his cause of action.
1.) When it is newly discovered;
2.) When the evidence was omitted through inadvertence or mistake;
3.) When the purpose is to correct evidence previously offered; (Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material and not merely cumulative or impeaching (64 C.J.
160-163)
Those are the possible instances when the court in the interest of justice may allow the parties to present
evidence in chief during the rebuttal stage which is normally not allowed.
And that is what I saw exactly years ago how this paragraph [f] operates. There was case here we were
watching before. There was a veteran trial lawyer from Manila who tried a case here. I think it was a damage
suit against KLM Royal Airlines for breach of contract of carriage because some of the passengers were from
Davao City. Alright when they are already in the rebuttal stage, the lawyer for the Airlines was presenting
evidence and the counsel for the plaintiff argued, “Objection Your Honor, it is not rebuttal evidence. It is
evidence in chief which he is presenting. So it is not proper during this stage.”
And the trial court agreed, “Yes, it is improper. The evidence in chief should have been presented earlier.
Therefore, objection is sustained.” Lawyer for the Airlines, “So, you honor, may we move for a reconsideration
because we believe it is rebuttal evidence and it is very important.” So, balik na naman sila sa argument. And
then the court said, “The motion for reconsideration is denied, you are not allowed.”
So, patay siya. And it’s really true that what was presented was evidence in chief and not rebuttal
evidence. So, hindi siya ba makalusot or hindi siya makapasok. So, for a while, he closed his eyes and said,
“Your Honor, in the interest of justice may we be allowed to present evidence in chief for the rebuttal stage.”
And the court said granted, “Sure pare basta ikaw! [Mas OK pa sa ALRIGHT]!” So pasok na naman!
In other words, saan niya kinuha ito? When I looked at the Rules, iyon pala! He knows how to invoke it. In
other words, you can see the skill of a veteran lawyer. The rules are at his fingertips. So, that is how I saw this
provision operates.
Section 5 [g]: Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to argue or to submit
their respective memoranda or any further pleadings.
Now, of course, pag tapos na kayo, main evidence and rebuttal, tapos na ang kaso. Meaning, the case is
ready for decision. But normally, the lawyer of the parties would say, “We would like to argue.” And the
argument is normally not oral but in writing where you will be asked to file what you call MEMORANDUM.
A MEMORANDUM is practically a thesis where you will summarize your position and you argue why you
should win. That is where you cite evidence. You convince the court that you have proven your cause of action
or defense. Then you cite the testimonies, the exhibits, the transcripts and of course, the argument, the
jurisprudence, the law. That is where you argue. You do not argue in your pleading. Pleadings, complaint,
answer is not the time to argue. There, you only state the facts. You argue after the trial where you interpret
now the evidence and convince the court.
Sec. 6. Agreed statement of facts. The parties to any action may agree, in writing,
upon the facts involved in the litigation, and submit the case for judgment on the
facts agreed upon, without the introduction of evidence.
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If the parties agree only on some of the facts in issue, the trial shall be held as to
the disputed facts in such order as the court shall prescribe. (2a, R30)
Alright, why do the parties present evidence 1, 2, 3, 4. What is the purpose there? To prove facts.
Normally, we cannot agree on the facts. I say something and you will say that is not true and this is what
happened. So, normally, cases arise because of the issue of what happened.
Q: Now, is there a possibility that the court will decide whether there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the litigation and they will submit the
agreed facts or the case for decision. That is what we call JUDGEMENT ON AGREED STATEMENT OF FACTS
or the more popular term: JUDGEMENT BASED ON STIPULATION OF FACTS.
EXAMPLE: The plaintiff and the defendant agree on all the facts. “These are the facts,” sabi ng plaintiff.
Then sabi ng defendant, “Yes, I agree those are the facts.” Now if we agree on the facts, there is nothing more
to prove. And what we are now quarreling is who should win based on the facts agreed upon. So, ano ngayon
ang kaso? That is purely a legal question. There is nothing to prove because everything is admitted. They
disagree only on the conclusion.
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is nothing to prove. In which case, we will go
immediately to step no. 5. So, if the parties agree in writing upon the facts involved in the litigation and they
will submit the agreed facts for decision, that is JUDGEMENT BASED ON STIPULATION OF FACTS which is
encouraged by the law. This is one of the purposes of Pre-Trial (Rule 18, Section 2 [d]) where the parties are
encouraged to stipulate on facts, because really, it would save a lot of time.
The best example of agreed facts would be examination problems. The facts are already given – this is
what happened. You cannot change that anymore. And you will be asked, “DECIDE: Is A correct or is B
correct.” So in other words, you simply apply the law. You do not apply anymore the issue of what happened
because it is already agreed. Your answer would be similar to a JUDGMENT BASED ON STIPULATION OF FACTS.
Q: Why is an agreed statement of facts sufficient basis for a judgment?

A: The reason is that an agreed statement of facts is conclusive on the parties, as well as on the court.
Neither of the parties may withdraw from the agreement, nor may the court ignore the same. (McGuire vs.
Manufactures Life Ins. Co., 87 Phil. 370)
Q: Now suppose they can agree on some facts but they cannot agree on others.
A: There is no problem. You can have a partial stipulation of facts and then we can try the rest with respect
to the other disputed facts.
That is why the second paragraph says, “If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court shall prescribe.” At least, it would still be faster
because the disputed facts are now limited. Rather than proving ten (10) issues of facts, it will be reduced to 3
or 4. So, the trial would still be faster.
The court is not bound to find out what happened when the parties already agreed on what happened.
EXAMPLE: The parties will stipulate, “This case involves a piece of land with an area of 50 hectares, planted
with coconut trees of about 5,000.” So, parties agreed and then the court says, “No, I do not believe you. It
might be more than 59 hectares.” NO. When the parties agree, sundin mo yan because they themselves agree
on the facts. You only determine the facts if they cannot agree. That is why the court is bound by the
stipulations made by the parties.
Sec. 7. Statement of judge. During the hearing or trial of a case any statement
made by the judge with reference to the case, or to any of the parties, witnesses or
counsel, shall be made of record in the stenographic notes. (3a, R30)
Take note that the trial is a formal court proceeding. Everything is recorded there – the statement of
parties, their lawyers, including the statement of the judge. Any statement made by the judge with reference
to the case or to any of the parties, witnesses, or counsel shall be made of record in the stenographic notes.
Sec. 8. Suspension of actions. The suspension of actions shall be governed by the

provisions of the Civil Code. (n)
This is mentioned in Rule 18, Section 2 [h] which discusses the possibility of suspension of the proceedings.
Meaning, huwag munang gumalaw ang kaso – in suspended animation baah!
Q: And what is the possible good legal ground for the parties to ask for suspension of the hearing?
Meaning, held in abeyance ba. What would be the best possible ground?
A: The best possible ground is the one mentioned in Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:

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

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

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

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

fact are pending before the court, it may order a joint hearing or trial of any or all
the matters in issue in the actions; it may order all the actions consolidated; and it
may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay. (1)
To consolidate cases is to join 2 or more cases together as distinguished from separate trial where the
different claims are tried separately. So, separate trials – pag-hiwa-hiwalayin. Consolidation – pagsasama-
samahin.
Q: When is consolidation of actions proper?

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

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

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

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

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

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

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

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

HELD: The order of consolidation is correct. Rule 31, Section 1 allows the
consolidation of a criminal and civil case because of the fact that there is a common
question of fact or law between them and that they are pending before the same court.
As a matter of fact, before the same judge.
ISSUE #2: How do you reconcile these cases because the degree of proof in the criminal case
is not the same in the civil case?
HELD: The consolidation was proper under Rule 31 because there is a common question of fact
and law. They can be consolidated but for purposes of decision, the court will now apply two (2)
different criteria: Proof beyond reasonable doubt in the criminal case and preponderance of
evidence in the civil case. So there is no incompatibility.
SEC. 2. Separate trials. - The court, in furtherance of convenience or to avoid

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

A: The following:
1.) Special Civil Action of Expropriation under Rule 67 – when the court has to determine just
compensation. Under Rule 67, it is mandatory for the court to appoint a commissioner in order to
determine as to how much the value of the property;
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2.) Special Civil Action of Partition under Rule 69. When the heirs cannot agree on how to partition a
property under co-ownership, the court may appoint a commissioner to study and submit its report.
So take note that trial by commissioner is allowed not only for the purpose of the court
rendering the judgment but also for the purpose of carrying a judgement or order into effect.
SEC. 3. Order of reference; powers of the commissioner. - When a reference is made,

the clerk shall forthwith furnish the commissioner with a copy of the order of
reference. The order may specify or limit the powers of the commissioner, and may
direct him to report only upon particular issues, or to do or perform particular acts,
or to receive and report evidence only, and may fix the date for beginning and
closing the hearings and for the filing of his report. Subject to the specifications and
limitations stated in the order,the commissioner has and shall exercise the power to
regulate the proceedings in every hearing before him and to do all acts and take all
measures necessary or proper for the efficient performance of his duties under the
order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of reference, he may rule upon the
admissibility of evidence. The trial or hearing before him shall proceed in all respects
as it would if held before the court. (3a, R33)
So a commissioner is parang judge rin. In effect he is an assistant judge. Biro mo, he can issue subpoenas,
swear witnesses, and unless otherwise provided in the order of reference, may rule upon the admissibility of
evidence, of course, subject to the final approval of the court.
Compare that with Rule 30 when there is an ex-parte reception of evidence where the clerk of
court is delegated to receive evidence. But the clerk of court cannot rule on the admissibility of
evidence.
To my mind, for example, in cases involving accounting, the best commissioner would be a CPA-lawyer
because he knows about the law on evidence and accounting. Kung boundary conflicts naman, the best
commissioner would be a geodetic engineer-lawyer. However, you rarely find that combination.
SEC. 4. Oath of commissioner. - Before entering upon his duties the

commissioner shall be sworn to a faithful and honest performance thereof.
(14, R33)
SEC. 5. Proceedings before commissioner. - Upon receipt of the order of

reference and unless otherwise provided therein, the commissioner shall
forthwith set a time and place for the first meeting of the parties or their
counsel to be held within ten (10) days after the date of the order of
reference and shall notify the parties or their counsel. (5a, R33)
SEC. 6. Failure of parties to appear before commissioner. - If a party fails to

appear at the time and place appointed, the commissioner may proceed ex
parte or, in his discretion, adjourn the proceedings to a future day, giving
notice to the absent party or his counsel of the adjournment. (6a, R33)
SEC. 7. Refusal of witness. - The refusal of a witness to obey a subpoena

issued by the commissioner or to give evidence before him, shall be deemed a
contempt of the court which appointed the commissioner. (7a, R33)
EXAMPLE: I, as a commissioner, subpoenaed you and you will not show up. I will report you to
the court which appointed me and the court which appointed me will declare you in contempt of
court. Remember, the commissioner is acting by authority of the judge. That’s why he has powers
under the law.
SEC. 8. Commissioner shall avoid delays. - It is the duty of the commissioner to

proceed with all reasonable diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring the commissioner to
expedite the proceedings and to make his report. (8a, R33)
The commissioner shall expedite the proceedings. He should hurry up the report.
Sec. 9. Report of commissioner. - Upon the completion of the trial or hearing or

proceeding before the commissioner, he shall file with the court his report in writing
upon the matters submitted to him by the order of reference. When his powers are
not specified or limited, he shall set forth his findings of fact and conclusions of law
in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and
the transcript, if any, of the testimonial evidence presented before him. (9a, R33)
SEC. 10. Notice to parties of the filing of report. - Upon the filing of the report, the
parties shall be notified by the clerk, and they shall be allowed ten (10) days within
which to signify grounds of objections to the findings of the report, if they so desire.
Objections to the report based upon grounds which were available to the parties
during the proceedings before the commissioner, other than objections to the
findings and conclusions therein set forth, shall not be considered by the court
unless they were made before the commissioner. (10, R33)
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Of course, the parties are given a copy of the report. And if it is against you, you can question the findings
of that commissioner. Sometimes, it is very difficult because there is already a court appointed
commissioner but you have to get another CPA to check on his report.
SEC. 11. Hearing upon report. - Upon the expiration of the period of ten (10) days
referred to in the preceding section, the report shall be set for hearing, after which
the court shall issue an order adopting, modifying, or rejecting the report in whole or
in part, or recommitting it with instructions, or requiring the parties to present
further evidence before the commissioner or the court. (11a, R33)
When the commissioner files his report with the court, the court will now schedule it for hearing. The
parties will be furnished copies and during the hearing, if you do not agree with the report, you can present
objections thereto or criticize the report. You can defend or attack it. The court will then determine whether to
accept the report or not.
That’s why under Section 11, the court shall issue an order adopting, modifying, rejecting the report, in
whole or in part, or recommitting (ibalik) it to the commissioner with instruction, or requiring the parties to
present further evidence. The court is not bound 100% to swallow everything in the report. But the court rarely
rejects the report of the commissioner, unless talagang there is no basis for it. Chances are, when the report
has support, talo ka na. Although it is not conclusive.
Now take note that when the court approves a report, the findings of the commissioner becomes the
findings of the court.
Q: So, can the findings of the commissioner on question of fact be questioned by the parties?
A: YES, under Section 11.
Q: Is there an exception that the finding of the commissioner on factual issues become final and no longer
be questioned?
A: YES, under Section 12:
SEC. 12. Stipulations as to findings. - When the parties stipulate that a

commissioner's findings of fact shall be final, only questions of law shall thereafter
be considered. (12a, R33)
This is the only instance where you cannot question the commissioner’s report – when there is already an
agreement beforehand that the findings of fact by the commissioner are final, we accept. So the principle of
estoppel applies in this case and only questions of law will then be considered. Meaning, factual issues are
binding upon the parties.
SEC. 13. Compensation of commissioner. - The court shall allow the commissioner
such reasonable compensation as the circumstances of the case warrant, to be taxed
as costs against the defeated party, or apportioned, as justice requires. (13, R33)
Q: Is the commissioner entitled to compensation?

A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a reputable CPA tapos walang bayad?
Sinong papayag niyan?
Q: How is the commissioner paid?

A: To be taxed as costs against the defeated party, or apportioned. In most cases it is apportioned – 50-50
[isa gatos tanan!]
Rule 33
DEMURRER TO EVIDENCE
Q: Define demurrer to evidence.

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

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

283 SCRA 229 [1997]
HELD: “The motion to dismiss on the ground of jurisdiction can be easily be differentiated from
a motion to dismiss on demurrer to evidence in that, in the latter case, the movant admits the truth
or factual allegations in the complaint and moves for the dismissal of the case on the ground of
insufficiency of evidence. The legal effect and consequence of a demurrer to evidence is that in the
event that the motion to dismiss on demurrer to evidence is granted and the order of dismissal is
reversed on appeal, the movant loses his right to present evidence in his behalf.”
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“However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does not lose
his right to present evidence.”
“It likewise bears stressing that a demurrer to evidence under Rule 33 is in the
nature of a motion to dismiss on the ground of insufficiency of evidence and is
presented after the plaintiff rests its case. It thus differs from a motion to dismiss under
Rule 16 which is grounded on preliminary objections and is presented at the outset of
the case, that is before a responsive pleading is filed by the movant and within the
period for the filing thereof.”
Rule 34
JUDGMENT ON THE PLEADINGS
SEC. 1. Judgment on the pleadings.- Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court
may, on motion of that party, direct judgment on such pleading.
EXC:
However, in actions for declaration of nullity or annulment of marriage or for
legal separation, the material facts alleged in the complaint shall always be proved.
(1a, R19)
Judgment on the pleadings is an expeditious way of terminating a civil action. There is no more trial and
judgment will be rendered based on what the plaintiff says in his pleadings.
Illustration:
PROBLEM: Plaintiff files a complaint. Defendant files an answer. The answer contains what you call
defenses – negative, affirmative defenses. Now, after the defendant files the answer, his issues are joined.
Next step is pre-trial. If the case is not terminated in pre-trial, next step is trial. That’s the procedure.
But suppose I will file a complaint against you and you file your answer where you admitted everything
that I said in my complaint. All the allegations in the complaint are admitted and no defense was
interposed by the defendant. So, meaning, the defendant filed an answer which contains no defense at all.
Everything is admitted. Should the case go to trial? Should the plaintiff prove his cause of action? What is
there to prove when you admitted everything? So, there is no more trial because everything is admitted by
the defendant.
Q: In the above case, what should the plaintiff do?

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

A: An answer fails to tender an issue:
1.) when it neither admits nor denies the allegations in the complaint;
It neither admits nor denies. So, you cannot do that. Either you admit or you deny the
allegations in the complaint. You cannot say, “Defendant does not admit, he does not also deny
the allegation.” Meaning you are trying to be evasive. That is not allowed.
2.) when all the denials in the answer are general denials and not specific.
A denial is general if the pleader does not state the facts relied upon in support of his denial
– “Defendant denies the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.” That is an answer
which does not tender an issue because all the denials are general, or no knowledge or
information sufficient to form a belief. Just like what happened in the case of CAPITOL MOTORS
vs. YABUT.
So if an answer contains evasive allegations, denials which are general, it does not also tender any issue
aside from the fact that it also admits the law. Consider it as an admission of the material allegations of the
complaint. Therefore plaintiff will now move for an immediate judgment in his favor. That is why it is called
judgment on the pleadings.
Now, judgment on the pleadings has already been mentioned in the previous rule that we took up. Let’s go
back to pre-trial in Rule 18 because there is a mention there on judgment on the pleadings. Section 2, Rule 18:
237
SEC. 2. Nature and purpose. - The pre-trial is mandatory. The court shall
consider:
xxx
g) The propriety of rendering judgment on the pleadings, or summary judgment, or of
dismissing the action should a valid ground therefor be found to exist.
xxx
In other words, during the pre-trial, the defendant there and based on his pleadings, meron siyang defense.
But during the pre-trial, he makes now an admission, “Actually, your honor, wala akong depensa ba. I have no
defense.” Court: “Ah, wala ka ba? Okay. Judgment on the pleadings!” – tapos!
Or, another example: Collection case. According to the defendant in his answer the obligation is paid. And
then during the trial, the court asks the defendant, “Are you serious that the obligation is paid?” Defendant:
“Actually your honor, wala pa. Hindi pa bayad.” Court: “Ganoon ba? O plaintiff, what do you say?” Plaintiff: “I
move for judgment on the pleadings.” Tapos! The case is finished because the admission is made in the course
of the pre-trial that he has no valid defense.
EXCEPTIONS TO THE RULE ON JUDGMENT ON THE PLEADINGS
Q: Give the exceptions to the rule on judgment on the pleadings. DALUC

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

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

A: I will file a motion for summary judgment under Rule 35 on the ground that there is no genuine issue to
be tried. And under Section 1 and 2, I will attach to my motion for summary judgment affidavits, admissions,
and depositions.
Sec. 1. Summary judgment for claimant. - A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declamatory relief may, at any time
after the pleading in answer thereto has been served, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor upon all or
any part thereof. (1a, R34)
238
For EXAMPLE: I will file a collection case against you and then you claim that you have paid already. But in
reality, it is not paid. So I know that you are lying. Ikaw naman na defendant, you know also that you are lying,
what you are after is to prolong the case.
Q: As the plaintiff, what should I do?

A: I should execute affidavit stating under oath and under pain of perjury that you have not paid me. I will
attach that to my motion. Well, of course, you know very well that if I file an affidavit by stating that what you
are saying is false, and if I tell a lie, you can file a case of perjury against me. But since I know that I am correct,
I will dare to execute an affidavit under oath. Therefore, since his defense is false, I’m asking for an immediate
decision.
Now, if you are the defendant and you received a copy of my motion, you can oppose my motion for
summary judgment where you will say, “No! I paid and my defense is genuine!” The defendant must also
execute an affidavit to support his position. So you will say under oath that you paid me.
So it will become a battle of affidavits versus affidavits under oath. It is possible that one of us will go to jail
for telling a lie. So tingnan natin kung sinong matapang dito. Kung baga, if your defense is not very serious and
not genuine, chances are, you will not dare to execute an affidavit claiming that you have paid the obligation.
Takot ka man diyan ba. So if you will not execute an affidavit but you still claim that you have paid me, it is now
very obvious that the defense of payment is false … and the court will say, “Tama na ang pagsisinungaling!
Taob ka na!”
That is summary judgment where the court will say, “No more trial. The affidavit will take the place of
evidence in court.” That is what the rule is all about.
Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In judgment on the
pleadings, the answer does not put up a defense while in summary judgment, here it puts up a
defense but the defense is not genuine – it is a false defense which should easily be exposed by
way of affidavits for summary judgment.
Now take note, there is no genuine issue because if you look at the complaint and the answer there is an
issue because the answer alleges payment. That is an issue. But in reality that is a false issue. That is why it
is not a genuine issue.
Some text writers call the law on summary judgment another name – it is known as the law on
Accelerated Judgment. Meaning, the process will accelerate, you can easily go to trial. Instead of going to
trial, there is no more trial. The motion for summary judgment will determine who is telling the truth and who is
not telling the truth…immediately. So at least, the delay has been avoided.
What is the example I gave you, no? “A party seeking to recover a claim…” Ako, I will file against you a
case of recovery of an unpaid debt. “or cross-claim etc. at any time after the pleading if answer thereto has
been served…” meaning , after your answer has been served, I will move with supporting affidavits,
depositions or admissions for a summary judgment in my favor.
So my motion for summary judgment must be supported with affidavits, or depositions, or admissions.
These will be the basis unlike in the previous rule (Rule 34), there are no affidavits to support a judgment on the
pleadings. All you have to do is ask the court , “Look at the complaints and look at the answer…” But here,
you will prove that the defense is false and you demolish it by way of affidavits.
Q: Is summary judgment applicable to all kinds of civil actions?

A: YES, because in most cases, defendants will file an answer with defenses but they are all
false. In other words, these defenses are only interposed to delay the case. So, summary
judgment is applicable to accelerate the decision. That’s why it is similar to Judgment on the
Pleadings.
Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like declaration of nullity
of marriage, annulment of marriage, legal separation, based on the same principle that there must always be a
trial in these cases, where a ground was established based on the same principle of analogy.
Q: Is Summary Judgment available only to the plaintiff? Can a defendant move for Summary Judgment
against the plaintiff?
A: YES, that is also allowed under Section 2:
Sec. 2. Summary judgment for defending party. - A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any
time, move with supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof. (2a, R34)
Normally, the party who avails of summary judgment is the plaintiff. But this remedy is not limited to the
plaintiff. The defendant can also file a motion for Summary Judgment against the plaintiff because
the cause of action is sham. SO, if the remedy of Summary Judgment is available to the plaintiff, it can also
be availed by the defendant. How?
EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause of action, but I know
very well that your cause of action is false, although it’s very rare, usually it is the defendant who is delaying
the case. Well, I could always file an answer and there would be pre-trial but sabi ko, “Matagal pa iyon!” So
under Section 2, instead of filing an answer, I can file a motion for Summary Judgment and I will attach to my
motion affidavits to show that the cause of action is not genuine. And if the plaintiff believes that his cause of
action is genuine, he might as well oppose my motion with counter-affidavits. Now, if you will not, then the
court will rule in my favor, dismissing your complaint.
239
So you notice, Summary Judgment may be availed of by either party – either the defense is not
genuine or the cause of action is not genuine.
SEC. 3. Motion and proceedings thereon. - The motion shall be served at least ten
(10) days before the time specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least three (3) days before the
hearing. After the hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law. (3a, R34)
If I will file a motion for Summary Judgment, I must set it for a hearing just like any other motion. Now,
generally, if I will file a motion for Summary Judgment, you must be served a copy at least 10 days
before the hearing. That’s an exception to the general rule in Rule 15 (general rule: you are only
required to give the other party 3 days).
The reason is the other party should also be given time to oppose it with affidavits. That’s why you have to
give him a longer period to oppose and if he decides to oppose, he must also file his opposition together with
affidavits but he must furnish me with his copy of opposition at least 3 days before the hearing.
Under the rule on deposition, I can take the deposition of my own opponent and based on your
deposition, I can prove that your defense is false. So depositions can be used not only during the
trial but to support or oppose a motion for Summary Judgment.
Rule 23, SEC. 4. Use of depositions – At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a deposition, so far as admissible
under the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition, or who had due notice thereof, in
accordance with any one of the following provisions:
So, depositions can be used at the trial or upon the hearing of a motion.
Q: Give examples of a motion where you can use a deposition to support your motion.
A: The following:
1.) a motion for Summary Judgment. Under Rule 35, the motion should be supported by affidavits,
depositions, etc… based on what the other party will admit. And based on Rule 23 Section 4, the
deposition of the adverse party may be used for any purpose. So I can use it to prove that your
cause of action or defense is false, or another way of supporting a motion for Summary Judgment
under Rule 35, affidavits, depositions and admissions.
2.) Rule 26 – Request for Admission – I can avail of the Mode of the Request for Admission based on
your admissions.
According to Section 3, all the issues which are not genuine can be resolved immediately
EXCEPT as to amount of damages. Meaning the amount of damages to be recovered by the plaintiff
cannot be adjudicated through a motion for Summary Judgment because you still have to present
evidence as to how much really is the damages.
Practically every issue can be resolved summarily except the exact amount of damages. Some people find
this hard to imagine, “Paano ba yon? I will file a motion for Summary Judgment and then there will be a
judgment except as to the amount of damages? Ano ba ‘yan?”
EXAMPLE: An action for damages based on quasi-delict where I will accuse you of negligence and then you
deny that you are negligent. Now, the issue is: who is negligent and who is not. Suppose I will file motion for
Summary Judgment and the court will decide in my favor. Therefore the I am telling the truth, the defendant is
telling a lie. And then the court will say, “Let the case be heard to determine exactly how much damages the
plaintiff is supposed to recover.” So there will be a trial but during the trial, I will just prove how much I am
entitled. But the issue of negligence, tapos na, talo ka na, terminated na ‘yung issue. Damages generally
cannot be granted without evidence. You have to support really the exact amount you are entitled to receive.
If you will notice, the issue as to the fact that damages, especially unliquidated damages,which is also
subject to proof, is also mentioned in Rule 8, Section 11:
Rule 8, SEC. 11. Allegations not specifically denied deemed admitted – Material
averment in the complaint, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied.
Meaning, how much are you entitled cannot be just given to you even if your opponent will not deny an
allegation. You must still prove it and that is very clear even in Rule 35 – summary judgment can be granted
except as to the amount of damages.
SEC. 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment
is not rendered upon the whole case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion, by examining the pleadings and
the evidence before it and by interrogating counsel shall ascertain what material
facts exist without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further proceeding
in the action as are just. The facts so specified shall be deemed established, and the
trial shall be conducted on the controverted facts accordingly. (4a, R34)
Q: Is there such a thing as a motion for partial Summary Judgment?

240
A: YES. Well, if you say Motion for Partial Summary Judgment, some issues are genuine, some
are not. So the court can decide immediately on the issues which are not genuine but with respect to issues
which are genuine, the law says, trial shall be conducted on the controverted facts summarily under Rule 35 on
the issues which are not genuine.
SEC. 5. Form of affidavits and supporting papers. - Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Certified true copies of all papers of parts
thereof referred to in the affidavit shall be attached thereto or served therewith. (5a,
R34)
Q: What are the forms of affidavits under Rule 35?

A: The following:
1.) Supporting affidavits – to support the motion for Summary Judgment;
2.) Opposing (counter-) affidavits – to oppose the motion for Summary Judgment.
Q: Give the requisites of supporting or opposing affidavits to a motion for Summary Judgment.
A: The following: PACC
1.) The affidavit shall be made based on personal knowledge;
2.) It shall set forth such facts as would be admissible in evidence;
3.) The affiant is competent to testify to the matters stated therein; and
4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall be
attached thereto or served therewith.
“The affidavits of your witnesses, or your affidavit must be made on personal knowledge and shall set forth
such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent and
the matters stated therein.”
What does that mean? Suppose the case will go to trial, so the witness will take the witness stand. He will
testify. When a witness testifies under the Rules on Evidence, there must be a showing that what he is talking
about is known by him. Otherwise, it will be hearsay. And based on the law of evidence, the testimony is
inadmissible. What I will say should be admissible under the law on evidence otherwise my testimony will not
be allowed and I must show that I’m in a position to know what I’m talking about.
That’s what the witness will have to demonstrate in court. Since in a motion for Summary Judgment, there
is no more trial, there is no more witnesses who will testify in court, what will take the place of a witness is his
affidavit which must also show that the witness has personal knowledge, etc. Meaning, what you should show
during the trial, if you are, they must also be shown in your affidavit.
If your testimony in court is not admissible, because you are telling only what you heard from other people,
then an affidavit which contains the same thing would also be inadmissible. So, in other words, the affidavit
merely takes the place of oral testimony in court.
Q: What procedure is similar where the one who will decide, who will only read the affidavits of both sides
and render a decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation – the fiscal conducts a preliminary investigation
on the affidavits lang. The complainant will submit his affidavit. The respondent will file his counter-affidavit.
Then the fiscal will go over the affidavits and will resolve the issues and determine whether there is probable
cause to file the information or none. So, the resolution is practically based on affidavits. So walang hearing.
SEC. 6. Affidavits in bad faith. - Should it appear to its satisfaction at any time that
any of the affidavits presented pursuant to this Rule are presented in bad faith, or
solely for the purpose of delay, the court shall forthwith order the offending party or
counsel to pay to the other party the amount of the reasonable expenses which the
filing of the affidavits caused him to incur, including attorney's fees. It may, after
hearing, further adjudge the offending party or counsel guilty of contempt. (6a, R34)
Well, of course, the affidavits required by law must be filed in good faith.
EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment against you alleging that
your defense is false and I will support it with affidavit. Ang defendant, malakas ang loob, he opposed my
motion claiming that his defense is true and genuine and he also supported it with affidavits. Once the
opposing party does that, the court will automatically deny my motion. The court is not in the position now to
know who is telling the truth. Both maintaining under oath that he is telling the truth. So if you oppose my
motion with supporting affidavits, the court will deny my motion for Summary Judgment and the courts says
let’s go to trial and during the trial, mabisto na naman and it turned out really that you have no defense, talo ka
pa rin.
Q: What is the penalty for you for filing earlier an opposition to my motion supported by affidavits in bad
faith?
A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable expense which the
filing of affidavits caused me to incur, including attorney’s fees. The court may also, after hearing, adjudge you
or your lawyer guilty and I will add what is not found in the law, I will file a case of perjury against you for
executing a false statement.
That is a criminal sanction under the RPC. I can also file a case of disbarment against the lawyer for
assisting in the filing of an affidavit in bad faith.
So in other words, if you execute an affidavit in bad faith, you must be ready to face all these later –
damages, contempt, perjury under the RPC and the lawyer to face disciplinary proceedings.
241
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)
Their similarity is that, both of them are methods for promptly disposing civil actions, wherein
a civil case can be adjudicated without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34).
1.) as to the ground

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

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

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

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

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

299 SCRA 459 [Nov. 27, 1998]
FACTS: The plaintiff files a motion for summary judgment where he said under oath that the
defense is false. The trial court denied it, “A summary judgment is not proper where the defendant
presented defenses tendering factual issues which call for the presentation of evidence.” Is the trial
court correct.
HELD: “Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by

the judge are proper for the denial of a motion for judgment on the pleadings – as to
242
which the essential question, as already remarked, is: are these issues arising from or
generated by the pleadings? – but not as regards a motion for summary judgment – as to
which the crucial question is: issues having been raised by the pleadings, are those
issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions
accompanying the application therefor?” So those are the questions to be answer in a
summary judgment, not whether or not there is an answer.
“Errors on principles so clear and fundamental as those herein involved cannot but be deemed
so egregious as to constitute grave abuse of discretion, being tantamount to whimsical or
capricious exercise of judicial prerogative.”
Last point to remember: as a General Rule, you cannot secure judgment by motion alone. This is because a
MOTION is defined as any petition for relief other than the relief prayed for in the pleadings. (Rule 15, Section 1)
A motion prays for relief other than through a pleading. The other way of stating it is, a motion prays for
relief other than through a judgment because a judgment is prayed in a pleading and not in a motion. So a
motion as a rule, cannot pray for immediate judgment.
But there are three (3) known exceptions where a motion can already pray for immediate relief. They are:
1.) Rule 33 – Demurrer to evidence;
2.) Rule 34 – Judgment on the Pleadings; and
3.) Rule 35 – Summary Judgment.
In those exceptions, the movant is already asking for a judgment which normally is not stated in a motion.
Rule 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
There are three (3) important stages in a civil action.
Q: What are these three (3) stages?

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

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

We are now on trial where the parties will now offer their evidence. It is called the stage of
proof. Plaintiff presents evidence to prove his claim. Defendant presents evidence to prove his
defense. Parties present rebutting evidence. So this is the stage where the parties will prove their
respective contentions.
After the case has been tried and everything has been argued under Rule 30, the last stage is….
[sound plis… tadadadan!tadan!]
3.) Third stage: Judgment Stage (Rule 36)

This is the stage where the court will now decide and render judgment.
Q: Define Judgment.
A: Judgment is the final consideration and determination by a court of the rights of the parties as those
rights presently exists, upon matters submitted to it in an action or proceeding. (Gotamco vs. Chan Seng, 46
Phil. 542)
Q: What are the requisites of a valid judgment?

A: There are five (5) requisites for a valid judgment:
1.) the court rendering judgment must have jurisdiction over the subject matter;
2.) the court rendering judgment must have jurisdiction over the person of the defendant,
and in case the defendant is a non-resident, the court rendering judgment must have
jurisdiction over the res;
3.) the court rendering judgment must have jurisdiction over the issues, that is, the
judgment shall decide only the issues raised by the parties in their pleadings;
4.) the court rendering judgment must be validly constituted court and the judge thereof, a
judge de jure or de facto; Thus, the court has not been abolished; the judge has been appointed
and has not retired nor separated from service. That is why there is a rule even in criminal cases
that if the judgment is promulgated after the judge has already retired, the judgment is void. There
must be another promulgation.
EXAMPLE: Judge tries a case, prepares the decision and signs it. Before the decision is
promulgated, the judge died or retired. In this case, any promulgation to be made cannot be
valid. The next judge must be the one to promulgate it – write the decision again and sign it.
What is important is the judge who rendered.
243
ABC DAVAO AUTO SUPPLY vs. COURT OF APPEALS
284 SCRA 218 [January 16, 1998]
FACTS: The case was tried by a judge (Agton) who was temporarily assigned to Mati.
He wrote the decision and had it released but by that time, he was already back in Mati. The
losing party contended that the judgment was not valid.
HELD: The judgment is VALID because when the new judge denied the motion for
reconsideration, he effectively adopted in toto the decision of the Mati judge. And besides,
the Mati judge was still a judge when he rendered his decision.
“The subsequent motion for reconsideration of Judge Agton's decision was acted upon
by Judge Marasigan himself and his denial of the said motion indicates that he subscribed
with and adopted in toto Judge Agton's decision. Any incipient defect was cured. Branches
of the trial court are not distinct and separate tribunals from each other. Jurisdiction does
not attach to the judge but to the court.”
5.) the judgment must be rendered after lawful hearing, meaning that due process must be
observed. (Busacay vs. Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L-13764, Jan. 30,
1960; Rojas vs. Villanueva, 57 O.G. 7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct.
26, 1966)
There must be a trial where both sides are given the chance to be heard. In case of a defaulted
defendant, due process was observed because he was given the opportunity to defend himself. But
he did not file an answer. The essence of due process is the fact that you are given the opportunity
to be heard.
Sec. 1. Rendition of judgments and final orders. - A judgment or final order

determining the merits of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of the court. (1a)
Q: What are the FORMAL requisites of a valid judgment?

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

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

A: NO. It still violates the law. There are no findings of facts or conclusions of the law. Therefore, when the
court said, “plaintiff’s evidence is more logical, acceptable, probable and worthy of credit” those are
conclusions. They are not findings of facts. Meaning you have to argue – why is it logical, why is it acceptable,
why is it probable, why is it worthy of credit. You must state it and rebut the other side.
If that is how decisions are prepared, you just recite what the plaintiff said or what the defendant said, and
you will conclude, “Therefore, find the plaintiff is logical…”, then every nincompoop person is qualified to be a
judge – everybody can write a decision.
It is just like asking questions in the examinations. You will not answer that “A is correct because his
argument is correct (period!).” You have to state why he is correct. That is also the case in the decision. You
must support your answer with details.
Now, every decision of every court must state the facts and the law on which it is based. It must be in
every court, no exceptions, whether SC or an MTC. The Constitutional provision on this requirement applies to
all courts from the highest to the lowest.
However, the Judiciary Law allows the appellate court to make a Memorandum Decision. If you are the
appellate court (CA), you either affirm or reverse the decision of the lower court. If the CA will reverse the
findings of the RTC, definitely the CA has to justify why the findings of the RTC is wrong.
But suppose the CA will affirm, so there is nothing wrong with the judgment of the RTC. Now, in
order to shorten the period for waiting for the decision and in order to hasten it, Section 40 of BP
129 allows the appellate court to simply quote verbatim the findings and conclusion of the trial
court and adopt it as its own.
This is what is called the Memorandum Decision. The concept of memorandum decision which is
found in Section 40, BP 129 is now in Rule 51, Section 5 of the 1997 Rules, to wit:
Sec. 5. Form of decision.- Every decision or final resolution of the court in

appealed cases shall clearly and distinctly state the findings of fact and the
conclusions of law on which it is based, which may be contained in the decision or
final resolution itself, or adopted from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg. 129) (n)
So the appellate court is now authorized to simply copy or refer the true findings of fact and conclusions at
the trial court if it is affirming the latter’s decision. This is what we call memorandum decision. The SC said
that it is only allowed in simple cases, not in complicated ones. Otherwise the CA will be very lazy –
they will just affirm and affirm. Affirm para walang trabaho. Reverse, madami. To reverse means to argue for the
opposite, rebut everything that the trial court said, it takes time to study, etc. Hence the limitation, which we
will discuss later.
Q: Does the law require a particular style of writing a decision?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: Under Article 2028 of the New Civil Code:
Art. 2028. A compromise is a contract whereby the parties, by making reciprocal

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

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

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

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

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

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

1.) In a judgment upon a COMPROMISE, the liability of the defendant is to be

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

A: YES. There can be judgment insofar as one cause of action and the proceedings will continue as to other
causes of action.
Let us go back to Rule 30 on Order of Trial. You will notice that there is order of trial when there are several
claims in one action.
EXAMPLE: Plaintiff files a complaint against several defendants. One defendant files a cross-claim against
another defendant. Two defendants file permissive counterclaims against the plaintiff. One defendant will file a
third-party complaint against a third-party defendant. The court renders judgment. It may render judgment as
far as complaint is concerned, then the decision for the cross-claim, then for the counterclaim.
The normal procedure is you try the case, tapusin mo lahat, then you render one judgment disposing of the
complaint, counterclaim, cross-claim and third-party complaint. Yet, separate judgments is also permissive
under Section 5. If there are separate trials for all these (counterclaim, cross-claim, etc), it is also possible that
there would be separate trials.
Distinctions:
Section 3 – refers to an action by several parties
Section 4 – refers to an action against several defendants
Section 5 – refers to several claims for relief in an action
Sec. 6. Judgment against entity without juridical personality. - When judgment is

rendered against two or more persons sued as an entity without juridical personality,
the judgment shall set out their individual or proper names, if known. (6a)
Does that sound familiar? Two or more persons sued as an entity without juridical personality. Let’s go
back to Rule 3 Section 15 and Rule 14 Section 8.
PROBLEM: Three people are members of an entity without juridical personality. They transact business with
Mr. Alama. Mr. Alama has no idea who are really the members of the said entity. He wanted to sue the
members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 – Mr. Alama will file a case against the defendants by using the name of the entity they
are using.
Q2: How should summons served to these defendants?

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

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

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

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

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

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

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

A: FRAUD, to be a ground for new trial, must be EXTRINSIC – where the aggrieved party was misled
by the adverse party, and by reason thereof, he was prevented from presenting his case properly. (Gisburne
Supply Co. vs. Quiogue, 34 Phil. 913; Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-
30694, Oct. 31, 1969)
So, intrinsic fraud is not a ground for a new trial.
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EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The case will
be tried tomorrow. I called you up and asked you to postpone the trial, “I will tell the court that I talked to you
and you agreed that the trial will be postponed.” The following day, I appeared in court. When the case is
called, I said that I’m ready. Court: “Saan ang defendant?” I said, “Wala! Awan!” I then moved to continue the
trial.
So, naisahan kita. I maneuvered a scheme in such a way that you will not appear in court. You lost your
opportunity to present your side. That is EXTRINSIC FRAUD. Your remedy now is to file a motion for new trial on
the ground that you have been a victim of EXTRINSIC FRAUD by the plaintiff’s lawyer.
EXAMPLE: There is a case between you and me. During the trial, I presented witnesses to prove my cause
of action. All my witnesses were lying – they testified falsely. I presented falsified documents to prove my case.
And I won the case because of those perjured testimonies and falsified documents. You file a motion for new
trial alleging FRAUD – that the testimonies and documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC because you were not prevented you
from going to court. So, your remedy is to expose my perjured and falsified evidence. You can present rebuttal
evidence. It is your obligation to prove that my witnesses are lying and my documents are false. Definitely, you
cannot ask a motion for a new trial.
ACCIDENT
What is ACCIDENT? It is something unforeseen, something unexpected or unanticipated. When is accident a

sufficient ground for new trial?
EXAMPLE: A party failed to appear in court because he got sick at the last minute. Or, in the middle of the
trial, the lawyer of the party becomes sick. With that, the complaint was dismissed or there was a judgment
against you. You can move for new trial on the ground of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil.
983)
EXAMPLE: The defendant was declared in default because he did not file an answer but actually he filed an
answer through mail, but somehow the post office did not deliver it to the court (baka may anthrax). That is an
accident. With that, I can move for new trial or lift the order of default. (Ong Guan Can vs. Century Ins. Co., 45
Phil. 667)
EXAMPLE: The trial was this morning. But I received only the notice of trial on March 9, 1998 stating that the
trial is on March 5. So the notice of hearing was received days after the scheduled date. That is an accident
which is a ground for new trial. (Soloria vs. Dela Cruz, L-20738, Jan. 31, 1966)
MISTAKE
What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya pa, ‘nasayop.’
EXAMPLE: Defendant received summons and complaint. The defendant, instead of seeking assistance of a
lawyer, went to the plaintiff and asked for settlement. They kept on talking with the settlement but in the
meantime, the period to file answer is also running. Fifteen days had passed by they did not settle yet. Plaintiff
moved to declare defendant in default. The court issued judgment on default. Defendant said, “Layman man
ako. Anong malay ko diyan sa ‘default-default’ na yan.” The lawyer said, “Sana answer muna before you settle
with the plaintiff.” So the lawyer filed a motion for new trial on the ground of MISTAKE. The court granted it.
(Salazar vs. Salazar, 8 Phil. 183)
GENERAL RULE: A client is bound by the mistakes of his lawyer and he cannot file a motion for new trial
on the ground of mistake of his lawyer. In the case of
BELLO vs. LABONG

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

43 Phil. 167
254
HELD: “A new trial is sometimes granted where the INCOMPETENCY or NEGLIGENCE of the
party’s counsel in the conduct of the case IS SO GREAT that party’s rights are prejudiced and he is
prevented from presenting his cause of action or defense.”
EXCUSABLE NEGLIGENCE
EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not a ground for new trial. But sometimes, it
is difficult to determine whether the negligence is excusable or inexcusable. That is also very difficult because
there is negligence whether you like it or not.
When is negligence excusable and when is it inexcusable? Our only guide here is decided cases because
there are many cases where the SC said that, it is excusable so we will grant a new trial. Or sometimes naman,
wala, that is not excusable so no new trial. So, we can go on the pattern and find out what type of negligence
warranted a new trial and what type does not warrant a new trial.
INEXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: If a defendant lost a case because his lawyer failed to file an answer. And the excuse of the
lawyer was, “I forgot about the deadline. Nalimutan ko. I did not keep tract of the deadline to file an answer.”
And the SC said, “No dice. That is not excusable on the part of the lawyer.”
EXAMPLE #2: Your case was dismissed because you failed to appear in court. Here comes now your lawyer
asking for new trial on the ground of excusable negligence, “I failed to appear in court because I again forgot
about that schedule” or “because I failed to wake-up because the night before, I and my friends went to a
(Wigmore) party and I went home drunk.” Do you think the SC will honor that? Is that excusable? Of course
not!
EXAMPLE #3: In many cases, the reason is, “I failed to appear in court because my secretary in my law
office failed to inform me about that notice. Hindi niya nalagay ‘yung notice that I have to appear in court
today.” SC said, “You are bound by the mistake of your secretary and the client is also bound by that mistake
of the lawyer. In the first place, why did you hire that kind of secretary?”
EXAMPLE #4: In some cases, “Well, you see your honor, I failed to appear in court because my secretary did
not calendar it.” O, bakit niya hindi inilagay? “Well, she’s just a newly hired secretary, she does not know yet
the importance of these things. First time niya.” The SC said, “Hung hang! Pasensiya ka! Why did you not
orient her before hiring her.”
So all these things hindi lumusot. All these things failed to convince the SC that the negligence of the party
of the lawyer if excusable.
EXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: The answer has to be filed the following day. The lawyer told the secretary, “I’m leaving
tonight. I’ll come back one week later. You better file tomorrow the answer because tomorrow is the deadline.”
Then he left but the secretary failed to file it because she also got sick. Ayan. Nagkapatong-patong na ang
malas. Excusable iyan.
EXAMPLE #2: “I failed to appear in court because I had to come from Manila and the plane was delayed or
the flight was cancelled. But if the flight proceeded on time I would have been in Davao City by 7:00 A.M. and I
would have been in court at 8:30 A.M.” Sometimes that happens eh where the flight is cancelled or delayed.
Ano ngayon yan? Sabihin, you should have taken the flight the night before para sigurado. “Eh, the night
before fully booked na! Anong magagawa ko?” Ayan.
So in other words, these things, you could also consider it as what? Parang accident din no? Magkahawig
eh! In other words you should use your common sense. Whether the negligence is forgivable or not.
And to borrow the language of the SC, “The standard of care required of a party is that which an ordinarily
prudent man bestows on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)
So, for EXAMPLE: You are a businessman and you have an appointment with somebody who will give you a
deal of P50 million. And you are scheduled to see him on this date and on this time. Can you afford to forget
that transaction? I think there is something wrong with you if you forgot it. You do not know what is important
and what is not important. (Ang importante is yung mahalaga! Di ba?)
There are things which you forget and somehow in forgetting it you cannot be blamed because it’s not
really important. But there are things which you cannot afford to forget.
EXAMPLE: Your classmate tells you, “This coming Saturday you go to the house.” “Why? Is there a
(Wigmore) party there?” “Wala man. I’m just inviting you to come ha?” And by Monday, “I was waiting for you,
you did not show up!” “Tama ‘no? Sorry nalimutan ko.” Now, is forgetting your appointment with your
classmate two days before forgivable or not? I think forgivable iyan. Anyway, istorya-istorya man lang. Para
bang, “O, sige, di sa susunod na Sabado na lang.” Meaning, madaling ma-erase sa mind mo yang mga ganyang
klaseng appointment ba!
EXAMPLE: But suppose on Saturday morning you are supposed to go to church for your wedding, hindi ka
nakasipot. And then you tell your bride or the groom, “Pasensiya ka na ha? Kasal pala natin, nakalimutan ko
eh. (Sana t-in-ext mo ako. Wala kang load ‘no? hahaha!)” I think he or she will kill you for that kind of
reasoning.
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EXAMPLE: If a lawyer says, “I forgot that this is the day I should file an answer for my client.” Or, “I forgot to
appear in court on the day of his trial.” Is the court’s schedule or the schedule of a lawyer something important
for him or not? I think you know the answer ‘no?
Ayan! Kaya iyan ang guide. That is the meaning of excusable negligence.
NEWLY DISCOVERED EVIDENCE
Section 1(b). Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented would
probably alter the result.
Q: What is Newly Discovered Evidence (NDE)?

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

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

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

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

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

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

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

2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong)
Motion for reconsideration is more common. Motions for new trial are very rare.
In a motion for reconsideration, you convince the court that the decision is wrong, “Dapat panalo ako, hindi
siya.” You convince the court, that its decision is wrong, that the decision is contrary to law. If you can convince
the court, the court will issue another decision reversing itself where from a loser [loooosseer!], you are now the
winner and the original winner is now the loser [loooosseer!]. Ganyan man yan ba, very common.
MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS
Sec. 2. Contents of motion for new trial or reconsideration and notice thereof. The motion
shall be made in writing stating the ground or grounds therefor, a written notice of
which shall be served by the movant on the adverse party.
A motion for new trial shall be proved in the manner provided for proof of
motions.
A motion for the cause mentioned in paragraph (a) of the preceding section shall
be supported by affidavits of merits which may be rebutted by affidavits.
A motion for the cause mentioned in paragraph (b) shall be supported by

affidavits of the witnesses by whom such evidence is expected to be given, or by
duly authenticated documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the findings or
conclusions of the judgment or final order which are not supported by the evidence
or which are contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary to such
findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)
Q: What should be the form of a motion for new trial?

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

296 SCRA 418 [Sept. 25, 1998]
FACTS: Inday filed a motion for new trial without a notice of hearing (this is a violation of
paragraph of Section 2). But she filed the motion within 15 days. Inday filed a supplemental motion
with notice of hearing but filed beyond the 15-day period. Should the court deny the motion?
257
HELD: The motion should be denied. “A supplemental pleading subsequently filed to
remedy the previous absence of notice will not cure the defect nor interrupt the tolling
of the prescribed period within which to appeal.”
“We are not impressed by the argument that the supplement filed by the appellants on May 30
should be deemed retroactive as of the date the motion for reconsideration was filed and, therefore,
cured the defect therein. To so consider it would be to put a premium on negligence and subject the
finality of judgments to the forgetfulness or whims of parties-litigants and their lawyers. This of
course would be intolerable in a well-ordered judicial system.”
The second paragraph says, “A motion for new trial shall be proved in the manner provided for proof of
motions…” What does that mean? What is the proof of motions? The manner or proving motions is also found
in Rule 15, Section 3:
Rule 15, Sec. 3. Contents. - A motion shall state the relief sought to be obtained
and the grounds upon which it is based, and if required by these Rules or necessary
to prove facts alleged therein, shall be accompanied by supporting affidavits and
other papers. (3a)
Q: Everytime you file a motion, is it necessary that the ground for your motion is supported by affidavits or
other papers?
A: If it is necessary –YES. If it is not necessary – NO NEED. If necessary, you must attach documents or
supporting affidavits like a medical certificate for a motion to postpone due to illness.
Q: Is it necessary that when you file motion for new trial, you must attach affidavits?
REQUIREMENTS WHEN THE GROUND IS F.A.M.E.
Section 2, second paragraph says, “A motion for the cause mentioned in paragraph [a] of the preceding
section shall be supported by affidavits of merits…” Paragraph [a] is FAME. So, a motion for new trial on
the ground of FAME must be accompanied by affidavits of merits.
Q: What is an affidavit of merits?

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

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

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

A: The period to appeal is NOT interrupted by the filing of such motion for new trial. Even the
right to appeal may be forfeited because of this defect. The effect is now stated in the last
paragraph of Section 2:
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)
When you lose a case you have exactly 15 days to appeal. Let’s say on the tenth day, I file a motion for new
trial under Rule 37. And the motion was acted after one month. Shempre lampas na yung 15 days. Meaning,
pag-tanggap ko ng decision, ten days na ang nakaraan, and then another one month so 40 days na. But no
problem because when you filed your motion on the 10th day, the running of the period to appeal is
interrupted. If denied, meron ka pang limang araw to appeal.
But, if the court says, “Your motion is denied because it is pro forma, there is no affidavit of merits.” Then,
you cannot appeal anymore because when you filed your motion, the period to appeal keeps on running. So by
the time your motion is denied, even the right to appeal is also lost. Iyan ang epekto ng pro-forma motion for
new trial. It never interrupts the period to appeal. [Trivia: PRO-FORMA means, PuRO pORMA lang, wala namang
sinabi]
Q: Suppose a movant will file a motion for new trial in the ground of FAME with the affidavits of merits and
says “I am a victim of fraud and if such motion is granted, I have a good and meritorious cause of action or
good and meritorious defense.” Is the affidavit sufficient?
A: SC –No, those are generalities, you must recite the facts constituting the FAME. You must describe
exactly what happened to you. To say that you have good cause of action or defense is INSUFFICIENT.
You must state what is the nature of that cause of action or defense and evidence you intend to present.
So, there is an affidavit of merit but it is fatally defective. Again what will happen to the motion. It will be
treated as pro-forma. The affidavit of merit is defective.
258
MANIPOL vs. LIM TAN
55 SCRA 202
FACTS : A defendant in an action for damages based on quasi-delict filed a motion for new trial
citing FAME. He says, “I have a good and meritorious cause of action or defense. I intend to prove
that I exercised due diligence in the selection or supervision of my drivers and which if proven
relieves the employer from liability.”
HELD: Affidavit of merits is defective. It is pro-forma motion. It does not state the meritorious
defense. There is only a general statement or conclusion of the defendant. The defendant should
state the details of how he supervised his employees. You go to specifics.
The law is very strict about affidavits of merits. It is not enough that you state your defense. You must
demonstrate that you have a meritorious claim of defense so that the motion for new trial will be granted. What
is the used of granting a new trial if after the new trial you will still end up losing the case? It would be a waste
of time. According to SC, “ It would be pointless to reopen a case if a party does not have a meritorious cause
of action of defense for like a mirage it would merely raise false hopes and at the end avail the movant
nothing.” (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It would raise false hope if you will grant a new trial when
in fact the movant has no meritorious cause of action. It’s like a mirage or illusion – seeing things which are not
there. [malayo ang tingin, hindi naman duling…]
It seems that there are really two affidavits. Normally when a lawyer files motion for new trial, there is one
affidavit reciting FAME and reciting the meritorious cause of action or defense. If you follow the SC there are two
(2) affidavits: FIRST – affidavit regarding the FAME; and SECOND – affidavit regarding the meritorious cause of
action of defense.
But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied that the real Affidavit Of Merits should
be the second one – that I have a good and meritorious defense. In reality, there should be two (2)
affidavits – one reciting the FAME and one reciting the substantial cause of action. That is why a
motion for new trial on FAME should ordinarily be accompanied by two affidavits. One setting forth
the facts and circumstances alleged to constitute FAME and the other an Affidavit of Merits setting
forth the particular claims to constitute the movant’s meritorious defense or cause of action. The
real Affidavit of Merits is the second one.
REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE
Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for the cause mentioned in (Section 1)
paragraph [b] (NDE) shall be supported by affidavits of the witnesses by whom such evidence is expected to
be given, or by duly authenticated documents which are proposed to be introduced in evidence.”
Meaning, when the ground is newly discovered evidence, the motion shall be supported by affidavits also –
affidavits of the newly discovered witness – or a copy of the newly discovered document. You have to state what
is the newly discovered evidence, what the witness will say.
Q: What happen when such requirement is not complied with?

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

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

2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong)
Q: Can you file a motion for reconsideration by just simply stating that “the decision is wrong or contrary to
law,” or “the findings of the judge are not supported by evidence”?
A: NO. Under Section 2, 3rd paragraph, you must point out specifically the findings or conclusions of the
judgment or final order which are not supported by the evidence or which are contrary to law, making express
reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such
findings or conclusions.
So, you must point out what findings is not supported by evidence – what conclusion is contrary to law. Do
not let the judge look for it. The judge will never bother to look for it. You tell him what portion of the decision is
wrong. You have to cite the evidence too and the law which is violated or what provisions – ituro mo yan! Point it
out clearly.
Q: What happen when you file a motion for reconsideration without making any reference, exhibit etc?
Meaning, you did not comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will never interrupt the reckoning of the
prescriptive period.
The SC once defined a pro forma motion as one filed for the sake of form. (Dapin vs. Dionaldo, G.R. No.
55488, May 15, 1992)
Another POINT: when you file an motion for reconsideration on the ground that the judgment is contrary to
law, it is not enough for you to say that. You must always point out clearly why it is contrary to law, otherwise
your motion will be denied or treated as pro-forma.
259
Q: When you file an motion for reconsideration and it is denied, does it mean to say that your motion is pro-
forma?
A: NO, because maybe the judge was not convinced but you tried your best. The denial of motion for
reconsideration on the ground that the decision or judgment is wrong does not automatically make the motion a
pro-forma. What makes it pro-forma is, if your motion for reconsideration does not specifically point out why
judgment is wrong. But if you comply with Section 2, that is already sufficient.
In the case of
MARIKINA VALLEY DEV’T. CORP. vs. FLOJO
251 SCRA 87 [1995]
HELD: “A motion for reconsideration merely reiterates or repleads the same arguments which
had been previously considered and resolved in the decision sought to be reconsidered, the motion
is a pro forma one.”
“The circumstance that a motion for reconsideration deals with the same issues and arguments
posed and resolved by the trial court in its decisions does not necessarily mean that the motion
must be characterized as merely pro forma. A pleader preparing a motion for reconsideration must
of necessity address the arguments made or accepted by the trial court in its decision. The movant
is very often confined to the amplification or further discussion of the same issues already passed
upon by the trial court.” Precisely, when I filed a motion for reconsideration, we will go over the
same points which the court has already discussed.
“Where the circumstances of a case do not show an intent on the part of the movant merely to
delay the proceedings, our Court has refused to characterize the motion as simply pro forma. The
doctrine relating to pro forma motions for reconsideration impacts upon the reality and substance of
the statutory right of appeal, that doctrine should be applied reasonably, rather than literally. The
right to appeal, where it exists, is an important and valuable right.”
“A motion for reconsideration which is not as starkly bare but which, as it were, has some flesh
on its bones, may nevertheless be rendered pro forma where the movant fails to make reference to
the testimonial and documentary evidence on record or the provisions of law said to be contrary to
the trial court’s conclusions. In other words, the movant is also required to point out succinctly why
reconsideration is warranted.”
“It is not enough that a motion for reconsideration should state what part of the decision is
contrary to law or the evidence; it should also point out why it is so. Failure to explain why will
render the motion for reconsideration pro forma.” Meaning, when I point out part of the decision
that is contrary to the law, it is not pro forma. But still it is pro forma if I will not state that it is
contrary to law.
“Where a substantial bonafide effort is made to explain where and why the trial court should be
regarded as having erred in its main decision, the fact that the trial court thereafter found such
argument unmeritorious or as inadequate to warrant modification or reversal of the main decision,
does not, of course, mean that the motion for reconsideration should have been regarded, or was
properly regarded, as merely pro forma.”
So, I point the decision but the court does not agree with me. That does not mean that my motion is
automatically pro forma because there was attempt to convince the court why it is wrong.
EFFECTS WHEN MOTION IS GRANTED
Sec. 3. Action upon motion for new trial or reconsideration. The trial court may set
aside the judgment or final order and grant a new trial, upon such terms as may be
just, or may deny the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly. (3a, R37)
Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance
with the provisions of this Rule, the original judgment or final order shall be vacated,
and the action shall stand for trial de novo; but the recorded evidence taken upon
the former trial, in so far as the same is material and competent to establish the
issues, shall be used at the new trial without retaking the same. (5a)
Q: In Section 3, how will the court resolved your motion for new trial?
A: The court may either deny or may set aside the judgment or final order and grant a new trial.
Literally, if the judgment is set aside, there will be a trial de novo, a Latin word for new trial.
BAR QUESTION: If Cholo files a Motion For New Trial and it is granted, will there always be a trial de novo?
A: It DEPENDS on the ground for the motion:
a.) If the ground is FAME, there will be a trial de novo because the proceeding will be set
aside;
b.) If the ground is NDE, there is no trial de novo. The evidence admitted which is based on
the same decision will remain. The case will be opened only for the purpose of admitting
the new evidence.
Q: If Cholo files a Motion For Reconsideration and it is granted, will there be a trial de novo?
A: There is NO trial de novo. The court will simply amend its judgment. It is only a re -study of
provision. The court will study its decision and go over the evidence and find out whether it made a
mistake or not.
Sec. 4. Resolution of motion. A motion for new trial or reconsideration shall be

resolved within thirty (30) days from the time it is submitted for resolution. (n)
There is now a deadline for the court to act on the motion – within 30 days from the time it is submitted for
resolution.
260
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION
Sec. 5. Second motion for new trial.
A motion for new trial shall include all grounds then available and those not so
included shall be deemed waived.
A second motion for new trial, based on a ground not existing nor available when
the first motion was made, may be filed within the time herein provided excluding
the time during which the first motion had been pending.
No party shall be allowed a second motion for reconsideration of a judgment or

final order. (4a, R37; 4, IRG)
As a rule, the motion for new trial shall include all grounds then available and those not included are
deemed waived. So, if the motion for new trial is based on two (2) grounds – FAME and NDE – either or both
grounds should be included in the motion.
Q: Suppose a motion for new trial, which is based only on FAME, was denied, can there be a second motion
for new trial on the ground of NDE?
A: It DEPENDS:
a.) If the NDE is already existing when the first motion was filed, then the second
motion for new trial will be denied because of failure to raise it earlier – the second
ground is deemed waived for failure to raise the same;
b.) However, if the ground for the second motion for new trial is something not known or
not existing or not available when the party filed the first motion, then the second
motion is allowed. The second motion is not a pro forma motion.
So, what the law prohibits is you file a motion for new trial and you do not include all the grounds then
available. If the ground surfaced only later, then it is allowed. Therefore, the motion for new trial is an example
of omnibus motion as defined in Rule 15, Section 8:
Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of Rule 9, a

motion attacking a pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included shall be deemed waived.
(8a)
Q: What happens if you file a second motion for new trial on a ground which is then available when the first
motion was filed?
A: The second motion is a pro forma motion and will not interrupt the remaining balance of the period to
appeal after the first motion was denied. There was a clear violation of omnibus motion rule.
Q: So, there are two (2) types of pro forma motion for new trial under Rule 37. What are they?
A: The following:
1.) A motion for new trial which is not supported by affidavits of merits – one which does
not comply in substance or in form with Section 2; and
2.) A second motion for new trial on a ground available to the party when the first motion
was filed (Section 5).
Take note that the 2nd paragraph of Section 5 provides that “No party shall be allowed a second motion for
reconsideration of a judgment or final order.” Therefore, a second motion for reconsideration is always treated
as a pro forma motion because it is totally prohibited by Section 5.
NEW TRIAL vs. MOTION FOR RECONSIDERATION
Take note that in New Trial, there could possibly be trial de novo. If granted, everything is set aside and the
party will now present their evidence. But in trial de novo, we will not erase everything. Proceedings or
evidence admitted will remain. Only, we will open it for the purpose of introducing the new evidence and then
the court will study it all over again.
In Motion for Reconsideration, there is no reopening of the case because all the court has to do is to go over
the evidence again and go over the decision to find out whether its decision is wrong and should change it. So,
there is actually no trial de novo in a motion for reconsideration.
Q: Distinguish a Motion for New Trial from a Motion for Reconsideration.

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

261
A second MOTION FOR NEW TRIAL is allowed if the ground was not existing when the
first motion for new trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always prohibited under the rules.
Sec. 7. Partial new trial or reconsideration. If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the
matter in controversy, or only one, or less than all, of the parties to it, the court may
order a new trial or grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest. (6a)
Q: Is there such a thing as motion for partial new trial or a motion for partial reconsideration?
A: YES, if the party is questioning only one aspect or portion of the case. Therefore, the rest can become
final while the disputed portion does not become final.
So, there could be a new trial or reconsideration only on such issues and there will be a final judgment with
respect to the other issues of the case. How could this happen? The best example is Rule 31, Section 2:
Rule 31, Sec. 2. Separate trials. The court, in furtherance of convenience or to

avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or
third-party complaint, or of any separate issue or of any number of claims, cross-
claims, counterclaims, third-party complaints or issues. (2a)
If the cross-claim or third-party complaint are tried separately, there will be different judgments. And in
effect, you can file a partial motion for new trial or reconsideration to the facts contemplated by the case.
Sec. 8. Effect of order for partial new trial. When less than all of the issues are
ordered retried, the court may either
1. enter a judgment or final order as to the rest, or

2. stay the enforcement of such judgment or final order until after the new trial. (7a)
This is a continuation of Section 7.
Q: When there is a partial new trial, what will happen to the judgment on the undisputed facts?
A: Either:
a.) the court will enter judgment on it; or
b.) the court may stay the enforcement until after the new trial.
The following rules will describe the situation in Section 8:
Rule 36, Sec. 5. Separate judgments. When more than one claim for relief is
presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out of the transaction or
occurrence which is the subject matter of the claim, may render a separate judgment
disposing of such claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining claims. In case
a separate judgment is rendered, the court by order may stay its enforcement until
the rendition of a subsequent judgment or judgments and may prescribe such
Finality of judgment with respect to one portion of the case and the trial continues with the other portion.
There are several judgments involving one action and technically, if one is finished, it can be enforced unless
the court provided otherwise. Another provision is Rule 39, Section 2 [b]:
Rule 39, Sec. 2. Discretionary execution.

xxxxx
(b) Execution of several, separate or partial judgments.— A several separate or partial
judgment may be executed under the same terms and conditions as execution of a
judgment or final order pending appeal. (2a)
Discretionary execution or execution pending appeal. In case of an appeal, Section 1, Rule 41 [g]:
Rule 41, Section 1. Subject of appeal. An appeal may be taken from a judgment or
final order that completely disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
No appeal may be taken from:
xxxxx
(g) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and
xxxxx
Let’s go back to Rule 37.
Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order
denying a motion for new trial or reconsideration is not appealable, the remedy
being an appeal from the judgment or final order. (n)
An order denying a motion for new trial or reconsideration is not appealable (c.f. Rule 41, Section 1 [a]. The
remedy being an appeal from the judgment or final order.
262
ILLUSTRATION: The judgment is against you. So you filed a motion for new trial or reconsideration. The court
denied your motion. So there is an order denying your motion for new trial or reconsideration. Now, you want to
appeal.
Q: Appeal from what? From the main judgment or from the order denying your motion?
A: You appeal from the judgment. You cannot appeal from the order denying your new motion for new trial.
That is related to Rule 41, Section 1 [a]:
Rule 41, Section 1. Subject of appeal. An appeal may be taken from a judgment or
final order that completely disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration;
x x x x x x[
Well, of course, the filing of this motion will stop the running of the 15-day period, unless your motion for
new trial is pro-forma. Generally, the law does not allow an appeal from the order denying your motion for new
trial. You appeal from the decision, not from the order denying your motion. This provision will come out again
when we reach the rule on appeal.
OUTLINE of the process: (after trial)
1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new trial or reconsideration;
4.) Appeal based on the decision/judgment and not based on the order denying your motion.
Rule 38
RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS
Section 1. Petition for relief from judgment, order, or other proceedings. When a
judgment or final order is entered, or any other proceeding is thereafter taken
against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside. (2a)
Rule 38 is known as the remedy of petition for relief from judgment or final order. The grounds cited here
are actually the same as the grounds for new trial – FAME. We are meeting FAME for the third time. It seems to
be a ground that keeps on going back. First in Default, then New Trial, and now a ground for petition for Relief
from Judgment.
Q: What are the different remedies available to a defaulted defendant granted by the rules?
A: The following:
1 Upon service of the order of default but before judgment upon default is rendered under Rule 9 you
can file a motion to set aside the order of default on the ground that his failure to file answer was
because of FAME;
2 If there is already a default judgment, the correct procedure is to file a motion for new trial under
Rule 37 on the ground of FAME within the period to appeal, meaning, before judgment becomes
final and executory;
3 If the judgment is already final and executory, the remedy is to file a petition for relief from
judgment under Rule 38 on the ground of FAME.
So if you are a passenger and you want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip, Rule 38
is last trip.
Are those the only remedy? For bar purposes pwede na! But if gusto mo ng mas maganda, marami pa.
[abangan! See discussions under Rule 47]
Q: Distinguish between relief from judgment under Rule 38 and new trial under Rule 37.
A: Rule 37 is substantially similar to Rule 38, the only difference being that the remedy is called Motion for
New Trial if filed before the judgment or final order has become final and executory, and Petition for Relief if
filed thereafter but within the period prescribed in Section 3, Rule 38.
And take note that only FAME could be the ground for Rule 38. There is no newly discovered evidence under
Rule 38. Newly discovered evidence is not a ground for petition for relief from judgment. Newly discovered
evidence is available in Rule 37 but not in Rule 38.
Q: In what court can you file a petition for relief from judgment?
A: “In such court and in the same case.” Meaning, in the very court where you lost and in the same
case number. So, para ka na ring nag-file ng motion for new trial because motion for new trial is
filed before the same court and in the same case.
Under the OLD RULES, when you want to file a petition for relief from the judgment of the RTC, you file your
petition for relief in the same RTC and in the same case. And if you want to file a petition for relief from
judgement of the MTC, you file it in the RTC like an appeal. The RTC will be the one to grant the relief from the
judgment of the MTC. The MTC has no power to set aside its own judgment. It can only be done by the RTC. But
the RTC has the power to set aside its own judgment just like a motion for new trial.
263
But NOW, under Section 1, you can file a petition for relief from judgment in ANY COURT on the ground of
FAME, IN SUCH COURT and in the same case. So, if you want to file a petition for relief from judgment of the
MTC, you should file it in the same MTC court. Now, MTC has authority to entertain petition for relief from
judgment unlike the previous rule. That is a major change.
Q: Can a petition for relief from judgment be filed in the CA?

A: YES because of “in any court.”
Can you file a petition for relief not from a judgment but from an order? Section 2:
Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is
rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from taking an appeal, he may file a
petition in such court and in the same case praying that the appeal be given due
course. (1a)
In most cases, or 95% of petition for relief, a party files a petition for relief from the judgment rendered
against him. Actually that is not true. The remedy of petition for relief is not only limited to judgments but the
law says “orders, or other proceedings.” That is very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal was beyond 15 days. So, there will be an
order denying my appeal because my appeal should be within 15 days.
Q: And suppose such order prevented me from taking an appeal because of FAME, can I file a petition for
relief?
A: Yes, not from the judgment but from the order denying my appeal on the ground of FAME. And the court
will grant me relief by allowing me to appeal. So there, I am not questioning the judgment but I am only
questioning the order not allowing me to appeal.
But as I said, in most cases, petition for relief are based on Section 1 rather than Section 2. Bihira yung
petition for relief from the order denying the appeal.
Is there a deadline in filing a petition for relief from judgment? YES. Section 3:
Sec. 3. Time for filing petition; contents and verification. A petition provided for in
either of the preceding sections of this Rule must be verified, filed within sixty (60)
days after the petitioner learns of the judgment, final order, or other proceeding to
be set aside, and not more than six (6) months after such judgment or final order
was entered, or such proceeding was taken; and must be accompanied with
affidavits showing the fraud, accident, mistake, or excusable negligence relied upon,
and the facts constituting the petitioner's good and substantial cause of action or
defense, as the case may be. (3)
Q: When you file a petition for relief from judgment, or final order, what are the formal requirements?
A: The formal requirements are:
1
2 The petition must be verified;
3 The petition for relief must be accompanied with affidavits showing the FAME relied
upon and the facts constituting the petitioner’s good and substantial case of action or
defense as the case may be.
Q: Now, does that requirement sound familiar again, that there must be an affidavit showing the fame and
the petitioner’s substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial, affidavit of merits. Therefore, AFFIDAVIT OF
MERITS which is a requirement in Rule 37 is also a requirement in Rule 38 . That is the identical
feature of new trial of fame and petition for relief.
Q: What will happen if a party files a petition for relief without any affidavit of merits, or with a defective
affidavit?
A: The defect is FATAL and the petition will be denied outright because of lack of affidavit merits. It is the
affidavit of merits which serves as the jurisdictional basis for the court to entertain a petition for relief.
(Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)
Q: When do you file a petition for relief?

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

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

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

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

A: Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop the enforcement of
the judgment. But I have to put up a BOND conditioned that in the event that my petition for relief is not
meritorious, I will pay for all the damages that the other party will incur because of the delay in the execution.
Sec. 6. Proceedings after answer is filed. After the filing of the answer or the
expiration of the period therefor, the court shall hear the petition and if after such
hearing, it finds that the allegations thereof are not true, the petition shall be
dismissed; but if it finds said allegations to be true, it shall set aside the judgment or
final order or other proceedings complained of upon such terms as may be just.
Thereafter the case shall stand as if such judgment, final order or other proceeding
had never been rendered, issued or taken. The court shall then proceed to hear and
determine the case as if a timely motion for a new trial or reconsideration had been
granted by it. (6a)
BAR QUESTION: When a petition for relief from judgment is filed, what are the hearings that will be
conducted by the court?
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A: In proceedings for relief from judgment, there may be two (2) hearings, to wit:
1 a hearing to determine whether the judgment or order complained of should be set

aside, and
2
3 if the decision thereon is in the affirmative, a hearing on the merits of the principal case.
So, the FIRST HEARING is to determine whether the petition should be granted or not – is the petition
meritorious or not? Was there FAME? Is there affidavit of merit? Is the affidavit proper? Is the petition filed
within the period allowed by the law or not? Now, if the petition is denied that is the end of the story. Wala na.
Now, if the petition for relief is granted, the judgment will be set aside as if it never existed. Then we will
now try the case all over again as if a motion for new trial has been filed. That is the second hearing. The
SECOND HEARING is the trial on the merits or a trial de novo.
Now, somebody was commenting, “Ito bang petition for relief parang appeal din? Is this similar to appeal?”
The answer is NO. In the first place, there is no appeal here. Kaya nga the judgment has become final and
executory because there was no appeal. Now, in an appeal, for example: Natalo ka sa kaso. When you appeal
and you win, the decision will be overturned. From losing, you become the winner. That is the effect of appeal.
But in petition for relief, you are not asking the court to change its decision. When a petition for relief from
judgment is granted, the decision against you will be set aside as if it was never rendered and we will try the
case all over again. In a petition for relief, the court has no power to change its decision because it
has already become final and executory. But its power under Rule 38 is to set it aside as if it was
never rendered and conduct a new trial as if a motion for new trial has been filed. So please do not
confuse Rule 38 with the remedy of appeal.
Sec. 7. Procedure where the denial of an appeal is set aside. Where the denial of an
appeal is set aside, the lower court shall be required to give due course to the
appeal and to elevate the record of the appealed case as if a timely and proper
appeal had been made. (7a)
This is a continuation of Section 2 – what can be questioned in Rule 38 is not only a judgment but also an
order, such as an order denying an appeal.
Q: Can I file a petition for relief from the denial of an appeal?

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

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

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

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

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

A: The following:
I. As to their nature:
1.) COMPULSORY execution – known as Execution as a Matter of Right (Section 1)
2.) DISCRETIONARY execution – known as Execution Pending Appeal (Section 2)
II. As to how it is enforced (Section 6):

1.) EXECUTION BY MOTION
2.) EXECUTION BY INDEPENDENT ACTION
COMPULSORY EXECUTION
(Execution as a matter of right)
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Section 1. Execution upon judgments or final orders. – Execution shall issue as a

matter of right, on motion, upon a judgment or order that disposes of the action or
proceeding upon the expiration of the period to appeal therefrom if no appeal has
been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case, when the interest of justice
so requires, direct the court of origin to issue the writ of examination.
Q: What are the conditions for compulsory execution?

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

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

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

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

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

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

A: No more, because the new agreement novated the judgment. Take note that in case of
novation, the new obligation must be totally incompatible with the first obligation.
A related question:
Q: Can one court by injunction or restraining order stop the execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to interference.
EXCEPTIONS:(when the enforcement of a final judgment may be stopped by way of injunction)
1.) Rule 38, Section 5:
Rule 38, Section 5: Preliminary injunction pending proceedings. – The court in which
the petition is filed, may grant such preliminary injunction as may be necessary for
the preservation of the rights of the parties, upon the filing by the petitioner of a
bond in favor of the adverse party, conditioned that if the petition is dismissed or
the petitioner fails on the trial of the case upon the merits, he will pay the adverse
party all damages and costs that may be awarded to him by reason of the issuance
of such injunction or the other proceedings following the petition; but such
injunction shall not operate to discharge or extinguish any lien which the adverse
party may have acquired upon the property of the petitioner.
In effect, there is a final and executory judgment but the court will issue an injunction to stop this
enforcement because of the pendency of a petition for relief from judgment.
2.) When there is an action for annulment of judgment of the RTC filed in the CA.
The CA may issue a writ of preliminary injunction – annulment of judgment, certiorari, or prohibition cases
where the CA will issue a preliminary injunction to stop the RTC from enforcing its judgment pending the
resolution of whether its judgment was rendered in excess or without jurisdiction- annulment of judgement,
certiorari, or prohibition cases where the CA will issue a preliminary injunction to stop the RTC from
enforcing its judgement pending the resolution of whether its judgement was rendered in excess or without
jurisdiction.
269
So, those are the exceptions.
SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
Q: Is there any other instances where a judgement maybe executed as a matter of right?
A: YES, when the losing party appealed the RTC decision to the CA and the CA affirmed the decision of the
RTC. Kung may appeal, the judgment is not final, you cannot execute. The case is now in the CA, the CA
decided in your favor, the RTC judgment was affirmed and the CA decision has also become final and executory.
So you can now execute.
Q: How do you execute in that situation?

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

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

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

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

FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES
Q: Is there another instance when execution becomes a matter of right?

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

(a) Execution of a judgment or final order pending appeal. – On motion of the prevailing
party with notice to the adverse party filed in the trial court while it has jurisdiction
over the case and is in the possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such motion, said court may,
in its discretion, order the execution of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal
may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a

special order after due hearing.
(b) Execution of several, separate or partial judgments. - A several, separate or partial
judgment or final order pending appeal.
We’ll now go to the second type of execution - discretionary or execution pending appeal. Discretionary,
meaning, the court may or may not order the execution.
Here, the prevailing party files a motion for execution within the 15 days period. So in other words, the
judgment is not yet final and executory, normally, within the period to appeal.
Q: Normally, can you file a motion for execution within the period to appeal?
A: As a rule, you cannot because it is not yet final. But by EXCEPTION, Section 2 allows you,
provided, according to the last paragraph, discretionary execution may only issue upon ‘good
reason’ to be stated in the special order after due hearing.
Q: Therefore, what are the requisites for discretionary execution?

A: The following are the requisites for discretionary execution:
1.) There must be a motion filed by the prevailing party;
2.) There must be a notice of the motion given to the adverse party; and
3.) There must be good reasons to execute to be stated in a special order after due hearing.
Why discretionary? Because the court may or may not grant the execution depending on whether there is a
good reason or no good reason. Unlike in Section 1, when the judgment has become final and executory, you do
not have to cite any good reason. The only reason for the execution is that the judgment becomes final and
executory. But in the case of execution pending appeal, you must justify it – the party must convince the court
to grant the execution. And remember according to the SC, execution under Section 2 is not the general rule,
that is the exception.
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“The requirement of good reason is important and must not be overlooked, because if the judgment is
executed and, on appeal, the same is reversed, although there are provisions for restitution, oftentimes
damages may arise which cannot be fully compensated. Accordingly, execution should be granted only when
these considerations are clearly outweighed by superior circumstances demanding urgency, and the above
provision requires a statement of those circumstances as a security for their existence.” (City of Bacolod vs.
Enriquez, 101 Phil. 644)
It is even a misnomer – execution pending appeal. For all you know, the losing party may or may not
appeal. It is actually called execution pending appeal because you are filing the motion within the period to
appeal.
Q: What will happen if there are no good reasons?

A: The writ of execution is void because it does not state why you are executing a judgment. (AFWU vs.
Estipona, L-17934, Dec. 28, 1961) And remember that execution pending appeal is the exception rather than
the rule. And there is a possibility that the judgment in your favor will be reversed on appeal.
Q: Suppose we will execute the judgment pending appeal and the appeal will proceed then it will be
reversed, what will happen then?
A: If that happens, then there is Section 5 – eh di, magsaulian tayo if it is reversed totally, partially, or
annulled on appeal or otherwise. There will be MUTUAL RESTITUTION. That is the remedy under Section 5.
But the trouble is ang hirap man ng saulian, eh. There could not be a 100% perfect restitution. That is the same
asking the question, how can you unscramble an unscrambled egg? This is one reason why execution pending
appeal is not favored.
Section 5. Effect of reversal of executed judgment. - Where the executed judgment is

reversed totally or partially, or annulled, on appeal or otherwise, the trial court, may,
on motion, issue such orders and justice may warrant under the circumstances (5a)
Q: Give examples of GOOD REASONS which would justify execution pending appeal.
A: Following are example of good reasons:
1.) When there is danger of the judgment becoming INEFFECTUAL. (Scottish Union vs. Macadaeg,
91 Phil. 891);
In this case of MACADAEG, the plaintiff sued a foreign corporation doing business in the Philippines.
So it has assets no? The plaintiff sued the foreign company and he won, there was award, but hindi pa
final. In the meantime, plaintiff learned the foreign company is going to stop completely its business in
the Philippines and they are going to send back all their assets abroad. Sabi ng na plaintiff: “Aba
delikado ako. Suppose after the appeal, I still win and I will start running after the defendant na wala
naman dito. It has no more office, no operations, no assets; but in the meantime meron pa”? So the
plaintiff filed a motion for execution pending appeal. If we will wait for the judgment to become final, by
that time the judgment will become ineffectual.
2.) OLD AGE; There was a case an old woman files a case against somebody to recover her land from the
defendant which the latter has deprived her of the property for years. The defendant enjoyed the
property and the fruits. After years of litigation she won, she was about 80. And then mag-aappeal pa
yong kalaban. The old woman filed a motion in court asking for immediate execution even if the
judgment is not yet final on the argument that “I have been deprived for years of the possession and of
the property; and there is a probable appeal which may take another couple of years. By the time I win
the case on appeal, I may already be dead. I have not enjoyed the property and the fruits.” The SC said,
all right that is a good reason.
3.) Where the appeal is for the purpose of DELAY;
Q: How about the argument that the intended appeal is dilatory? It is only intended to prolong the
supposed execution and therefore the losing party has a chance to win the appeal. Is that a good
ground for execution pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300) and JAVELLANA vs. QUERUBIN (July 30,
1966) the SC said that, that is a good reason – when the appeal is interposed for delay.
However, in the case of AQUINO vs. SANTIAGO (161 SCRA 570) the SC said that it is not a ground
because it is as if the trial court is already acting like the CA. It is only the CA which has the power to
claim that the appeal is without merit. That’s another reasoning.
But in the case of HOME INSURANCE CO. vs. CA (184 SCRA 318), the SC ruled that, that would be a
good reason again specially that there are many factors to show the inequity of not executing the
judgment immediately (if coupled with other reason). That’s why in the case of
HOME INSURANCE CO. vs. COURT OF APPEALS

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

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

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

A: With regard to execution pending appeal, you can correlate this with RULE 41, SECTION 9 , to wit:
Rule 41, Section 9. Perfection of appeal; effect thereof. - A party’s appeal by notice of
appeal is deemed perfected as to him upon the filing of the notice of appeal in due
time.
A party’s appeal by record on appeal is deemed perfected as to his with respect
to the subject matter thereof upon approval of the record of appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to appeal of
the other parties.
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In appeals by record on appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and the
expiration of the time to appeal of the other parties.
In either case, prior to the transmittal of the original record of the record on
appeal, the court may issue orders for the protection and preservation of the rights
of the parties which do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution pending appeal in
accordance with Section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
The phrase “order execution pending appeal in accordance with Section 2 of Rule 39” was not there in the
Old Rules. Now, that has been added and it jives with Section 2 paragraph (a). Now, for as long as the motion is
filed, before the court loses jurisdiction and provided that the records are still with the trial court , even if the
appeal is subsequently perfected, it can still act on the motion for execution pending appeal.
Now, let us go back to Section 2, Rule 39 on execution of several, separate or partial judgments – meaning,
there are several judgments arising from the same case:
Rule 39, Section 2 [b]:
b) Execution of several, separate or partial judgments. - A several, separate or partial

judgment or final order pending appeal. (2a)
Let us correlate this provision with Rule 36, Sections 4 and 5 AND Rule 37, section 8:
RULE 36, Sec. 4. Several judgments. - In an action against several defendants, the
court may, when a several judgment is proper, render judgment against one or more
of them, leaving the action to proceed against the others. (4)
RULE 36, Sec. 5. Separate judgments. - When more than one claim for relief is
presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out of the transaction or
occurrence which is the subject matter of the claim, may render a separate judgment
disposing of such claim. The judgment shall terminate the action with respect to the
claim so disposed of and the action shall proceed as to the remaining claims. In case
a separate judgment is rendered, the court by order may stay its enforcement until
the rendition of a subsequent judgment or judgments and may prescribe such
RULE 37, Sec. 8. Effect of order for partial new trial. - When less than all of the issues
are ordered retried, the court may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or final order until after the new
trial. (7a)
Q: Can there be two or more judgments arising out of one case?

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

134 SCRA 395
FACTS: The case of Lantin was an action for damages. The court awarded the plaintiff said
damages. So, the plaintiff moved for discretionary execution.
ISSUE: Whether or not execution pending appeal is proper in a judgment for damages.
HELD: The execution pending appeal may be proper for enforcing the collection of
ACTUAL DAMAGES, but it is not proper to enforce the payment of moral or exemplary
damages. So, this is where the SC distinguished.
Why is it that execution pending appeal is proper for the collection of actual damages? In
actual or compensatory damages, the amount is certain. Normally, there are receipts.
The amount is based on evidence.
But the award for moral or exemplary damages is uncertain and indefinite. It is
based on abstract factors like sleepless nights, besmirched reputation. It is hard to
quantify it based on evidence.
The SC said, in many cases the trial court awards a huge amount for exemplary damages but on
appeal, the CA refused to award or totally eliminate the award. So, if the award of moral or
exemplary damages is not certain or fixed, the execution pending appeal may not be proper to
enforce its execution.
Sec. 3. Stay of discretionary execution. - Discretionary execution issued under the

preceding section may be stayed upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is directed, conditioned upon
the performance of the judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part. The bond thus given may be proceeded against
on motion with notice to the surety. (3a)
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Q: Now, assuming that there is an execution pending appeal in favor of the plaintiff under Section 2 and I
am the defendant, is there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now ask the court to fix a supersedeas bond to stop
the execution pending appeal. The bond will answer for any damages that the plaintiff may suffer if the
defendant’s appeal is not meritorious.
And once the supersedeas bond is filed, the court has to withdraw the execution pending appeal.
Supersedeas bond under Section 3 is conditioned upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part.
GENERAL RULE: When a defendant puts up a supersedeas bond, the court shall recall the
execution pending appeal because discretionary execution is the exception rather than the general
rule.
EXCEPTION: Notwithstanding the filing of the supersedeas bond by the appellant, execution
pending appeal may still be granted by the court IF THERE ARE SPECIAL AND COMPELLING
REASONS justifying the same outweighing the security offered by the supersedeas bond. (De Leon
vs. Soriano, 95 Phil. 806)
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may be executed pending appeal
even notwithstanding the filing of a supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil.
806) Support is something which should not be delayed. What is the use of the supersedeas bond when the
need of the plaintiff is today and not 5 or 6 weeks from now? [aber?]
Alright, let us go to the next important classification of execution. The other classification as to the manner
of enforcement could be by MOTION or by INDEPENDENT ACTION.
EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by independent action. - A final and executory

judgment or order may be executed on motion within five (5) years from the date of
its entry.
After the lapse of such time, and before it is barred by the statute of limitations,
a judgment may be enforced by action. The revived judgment may also be enforced
by motion within five (5) years from the date of its entry and thereafter by action
before it is barred by the statute of limitations. (6a)
Q: How do you execute a judgment?

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

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

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

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

A: According to Article 1144 of the New Civil Code, the judgment may be enforced only within ten
(10) years.
Therefore, since the judgment will be enforced by motion for five (5) years, then after the fifth year, it will
be enforced by independent action. So, I will start the civil action for revival of judgment between or after the
5th year but before the 10th year. So, that is what we have to remember.
Q: Do you mean to tell me that I have to file the case all over again, practically repeating what happened 5
years ago?
A: NO, because the judgment in the independent action is a judgment reviving the first judgment.
275
For example, more than 5 years ago I sued you to collect on a promissory note and you alleged payment,
and you lost and the court said that you are liable to me. On the seventh year when I revived that judgment, my
rights are no longer based or derived on the promissory note but on such judgment. But you can still invoke
other defenses such as lack of jurisdiction, fraud. But you cannot question the correctness of the original
judgment because that is already res adjudicata. You are entitled to put up any defense that you have against
me provided that you cannot question the correctness of the original judgment. That is the rule.
Q: Discuss briefly the nature of the action for enforcement of a dormant judgment.
A: The action for enforcement of a dormant judgment is an ordinary civil action the object of which is two-
fold, namely, (a) to revive the dormant judgment, and (b) to execute the judgment reviving it, if it grants the
plaintiff any relief. Hence, the rights of the judgment-creditor depend upon the second judgment. Being an
ordinary civil action, it is subject to all defenses, objections and counterclaims which the judgment-
debtor may have except that no inquiry can be made as to the merits of the first judgment .
Therefore, defenses that do not go to the merits of the first judgment, such as lack of jurisdiction, collusion,
fraud, or prescription, may be set sup by the judgment-debtor. (Cia. Gral. De Tabacos vs. Martinez, 17 Phil. 160;
Salvante vs. Ubi Cruz, 88 Phil. 236) [Taken from Remedial Law Reviewer by Nuevas]
Q: Give the exception to the rule on dormant judgment.

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

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

299 SCRA 733 (December 4, 1998)
276
HELD: “The purpose of the action for revival of a judgment is not to modify the original
judgment subject of the action but is merely to give a creditor a new right of enforcement from the
date of revival.”
“The rule seeks to protect judgment creditors from wily and unscrupulous debtors who, in order
to evade attachment or execution, cunningly conceal their assets and wait until the statute of
limitation sets in.”
Sec. 7. Execution in case of death of party. - In case of the death of a party, execution
may issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee, upon the application of his
executor or administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against his executor or
administrator or successor in interest, if the judgment be for the recovery of real or
personal property, or the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after execution is actually levied
upon any of his property, the same may be sold for the satisfaction of the judgment
obligation, and the officer making the sale shall account to the corresponding
executor or administrator for any surplus in his hands. (7a)
This is related to Rule 3, Section 20.
Q: What is the effect of a death of a party on the execution of a judgment?

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

judgment for money by demanding from the judgment obligor the immediate
payment of the full amount stated in the writ of execution and all lawful fees. The
judgment obligor shall pay in cash, certified bank check payable to the judgment
obligee, or any other form of payment acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the judgment obligee or his
authorized representative if present at the time of payment. The lawful fees shall be
handed under proper receipt to the executing sheriff who shall turn over the said
amount within the same day to the clerk of court of the court that issued the writ.
STEPS: (under paragraph [a])

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

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

A: Any – real, personal, tangible, intangible – except those properties exempt from execution.
Q: Does the debtor has the right to tell the sheriff what property he should levy?
A: YES. The law gives the debtor or defendant the option to immediately choose which property or part
thereof may be levied upon sufficient to satisfy the judgment. Example: I am the debtor and I have many
properties. And the sheriff would like to levy on my house and lot, or ‘yung Toyota Altis ko. Under the law, I have
the right to choose among them.
The phrase “giving the latter the option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment.” This did not appear under the old law. This is taken from the
case of PHILIPPINE MILLS vs. DAYRIT (192 SCRA 177), where the SC said the debtor is given the option of which
property shall be levied.
And the sequence of levying is to levy the personal properties first. Then real properties if personal
properties are not sufficient.
Under the second paragraph of [b], when the sheriff levies on the property of the judgment debtor and the
judgment debtor has more than sufficient property to cover the judgment debt, the sheriff cannot levy all the
properties. Or else, he will be made liable. For example, the debt is only P 30,000, tapos ang i-levy mo kotse
(Toyota Altis) at bahay, which worth millions? My golly! That’s too much! You sell only up to the point that the
judgment will be satisfied.
Q: But if it is real property or intangible personal property like shares of stock, debts, credits (collectibles),
can you levy on these?
A: YES. And under the last paragraph of [b] They may be levied upon in like manner and with like effect as
under a writ of attachment under Rule 57 on attachment.
GARNISHMENT – HOW TO LEVY
Paragraph [c] of Section 9 is on how to levy intangibles. When you want to levy or you want to
execute on intangible property, the legal term there is garnishment.
(c) Garnishment of debts and credits. - The officer may levy on debts due the
judgment obligor and other credits, including bank deposits, financial interests,
royalties, commissions and other personal property not capable of manual delivery
in the possession or control of third parties. Levy shall be made by serving notice
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upon the person owing such debts or having in his possession or control such credits
to which the judgment obligor is entitled. The garnishment shall cover only such
amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5) days from
service of the notice of garnishment stating whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of the judgment. If not, the report
shall state how much funds or credits the garnishee holds for the judgment obligor.
The garnished amount in cash, or certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the judgment obligee within ten (10)
working days from service of notice on said garnishee requiring such delivery, except
the lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or credits
sufficient to satisfy the judgment, the judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees who shall be required to deliver the
amount due; otherwise, the choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under paragraph (a) with
respect to delivery of payment to the judgment obligee. (8a, 15a)
Q: So, what are these properties which may be the subject of garnishment?
A: Credits which include bank deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery – intangibles bah! You send a notice upon the person owing such debts
or having in his possession or control such credits. And it shall cover only such amount as will satisfy the
judgment.
Example of garnishment: bank account. I will file a case against you, talo ka. I learned that you have a
deposit with Sanikoh Bank. Puwede kong habulin yan ba, because that is credit. In obligations and contracts,
the relationship of the depositor and the bank is that of a creditor and debtor. It is not a contract of deposit
because actually, the bank is borrowing money from you. Kaya nga, it pays you interest eh.
So, under garnishment, the bank is being commanded not to pay you but instead pay the sheriff. Yaan!! Yan
ang concept ng garnishment. Garnishee refers to the debtor, like the bank. When the bank deposit is
garnished, the second paragraph tell us what the bank will do. And if there are 2 or more banks na ma-garnish,
under the next paragraph, the debtor obligor will determine. If he does not exercise his option, then the
judgment creditor will determine.
EXECUTION OF JUDGMENT OTHER THAN MONEY
Section 10 is the procedure for executing a judgment other than to collect money. Sometimes, money is
only incidental. There are court decisions could be something else like specific performance, or accion
publiciana. You are more interested in recovering your property. Another is Unlawful Detainer where unpaid
rentals may be paid but the plaintiff is more interested in the ejectment – the unpaid rentals can be collected in
the same manner as Section 9.
Sec. 10. Execution of judgments of specific act. -

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs
a party to execute a conveyance of land or personal property, or to deliver deeds or
other documents, or to perform any other specific act in connection therewith, and
the party fails to comply within the time specified, the court may direct the act to be
done at the cost of the disobedient party by some other person appointed by the
court and the act when so done shall have like effect as if done by the party. If real
or personal property is situated within the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of any party and vest it in
others, which shall have the force and effect of a conveyance executed in due form
of law. (10a)
xxxxx
EXAMPLES of the first sentence:

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

A: The sheriff will give the defendant the chance to vacate the property, “I am giving you the chance to
vacate within three (3) working days and restore possession thereof.” And then ayaw mo pa rin, I will use force
to oust you with the assistance of the appropriate peace officers and place the judgment obligee in possession
of such property.
And if there are damages or unpaid rentals, I will also levy the property under Section 9. Because
sometimes, aside from ousting the defendant, meron pang money judgment like unpaid rentals. So, the
property of the defendant may be levied. That is the procedure.
In the 1995 case of
SAN MANUEL vs. TUPAS

249 SCRA 466
HELD: “The immediate enforcement of a writ of ejectment execution is carried out by giving the
defendant a notice of such writ and making a demand that defendant comply therewith within a
reasonable period, normally from three (3) to five (5) days, and it is only after such period that the
sheriff enforces the writ by the bodily removal of the defendant and his personal belongings.”
(d) Removal of improvements on property subject of execution. - When the property

subject of the execution contains improvements constructed or planted by the
judgment obligor or his agent, the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued upon motion of the
judgment obligee after due hearing and after the former has failed to remove the
same within a reasonable time fixed by the court. (14a)
Q: When you oust the defendant in regard of a possession case, is a writ of execution a sufficient basis for
the removal of improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment obligee still have to get a special order from the court
by filing a petition to authorize the destruction or removal of the improvements of the property after the
defendant is given a reasonable time to remove his shanty or house voluntarily.
In other words, there must be a special order. The writ of execution only authorizes you to oust
the defendant physically, but not to destroy any property. Just like in squatters, you need a special
order for demolition.
(e) Delivery of personal property. - In judgments for the delivery of personal

property, the officer shall take possession of the same and forthwith deliver it to the
party entitled thereto and satisfy any judgment for money as therein provided. (8a)
Paragraph [e] is related to REPLEVIN – action to recover personal property – where the plaintiff is trying to
repossess a personal property from the defendant. For example, bili ka ng appliance tapos hindi mo nabayaran,
babawiin yan ng appliance center. Or, the finance company or the car dealer will resort to replevin to recover
the unit by filing an action for replevin against the buyer.
Take note that the procedure for enforcing a money judgment is different from enforcing a judgment for
ejectment, or recovery of possession. Enforcement of money judgment is in Section 9 – you get the money.
Kung walang money, you levy on the property of the defendant. If it is ejectment or recovery of possession of
property, you follow Section 10, paragraph [c].
Now, here is an interesting case involving these two sections (Sections 9 & 10) –the 1995 case of
ABINUJAR vs. COURT OF APPEALS

243 SCRA 531
FACTS: The case of Abinujar started when the plaintiff filed a case for unlawful detainer against
the Abinujar spouses for the latter to vacate their house in Manila. When the case was going on, the
parties executed a compromise agreement which became the basis of the judgment by the court,
so a compromise judgment.
The agreement stated that the Abinujar spouses shall pay the plaintiffs the amount specifically
agreed upon: P50,000 on January 31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until
September 30. It further states that failure on the part of the Abinujar spouses to pay three (3)
consecutive payments, the plaintiffs shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution on the ground that the
Abinujars failed to pay the three installments. The trial court granted the motion and the notice to
the defendant to voluntarily vacate the premises was served on the Abinujars.
The Abinujars attacked the validity of the sheriff’s notice to vacate by way of enforcing the
compromise judgment. They maintained that their obligation is monetary and therefore you should
apply Section 9 – you collect but do not eject us. The plaintiffs argued that what is applicable is
Section 10 on ejectment because this is an unlawful detainer case.
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ISSUE: Which section shall be applied – Section 9? or Section 10?
HELD: The contention of the Abinujars is meritorious – meaning, you cannot eject the Abinujars.
“When the parties entered into a compromise agreement, the original action for
ejectment was set aside and the action was changed to a monetary obligation.
“A perusal of the compromise agreement signed by the parties and approved by the inferior
court merely provided that in case the Abinujars failed to pay three monthly installments, the
plaintiffs would be entitled to a writ of execution, without specifying what the subject of execution
would be. Said agreement did not state that Abinujars would be evicted from the premises subject
of the suit in case of any default in complying with their obligation thereunder. This was the result of
the careless drafting thereof for which only plaintiffs were to be blamed.
“As Abinujar’s obligation under the compromise agreement as approved by the court was
monetary in nature, plaintiffs can avail only of the writ of execution provided in Section 9, and not
that provided in Section 10.”
ORDINARY AND SPECIAL JUDGMENT
Sec. 11. Execution of special judgments. - When a judgment requires the

performance of any act other than those mentioned in the two preceding sections, a
certified copy of the judgment shall be attached to the writ of execution and shall be
served by the officer upon the party against whom the same is rendered, or upon any
other person required thereby, or by law, to obey the same, and such party or person
may be punished for contempt if he disobeys such judgment. (9a)
There are two (2) types of judgment under the law: (1) SPECIAL and (2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the defendant to pay money, like a collection case
(Section 9) or to deliver real or personal property (Section 10).
SPECIAL JUDGMENT – is a judgment which requires the defendant to perform an act other than payment
of money or delivery of property. It refers to a specific act which a party or person must personally do because
his personal qualifications and circumstances have been taken into consideration.
EXAMPLE of a special judgment: Usurpation of government office. You are the city treasurer and somebody
else is appointed city treasurer and you refuse to vacate. So there will be a quo warranto proceeding. Then the
judgment will order you to vacate your position, such judgment is a special judgment because you are not
ordered to pay anything nor deliver property.
Q: What is the difference between the Ordinary and Special judgments?

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

A: Section 9 of Rule 65 – Special Civil Action for Certiorari, Prohibition and Mandamus, to wit:
Rule 65, Sec 9. Service and enforcement of order or judgment.- A certified copy of the
judgment rendered in accordance with the last preceding section shall be served
upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person
concerned in such manner as the court may direct, and disobedience thereto shall be
punished as contempt. An execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
Therefore, a judgement in a certiorari, prohibition or mandamus case, if not complied with, is

punishable by contempt.
Sec. 12. Effect of levy on execution as to third persons. - The levy on execution shall
create a lien in favor of the judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy, subject to liens and
encumbrances then existing. (16a)
This is related to Property Registration Decree.
EXAMPLE: I own a piece of land which I mortgaged with the bank. The bank annotated the mortgage on my
title. My land is now subject to a lien or an encumbrance. I also owe money to A. He sued me. He won and my
land is levied.
Q: What happens to the mortgage lien of the bank? Will it be affected by the levy of A?
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A: NO. Even if the property is sold at public auction and we will assume that it will go to A, that property is
still under mortgage. A has to respect the lien – nauna yung sa bank eh! Wherever the property goes, it is
subject to the mortgage lien of the bank because the bank’s lien is superior.
Therefore, an execution is always subject to the liens and encumbrances of the property then existing.
PROPERTIES EXEMPT FROM EXECUTION
We already discussed the rule that to satisfy a money judgment, the sheriff can levy on the properties of the
judgment obligor. All properties are subject, except those exempt from execution. What are the properties of a
defendant-debtor which cannot be subject to a levy or execution?
Sec. 13. Property exempt from execution. - Except as otherwise expressly provided
by law, the following property, and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by law, or the homestead in
which he resides, and land necessarily used in connection therewith;
You have a house where your family resides. You call it “FAMILY HOME” – it is the house where the members
of the family reside, including the lot.
Q: For instance, you lost in a case where you are liable for P200T. You have no other property left except
that house where you live. Can the sheriff levy the house to answer such obligations?
A: NO. The judgment obligor’s family home and the land necessarily used in connection therewith is
exempt. That is a guarantee that no matter how many obligations you have, there is no way for you to be
thrown to the street – to be a homeless person. Your house cannot be levied; but in the Family Code, there’s a
limit, if your house is a mansion worth millions, that is not exempt. Please review your Family Code on this
matter.
(b) Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
This is self-explanatory. If you are a carpenter, you earn your living by being a carpenter. What are the
ordinary tools that you must have? Saw, hammer, etc. By public policy and by legal provision, the tools and
implements used by a carpenter in his trade, employment, or livelihood cannot be levied by the sheriff.
Under the prior law, there was no word “ordinary” and “personally”. The old law says, “tools and
implements used by him”. In the new rules, the words “ordinary” and “personally” are added. What is the
reason behind this? This provision is in accordance with what the SC ruled in the 1990 case of
PENTAGON SECURITY vs. JIMENEZ

192 SCRA 492
FACTS: The Pentagon Security and Investigation Agency (PSIA) is a security agency owned by
somebody who is engaged in security services. Because of a money judgment against the agency in
a labor case, the sheriff levied all the firearms of the agency. PSIA claimed that the firearms are
exempt from execution under paragraph [b] since they are tools and implements used by the
agency in its trade, employment or livelihood because how can a security agency operate without
firearms.
ISSUE: Is the argument of PSIA correct?
HELD: NO. The firearms owned by PSIA are not covered by the exemption.
“The term ‘tools and implements’ refers to instruments of husbandry or manual labor needed
by an artisan craftsman or laborer to obtain his living. Here, PSIA is a business enterprise. It does
not use the firearms personally, but they are used by its employees. Not being a natural person,
petitioner cannot claim that the firearms are necessary for its livelihood.”
“It would appear that the exemption contemplated by the provision involved is
personal, available only to a natural person, such as a dentist’s dental chair and electric
fan. If properties used in business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the business entity.”
Meaning, if the exemption is extended to a juridical person like a corporation, then practically all the
properties needed by the business could be considered as tools and implements. For EXAMPLE, you will sue a
carrier like Bachelor Bus and you won. Then you will levy on the bus. Bachelor will claims exemption because
that is a tool or implement.
Or, you file a case against PAL. They lost. You levy on the airbus. PAL alleged exemption because it is a tool
or implement. My golly! Lahat ng properties, “tools or implements!”? Di pwede yan! That is not what the law
contemplates.
Now, what is interesting in the PENTAGON case is that the SC says that firearms can be levied, they can be
sold at public auction. SC: “However, for security reasons, and to prevent the possibility that the firearms to be
sold at the execution sale may fall into the hands of lawless and subversive elements, the sale at public auction
should be with the prior clearance and under supervision of the PNP.” Otherwise, the persons who might bid are
kidnappers, NPA, Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto Pinish, Polgas, PAOCTF,
Osama bin Laden et al, etc.) So, there must be a prior clearance on the sale of the firearms during the auction
sale.
(c) Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his ordinary
occupation;
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For example, you are a farmer. You plow your land by a carabao. You cannot levy the carabao. OR, if you are
a cochero, you have a horse for your caretela. You cannot levy the horse. [ang horse shit, pwede! Pero yung
horse mismo, di pwede!] And under the prior rules, only 2 horses, 2 cows or carabaos are exempt. The new
rules make it three (3).
(d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
You cannot levy on the debtor’s wardrobe. These are articles for ordinary personal use. This article excludes
jewelry. Alahas, pwede i-levy. All other things for basic needs are exempt, like personal comb, toothbrush, etc.
(e) Household furniture and utensils necessary for housekeeping, and used for
that purpose by the judgment obligor and his family, such as the judgment obligor
may select, of a value not exceeding one hundred thousand pesos;
Household furniture like dining table, dining chair, sala set, utensils necessary for housekeeping and used
for the purpose by the obligor and his family like plates, forks, spoons. How can you eat without those utensils.
BUT there’s a limit that the value does not exceed P100,000. If the value exceeds, it can be levied.
There was a sheriff who asked me (Dean I). According to him, he was enforcing a money judgment. The
sheriff went to the house of the debtor. He took the stereo, TV set, refrigerator. Defendant said, “Hindi pwede
dahil hindi pa umabot ng P100,000.” Sabi ko, you look at the law: You cannot levy those furnitures if not
exceeding P100,000. In my (Dean’s) view, covered yan. But utensils not necessarily for living are not covered
by the exemption. They are luxury, not necessary. These TV, sala set, refrigerator can be levied because they
are not necessary for living as contrasted to kutsara, plato, etc. (Dean however refused to answer the sheriff
whether the properties in question can be levied. Tanungin mo ang abogado mo!)
(f) Provisions for individual or family use sufficient for four months;
For example, one sack of rice for daily consumption, canned goods – provisions for consumption good for 4
months are exempt. If you have one bodega of rice, ibang storya yan.
(g) The professional libraries and equipment of judges, lawyers, physicians,

pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professional, not exceeding three hundred thousand (P300,000.00) pesos in value;
Your books, books of judges and professionals and equipment – maybe the computer, typewriter, dentist’s
chair, equipment of engineers are exempt provided the value does not exceed P300,000.
(h) One fishing boat and accessories not exceeding the total value of one
hundred thousand (P100,000.00) pesos owned by a fisherman and by the lawful use
of which he earns his livelihood;
Example: Fishing boat of a fisherman, the accessories – net, provided these do not exceed P100,000.
(i) So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are necessary for the
support of his family;
The salary of a person within 4 months is exempt. For example, you have backwages of 6 months. Only 2
months salary can be levied. Exempt ang 4 months.
Technically, wages and salaries are exempt as long as they are necessary for support of living. If you earn a
minimum wage, everything may be exempted. But if you earn P50,000 a month and you support only two
people, the court may levy on the excess.
(j) Lettered gravestones;
Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on lettered gravestones? My golly!
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing

out of any life insurance;
The proceeds of life insurance. The amount received by the beneficiaries cannot be levied, not a single
centavo.
(l) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
The right to receive legal support. The right ba! For instance, ako na lang ang mag receive ng support mo.
Hindi pwede yan. Also the money given monthly to you if you are receiving support cannot be levied. Any
pension or gratuity from the government – GSIS pension, for example.
(m)Properties specially exempted by law.
This is very broad – any other property exempt by special law.
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Q: Give an example where a property is exempt from execution under the special law?
A: The following:
1.) Property obtained pursuant to a free patent application, HOMESTEAD. That is not subject to any
claim within 5 years. You cannot even sell that within 5 years, how much more kung
embargohin sa iyo? That is under CA 141 – Public Land Law;
2.) Under Social Legislation, SSS benefits are also exempt from execution, just like GSIS benefits;
3.) Under CARP law, the property acquired by a tenant under that law cannot be levied also.
Section 13, last paragraph:
But no article or species of property mentioned in this section shall be exempt

from execution issued upon a judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon. (12a)
The last paragraph of Section 13 says that if for example, you ordered books and you failed to pay, you
cannot claim the exemption because the obligation arose from the same item. For example:
BAR PROBLEM: A lawyer went to Alemars professional books supply. He bought books worth half a million.
That was utang – P500,000. The store decided to sue the lawyer for such amount not paid. The bookstore got a
judgment. There was a levy on the lawyer’s property. The sheriff levied on the same books which became the
source of the case. The lawyer claimed exemption under Section 13 up to P300,000 because it forms part of his
professional library. Is the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of Section 13 that no article or species of properties
mentioned in this section shall be exempt from execution issued upon a judgment recovered for the price or
upon a judgment of foreclosure of a mortgage thereon.
What the law says, is the properties mentioned here (in Section 13) are exempt, EXCEPT when
that debt arose out of that property. For example, here, why are you indebted to Alemars? Because of
unpaid books. So the very books which gave rise to an obligation are not exempt from execution.
But if another creditor will file a case against the lawyer, and that other creditor will win, that creditor
cannot levy on the books because they are exempt. But the creditor from whom the books were bought can
levy on the same books which gave rise to an obligation.
The same thing with FAMILY HOME. For example, you will build a family home and then, hindi mo binayaran
ang materials, labor and there was judgment against you. The creditor and the owner can levy on the house. He
cannot claim exemption because the debt arose out of that same family home.
Another example: You borrowed money from the bank. You mortgaged your house. Later on, you cannot pay
the loan. The bank foreclosed the mortgage. You cannot argue that your house cannot be levied. Kaya nga may
utang ka because of your house. Since you mortgaged it, that is not covered by the exemption.
Q: What is the REASON behind this exemption?

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

court issuing the writ of execution. No claim for damages for the taking or keeping of
the property may be enforced against the bond unless the action therefor is filed
within one hundred twenty days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed. Nothing herein contained
shall prevent such claimant or any third person from vindicating his claim to the
property in a separate action, or prevent the judgment obligee from claiming
damages in the same or a separate action against a third-party claimant who filed a
frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be required, and in
case the sheriff or levying officer is sued for damages as a result of the levy, he shall
be represented by the Solicitor General and if held liable therefore, the actual
damages adjudged by the court shall be paid by the National Treasurer out of such
funds as may be appropriated for the purpose. (17a)
Section 16 is a third-party claim procedure in execution. In Spanish, it is called the remedy of TERCERIA.
ILLUSTRATION: Lolo decided to go on a prolong vacation and he entrusted to Karen (ang paborito ni Lolo) all
his personal property like appliances – TV, refrigerator, car, etc. Karen used the property owned by Lolo while he
was not around. Unknown to Lolo, Karen has a pending civil case filed by Gina. Gina obtained a judgment
against Karen. There was levy on execution. The sheriff went to the premises of Karen, he found all these
properties and he enforced the levy.
Lolo came home and went to get the property from Karen. Karen said, they were all levied by the sheriff.
Lolo is a person who is not the defendant but his properties were erroneously levied because the sheriff thought
they belong to Karen who was in possession of them.
Q: What is the remedy of Lolo who is not a defendant?
A: The remedy is to apply Section 16, Rule 39 – You file with the sheriff, copy furnish Gina, what is known as
the third-party claim or TERCERIA. Terceria is an affidavit asserting that he is the owner of the property levied.
So with that the sheriff is now placed on guard because the sheriff may be held liable if he continues to sell the
property of the defendant. So, he is not bound to the proceedings regarding the sale unless the judgment
obligee, on demand of the sheriff, files a bond approved by the court to indemnify a third party claimant in the
sum not less than the value of the property levied on.
Suppose sabi ni Gina: “Huwag kang maniwala diyan. Kalokohan iyan. Drama lang yan ni Karen at Lolo.
Proceed with the auction sale!” Gina has to file a bond if he insists that the auction sale must proceed. Gina
must put up a bond approved by the court to indemnify the third-party claimant, a sum not less than the value
of the property. If the property is worth half a million, the bond must also be half a million. Then auction sale
may proceed because there’s already a bond to answer for the damages. The sale may go on despite the third
party claim.
THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
Now, do not confuse a third-party claim under Rule 39 with a third-party complaint under Rule 6.
Q: What is a third-party complaint under Rule 6?

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

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

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

242 SCRA 702
HELD: The remedies of a third person whose property was seized by the sheriff to answer for
the obligation of a judgment obligor are the following:
1. Invoke the supervisory power of the court which authorized such

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: Only the DEED OF CONVEYANCE transfers title to the property.
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The certificate of sale one year ago does not transfer the ownership of the land to the purchaser. It is only a
memorial that you are the highest bidder, that you paid so much and that you are the purchaser but there is no
transfer of ownership. Only the final deed of sale in Section 33 conveys title to property. So do not confuse the
sheriff’s certificate of sale under Section 25 with the final deed of sale under Section 33.
Although in an extra-judicial foreclosure, there is no need of deed of sale. Only affidavit of

consolidation is needed under the mortgage law.
Q: How can the sheriff give it to you? Suppose the debtor refuse to vacate, is there a need to file another
action of unlawful detainer or forcible entry?
A: There is no more need of filing another action to eject the former owner. The procedure is, the purchaser
can ask the court to issue a WRIT OF POSSESSION under the Property Registration Decree to take over the
property.
Now, another interesting case about this stage in relation to property exempted from execution, is the case
of
GOMEZ vs. GEALONE

203 SCRA 474 [1991]
FACTS: The property of the defendant was levied and sold in a public auction to the highest
bidder. One year after, there was no redemption. Then after the period has expired, here comes the
defendant questioning the auction sale because the property was exempt from execution and the
property really turned out to be exempt from execution.
ISSUE: Is there a deadline for a judgment debtor to claim exemption from execution of his
property? Can the debtor still raise the issue that the property is exempt from execution after the
expiration of the redemption period.
HELD: The rules do not expressly mention up to what point “although the rules of court does
not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-settled
that the right of exemption must be claimed by the debtor himself at the time of the levy or within a
reasonable time thereafter.” What is “reasonable time”?
“’REASONABLE TIME,’ for purposes of the law on exemption, does not mean a time after the
expiration of the one-year period for judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of
execution - to put an end to litigation.”
“We now rule that claims for exemption from execution of properties under Section
13 must be presented before its sale on execution by the sheriff.”
Meaning, you raise the issue of exemption at the time of the levy but not later that the auction sale. There
is a deadline because if you claim exemption after that, masyadong ng atrasado—too late na ba. Thus, the
claim for exemption must be raised. That’s the ruling in the case of GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale not effective; revival of judgment. If the purchaser of
real property sold on execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in consequence of irregularities in the
proceedings concerning the sale, or because the judgment has been reversed or set
aside, or because the property sold was exempt from execution, or because a third
person has vindicated his claim to the property, he may on motion in the same action
or in a separate action recover from the judgment obligee the price paid, with
interest, or so much thereof as has not been delivered to the judgment obligor; or he
may, on motion, have the original judgment revived in his name for the whole price
with interest, or so much thereof as has been delivered to the judgment obligor. The
judgment so revived shall have the same force and effect as an original judgment
would have as of the date of the revival and no more. (36a)
Q: Suppose A is the highest bidder. There is a third-party claim which turned out to be valid. So the property
is removed from A. So, paano naman si A? Nakabayad gud siya diyan. Paano niya babawiin ang kuwarta niya?
A: A’s options under Section 34:
1.) Recover the money from obligee (A here is not the judgment obligee); or
2.) Have the judgment revived in your name and you look for other properties of the obligor
to execute because:
a.) He lost possession of the property;
b.) He was evicted;
c.) There was irregularity of the proceedings;
d.) The judgment has been reversed or set aside on appeal;
e.) The property sold was exempt from execution; or,
f.) A third person has validity of his claim of the property.
That’s one way of property being removed from the purchaser. Your remedy is to recover the money from
the obligee ASSUMING that the obligee is different from the purchase. Or have the judgment revived in your
name – hahabol ka na lang sa ibang properties ng debtor. That’s the procedure alright.
Sec. 35. Right to contribution or reimbursement. When property liable to an execution

against several persons is sold thereon, and more than a due proportion of the
judgment is satisfied out of the proceeds of the sale of the property of one of them,
or one of them pays, without a sale, more than his proportion, he may compel a
contribution from the others; and when a judgment is upon an obligation of one of
them, as security for another, and the surety pays the amount, or any part thereof,
either by sale of his property or before sale, he may compel repayment from the
principal. (37a)
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Q: The judgment is against A, B, and C, solidary debtors. A paid everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim reimbursement from the principal debtor. That’s
under the Law on Obligations and Contracts—right to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are the so-called provisions of the rules in aid of
execution – remedies “in aid of execution” – because execution is a difficult process. The purpose of the
remedies in aid of execution is to help the obligee realize the fruits of the judgment.
It is sometimes very hard to grasp out properties of the obligor especially if he knows how to hide them by
conveying remedies to assist him in locating the properties of the defendant and these remedies in aid of
execution are found in Section 36 to Section 43. And the most famous are those found in Sections 36 and 37:
Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the return
of a writ of execution issued against property of a judgment obligor, or any one of
several obligors in the same judgment, shows that the judgment remains unsatisfied,
in whole or in part, the judgment obligee, at any time after such return is made,
shall be entitled to an order from the court which rendered the said judgment,
requiring such judgment obligor to appear and be examined concerning his property
and income before such court or before a commissioner appointed by it, at a
specified time and place; and proceedings may thereupon be had for the application
of the property and income of the judgment obligor towards the satisfaction of the
judgment. But no judgment obligor shall be so required to appear before a court or
commissioner outside the province or city in which such obligor resides or is found.
(38a)
Sec. 37. Examination of obligor of judgment obligor. When the return of a writ of
execution against the property of a judgment obligor shows that the judgment
remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the
court which issued the writ, that a person, corporation, or other juridical entity has
property of such judgment obligor or is indebted to him, the court may, by an order,
require such person, corporation, or other juridical entity, or any officer or member
thereof, to appear before the court or a commissioner appointed by it, at a time and
place within the province or city where such debtor resides or is found, and be
examined concerning the same. The service of the order shall bind all credits due the
judgment obligor and all money and property of the judgment obligor in the
possession or in the control of such person, corporation, or juridical entity from the
time of service; and the court may also require notice of such proceedings to be
given to any party to the action in such manner as it may deem proper. (39a)
So under Section 36, you can ask the court to render judgment to allow you to subpoena the obligor and
take the witness stand subject to questioning so that you can discover where his properties are. So in effect,
Section 36 is related to modes of discovery. This is actually a mode of discovery. This is a type of deposition
taking. It is related to the subject of deposition taking where the discovery of the witness stand to effect
execution.
EXAMPLE: The sheriff did not find any property of the obligor. So the obligee can file a motion under Section
36 for examination of the obligor under oath hoping that in the course of asking questions, he might make
some admissions. And the procedure is the same as in deposition but this is only done right inside the
courtroom.
On the other hand under Section 37, you can also examine people whom you believe owe the obligor such
as his debtors, or those holding his property, so that you can discover all his collectibles and ask that the same
be garnished. So this time, it is the “obligor” of the judgment obligor who will be examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a sum of money. The obligee can file a
motion under Section 37 to subpoena Kenneth, Thadd and Francis to find out if it is true that they are indebted
to the judgment obligor. In this case, the obligee can as the court to garnish the money.
So, those are the objects of Sections 36 and 37. Of course there are others, just go over them.
Sec. 38. Enforcement of attendance and conduct of examination. A party or other

person may be compelled, by an order or subpoena, to attend before the court or
commissioner to testify as provided in the two preceding sections, and upon failure
to obey such order or subpoena or to be sworn, or to answer as a witness or to
subscribe his deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the proceedings may be adjourned
from time to time, until they are completed. If the examination is before a
commissioner, he must take it in writing and certify it to the court. All examinations
and answers before a court or commissioner must be under oath, and when a
corporation or other juridical entity answers, it must be on the oath of an authorized
officer or agent thereof. (40a)
Section 38 is the continuation of Section 37. If the judgment obligor, or Kenneth, Thad and Francis refuse to
comply with the subpoena, they can be punished for contempt.
Sec. 39. Obligor may pay execution against obligee. After a writ of execution against
property has been issued, a person indebted to the judgment obligor may pay to the
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sheriff holding the writ of execution the amount of his debt or so much thereof as
may be necessary to satisfy the judgment, in the manner prescribed in section 9 of
this Rule, and the sheriff's receipt shall be a sufficient discharge for the amount so
paid or directed to be credited by the judgment obligee on the execution. (41a)
Here, there is a change of the party creditor. The best example is garnishment from a bank. B is the debtor
of the judgment obligor. If B, instead of paying the judgment obligor, will pay the judgment creditor, B is no
longer indebted to the judgment obligor.
Sec. 40. Order for application of property and income to satisfaction of judgment. The
court may order any property of the judgment obligor, or money due him, not exempt
from execution, in the hands of either himself or another person, or of a corporation
or other juridical entity, to be applied to the satisfaction of the judgment, subject to
any prior rights over such property.
If, upon investigation of his current income and expenses, it appears that the
earnings of the judgment obligor for his personal services are more than necessary
for the support of his family, the court may order that he pay the judgment in fixed
monthly installments, and upon his failure to pay any such installment when due
without good excuse, may punish him for indirect contempt. (42a)
If upon investigation of his current income and expenses, it appears that the earnings of the judgment
obligor for his personal services are more than necessary for the support of his family, the court may order that
he pay the judgment obligee in fixed monthly installments, and upon his failure to pay any such installment
when due without good excuse, may punish him for indirect contempt.
Q: Can the salary of an employee be garnished?

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

A: YES. The obligee is now considered as a representative party. Section 43 is an example of the
phrase, “or a party authorized by law or these Rules…” under Rule 3, Section 3:
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Sec. 3. Representatives as parties. x x x x x A representative may be a trustee of an
express trust, a guardian, an executor or administrator, or a party authorized by law
or these Rules. x x x x x x
SATISFACTION OF JUDGMENT
Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment

shall be entered by the clerk of court in the court docket, and in the execution book,
upon the return of a writ of execution showing the full satisfaction of the judgment,
or upon the filing of an admission to the satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance of real property by the judgment
obligee or by his counsel unless a revocation of his authority is filed, or upon the
endorsement of such admission by the judgment obligee or his counsel on the face of
the record of the judgment. (46a)
Sec. 45. Entry of satisfaction with or without admission. Whenever a judgment is

satisfied in fact, or otherwise than upon an execution, on demand of the judgment
obligor, the judgment obligee or his counsel must execute and acknowledge, or
indorse, an admission of the satisfaction as provided in the last preceding section,
and after notice and upon motion the court may order either the judgment obligee or
his counsel to do so, or may order the entry of satisfaction to be made without such
admission. (47a)
Q: What does satisfaction of judgement mean?

A: SATISFACTION OF JUDGMENT is the compliance with or fulfillment of the mandate thereof (31
Am. Jur. 354).
Execution is not the same as satisfaction. Execution is the method of enforcement of a

judgment. Satisfaction refers to compliance with or fulfillment of the mandate of judgment.
Normally, execution precedes satisfaction. But you can satisfy a judgment without execution by simply paying
voluntarily. And when the judgment is satisfied, it has to be recorded the manner of which is found in Sections
44 and 45 – either the sheriff himself will record “fully satisfied,” or, the creditor will file an admission that
the judgment is fully satisfied, or, the debtor on motion will ask that it be recorded that he has
already paid.
Q: Who may compel satisfaction of judgment?

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

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

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

A: There is res judicata if the following REQUISITES are present: FJMI
1.) The judgment or order invoked as res adjudicata must be final;

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

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

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

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

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

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

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

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

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

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

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

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

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

VDA FISH BROKER vs. NLRC
228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of service incentive leave, COLA,
13th month pay, holiday pay, is dismissed based on the finding that no employer-employee
relationship existed between the complainant and the respondent. The ruling became final.
Subsequently, the same complainants filed another case against the same respondent for
reinstatement due to illegal dismissal. (How can you file for reinstatement na wala man kayong
ER-EE relationship in the first case???)
ISSUE: Is the finding of no ER-EE relationship in the first case res adjudicata to the second case
for illegal termination?
HELD: YES. “The issue of employer-employee relationship is crucial in the

determination of the rights of the parties in both cases. Res adjudicata applies even
when the cause of action is not similar under the concept of conclusiveness of judgment .
The ruling in the first case that there is no Employer-Employee relationship between the parties is
conclusive in subsequent cases although the cause of action is not the same.”
“If were we to ignore the principle of res judicata, an absurd situation would arise where the
same administrative agency would have diametrically opposed conclusions based on apparently
similar circumstances.” This is what will happen - for the second case, there is ER-EE relationship. It
is the same agency which said there is none in the first case. Conflict!
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH RES JUDICATA:

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

A: LAW OF THE CASE means that legal conclusions announced on a first appeal, whether on the general
law of the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court
to strict obedience and conformity thereto, but they become and remain the law of the case in all after steps,
whether in the lower court of in the appellate court on a subsequent appeal. (Zarate vs. Dir. of Lands, 39 Phil.
747)
EXAMPLE of law of the case: There is a case between us and then an issue is raised before the CA and
there is a ruling, right or wrong. That ruling will subsequently bind the parties in the same litigation. Once the
case comes back, the future now of the case will be governed by that ruling. Right or wrong, that principle will
now be the controlling principle affecting the parties. The principle will continue until the case is terminated.
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TABACO vs. COURT OF APPEALS
239 SCRA 485 [1994]
ISSUE: Can a case be re-opened if the law of the case has been changed?
HELD: NO, because when the case was decided, it was the governing law at the time, even if it
turns out to be wrong.
“Under the law of the case concept, whatever is once irrevocably established as the
controlling legal principle or decision continues to be the law of the case between the
same parties in the same case, whether correct or not, so long as the facts on which
such decision was predicated continue to be the facts of the case before the court . Such
stability and conclusiveness given to final judgments of courts of competent jurisdiction are said to
be grounded on reasons of public policy, judicial orderliness and economy as well as protection of
the time and interests of the litigants.”
A good EXAMPLE: File ako ng kaso – collection of an unpaid loan based on the provision of the Civil Code but
the debtor said, “There is no cause of action because the provision of the civil code is unconstitutional.” After
trial the court said, “Yes, article so-so of the Civil Code is unconstitutional. The debtor is not obliged to pay.”
Tapos na. Final na ang decision because there was no appeal. What will happen? We are bound. As far as this
case is concerned, the Civil Code is unconstitutional. That is the law of the case.
KILOSBAYAN vs. MORATO

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

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

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

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

A: RES ADJUDICATA operates between two actions involving the same parties and the same
cause(of action); while STARE DECISIS refers to cases with different parties.
STARE DECISIS refers only to decisions of the SC (decisions of the CA are not a basis of stare
decisis); while the doctrine of RES ADJUDICATA refers to all courts: SC, CA, RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.

A: LAW OF THE CASE refers only to one case which may or may not be invoked in subsequent
cases, while STARE DECISIS may refer to various cases which are usually invoked in subsequent
cases.
Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final
order of a tribunal or a foreign country, having jurisdiction to render the judgment or
final order is as follows:
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(a) In case of a judgment or final order upon a specific thing, the judgment or
final order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final
order is presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a

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

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

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

appeal
B. Special Proceedings and 30 days 1. Notice of
Civil Actions where Appeal
multiple appeal is 2. Record on
allowed Appeal
C. Habeas Corpus 48 hours Notice of
Appeal
So this is the general outline of the law on appeals under Section 39, BP 129.
[EDITOR’S NOTE: The 48-hour period to appeal in habeas corpus cases under Section 39 of BP 129 is now
incorporated in Rule 41, Section 3 as amended, which took effect last July 15, 2000 (A.M. No. 01-1-03-SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate jurisdiction of the RTC is found in Section
22, BP 129. That is why Rule 40 is revolving around that provision:
BP 129, Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise
appellate jurisdiction over all cases decided by MetTCs, MTCs and MCTCs in their
respective territorial jurisdictions. Such cases shall be decided on the basis of the
entire record of the proceedings had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties or required by the RTCs. The
decision of the RTCs in such cases shall be appealable by petition for review to the
CA which may give it due course only when the petition show prima facie that the
lower court has committed an error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to be reviewed.
Let us now go to Section 1 of Rule 40:
Section 1. Where to appeal. An appeal from a judgment or final order of a Municipal

Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the
area to which the former pertains. The title of the case shall remain as it was in the
court of origin, but the party appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (n)
So from the MTC, the appeal is to the RTC exercising jurisdiction over the area to which the former pertains.
That is why under the judiciary law, every RTC has a designated territorial area. So, if you want to appeal from
the decision of the MTC of Davao City, you appeal to the RTC of Davao. You do not make your appeal to the RTC
of Tagum because it does not exercise jurisdiction over Davao City.
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And take note under Section 1, it is now required that when you appeal from the MTC to the RTC, you should
indicate in the caption of the case who is the APPELLANT and the APPELLEE. This is also the procedure when
you are appealing to the SC.
The appellant is the party appealing the case while the appellee is the adverse party. So for
example, the original title of the case in the MTC is: “JOBOY, plaintiff vs. BROSIA, defendant.” If Joboy will appeal
the case, the title of the case now in the RTC will be: “JOBOY, plaintiff-appellant vs. BROSIA, defendant-
appellee.” Or, if Brosia will be the one appealing the case, the title now will be: “JOBOY, plaintiff-appellee vs.
BROSIA, defendant-appellant.”
The period to appeal is in Section 2:
Sec. 2. When to appeal. An appeal may be taken within fifteen (15) days after
notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days after notice of the judgment or final
order.
The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
In relation to certain jurisprudence, the 15-day period cannot be extended. (Lacsamana vs. IAC,
143 SCRA 643) It cannot be extended but it can be interrupted by a timely motion for new trial or
reconsideration. And no motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (Section 2)
Q: How about the 30-day period? Is the 30-day period extendible?

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

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

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

A: See discussion under Section 9, Rule 41. From the moment the appeal is deemed perfected, the MTC
loses jurisdiction over the case. And by fiction of law, jurisdiction is automatically transferred to the RTC.
Sec. 5. Appellate court docket and other lawful fees. Within the period for taking an
appeal, the appellant shall pay to the clerk of the court which rendered the judgment
or final order appealed from the full amount of the appellate court docket and other
lawful fees. Proof of payment thereof shall be transmitted to the appellate court
together with the original record or the record on appeal, as the case may be. (n)
311
Within the period to appeal (normally within 15 days), the appellant must pay the docket fee. So that when
the records are transmitted, bayad na. Even before this rule came out, the payment of appellate docket fee is
really required. The rule is the same.
Q: Suppose I will file my Notice of Appeal within 15 days but I will not pay the docket fee, should my appeal
be dismissed? Is it an additional requirement for appeal?
A: In the case of

253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee automatically cause the dismissal of the appeal in
the MTC to the RTC ?
HELD: The payment of appellate fee is found in Section 8 of Rule 141. But the SC observed that
the only requirement is Notice of Appeal. There is no mention of appellate fee. The payment of
appellate fee is not a requisite to the perfection of an appeal although Rule 141 does not specify
when said payment shall be made. It does not automatically result in the dismissal of the appeal
unless it affects the jurisdiction. The dismissal being discretionary on the part of the appellate court,
such dismissal should be exercised wisely.
This ruling is still applicable. Although Section 5 prescribes that within the period to take
appeal you must pay the docket fee. If you do not pay it, it may not cause ipso facto the dismissal
of your appeal. But the clerk of court may refuse to transmit the record to the RTC until you pay. So
docket fee is not a requirement to perfect an appeal although it is an obligation also.
Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the
appeal, the clerk of court or the branch clerk of court of the lower court shall
transmit the original record or the record on appeal, together with the transcripts
and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A
copy of his letter of transmittal of the records to the appellate court shall be
furnished the parties. (n)
What is the requirement to perfect an appeal? It is notice of appeal only or record on appeal
also for special proceedings.
Section 5 of this rule now states that when the party takes an appeal, it is the obligation of the appellant to
pay the appellate docket fee which is imposed by Rule 141 so that the clerk of the MTC will elevate the appeal
to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of the complete record
or the record on appeal, the clerk of court of the Regional Trial Court shall notify the
parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him
to the adverse party.
Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee
may file his memorandum.
Failure of the appellant to file a memorandum shall be a ground for dismissal of the
appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the
period to do so, the case shall be considered submitted for decision. The Regional
Trial Court shall decide the case on the basis of the entire record of the proceedings
had in the court of origin and such memoranda as are filed. (n)
What happens if the case reaches the RTC? Section 7 answers it. The clerk court shall notify the parties.
What is important here is paragraph [b], a radical provision:
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant
to submit a memorandum which shall briefly discuss the errors imputed to the lower
court, a copy of which shall be furnished by him to the adverse party. Within fifteen
(15) days from receipt of the appellant’s memorandum, the appellee may file his
memorandum. Failure of the appellant to file a memorandum shall be a ground for
dismissal of the appeal.
The procedure under the OLD RULES is found on Section 22 of the Interim Rules. When the case is appealed
to the RTC, the case will be decided by the RTC based on the record on appeal together with a memorandum as
the court may require the parties. In other words, the court may or may not require the parties to file a
memorandum.
NOW, the present rule says, within 15 days from notice, it is your obligation to file a memorandum. If the
appellant fails to file a memorandum in the RTC, his appeal will be dismissed. The filing of an appeal
memorandum in the RTC is mandatory because you must point out to the RTC kung saan nagkamali. You help
the RTC judge look for the error.
Q: Suppose the appellant has filed his memorandum and it is the appellee who failed to file his
memorandum. What is the effect of such failure?
312
A: Under paragraph [c], the case shall be submitted for decision without appellee’s
memorandum. And it does not necessarily mean that the appellee will lose the case by not filing
his memorandum because for all you know the decision of the lower court is very clear, whether he
files a memorandum or not, he will still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction.
If an appeal is taken from an order of the lower court dismissing the case without
a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case
may be.
In case of affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the
case on the merits as if the case was originally filed with it.
In case of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over
the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it
has original jurisdiction thereof, but shall decide the case in accordance with the
preceding section, without prejudice to the admission of amended pleadings and
additional evidence in the interest of justice. (n)
The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan of P50,000 before the MTC. But upon motion
to dismiss alleging that MTC has no jurisdiction, the court dismissed the complaint without trial. That is
disposing of the case without trial. Now, RTC said, “MTC has jurisdiction.”
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is for P500,000 before the MTC. It is clear
that the MTC has no jurisdiction. Ka Noli moved to dismiss the case and it was dismissed. But Tomas appealed
to the RTC believing that the dismissal was wrong. Of course the order of the MTC is correct. It should have been
filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes jurisdiction. The RTC which has
jurisdiction, shall try the case on the merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for P500,000 before the MTC. Ka Noli file a motion to dismiss
on the ground of lack of jurisdiction. But the motion to dismiss of Ka Noli was denied and the court tried the
case. So, the trial is void. The judgment rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC which tried a case even though it has no
jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the RTC will assumes jurisdiction
over the case. The RTC will convert the appellate jurisdiction into an original jurisdiction instead of
dismissing an appeal. It will treat it as if it has been filed for the first time in the RTC and not as an
appealed case. The purpose here is to avoid double payment of docket fees.
Sec. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to
appeals provided for herein insofar as they are not inconsistent with or may serve to
supplement the provisions of this Rule. (n)
Rule 41 provisions may also be used in appeals from MTC to RTC. It is more comprehensive. It refers to
appeal from RTC to CA on cases decided by the RTC pursuant to its original jurisdiction. This is also applicable to
Rule 40 insofar as they are not inconsistent.
Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS
Majority of the important rules are found here in Rule 41.
Section 1. Subject of appeal. An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular matter therein when declared
by these Rules to be appealable.

(b) An order denying a petition for relief or any similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground vitiating
consent;
(f) An order of execution;
313
main case is pending, unless the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action under Rule 65. (n)
Q: What orders or judgment are subject to appeal ?

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

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

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

A: The procedure if there is an order which is against you but it is not appealable, you have to
wait. The case is to be tried and then you have to wait for the final judgment to be rendered and if
you are dissatisfied with the judgment, that is the time you appeal from the said judgment
together with the interlocutory orders issued in the course of the proceeding. (Mapua vs. Suburban
Theaters, Inc., 81 Phil. 311) So there should only be one appeal form that case. That’s why, as a general rule,
the law on Civil Procedure prohibits more that one appeal in one civil action.
The reasons why interlocutory orders are not appealable are to avoid multiple appeals in one civil case
since the order is interlocutory and the court still continues to try the case in the course of the proceeding, the
court will realize its error and the court may change its order so it will be given an opportunity to corrects its
own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)
314
Take note of the new rule saying that a judgment or order is final if it disposes of the case or of a
PARTICULAR MATTER. So, it is not necessarily the whole case.
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against B, X filed a motion to intervene and it
was denied. Can X appeal the denial? Now, it would seem that the order is interlocutory because the court, after
denying the motion to intervene, still has something to do since the case between A and B will continue. But
according to the SC, YES, X can appeal because the order denying the motion to intervene is final.
But is it not true that the court has something to do after denying such motion? Yes but what the SC is
trying saying is that, as far as X’s right is concerned, the court has nothing to do anymore. Marami pa akong
trabaho dito (case between A and B), pero kay X wala na. That is why the order denying the motion to intervene
is a final order and is appealable. Kaya nga the test that there is nothing more for the court to do is very
confusing. In other words, you divide the case into parts.
DAY vs. RTC OF ZAMBOANGA CITY

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

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

255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for annulment of judgment before
the Court of Appeals pursuant to Section 9, par. 2, of the Judiciary Law.
“A compromise may however be disturbed and set aside for vices of consent or forgery.
Hence, where an aggrieved party alleges mistake, fraud, violence, intimidation, undue
influence, or falsity in the execution of the compromise embodied in a judgment, an
action to annul it should be brought before the Court of Appeals, in accordance with
Section 9(2) of Batas Pambansa Bilang 129, which gives that court (CA) exclusive
original jurisdiction over actions for annulment of judgments of regional trial courts.”
So you cannot appeal from an order of execution because if we will allow the losing party to appeal from an
order of execution, then there will be no end to litigation. Kaya nga execution, eh – it means tapos na ang kaso.
That case is finished, decided, final.
But suppose the order of execution contains portions which are not found in the judgment, meaning, the
order of execution is changing the judgment which should not be done, then obviously, the correct remedy is
certiorari under Rule 65 because of grave abuse of discretion.
main case is pending, unless the court allows an appeal therefrom;
The best example of a judgment of final order where there are separate claims is found in Rule 36. There
could be more than one judgment in one civil case and there can be more than one decision – judgment on the
main action, on the counterclaim, etc. (c.f. Sections 4 and 5, Rule 36)
Q: Everytime a judgment is issued, can you appeal already form the first judgment when there will be a
second judgment in that civil action? Can you appeal from all these separate judgment?
A: No, unless the court allows an appeal therefrom. Generally, you have to wait for all the
judgments to be rendered before you can appeal because, normally, there can be no appeal from
every judgment rendered. A good example of this is in the case of
PROVINCE OF PANGASINAN vs. COURT OF APPEALS
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220 SCRA 726
FACTS: This was a partial summary judgment under Rule 35. Is it appealable? One party claims
that a partial summary judgment is appealable because of Rule 36, where the court allows an
appeal therefrom. But according to the Supreme Court:
HELD: A partial summary judgment is not covered by Rule 36. It is governed by Rule
35 and there is no appeal because it is merely interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated on motion. If on motion under this Rule,
judgment is not rendered upon the whole case or for all the reliefs sought and a trial
is necessary, the court at the hearing of the motion, by examining the pleadings and
the evidence before it and by interrogating counsel shall ascertain what material
facts exist without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further proceedings
in the action as are just. The facts so specified shall be deemed established, and the
trial shall be conducted on the controverted facts accordingly.
Q: When can there be a partial summary judgment?

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

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

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

(a) Ordinary appeal.- The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing
a notice of appeal with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases, the record
on appeal shall be filed and served in like manner.
Ordinary Appeal is the mode of appeal from RTC to CA in cases decided by the RTC pursuant to
its original jurisdiction.
Just like in Rule 40, you file a notice of appeal with the RTC furnishing the adverse/losing party. No record on
appeal shall be required except in special proceedings and other cases of multiple or separate appeals where
the law or these Rules so require.
(b) Petition for review.- The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
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Actually, this was already touched in Judiciary Law. How do you appeal to the CA from the RTC in cases
decided by the RTC pursuant to its appellate jurisdiction? – not by ordinary appeal but by petition for review.
ORDINARY APPEAL (par. A) PETITION FOR REVIEW (par. B)

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

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

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

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

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

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

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

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

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

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

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

A: By:
1.) Filing a NOTICE OF APPEAL, generally within 15 days; or by
2.) Filing A NOTICE OF APPEAL and RECORD ON APPEAL WITHIN 30 DAYS.
Those are the steps taken to perfect the BUT the appeal is NOT YET PERFECTED. It is perfected according to
Section 9, and it is important to determine the exact date when the appeal is considered as perfected because
of the doctrine that from the moment the appeal is perfected, the RTC automatically loses
jurisdiction of the case. And by fiction of law, the jurisdiction is automatically transferred to the
CA, although the records as still with the RTC. Therefore it is important to determine the exact
date.
For example, in notice of appeal, is it perfected on the very day that the appellant will file a notice of appeal
that if he files it, after two days perfected na?
All of these are answered by Section 9 and I noticed that Section 9 has improved on the language of the
Interim Rules. Under the Interim Rules, they are actually the same, the question when is the appeal deemed
perfected is also answered by the Interim Rules but the language of the law there is more convoluted. Now, it is
more clearer:
Sec. 9. Perfection of appeal; effect thereof.
A party’s appeal by notice of appeal is deemed perfected as to him upon the

filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to him with respect

to the subject matter thereof upon the approval of the record on appeal filed in due
time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to appeal of
the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and the
expiration of the time to appeal of the other parties.
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In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of the rights
of the parties which do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
WHEN ONLY NOTICE OF APPEAL IS REQUIRED
Q: When only a notice of appeal is required, when is an appeal deemed perfected?

A: First and third paragraph: “A party’s appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record on appeal filed in due time. x x x In
appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in
due time and the expiration of the time to appeal of the other parties.”
This was taken in the case of DELGADO vs IAC (147 SCRA 258). Let’s compose a problem based on that
case:
PROBLEM: I received a copy of the decision on March 31 so I have 15 days to appeal i.e. up to April 15. My
opponent received the decision on April 10. So ang opponent ko naman ang bilang niya is from April 10 to April
25. Iba ang 15 days niya, iba din sa akin.
Q: Since I received the decision on March 31, I filed my notice of appeal on April 5, is the appeal perfected?
A: Yes, as far as I am concerned.
Q: How about the other side?

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

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

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

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

A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42).
Rule 41 refers to an ordinary appeal from the RTC to the CA – yung notice of
appeal. Here, the RTC rendered a decision pursuant to its ORIGINAL JURISDICTION.
‘Eto namang Rule 42 (Petition for review) is the mode of appeal from the RTC to the
CA in cases decided by the RTC pursuant to its APPELLATE JURISDICTION. So, the case
here actually originated in the MTC, then it was appealed to the RTC under Rule 40. And
now, from the RTC, you want to go to the CA. Hence, the mode of appeal is not (Rule 41)
Notice of Appeal but RULE 42 – Petition for Review.
For the first time, there is now a rule governing petitions for review from the RTC to the
CA. Prior to July 1, 1997, there was none. Although there were guidelines then – in
jurisprudence, decided cases and SC circulars.
Section 1. How appeal taken; time for

filing. A party desiring to appeal from a
decision of the Regional Trial Court rendered
in the exercise of its appellate jurisdiction
may file a verified petition for review with
the Court of Appeals, paying at the same time
to the clerk of said court the corresponding
docket and other lawful fees, depositing the
amount of P500.00 for costs, and furnishing
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the Regional Trial Court and the adverse
party with a copy of the petition.
The petition shall be filed and served

within fifteen (15) days from notice of the
decision sought to be reviewed or of the
denial of petitioner’s motion for new trial
or reconsideration filed in due time after
judgment. Upon proper motion and the payment
of the full amount of the docket and other
lawful fees and the deposit for costs before
the expiration of the reglementary period,
the Court of Appeals may grant an additional
period of fifteen (15) days only within which
to file the petition for review.
No further extension shall be granted

except for the most compelling reason and in
no case to exceed fifteen (15) days. (n)15 –
extension of another 15 – extension of
another 15 most compelling reasons
Under Section 1, a petition for review under Rule 42 must be VERIFIED.
Q: Where will you file your petition for review?

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

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

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

A: The CA may grant another 15 days and no further extension can be granted
except for the most compelling reasons. So, original extension is 15 days, and a
possible extension of 15 days = total 30 days.
These are technical points. And how many appealed cases have been dismissed simply
because these finer provisions were not been observed by lawyers? I would say 60% of all
appeals are dismissed. Even in Davao, majority of petitions are dismissed because
nakulangan ng piso sa docket fee, karami. I presume throughout the country, the pattern is
the same because the rules on appeal are very technical and very strict. That’s why there
are lawyers in Manila, even in Davao, who do not want to handle appealed cases. They only
handle cases in the trial court. Pag-akyat na, nasa CA na, petition for certiorari, pasa na sa
iba.
But there are also who have mastered the rules on appeal. For the purpose of
specialization, trial phase and appeal phase. For purposes of the bar, you have to know all
the fields in laws. Once you pass the bar, diyan na kayo mag-isip kung ano ang pipiliin
ninyo—civil, criminal, labor, etc. But for purposes of the bar, you cannot say dito lang ako
mag-aral sa Labor, wag na sa Civil Law. Pwede ba yan? You cannot do that. Kaya nga sabi
nila, the people who know more about the law are those who have just taken the bar.
Sec. 2. Form and contents. The petition

shall be filed in seven (7) legible copies,
with the original copy intended for the court
being indicated as such by the petitioner,
and shall
(a) state the full names of the parties to

the case, without impleading the lower courts
or judges thereof either as petitioners or
respondents;
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(b) indicate the specific material dates
showing that it was filed on time;
(c) set forth concisely a statement of the

matters involved, the issues raised, the
specification of errors of fact or law, or
both, allegedly committed by the Regional
Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal;
(d) be accompanied by clearly legible

duplicate originals or true copies of the
judgments or final orders of both lower
courts, certified correct by the clerk of
court of the Regional Trial Court, the
requisite number of plain copies thereof and
of the pleadings and other material portions
of the record as would support the
allegations of the petition.
The petitioner shall also submit together

with the petition a certification under oath
that he has not theretofore commenced any
other action involving the same issues in the
Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and
other tribunal or agency thereof within five
(5) days therefrom. (n)
Take note of Section 2. Do not implead the lower court or the judge because
nasanay na tayo na pati ‘yung judge naging defendant or respondent na. We only do that in
Certiorari under Rule 65 in Special Civil Actions, but not on appeal. This is the influence of
Justice Feria because he has penned many cases which has included the judge as
defendant or respondent. So, he said that in the case of MWSS vs. CA [Aug. 25, 1986],
hence we can see his influence, siningit talaga niya iyan sa kaso na yon.
Now, as to the form [last paragraph], there has to be a Certification of Non-Forum

Shopping, failure to comply with such would mean the dismissal of the case.
ORTIZ vs. COURT OF APPEALS

299 SCRA 708 [1998]
329
FACTS: The certification was not signed by the Ortizes but by their lawyer
who has personal knowledge of the fact and contended that it should be accepted
as substantial compliance with the rules.
HELD: The certification was not proper. Strict observance of the rule is
required. In this case, no explanation was given.
“Regrettably, We find that substantial compliance will not suffice in a matter
involving strict compliance. The attestation contained in the certification on
non-forum shopping requires personal knowledge by the party who
executed the same. To merit the Court’s consideration, Ortizes here must show
reasonable cause for failure to personally sign the certification. The Ortizes must
convince the court that the outright dismissal of the petition would defeat the
administration of justice. However, the Ortizes did not give any explanation to
warrant their exemption from the strict application of the rule. Utter disregard of
the rules cannot justly be rationalized by harking on the policy of liberal
construction.”
Q: Under paragraph [c], what issues can you raise in the petition for review?
A: Errors of fact, errors of law, or both – mixed errors of fact or law.
Somebody asked this QUESTION: hindi ba kapag error of law dapat sa SC yan? Hindi na
dadaan sa CA? How do you reconcile this with the Constitution? Actually, when the law says
decisions of the RTC appealable directly to the SC, it was decided pursuant to its original
jurisdiction. But if it is decided pursuant to its appellate jurisdiction, the appeal
should be to the CA even on pure questions of law without prejudice of going to
the SC later on.
Sec. 3. Effect of failure to comply with

requirements. The failure of the petitioner
to comply with any of the foregoing
requirements regarding the
A. payment of the docket and other lawful
fees,
B. the deposit for costs,
C. proof of service of the petition, and
D. the contents of and the documents
which should accompany the petition
shall be sufficient ground for the dismissal

thereof.
Section 3. If you fail to comply with the requirements, tapos ang petition mo, dismiss!
Sec. 4. Action on the petition. The Court

of Appeals may require the respondent to file
a comment on the petition, not a motion to
dismiss, within ten (10) days from notice,
or dismiss the petition if it finds the

same to be
A. patently without merit,

B. prosecuted manifestly for delay, or
330
C. that the questions raised therein are
too unsubstantial to require
consideration. (n)
Sec. 5. Contents of comment. The comment of

the respondent shall be filed in seven (7)
legible copies, accompanied by certified true
copies of such material portions of the
record referred to therein together with
other supporting papers and shall
(a) state whether or not he accepts the

statement of matters involved in the
petition;
(b) point out such insufficiencies or

inaccuracies as he believes exist in
petitioner’s statement of matters involved
but without repetition; and
(c) state the reasons why the petition

should not be given due course.
A copy thereof shall be served on the

petitioner. (n)
Sec. 6. Due course. If upon the filing of

the comment or such other pleadings as the
court may allow or require, or after the
expiration of the period for the filing
thereof without such comment or pleading
having been submitted, the Court of Appeals
finds prima facie that the lower court has
committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give
due course to the petition. (n)
Q: When you file a petition for review from the RTC to the CA, is the CA obliged to
entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may not give due
course to the petition unlike in ordinary appeal. Yan ang kaibahan ng ordinary
appeal and petition for review.
In ordinary appeal under Rule 41, when you file notice of appeal and you pay your
docket fee, your appeal is automatically entertained. At least it will be heard by the CA. But
in Rule 42, it is not the same. When you go there, whether your petition for review will
be given due course or not even if you have paid the docket fee. Normally, the CA will
required you to comment and then chances are after another month and after reading
your petition and your comment, the CA will refuse to give due course to your petition,
“Your petition is hereby dismissed!” So, you must convince the CA na may merit baah!
331
Q: What happens when the petition for review is given due course?
A: The parties will be required to submit their respective memoranda.
Take note that the RTC is also given the power to issue orders for the protection of the
parties – the same as in Section 8, paragraph [b].
Sec. 7. Elevation of record. Whenever the

Court of Appeals deems it necessary, it may
order the clerk of court of the Regional
Trial Court to elevate the original record of
the case including the oral and documentary
evidence within fifteen (15) days from
notice. (n)
Q: Now, when is an appeal by petition for review deemed perfected?

A: Section 8 [a]. Similar to Rule 41. The same principle:
Sec. 8. Perfection of appeal; effect

thereof.
(a) Upon the timely filing of a petition

for review and the payment of the
corresponding docket and other lawful fees,
the appeal is deemed perfected as to the
petitioner.
The Regional Trial Court loses jurisdiction

over the case upon the perfection of the
appeals filed in due time and the expiration
of the time to appeal of the other parties.
However, before the Court of Appeals gives

due course to the petition, the Regional
Trial Court may issue orders for the
protection and preservation of the rights of
the parties which do not involve any matter
litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order
execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of
the appeal. (9a, R41)
(b) Except in civil cases decided under the

Rule on Summary Procedure, the appeal shall
stay the judgment or final order unless the
Court of Appeals, the law, or these Rules
shall provide otherwise. (n)
332
Q: Does the RTC have the power to act despite the fact that the petition for review is
already before the CA? Suppose I lost in the MTC, and I also lost on appeal in the RTC. I file
a petition for review. What happens to the decision? Can the decision be enforced?
A: NO, it cannot be enforced yet because it is not yet final. We still have to
wait for the appeal to be dismissed or to be entertained and denied later. Under
paragraph [b], the appeal shall stay the judgment or final order UNLESS the CA,
the law or these rules should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil cases provided in the
Rules on Summary Procedure, any part thereafter appealed to the CA will not stop the
implementation of the RTC decision.
Under Section 21 of the Summary Rules, when a case is started in the MTC under the
Summary Procedure, and appealed to the RTC and decided by the RTC, the decision
becomes immediately executory. Even if we file a petition for review, it is executory.
The only way to stop the RTC from enforcing that judgment is to get a TRO or a writ of
preliminary injunction from the CA. That is the rule.
I have a similar case now on that issue. The case originated from the MTC for ejectment.
The defendant lost, akyat ngayon sa RTC, affirmed. And then akyat na naman ang
defendant sa CA on petition for review (although right now, it has not yet been given due
course) with a prayer for TRO. But the CA said that there is no compelling reason to issue
one. In the meantime, I filed a motion for execution. The defendant opposed on the ground
that a judgment cannot be executed daw because of a pending petition for review. But this
is under the Summary Rules – ejectment. This is an exception, so that will not apply.
Sec. 9. Submission for decision. If the

petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda
within a period of fifteen (15) days from
notice. The case shall be deemed submitted
for decision upon the filing of the last
pleading or memorandum required by these
Rules or by the court itself. (n)
Rule 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
333
Let us now go to Rule 43 which governs Appeals from the Court of Tax Appeals and
Quasi-Judicial Agencies to the Court of Appeals. Take note that under Section 9 of BP 129,
the CA has the exclusive appellate jurisdiction to review decisions of all RTC and Quasi-
Judicial Bodies, and Rule 43 is the governing rule on appeals from quasi-judicial bodies.
So, before this, appeal to the CA of Tax cases is supposed to be to the SC. Now it is
reverted to the CA, and also quasi-judicial agencies. What was the prior law? It is Revised
Administrative Circular No. 1-95, which was promulgated on January 1, 1995. Now it is Rule
43 – the circular was actually quoted here verbatim. So, you can no longer go to the SC,
even on pure questions of law, ha! Decisions of quasi-judicial agencies must pass
first to the CA even on pure questions of law.
Now what are these quasi-judicial bodies? They are enumerated in Section 1:
Section 1. Scope. This Rule shall apply to

appeals from judgments or final orders of the Court
of Tax Appeals (en banc decision of CTA rule 45 to
SC) and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil
Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission, Office
of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration,
Energy Regulatory Board, National
Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
voluntary arbitrators authorized by law. (n)
So, very specific! The latest addition there are decisions of voluntary arbitrators. Prior to
that, it can be brought by certiorari to the SC, but because of a decided case it is now be
brought to the CA.
One case under Rule 43 which I want to discuss with you is the case of
LEPANTO CERAMICS vs. COURT OF APPEALS

237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of Investments (BOI). Now, as
provided in the original Omnibus Investment Code of 1981 during the Marcos era,
decisions of the BOI are appealable directly to the SC. But years later it was
nullified by the Judiciary Law because all decisions of all quasi-judicial bodies are
appealed to the CA.
Four years later the Constitution took effect. In July 1987 during the term of
Cory Aquino, she promulgated E.O. No. 226, the so-called Omnibus Investment
Code of 1987 where provisions from the old code were merely lifted. And among
those included is the provision on appeals from the BOI where you go directly to
the SC.
The position of Lepanto is, the new law (E.O. No. 226) has modified BP 129
because the old law was modified by BP 129. And since this is a new law, binalik
na naman ang appeal sa SC. So na modify ang BP 129.
334
HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O. No. 226,
the New Constitution has taken effect. And under the 1987 Constitution, you
cannot increase the appellate jurisdiction of the SC without its consent
and concurrence. In effect, the new law (E.O. No. 226) increased the
work of the SC without its knowledge and consent therefore the SC did
not agree. The SC rejected the provision that decisions of the BOI are
appealable directly to the SC.
In the case of FABIAN vs. DESIERTO [December 16, 1998], a provision under RA 6670,
which provides that decisions of the Office of the Ombudsman in administrative disciplinary
cases, was declared unconstitutional because the appellate jurisdiction of the SC was
increased without its advice and consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before Revised
Administrative Code No. 1-95. As I have told you before, rulings of different constitutional
commissions, CSC, COA, COMELEC should be direct to the SC. That is why the case of
MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned because the new procedure
is that decisions of the CSC are now appealable to the CA.
Sec. 2. Cases not covered. This Rule shall

not apply to judgments or final orders issued
under the Labor Code of the Philippines. (n)
Section 2 refers to decisions of NLRC and the Secretary of Labor. Their decisions
can be brought directly to the SC by way of petition for Certiorari under Rule 65,
not by appeal (Rule 43).
- Decisions of NLRC appeal to CA under rule 65

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

be taken within fifteen (15) days from
a. notice of the award, judgment, final

order or resolution, or
b. from the date of its last publication,
if publication is required by law for
its effectivity, or
c. of the denial of petitioner’s motion
for new trial or reconsideration duly
filed in accordance with the governing
law of the court or agency a quo.
Only one (1) motion for reconsideration

shall be allowed. Upon proper motion and
the payment of the full amount of the
335
dockebit fee before the expiration of the
reglementary period, the Court of Appeals
may grant an additional period of fifteen
(15) days only within which to file the
petition for review. No further extension
shall be granted except for the most
compelling reason and in no case to exceed
fifteen (15) days. (n)
Sec. 5. How appeal taken. Appeal shall be

taken by filing a verified petition for
review in seven (7) legible copies with the
Court of Appeals, with proof of service of a
copy thereof on the adverse party and on the
court or agency a quo. The original copy of
the petition intended for the Court of
Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the

petitioner shall pay to the clerk of court of
the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00
for costs. Exemption from payment of
docketing and other lawful fees and the
deposit for costs may be granted by the Court
of Appeals upon a verified motion setting
forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner
shall pay the docketing and other lawful fees
and deposit for costs within fifteen (15)
days from notice of the denial. (n)
Sec. 6. Contents of the petition. The

petition for review shall
(a) state the full names of the parties to

the case, without impleading the court or
agencies either as petitioners or
respondents;
(b) contain a concise statement of the

facts and issues involved and the grounds
relied upon for the review;
(c) be accompanied by a clearly legible

duplicate original or a certified true copy
336
of the award, judgment, final order or
resolution appealed from, together with
certified true copies of such material
portions of the record referred to therein
and other supporting papers; and
(d) contain a sworn certification against

forum shopping as provided in the last
paragraph of section 2, Rule 42.
The petition shall state the specific

material dates showing that it was filed
within the period fixed herein. (2a)
Sec. 7. Effect of failure to comply with

requirements. The failure of the petitioner
to comply with any of the foregoing
requirements regarding the
a. payment of the docket and other lawful

fees,
b. the deposit for costs,
c. proof of service of the petition,
d. and the contents of and the documents
which should accompany the petition
shall be sufficient ground for the

dismissal thereof. (n)
Sec. 8. Action on the petition. The Court

of Appeals may require the respondent to file
a comment on the petition, not a motion to
dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to
be
a. patently without merit,

b. prosecuted manifestly for delay, or
c. that the questions raised therein are
too unsubstantial to require
consideration. (6a)
Sec. 9. Contents of comment. The comment

shall be
a. filed within ten (10) days from notice

b. in seven (7) legible copies and
337
c. accompanied by clearly legible
certified true copies of such material
portions of the record referred to
therein
d. together with other supporting papers.
The comment shall
(a) point out insufficiencies or inaccuracies

in petitioner’s statement of facts and
issues; and
(b) state the reasons why the petition should

be denied or dismissed.
A copy thereof shall be served on the

petitioner, and proof of such service shall
be filed with the Court of Appeals. (9a)
Sec. 10. Due course. If upon the filing of

the comment or such other pleadings or
documents as may be required or allowed by
the Court of Appeals or upon the expiration
of the period for the filing thereof, and on
the basis of the petition or the records the
Court of Appeals finds prima facie that the
court or agency concerned has committed
errors of fact or law that would warrant
reversal or modification of the award,
judgment, final order or resolution sought to
be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the
same.
The findings of fact of the court or agency

concerned, when supported by substantial
evidence, shall be binding on the Court of
Appeals. (n)
Sec. 11. Transmittal of record. Within

fifteen (15) days from notice that the
petition has been given due course, the Court
of Appeals may require the court or agency
concerned to transmit the original or a
legible certified true copy of the entire
record of the proceeding under review.
338
The record to be transmitted may be
abridged by agreement of all parties to the
proceeding.
The Court of Appeals may require or permit

subsequent correction of or addition to the
record. (8a)
Sec. 12. Effect of appeal. The appeal shall

not stay the award, judgment, final order or
resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon
such terms as it may deem just. (10a)
- different in rule 42, except in cases in

summary hearing the filing of a petition for
review will stay the judgment, final order or
resolution
Sec. 13. Submission for decision. If the

petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda
within a period of fifteen (15) days from
notice.
The case shall be deemed submitted for

decision upon the filing of the last pleading
or memorandum required by these Rules or by
the Court of Appeals. (n)
-oOo-
PROCEDURE IN THE COURT OF APPEALS
Rule 44
ORDINARY APPEALED CASES
339
We will now go to Rule 44 which is Procedure in the Court of Appeals in Ordinary
Appealed Cases. This is just the continuation of Rule 41. When a case is appealed to the
CA under Rule 41, this is ordinary appeal (decisions of RTC pursuant to its original
jurisdiction), so what will happen here?
Take note that the procedure in the CA is not only found in the Rules of Court. The
Internal Rules of the CA is found in its so called Revised Internal Rules of the Court of
Appeals (RIRCA).
So it is best that you go over it. For purposes of the BAR, hindi na kailangan yan! There
are some provisions kasi na wala sa Rules of Court. I have a copy of that eh, leather -bound!
It just so happen that we have an alumna who is the head of the Records Division of the CA.
Anyway, take note that under the present rules when the RTC clerk transmits the
records to the CA, nandoon na ang docket fee. Now, once original record is there, next is
you will receive a notice from the clerk of court that all the records are there, all
the documentary evidence. And you are now given 45 days to file an appellant’s
brief under Section 7 which has to be answered by the appellee under Section 8. And
the appellant is given the option to file an appellant’s reply brief under Section 9. As
to the contents of the appellant’s brief and appellee’s brief, you have Sections 13 and 14.
Section 1. Title of cases. In all cases

appealed to the Court of Appeals under Rule
41, the title of the case shall remain as it
was in the court of origin, but the party
appealing the case shall be further referred
to as the appellant and the adverse party as
the appellee. (1a, R46)
Sec. 2. Counsel and guardians. The counsel

and guardians ad litem of the parties in the
court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall
be served immediately on the adverse party
and filed with the court. (2a, R46)
Sec. 3. Order of transmittal of record. If

the original record or the record on appeal
is not transmitted to the Court of Appeals
within thirty (30) days after the perfection
of the appeal, either party may file a motion
with the trial court, with notice to the
other, for the transmittal of such record or
record on appeal. (3a, R46)
Sec. 4. Docketing of case. Upon receiving

the original record or the record on appeal
and the accompanying documents and exhibits
transmitted by the lower court, as well as
the proof of payment of the docket and other
lawful fees, the clerk of court of the Court
340
of Appeals shall docket the case and notify
the parties thereof.
Within ten (10) days from receipt of said

notice, the appellant, in appeals by record
on appeal, shall file with the clerk of court
seven (7) clearly legible copies of the
approved record on appeal, together with the
proof of service of two (2) copies thereof
upon the appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal
shall be a ground for dismissal of the
appeal. (n)
Sec. 5. Completion of record. Where the

record of the docketed case is incomplete,
the clerk of court of the Court of Appeals
shall so inform said court and recommend to
it measures necessary to complete the record.
It shall be the duty of said court to take
appropriate action towards the completion of
the record within the shortest possible time.
(n)
Sec. 6. Dispensing with complete record.

Where the completion of the record could not
be accomplished within a sufficient period
allotted for said purpose due to insuperable
or extremely difficult causes, the court, on
its own motion or on motion of any of the
parties, may declare that the record and its
accompanying transcripts and exhibits so far
available are sufficient to decide the issues
raised in the appeal, and shall issue an
order explaining the reasons for such
declaration. (n)
Sec. 7. Appellant’s brief. It shall be the

duty of the appellant to file with the court,
within forty-five (45) days from receipt of
the notice of the clerk that all the
evidence, oral and documentary, are attached
to the record, seven (7) copies of his
legibly typewritten, mimeographed or printed
341
brief, with proof of service of two (2)
copies thereof upon the appellee. (10a, R46)
Sec. 8. Appellee’s brief. Within forty-five

(45) days from receipt of the appellant’s
brief, the appellee shall file with the court
seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the
appellant. (11a, R46)
Sec. 9. Appellant’s reply brief. Within

twenty (20) days from receipt of the
appellee’s brief, the appellant may file a
reply brief answering points in the
appellee’s brief not covered in his main
brief. (12, R46)
Sec. 10. Time for filing memoranda in

special cases. (CPMQH)
A. In certiorari,
B. prohibition,
C. mandamus,
D. quo warranto and
E. habeas corpus cases,
the parties shall file, in lieu of briefs,

their respective memoranda within a non-
extendible period of thirty (30) days from
receipt of the notice issued by the clerk
that all the evidence, oral and
documentary, is already attached to the
record. (13a, R46)
The failure of the appellant to file his

memorandum within the period therefor may be
a ground for dismissal of the appeal. (n)
Sec. 11. Several appellants or appellees or

several counsel for each party. Where there
are several appellants or appellees, each
counsel representing one or more but not all
of them shall be served with only one copy of
the briefs.
342
When several counsel represent one
appellant or appellee, copies of the brief
may be served upon any of them. (14a, R46)
Sec. 12. Extension of time for filing

briefs. Extension of time for the filing of
briefs will not be allowed, except
A. for good and sufficient cause, and

B. only if the motion for extension is
filed before the expiration of the time
sought to be extended. (15, R46)
Sec. 13. Contents of appellant’s brief. The

appellant’s brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the

brief with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) An assignment of errors intended to be

urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading "Statement of the

Case," a clear and concise statement of the
nature of the action, a summary of the
proceedings, the appealed rulings and orders
of the court, the nature of the judgment and
any other matters necessary to an
understanding of the nature of the
controversy, with page references to the
record;
(d) Under the heading "Statement of Facts,"

a clear and concise statement in a narrative
form of the facts admitted by both parties
and of those in controversy, together with
the substance of the proof relating thereto
in sufficient detail to make it clearly
343
intelligible, with page references to the
record;
(e) A clear and concise statement of the

issues of fact or law to be submitted to the
court for its judgment;
(f) Under the heading "Argument," the
appellant’s arguments on each assignment of
error with page references to the record. The
authorities relied upon shall be cited by the
page of the report at which the case begins
and the page of the report on which the
citation is found;
(g) Under the heading "Relief," a
specification of the order or judgment which
the appellant seeks; and
(h) In cases not brought up by record on

appeal, the appellant’s brief shall contain,
as an appendix, a copy of the judgment or
final order appealed from. (16a, R46)
Sec. 14. Contents of appellee’s brief. The

appellee’s brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the

brief with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) Under the heading "Statement of Facts,"

the appellee shall state that he accepts the
statement of facts in the appellant’s brief,
or under the heading "Counter-Statement of
Facts," he shall point out such
insufficiencies or inaccuracies as he
believes exist in the appellant’s statement
of facts with references to the pages of the
record in support thereof, but without
repetition of matters in the appellant’s
statement of facts; and
344
(c) Under the heading "Argument," the
appellee shall set forth his arguments in the
case on each assignment of error with page
references to the record.
The authorities relied on shall be cited by

the page of the report at which the case
begins and the page of the report on which
the citation is found. (17a, R46)
This is like a thesis or writing a book – Appellant’s and appellee’s brief.
Q: What is a brief? What is its purpose?

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

A: YES, that is section 12. The worst violator here is the Solicitor General – extension 30
days, 2nd extension 30 days! Ganyan sila! Sometimes it takes them 18 months to prepare
a brief. Sabagay, marami din kasi silang trabaho ‘no?
Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration of the time
sought to be extended. (Section 12) BUT sometimes the SC can be liberal about
extension. One case is
MOSKOWSKY vs. COURT OF APPEALS

230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days counted from
August 3, 1991. So after the 45 days plus 90 days pa from August 3, 1991. Said
90-day period ended on November 1, 1991. On November 4, 1991, or 3 days
after the extended period, instead of filing a brief, appellant filed another motion
for a 20-day extension.
ISSUE #1: Was the motion for extension filed on time based on Section 12?
HELD: YES. “Said ninety-day period would end on November 1, 1991.
November 1 is a regular holiday. Then President Aquino declared November 2,
1991 as a special holiday. The next day, November 3, 1991 turned out to be a
Sunday. The next business day was, therefore, November 4, 1991 - a Monday.”
“The abovementioned motion was, therefore, filed on time, i.e., the motion for
the extension sought was filed before the expiration of the time sought to be
extended.”
345
ISSUE #2: When do you compute the 20-day extension being asked for? Is it
on November 1, the expiration of the period? Or on November 4, the day of the
filing of the motion?
HELD: “The appellant specifically manifested that they will need another
extension from today (November 4) within which to file appellant’s brief, and
‘today’ is November 4. So, the period commences to run on November 4.” So
very liberal no?
Take note of Section 15 – what questions may an appellant raise on appeal:
Sec. 15. Questions that may be raised on

appeal. Whether or not the appellant has
filed a motion for new trial in the court
below, he may include in his assignment of
errors any question of law or fact that has
been raised in the court below and which is
within the issues framed by the parties. (18,
R46)
So the appellant cannot raise before the CA on appeal any question of law or
fact that has not been raised in the lower court and not within the issues framed
by the parties. He cannot, for the first time on appeal, say something which was not
raised in the trial court. Another thing is, he cannot change his theory on appeal,
either theory on the cause of action or theory on the defense.
Now, sometimes it is easy to detect whether there is change of theory. The only possible
exception maybe is when you raise for the first time on appeal something which you never
raised as in lack of jurisdiction unless estoppel will set in as in the case of TIJAM vs.
SIBONGHANOY. Illustrating this point is the case of
RIVERA vs. COURT OF APPEALS

176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their house and lot to Rivera. Later, they
filed a complaint against Rivera declaring the sale as null and void on the ground
that the sale is a mortgage. The court dismissed the complaint. So the ruling of
the trial court was that the sale was valid. But on the CA, Martinez spouses
prayed that they maybe allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to redeem the
property. Now, Rivera appealed to the CA, contending that Martinez change the
theory of their case because in the original complaint the latter prayed for the
annulment of the sale, and in the CA they prayed that they be allowed to redeem
the property.
ISSUE: Was there a change of theory of the Martinez spouses?
HELD: There was NO CHANGE of theory. There was no surprise against Rivera
or to the CA. The real purpose of the Martinez spouses in asking for the nullity of
the contract is to enable them to recover the property from Rivera.
“Prescinding from those allegations and from the prayer all clearly set out in
the complaint, it is fair to conclude that the real purpose in asking for the nullity
of the contract of sale is to enable the Martinez spouses to recover or redeem the
property they deeded in favor of Rivera. It would be absurd to pray for the nullity
of an agreement and stop there. There would be a vacuum and the law, like
nature, abhors a vacuum.”
“In the CA, they persisted in their claim to entitlement of the right to recover,
redeem, or repurchase. This agreement can not be construed as change of
theory; it is persistence, plain and simple. It does not leave any interstice in the
entire theory of the case. Consistency in the position of the private respondents
runs throughout the presentation of their claim.”
346
So akala mo may change of theory, yun pala wala! Why are they annulling? To
recover their property. In other words there was no change of theory.
Q: Is the appellee required to make assignment of errors?

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

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

- Petition for review by certiorari or appeal by certiorari
- The decision that are appealable to the SC by certiorari
o CA
o RTC on pure questions of law
o Sandiganbayan
o CTA if it is a decision en banc
- Appeal by certiorari
o Should be a question of law not a question of fact
o Since the SC is not a trier of facts
- Question of law
o Is a question of what law is applicable to a certain set of facts
o The facts of the case is not disputed and the issue is what law should be applied or how the law should be
interpreted
o If the parties of the case have no more dispute as to facts then it is a question of law, conclusion made by the
trial court will be considered as a questions of law
- Question of fact
o Question in a case which requires the calibration of the evidences to determine which one is telling the truth
- Factual findings of the lower court are conclusive to the appellate court
o EXC
 Ramos vs pepsi cola
 SC can entertain factual question intertwined with a question of law
o Glaring error in the appreciation of facts
o Grounded entirely on speculation, surmises or conjectures
o Court have grave abuse of discretion of the apprehension of facts
o Findings of facts are conflictive
o The CA went beyond the issues of the case
o CA manifestly overlooked relevant facts
o When the findings of facts of the CA is contrary to the lower court p. 597
- 18 copies should be given to the SC
o Full name and address of the parties
o Brief and concise statement of the matters involves
o Statement of facts
o Basis or grounds or arguments relied upon in support of your petition for certiorari
o Material dates
 Date you received the decision the date you filed the petition
349
 The date when you file your motion and the date your motion was denied
- Need not implead the lower court as respondent
- When you file an appeal to the SC you must attached the decision of the CA either duplicate original or certified true
copy of the decision in the original copy of the petition
- Other order or other annexes may only be a Xerox copy no need to attached the duplicate original copy
- Certificate of non forum shopping should be attached, failure of which is a ground for dismissal
o EXC
 Certification of non forum shopping was sent on the next day after the petition was filed
- Appeal by certiorari is not a matter of right
- May dismiss the petition
o Patently without merit
o Prosecuted manifestly for delay
o The question is too unsubstantial for consideration
- If petition is given due course
o memorandum
- 45 vs 65
o 45
 Mode of appeal
 Question or issue raised is question of law, WON the CA has committed an error of law in deciding
the case
 Appeal the judgment that completely and finally disposes of the case
 15 days to appeal from receipt of judgment or denial of MR MNT, extension of 30 days is given
 Req of extension
o Should file a motion for estensiuon of time within the 15 day period
o Pay the docket fee and other lawful fees and the deposit for cost of 500
 Appeal by certiorari you cannot enforce the judgment of the lower court, stays the execution of the
judgment
 No need to file an MR first
 Exercise of appellate jurisdiction of SC
 Only mode of appeal to the SC
o 65
 Original action
 Issue is WON the judge committed grave abuse of discretion or lack or excess of jurisdiction
 Judgment or order that is being reviewed is not final, merely interlocutory
 60 days
 Petition for certiorari does not stay the judgment you are questioning not unless there is a TRO
 It is a requirement that you must first file an MR, give the court below a chande to rectify their
mistake
 Original action of SC, exercise of the supervisory power of the SC and correct the error of the RTC
 Can be filed in the CA
Rule 46
350
ORIGINAL CASES
Q: What is the difference between Rule 46 and Rule 44?

A: Rule 44 deals with appealed cases. Rule 46 deals with original cases. Remember
that the CA is both an original and appellate court.
Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129,
1. Certiorari,
2. prohibition,
3. mandamus,
4. quo warranto,
5. annulment of judgment of the RTC.
The Annulment of Judgment of the RTC, which belongs to the exclusive

original jurisdiction of the CA, is governed by Rule 47.
Now, all the rest of the sections here are almost the same: how many copies, docket
fees, certification of non-forum shopping, etc…
Section 1. Title of cases. In all cases

originally filed in the Court of Appeals, the
party instituting the action shall be called
the petitioner and the opposing party the
respondent. (1a)
Rule 44 on appeal to the CA, the caption of the case is the same as the caption in
the RTC (e.g. in the RTC, “RED HOT vs. LIMP BIZKIT”). You just add the word ‘appellant’ and
‘appellee.’ BUT in Rule 46 in original cases, the parties are now called ‘petitioner’ and
‘respondent.’
Sec. 2. To what actions applicable. This

Rule shall apply to original actions for
certiorari, prohibition, mandamus and quo
warranto.
Except as otherwise provided, the actions

for annulment of judgment shall be governed
by Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto by
Rule 66. (n)
Therefore, the provisions of Rules 65, 66 and 47 which apply to this original action
should be read with Rule 46.
Just read Section 3. Take note of the second paragraph which was inserted in 1998 by
SC Circular 39-98).
Sec. 3. Contents and filing of petition;

effect of non-compliance with requirements.
The petition shall contain the
351
A. full names and actual addresses of all
the petitioners and respondents,
B. a concise statement of the matters
involved,
C. the factual background of the case, and
D. the grounds relied upon for the relief
prayed for.
In actions filed under Rule 65, the

petition shall further indicate the material
dates showing when notice of the judgment or
final order or resolution subject thereof was
received, when a motion for new trial or
reconsideration, if any, was filed and when
notice of the denial thereof was received.
(Cir. No. 39-98)
It shall be filed in seven (7) clearly

legible copies together with proof of service
thereof on the respondent with the original
copy intended for the court indicated as such
by the petitioner, and shall be accompanied
by a clearly legible duplicate original or
certified true copy of the judgment, order,
resolution, or ruling subject thereof, such
material portions of the record as are
referred to therein, and other documents
relevant or pertinent thereto. The
certification shall be accomplished by the
proper clerk of court or by his duly
authorized representative, or by the proper
officer of the court, tribunal, agency or
office involved or by his duly authorized
representative. The other requisite number of
copies of the petition shall be accompanied
by clearly legible plain copies of all
documents attached to the original.

with the petition a sworn certification that
he has not theretofore commenced any other
action involving the same issues in the
Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
352
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and
other tribunal or agency thereof within five
(5) days therefrom.
The petitioner shall pay the corresponding

docket and other lawful fees to the clerk of
court and deposit the amount of P500.00 for
costs at the time of the filing of the
petition.
The failure of the petitioner to comply

with any of the foregoing requirements shall
be sufficient ground for the dismissal of the
petition. (n)
Sec. 4. Jurisdiction over person of

respondent, how acquired. The court shall
acquire jurisdiction over the person of the
respondent by the
A. service on him of its order or

B. resolution indicating its initial
action on the petition or
C. by his voluntary submission to such
jurisdiction. (n)
When you file an original action before the CA like certiorari, normally under Section 3
you already furnish the adverse party with a copy of your petition. Then the CA will now
issue a resolution, like for example, “Defendant/Respondent, you are given so many days to
comment.”
That is how the CA acquires jurisdiction over your person – by serving you a copy of
the order indicating its initial action. So there is no more summons because you
were already furnished a copy earlier.
Sec. 5. Action by the court. The court may

dismiss the petition outright with specific
reasons for such dismissal or require the
respondent to file a comment on the same
within ten (10) days from notice. Only
pleadings required by the court shall be
allowed. All other pleadings and papers may
be filed only with leave of court. (n)
353
Sec. 6. Determination of factual issues.
Whenever necessary to resolve factual issues,
the court itself may conduct hearings thereon
or delegate the reception of the evidence on
such issues to any of its members or to an
appropriate court, agency or office. (n)
Sec. 7. Effect of failure to file comment.

When no comment is filed by any of the
respondents, the case may be decided on the
basis of the record, without prejudice to any
disciplinary action which the court may take
against the disobedient party. (n)
Rule 47
ANNULMENT OF JUDGMENTS OR
354
FINAL ORDERS AND RESOLUTIONS
Rule 47 is an entirely new rule which governs the remedy of annulment of

judgments or final orders or resolutions. We already met this remedy in judiciary law.
The CA has original exclusive jurisdiction to annul final judgments and
resolutions of the RTC. (Section 9, BP 129) So it is an entirely original action for
annulment of judgment of the RTC.
Now, that should not be confused with certiorari, prohibition and mandamus which fall
under the original concurrent jurisdiction of the CA. Rule 47 or annulment of judgment of
the RTC falls within the exclusive original jurisdiction of the CA.
Take note that in an appeal, the judgment appealed from is valid. But in annulment
under Rule 47, the judgment is being asked to be declared void.
Under the prior law there was no direct rule governing that remedy. The only guideline
for annulment of judgments of the RTC are decided cases. Now for the first time the 1997
Rules have a definite rule on how to enforce this remedy.
So let’s read Section 1 because this is a remedy which has been existing without
definite guidelines on how to do it.
Section 1. Coverage. This Rule shall govern

the annulment by the Court of Appeals of
judgments or final orders and resolutions in
civil actions of Regional Trial Courts for
which the ordinary remedies of new trial,
appeal, petition for relief or other
appropriate remedies are no longer available
through no fault of the petitioner. (n)
Well of course the remedy of new trial under Rule 37 must be availed of before the
judgment or order becomes final and executory. Also, the remedy of appeal must also be
availed before the judgment or order becomes final and executory.
In petition for relief under Rule 38, although the judgment or order is already final and
executory, it must be done still within 60 days and 6 months.
Q: Suppose all the abovementioned remedies have lapsed, is there a remedy left?
A: Section I says YES. There is annulment of judgment but only on limited
grounds.
Now what are the grounds for annulment of judgment? Section 2:
Sec. 2. Grounds for annulment. The

annulment may be based only on the grounds of
A. extrinsic fraud and
B. lack of jurisdiction.
Extrinsic fraud shall not be a valid ground

if it was availed of, or could have been
availed of, in a motion for new trial or
petition for relief. (n)
Q: What are the grounds for annulment of judgment under Section 2?

A: The grounds recognized by law for annulment of judgment are the only two
(2):
355
1.)The judgment was secured through extrinsic fraud; or
Extrinsic fraud should not be a valid ground if availed of, or could
have been availed of, in a motion for new trial or petition for relief.
2.)The judgment is void for lack of jurisdiction.
First Ground: EXTRINSIC FRAUD

Q: How do we describe the remedy of annulment of judgment?
A: Annulment of judgment is described briefly as a remedy against
a judgment which is already final and executory when the remedy of appeal and
new trial is already lost.
Petition for relief under Rule 38 is a remedy against a final and executory judgment kaya
lang merong deadline – 6 months and 60 days. So after these periods lapse, wala na.
Sa petition for relief, apat yon eh: Fraud, accident, mistake and excusable negligence.
In annulment of judgment, wala na yung accident, mistake and excusable negligence.
But yung EXTRINSIC FRAUD natira pa. That is the only one which can be left behind under
Rule 47.
Q: Now what is meant by extrinsic fraud ?
A: We already discussed this. Fraud, to be a ground for nullity of a judgment,

must be extrinsic – that fraud done by the adverse party which prevented a party
from having a trial or from presenting his case fully.
Therefore, intrinsic fraud is not a ground for new trial. It is not a ground for petition for
relief. And it is not a ground for annulment.
INTRINSIC FRAUD is that fraud which was an issue in the litigation such as perjury,
false testimony, concealment of evidentiary facts, but did not prevent you from presenting
your case. That is not a ground for annulment of judgment. So take note of that principle.
COSMIC LUMBER CORP. vs. COURT OF APPEALS

256 SCRA 168 [1996]
FACTS: Cosmic Lumber owns a piece of land occupied by some squatters.

Now, Cosmic Lumber executed a board resolution for a special power of attorney
authorizing an attorney-in-fact to initiate, institute and file in any court action for
the ejectment of the squatters from its property. Then the agent by virtue of the
power of attorney, filed a case to recover a portion of this property from its
occupants before the RTC.
While the case was going on, the agent (the attorney-in- fact) entered into a
compromise agreement with the squatters. In the compromise agreement, the
attorney-in-fact sold the property or land to the squatter for only P26,000. And
the compromise agreement was approved by the court and it became final and
executory.
Now it was several years later that the Cosmic Lumber heard about it. The
Cosmic Lumber filed an action to annul the judgment before the CA on the ground
of extrinsic fraud.
The CA: The case will be dismissed because that is not one of the grounds for
annulment of judgment because the alleged nullity of the compromise judgment,
because petitioner’s attorney-in-fact was not authorized to sell the property. That
does not amount to extrinsic fraud. That was fraud by your own representative, it
is not fraud by the other party. The one who exercised fraud was your own
attorney-in-fact, not the squatter. So kaya nga that is not a ground. The CA
dismissed the action. So Cosmic Lumber went to the SC.
HELD: “The petition to annul the decision of the trial court in civil
case before the CA was proper. Emanating as it did from a void
compromise agreement, the trial court had no jurisdiction to render a
judgment based thereon.” So there is another ground – lack of
jurisdiction.
356
“The highly reprehensible conduct of attorney-in-fact in the civil case
constituted an extrinsic or collateral fraud by reason of which the judgment
rendered thereon should have been struck down. Not all the legal semantics in
the world can becloud the unassailable fact that petitioner was deceived and
betrayed by its attorney-in-fact. The latter deliberately concealed from petitioner,
her principal, that a compromise agreement had been forged with the end result
that a portion of petitioner’s property was sold literally for a song, for P26,000.
Thus completely kept unaware of its agent’s artifice, petitioner was not accorded
even a fighting chance to repudiate the settlement so much so that the judgment
based thereon became final and executory.”
“For sure, the CA restricted the concept of fraudulent acts within too narrow
limits. Fraud may assume different shapes and be committed in as many different
ways and here lies the danger of attempting to define fraud. For man in his
ingenuity and fertile imagination will always contrive new schemes to fool the
unwary.”
So fraud by your attorney-in-fact is also considered as a ground for

annulment.
Second Ground: JUDGMENT IS VOID
If we follow jurisprudence, there is a third ground which is implied: LACK OF DUE

PROCESS. When there is lack of due process there is also lack of jurisdiction.
Q: How do you attack a judgment which is void?

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

A: Meaning, there is no need for me to file a case but I can invoke its nullity
anytime because a judgment which is void on its very face can be attacked at
anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a judgment. I will

oppose the execution on the ground that the judgment is void. That is collateral
attack. I’m just saying that the judgment cannot be enforced because it is null and void.
But I never filed a direct action to declare its nullity. That can be done if the judgment is
void on its very face.
Q: What is a DIRECT ATTACK?

A: By direct attack means you must file an action to declare its nullity. So there must
be a case for its annulment.
Again, when the judgment is null and void on its face, (1) you may file a direct
action to annul it under Rule 47. Or, (2) it can also be attacked collaterally, a
direct attack is not necessary. A collateral attack will suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the decision, obviously the
RTC has no jurisdiction. Therefore, I can attack it directly by filing a case for its annulment
under Rule 47. OR, I will not file a case under Rule 47 but I will attack it collaterally.
Meaning, bayaan ko lang. I will raise that issue during execution. If you move for execution,
I can oppose, “You cannot execute because the RTC has no jurisdiction over the case.
Therefore the judgment is void.” So it is not necessary to file a case to declare the decision
as null and void. That is collateral attack.
But if the judgment is not void on its face but the nullity is intrinsic or
nakatago – not obvious ba – the rule is, you must file a direct action for its
357
annulment which must be done before the action is barred by laches or estoppel.
So it is necessary to file a case for annulment of judgment under Rule 47.
Well of course, certiorari under Rule 65 is also a ground for attacking a

judgement but the trouble is you are limited to 3 grounds: Lack of jurisdiction,
excess of jurisdiction and grave abuse of discretion. Walang extrinsic fraud. That
is governed by Rule 65 and not by Rule 47.
And under Rule 65, you can avail of certiorari only within 60 days. But if you want
annulment, it could be longer under Rule 47. That is under section 3. That could be a big
difference.
Moreover, what do you attack in certiorari? Normally, interlocutory orders eh. But a final
judgment can be attacked by annulment under Rule 47.
Now, those remedies were summarized in the case of
BAYOG vs. NATINO

258 SCRA 378 [1996]
HELD: It is a settled rule that a final and executory judgment may be

set aside in three (3) ways. To wit:
1. By petition for relief from judgment under Rule 38;

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

178 SCRA 178
ISSUE #1: Can a person, who is not a party to the judgment, file an action for
annulment of judgment?
HELD: A person who is not a part of the judgment may sue for its
annulment PROVIDED that he can prove
[1] that the judgment was obtained through fraud and collusion and
[2] that he would be adversely affected thereby.
ISSUE #2: Suppose the judgment had already been fully executed and
implemented, can you still file a case for annulment of judgment?
HELD: YES. We will also annul the execution. If there is no execution yet,
the proper remedy normally is you file an action for annulment and ask for the
issuance of a writ of preliminary injunction so that it will not be enforced. Pero
kung na-enforced na pwede pa man din ba.
SUMMARY: Possible remedies of defendant declared in DEFAULT:

1.)Rule 9, Section 3 [b] – Motion to lift Order of Default, there is
still no judgment; ground: FAME;
2.)Rule 37 – Motion for new trial, judgment not yet final; Ground:
FAME;
3.)Rule 38 – Petition for relief within 60 days and 6 months,
judgment is already final; ground: FAME;
4.)Rule 41 – Appeal within 15 days; ground: Default judgment is
contrary to law or evidence;
5.)Rule 47 – Annulment of judgment; Ground: Extrinsic Fraud;
6.)Rule 65 – Certiorari; ground: Lack or excess of jurisdiction or
grave abuse of discretion
358
Q: What is the period to file an action for annulment on the ground of extrinsic fraud?
A: Section 3:
Sec. 3. Period for filing action. If based

on extrinsic fraud, the action must be filed
within four (4) years from its discovery; and
if based on lack of jurisdiction, before it
is barred by laches or estoppel. (n)
This is based on decided cases. If your ground is extrinsic fraud, the action is
filed within four (4) years from its discovery. Now, if it is based on lack of
jurisdiction, before it is barred by laches or estoppel. That is very elastic – laches
or estoppel.
Although if you look at the strict law based on Article 1144 of the New Civil Code, the
prescriptive period really is 10 years for any action on judgment. That is the
strict law but it could be barred earlier by laches or estoppel.
Now as to the contents of the petition, we have Section 4:
Sec. 4. Filing and contents of petition.
The action shall be commenced by filing a

verified petition alleging therein with
particularity
a. the facts and the law relied upon for

annulment,
b. as well as those supporting the
petitioner’s good and substantial cause
of action or defense, as the case may
be.
The petition shall be filed in seven (7)

clearly legible copies, together with
sufficient copies corresponding to the number
of respondents. A certified true copy of the
judgment or final order or resolution shall
be attached to the original copy of the
petition intended for the court and indicated
as such by the petitioner.

with the petition affidavits of witnesses or
documents supporting the cause of action or
defense and a sworn certification that he has
not theretofore commenced any other action
involving the same issues in the Supreme
Court, the Court of Appeals or different
divisions thereof, or any other tribunal or
agency; if there is such other action or
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proceeding, he must state the status of the
same, and if he should thereafter learn that
a similar action or proceeding has been filed
or is pending before the Supreme Court, the
Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof
within five (5) days therefrom.(n)
Take note that yung mga affidavits of your witnesses or documents supporting
your cause of action must be attached already. You correlate this with Rule 37,
Section 2 on new trial and Rule 38, Section 3 on petition for relief.
What does Rule 37, Section 2 and Rule 38, Section 3 say about motion for new trial or
petition for relief? There is also an AFFIDAVIT OF MERITS showing the nature of the
fraud, accident and the meritorious cause of action or defense. So more or less that
principle also applies in Rule 47.
Sec. 5. Action by the court. Should the

court find no substantial merit in the
petition, the same may be dismissed outright
with specific reasons for such dismissal.
Should prima facie merit be found in the
petition, the same shall be given due course
and summons shall be served on the
respondent. (n)
Under Section 5, the court may dismiss outright the petition if there is no merit
or no substantial merit. If there is, then the same shall be given due course and
summons shall be served on the respondent.
Take note there will be SUMMONS here. Unlike in Rule 46, walang summons yon.
But here, there will be summons by the CA. That is the difference between Rule 47 and Rule
46.
Sec. 6. Procedure. The procedure in

ordinary civil cases shall be observed.
Should a trial be necessary, the reception of
the evidence may be referred to a member of
the court or a judge of a Regional Trial
Court. (n)
Q: What happens if the judgment is annulled? Can the plaintiff re-file the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of

annulment shall set aside the questioned
judgment or final order or resolution and
render the same null and void, without
prejudice to the original action being
refiled in the proper court.
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However, where the judgment or final order
or resolution is set aside on the ground of
extrinsic fraud, the court may on motion
order the trial court to try the case as if a
timely motion for new trial had been granted
therein. (n)
So if the judgment is set aside on the ground of extrinsic fraud, the action can
be re-filed. The court may, on motion, order the trial court to try the case as if a
timely motions for the trial had been granted therein. That is similar to Rule 38,
Section 6. Remember when the court grants a petition for relief, the case will be tried all
over again as if a timely motion for new trial has been filed.
Q: What happens if by the time you re-file the case the prescriptive period has already
lapsed?
A: As a general rule, while the action for annulment is pending, the
prescriptive period for filing is interrupted. That is Section 8:
Sec. 8. Suspension of prescriptive period.

The prescriptive period for the refiling of
the aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment.
EXC: However, the prescriptive period shall

not be suspended where the extrinsic fraud is
attributable to the plaintiff in the original
action. (n)
Q: What happens if a judgment is annulled and it was earlier executed?
A: Section 9:
Sec. 9. Relief available. The judgment of

annulment may include the
A. award of damages,
B. attorney’s fees and
C. other relief.
If the questioned judgment or final order

or resolution had already been executed, the
court may issue such orders of restitution or
other relief as justice and equity may
warrant under the circumstances. (n)
Under Section 9, the court may issue order of restitution or other reliefs as
justice and equity may warrant. That is similar to Rule 39, Section 5 – in case of
execution pending appeal and the appealed judgment is reversed, the court will
now order mutual restitution pursuant to Rule 39, Section 5.
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Sec. 10. Annulment of judgments or
final orders of Municipal Trial Courts.
An action to annul a judgment or final
order of a Municipal Trial Court shall
be filed in the Regional Trial Court
having jurisdiction over the former. It
shall be treated as an ordinary civil
action and sections 2, 3, 4, 7, 8 and 9
of this Rule shall be applicable
thereto. (n)
I have always maintained this view. As I said, if we will look at the judiciary law, it only
mentions annulment of judgments of Regional Trial Courts which should be filed in the CA
(exclusive original).
And the QUESTION is asked: “Meron bang action for annulment of judgments of MTC?”
Yaann!
Answer: YES. Kung merong annulment of judgment of the RTC, by implication,
meron din ang MTC. You cannot file it in the CA. You file it in the RTC.
Annulment of judgment of the MTC will fall under the rule on jurisdiction of the RTC –
any action which does not belong to the jurisdiction of any other courts (Section 19 [6], BP
129) or, an action the subject matter of which is incapable of pecuniary estimation (Section
19 [1], BP 129) That would be the authority.
Now it’s very clear, meron talaga. It is now stated categorically there is an action for
annulment of judgment also of the MTC. It must be filed in the RTC having jurisdiction over
the MTC. The grounds are identical as those found in the previous section. So this is an
entirely new section.
-oOo-
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Rule 48
PRELIMINARY CONFERENCE
Preliminary Conference is like a pre-trial in the CA. Iba lang ang tawag but it is really a pre-trial
because there are cases which fall under the original jurisdiction of the CA, like annulment of judgment of the
RTC. Its purpose is the same as in Rule 18 on pre-trial.
Section 1. Preliminary conference. At any time during the pendency of a case, the
court may call the parties and their counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement, except when the case is
not allowed by law to be compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of documentary exhibits,
limit the number of witnesses to be presented in cases falling within the original
jurisdiction of the court, or those within its appellate jurisdiction where a motion for
new trial is granted on the ground of newly discovered evidence; and
(d) To take up such other matters which may aid the court in the prompt
disposition of the case. (n)
Sec. 2. Record of the conference. The proceedings at such conference shall be

recorded and, upon the conclusion thereof, a resolution shall be issued embodying
all the actions taken therein, the stipulations and admissions made, and the issues
defined. (n)
Sec. 3. Binding effect of the results of the conference. Subject to such modifications
which may be made to prevent manifest injustice, the resolution in the preceding
section shall control the subsequent proceedings in the case unless, within five (5)
days from notice thereof, any party shall satisfactorily show valid cause why the
same should not be followed. (n)
Rule 49
ORAL ARGUMENTS
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own instance or upon motion of a party, the court
may hear the parties in oral argument on the merits of a case, or on any material
incident in connection therewith. (n)
The oral argument shall be limited to such matters as the court may specify in its
order or resolution. (1a, R48)
Sec. 2. Conduct of oral argument. Unless authorized by the court, only one counsel
may argue for a party. The duration allowed for each party, the sequence of the
argumentation, and all other related matters shall be as directed by the court. (n)
Sec. 3. No hearing or oral argument for motions. Motions shall not be set for hearing
and, unless the court otherwise directs, no hearing or oral argument shall be allowed
in support thereof. The adverse party may file objections to the motion within five (5)
days from service, upon the expiration of which such motion shall be deemed
submitted for resolution. (2a, R49)
How are cases decided in the CA? Normally, you file your petition; submit argument in writing; then you
wait for the decision. But sometimes, the CA is provoked by legal issues. So the CA would decide to listen to oral
arguments of the parties, especially when the case is controversial.
Under Section 3, one difference between motions filed in the RTC and in the CA is that:
a.) in the RTC, there must be notice of hearing (Rule 15) attached to the motion,
otherwise it will be denied;
b.) in the CA, there is no need for notice of hearing to be attached to the motion.
Rule 50
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DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under Section 1, an appeal
may be dismissed by the CA on its own (motu propio) or upon motion of the appellee. And
there are nine (9) grounds for dismissal of appeal under Section 1:
Section 1. Grounds for dismissal of appeal.

An appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the
appellee, on the following grounds:
(a) Failure of the record on appeal to show

on its face that the appeal was taken within
the period fixed by these Rules;
(b) Failure to file the notice of appeal or

the record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the

docket and other lawful fees as provided in
section 5 of Rule 40 and section 4 of Rule
41;
(d) Unauthorized alterations, omissions or

additions in the approved record on appeal as
provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and

file the required number of copies of his
brief or memorandum within the time provided
by these Rules;
(f) Absence of specific assignment of

errors in the appellant’s brief, or of page
references to the record as required in
section 13, paragraphs (a), (c), (d) and (f)
of Rule 44;
(g) Failure of the appellant to take the

necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at

the preliminary conference under Rule 48 or
to comply with orders, circulars, or
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directives of the court without justifiable
cause; and
(i) The fact that the order or judgment

appealed from is not appealable. (1a; En Banc
Resolution, Feb. 17, 1998)
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW ON ITS

FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD FIXED BY
THESE RULES;
So this only applies in cases where a record on appeal is required. Failure to show on its
face that the appeal was perfected on time – meaning, the appeal might have been
perfected on time but by reading the record on appeals, you will not see it.
Normally, that happens when the party did not state the exact date when he received
the decision. He may just state the date of the decision without stating the date of receipt.
With that, the court will presume that you received it on the date of the decision. It might
be beyond the period to appeal. So on its face, there is no showing whether the appeal
was within the 30 day period or not.
The first ground is called the MATERIAL DATA RULE – that the record on appeal must
show on its face that the appeal was taken on time.
In the 1973 case of BERKENKOTTER VS. CA, this ground was supposed to be abolished
already where the SC said that from now on, We will no longer follow the material data rule.
Meaning this is abandoned.
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the SC has already
refused to apply this ground. So when they drafted the Rules, dapat tinanggal na yon. Bakit
nandito na naman? They might have forgotten that it has been abandoned by
jurisprudence, unless the intention is to return it.
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE

RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY THESE
RULES;
Take note that under paragraph [a], the appeal was filed on time but the record on
appeal does not show that it was filed on time.
But here in paragraph [b], the appeal is really out of time. Take note that you can raise
this ground in the trial court. The trial court is also authorized to dismiss an appeal on this
ground (Rule 41, Section 13). But assuming that you failed to raise it in the trial court, you
can raise it in the CA.
Q: Are you under estoppel for not raising it earlier in the RTC? Meaning, why did you not
bring it out earlier, bakit hinintay pa sa CA?
A: There is no estoppel here because actually this is a jurisdictional challenge. When the
notice of appeal is filed out of time or beyond 15 days, actually the judgment of the RTC
has already become final and executory. So you are now challenging the jurisdiction of the
CA. Meaning, you are trying to say that the CA has no jurisdiction to review on appeal a
judgment of the RTC which has already been final and executory.
Q: Does the CA have the power to review and reverse an RTC judgment which is already
final and executory?
A: No more. The judgment which is already final cannot be changed by the CA. Meaning,
the CA has no jurisdiction to entertain the appeal in that case. So in effect, it is a
jurisdictional challenge which can be raised even in the CA even if not raised earlier in the
RTC.
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Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET AND
OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF RULE 40 AND
SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal from the MTC to the RTC.
Section 4 of Rule 41 refers to filing of docket fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee ?

A: Within the 15-day period, you already pay it in the RTC clerk of court. Unlike before
you pay it with the CA later. That is why as I said, failure to pay the docket fee in the RTC is
a ground for dismissal of the appeal because of this.
Q: But how about failure to pay the appeal fee in the MTC prior to transmittal to the
RTC? Is it a ground for dismissal by the CA?
A: To my mind NO because why will the CA dismiss it when the appeal is in the RTC?
Bakit ang CA mag-dismiss, wala man ang kaso sa kanila? The CA has nothing to do with the
appeal. It is supposed to be in the RTC, bakit ang CA ang mag-dismiss? In other words,
there is something wrong with this amendment. (referring to “Section 5 of Rule 40”)
But if the appeal is from the RTC to the CA, you must you must pay the docket fees
because it is a specific ground for dismissal for the dismissal under Rule 50.
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR

ADDITIONS IN THE APPROVED RECORD ON APPEAL AS PROVIDED IN
SECTION 4 OF RULE 44;
That’s only when there is a record on appeal. When the record on appeal is approved,
you have to reproduce it and you are not allowed to make any alteration, revision or
addition.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE THE
REQUIRED NUMBER OF COPIES OF HIS BRIEF OR MEMORANDUM WITHIN
THE TIME PROVIDED BY THESE RULES;
Failure of the appellant to serve and file the required number of copies of his brief. So,
failure to file the appellant’s brief is a ground for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief, what will happen ?
A: You do not dismiss the appeal but the case will be submitted for decision without
appellee’s brief. The CA will make a resolution that the case was submitted without the
appellee’s brief.
Q: Does it mean to say that talo na ‘yung appellee?

A: NO. There are many cases I’ve seen where the appellee did not file any brief – Talo
man gihapon ang appellant because anyway the appellant’s brief has no merit. But
normally in cases na delikado, you better file an appellee’s brief. You owe that to your
client. Just imagine, lahat ng arguments dun hindi sagutin. That’s very dangerous!
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS IN

THE APPELLANT’S BRIEF, OR OF PAGE REFERENCES TO THE RECORD
AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D) AND (F) OF RULE
44;
Well, you may file an appellant’s brief, eh wala namang page references, wala namang
assignment of errors. My God! What kind of brief is that! (YC Bikini Briefs?) Very sloppy! You
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file a brief without telling the CA kung anong mali and then you expect the CA to look for
the errors. My golly! Do not expect the CA to do that. Meron dapat citations – e.g. “See
Exhibit ‘A’”, “See transcript…” Merong reference ba! like kung anong page yan.
Now if you file a brief without footnotes, without citing the law, without citing the
transcript, without citing the exhibit, that would be dismissed. That’s what happened in the
1995 case of
DEL ROSARIO vs. COURT OF APPEALS

241 SCRA 553 [1995]
FACTS: The CA dismissed the case simply because the appellant’s brief was
sloppily written – no reference to exhibit, no reference to page, no reference to
anything. It was dismissed! The appellant went to the SC pleading liberality.
HELD: “Petitioner’s plea for liberality in applying these rules in preparing

Appellant’s Brief does not deserve any sympathy. Long ingrained in our
jurisprudence is the rule that the right to appeal is a statutory right and a party
who seeks to avail of the right must faithfully comply with the rules. Deviations
from the rules cannot be tolerated. The rationale for this strict attitude is not
difficult to appreciate. These rules are designed to facilitate the orderly
disposition of appealed cases. In an age where courts are bedeviled by clogged
dockets, these rules need to be followed by appellants with greater fidelity. Their
observance cannot be left to the whims and caprices of appellants.”
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE

NECESSARY STEPS FOR THE CORRECTION OR COMPLETION OF THE
RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
Sometimes yung record mo kulang-kulang ba. And the party may be directed to work for
the completion. If you fail to complete the record, your appeal will be dismissed.
Please connect this with two previous provisions talking about completion of the record
in an appealed case. I’m referring to Rule 41, Section 10 and Rule 44, Sections 5 to 6
because these provisions talk also of completion of record. (please refer to your codals)
Rule 41, Sec. 10. Duty of clerk of court of the lower court upon perfection
of appeal. Within thirty (30) days after perfection of all the appeals in
accordance with the preceding section, it shall be the duty of the clerk of
court of the lower court:
(a) To verify the correctness of the original record or the record on appeal,
as the case may be, and to make a certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the
appellate court;
(c) If found to be incomplete, to take such measures as may be required to
complete the records, availing of the authority that he or the court may
exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his letter
of transmittal the exhibits or transcripts not included in the records being
transmitted to the appellate court, the reasons for their non-transmittal, and
the steps taken or that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of
transmittal of the records to the appellate court.
Rule 44, Sec. 5. Completion of record. Where the record of the docketed case
is incomplete, the clerk of court of the Court of Appeals shall so inform said
court and recommend to it measures necessary to complete the record. It shall be
the duty of said court to take appropriate action towards the completion of the
record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record. Where the completion of the
record could not be accomplished within a sufficient period allotted for said
purpose due to insuperable or extremely difficult causes, the court, on its own
motion or on motion of any of the parties, may declare that the record and its
accompanying transcripts and exhibits so far available are sufficient to decide
the issues raised in the appeal, and shall issue an order explaining the reasons
for such declaration.
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Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE
PRELIMINARY CONFERENCE UNDER RULE 48 OR TO COMPLY WITH
ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT WITHOUT
JUSTIFIABLE CAUSE; AND
That’s a new ground – failure to appear on the preliminary conference; failure to comply
with orders, circulars, directives of the court without justifiable cause. That is very broad.
That’s a new one not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT APPEALED
FROM IS NOT APPEALABLE.
The fact that the judgment or order appealed from is not appealable. Interlocutory!
Q: What are the judgments or orders which are not appealable?

A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.
x x x x x x
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration; - ameneded
but principle remains
(b) An order denying a petition for relief or any similar motion seeking
relief from judgment;
(c) An interlocutory order;
(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;
(g) A judgment or final order for or against one or more of several parties
or in separate claims, counterclaims, cross-claims and third-party complaints,
while the main case is pending, unless the court allows an appeal therefrom; and
x x x x x x
So, if you appeal on any one of them, the other party can file a motion to dismiss on the
ground that it is not appealable.
Now, there is one ground for dismissal under the old rule na nawala naman. Yun bang
“failure to prosecute the appeal”, when the records are not elevated to the CA the appeal
can be dismissed. Meaning, you have to follow up the clerk of court. Nawala yun eh. That
ground seems to have been abandoned. I think the attitude there is let us not punish the
appellant for the fault of the clerk of court.
Q: Is a default judgment appealable?

A: YES. It is appealable because it is a final judgment and not merely
interlocutory. Although under the ‘64 Rules, there is a direct provision that a default
judgment is appealable. Now, that provision has disappeared. But even if it is not
mentioned now, default judgment is now covered by Rule 41 on final judgments.
Sec. 2. Dismissal of improper appeal to the

Court of Appeals. An appeal under Rule 41
taken from the Regional Trial Court to the
Court of Appeals raising only questions of
law shall be dismissed, issues purely of law
not being reviewable by said court.
Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a Regional Trial Court
shall be dismissed. (n)
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An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright. (3a)
Meaning, you must appeal to the right court and you must use the proper
mode of appeal. This incorporates in the Rules the resolutions of the SC in the 1990 En
Banc Resolution in MORILLO vs. CONSUL (not found in the SCRA) and also incorporates the
provisions of Circular 2-90 dated March 9. 1990.
Prior to this under the 1964 Rules, the rule is if there is wrong appeal like pure questions
of law to the CA, the CA should not dismiss the appeal but elevate it to the SC. That rule
has long been abandoned. It was abandoned in the case of MORILLO and in Circular 2-90.
Now, it is here. Kung question of law you better appeal to the SC. If you appeal to the CA,
the CA will dismiss it.
MORILLO vs. CONSUL
HELD: “There is no longer any justification for allowing transfers of erroneous

appeals from one court to the other, much less for tolerating continued ignorance
of the law on appeals.”
Take note that this refers to appeal under Rule 41 from RTC. This does not apply when
the appeal to the CA is from a quasi-judicial body. Appeal from a quasi-judicial body on
a pure question of law should be to the CA, never to the SC. You compare this with
Rule 42, Section 2:
Rule 42, Section 2. Form and contents.- The petition shall be filed in seven
(7) legible copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall:
x x x
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly committed
by the RTC and the reasons or arguments relied upon for the allowance of the
appeal.
x x x
“Errors of fact or law, or both.” This refers to Petition for Review from the RTC
to the CA.
Q: What happens if an appeal is already taken to the CA?

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

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

be withdrawn as of right at any time before
the filing of the appellee’s brief.
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Thereafter, the withdrawal may be allowed
in the discretion of the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?

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

A: In the RTC if the records are still in the RTC. If the records of appeal is already in the
CA, you file the motion to the CA at anytime before the filing of the appellee’s brief you can
withdraw it as a matter of right. When there is already an appellee’s brief, it can be allowed
in the discretion of the Court (Section 3). That is similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint may be

dismissed by the plaintiff by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. Upon such notice
being filed, the court shall issue an order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in a competent court an action based on or including the
same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in the lower court?
A: YES, as a matter of right for as long as there is still no answer filed. But when the
defendant has filed an answer, dismissal of the complaint is already discretionary upon the
court. So it is the same!
-oOo-
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Rule 51
JUDGMENT
You already know that the Court of Appeals operates by division. There are 69 justices
there. Every division is composed of 3. The 3 must be unanimous. In case there is no
unanimity, there should be a special division of 5 to hear the case all over again and the
majority rules. Although from what I gathered sa CA, this is a farce . Actually, they do not
discuss it, they will just give it to the ponente. Tapos sabihin mo ‘concur.’ Bihira lang talaga
ang naga-participate unless siguro malakas ka sa isang justice and then mag-dissent para
magkaroon ng division of 5. That is not really the intention of the of the law.
Let’s go back to what we were saying before under Rule 36. Every decision or resolution
of a court shall clearly and distinctly state the facts and the law on which it is based. If a
decision does not state its basis, it is a SIN PERJUICIO judgment. That is not a valid
judgment. The requirement applies to all courts whether MTC, RTC, or CA. This is
emphasized again in Section 5:
Sec. 5. Form of decision. - Every decision

or final resolution of the court in appealed
cases shall clearly and distinctly state the
findings of fact and the conclusions of law
on which it is based, which may be contained
in the decision or final resolution itself,
or adopted from those set forth in the
decision, order, or resolution appealed from.
(Sec. 40, BP Blg. 129) (n)
The CA must state its findings and conclusions or according to Section 5 it may simply
adopt the findings and conclusions set forth in the decision or order appealed from. If the
CA is going to affirm the judgment of the RTC, it may simply copy or adopt the findings and
conclusions of the RTC. It is called a “MEMORANDUM DECISION”.
If you will look at Section 5, it states that the provision is taken from Section 40, BP 129.
It is taken from the Judiciary Law.
Is this provision not an invitation to laziness on the part of the CA justices? If the CA will
affirm the judgment of the RTC, the work is easier because it may simply adopt on its own
the findings of the RTC. If the CA would reverse the decision, the job would be more
difficult, because it would write an entirely new decision to rebut or dispute the findings of
the RTC. This is why when this provision came out in the Judiciary Law, there was a sort of
fear that this might be the cause of laziness.
The SC, well aware of that danger, clarifies in one case that memorandum decisions are
not allowed in all cases. The CA is only allowed to render a memorandum decision in simple
cases especially when the appeal is dilatory and there is nothing wrong in the appealed
decision. But if the case is complicated or complex, even if CA would affirm the decision, it
cannot simply copy the work of the RTC. It should write its own decision. The limitation or
guidelines was issued by the SC precisely to avoid the danger of laziness on the part of CA
justices. The SC said in the case of
371
FRANCISCO vs. PERMSKUL
173 SCRA 324
HELD: “The Court finds it necessary to emphasize that the memorandum

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

A: Section 1 of Rule 51:
Sec. 1. When case deemed submitted for

judgment. - A case shall be deemed submitted
for judgment:
A. In Ordinary appeals. –
1) Where no hearing on the merits of

the main case is held,
a. upon the filing of the last

pleading, brief, or memorandum
required by the Rules or by the
court itself, or
b. the expiration of the period for
its filing.
2) Where such a hearing is held,
a. upon its termination or

b. upon the filing of the last
pleading or memorandum as may be
required or permitted to be
filed by the court, or
c. the expiration of the period for
its filing.
B. In original actions and petitions for

review. -
1) Where no comment is filed,

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

372
a. upon the filing of the last
pleading required or permitted to
be filed by the court, or
b. the expiration of the period for
its filing.
3) Where a hearing on the merits of the

main case is held,
a. upon its termination or
b. upon the filing of the last
pleading or memorandum as may be
required or permitted to be filed
by the court, or
c. the expiration of the period for
its filing. (n)
Sec. 2. By whom rendered. - The judgment

shall be rendered by the members of the court
who participated in the deliberation on the
merits of the case before its assignment to a
member for the writing of the decision. (n)
Sec. 3. Quorum and voting in the court. -

The participation of all three Justices of a
division shall be necessary at the
deliberation and the unanimous vote of the
three Justices shall be required for the
pronouncement of a judgment or final
resolution. If the three Justices do not
reach a unanimous vote, the clerk shall enter
the votes of the dissenting Justices in the
record. Thereafter, the Chairman of the
division shall refer the case, together with
the minutes of the deliberation, to the
Presiding Justice who shall designate two
Justices chosen by raffle from among all the
other members of the court to sit temporarily
with them, forming a special division of five
Justices. The participation of all the five
members of the special division shall be
necessary for the deliberation required in
section 2 of this Rule and the concurrence of
a majority of such division shall be required
for the pronouncement of a judgment or final
resolution. (2a)
373
Sec. 4. Disposition of a case. - The Court
of Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify
the judgment or final order appealed from,
and may direct a new trial or further
proceedings to be had. (3a)
Sec. 5. Form of decision. - Every decision

or final resolution of the court in appealed
cases shall clearly and distinctly state the
findings of fact and the conclusions of law
on which it is based, which may be contained
in the decision or final resolution itself,
or adopted from those set forth in the
decision, order, or resolution appealed from.
(Sec. 40, BP Blg. 129) (n)
Sec. 6. Harmless error. - No error in

either the admission or the exclusion of
evidence and no error or defect in any ruling
or order or in anything done or omitted by
the trial court or by any of the parties is
ground for granting a new trial or for
setting aside, modifying, or otherwise
disturbing a judgment or order, unless
refusal to take such action appears to the
court inconsistent with substantial justice.
The court at every stage of the proceeding
must disregard any error or defect which does
not affect the substantial rights of the
parties. (5a)
Sec. 7. Judgment where there are several

parties. - In all action or proceedings, an
appealed judgment may be affirmed as to some
of the appellants, and reversed as to others,
and the case shall thereafter be proceeded
with, so far as necessary, as if separate
actions had been begun and prosecuted; and
execution of the judgment of affirmance may
be had accordingly, and costs may be adjudged
in such cases, as the court shall deem
proper. (6)
Let’s go to Section 7.
Q: When there are 2 or more plaintiffs or 2 or more defendants in the cases appealed, is
it possible that the CA will render decision for one plaintiff but against the other plaintiffs,
or in favor of one defendant and against the other?
374
A: YES. It is possible that one plaintiff will win, other plaintiffs will lose especially when
the facts are not identical. This is also true in cases of 2 or more defendants when each one
interposes separate defenses. The defense of one may be true, others may be false. It is
possible that one defendant will win and other defendants will lose.
Q: Suppose there are 2 defendants in a case. All of them lost. Defendant A appealed.
Defendant B did not appeal. On appeal, defendant A won. Will the appeal of A benefit B
who did not appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the appealing defendant.
The judgment becomes final to those who did not appeal even if it is wrong.
EXCEPTION : When the LIABILITY of the 2 parties are so INTERTWINED that it would be
absurd that one of them will win and the other will lose. Thus, the appeal by the appealing
party benefits his co-party who did not appeal. This principle was laid down in some cases.
Among them is the case of
UNIVERSAL MOTORS CORP. vs. COURT OF APPEALS

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

219 SCRA 571 [1993]
HELD: “A reversal of a judgment on appeal is binding on the parties to the suit

but does not inure to the benefit of parties who did not join in the appeal (as a
general rule). The recognized exception is when their rights and liabilities and those of
the parties appealing are so interwoven and dependent so as to be inseparable, in which case a
reversal as to one operates as a reversal to all.”
The rule is so similar in Criminal Procedure. When the appeal of one accused benefits
his co-accused who did not appeal especially when the defense of such appealing accused
is applicable to him.
Sec. 8. Questions that may be decided. - No

error which does not affect the jurisdiction
over the subject matter or the validity of the
judgment appealed from or the proceedings
therein will be considered unless stated in the
assignment of errors, or closely related to or
dependent on an assigned error and properly
375
argued in the brief, save as the court may pass
upon plain errors and clerical errors. (7a)
Q: Can the CA decide an issue which was not raised by the parties? Can the CA correct
the error which was never assigned by the other party?
A: GENERAL RULE : Only errors which are stated in the appellant’s brief should be
considered. If the error is not assigned, that cannot be corrected. This is just an extension
of the rule that objections and defenses not pleaded are deemed waived.
EXCEPTION : The following matters can be corrected or the court can take cognizance
even if the parties did not raise them:
1.)Jurisdiction over the subject matter of the case;

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

208 SCRA 899 [1992]
HELD: An unassigned error closely related to the error properly assigned, or

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

241 SCRA 165
HELD: “While the rule is that no error which does not affect jurisdiction will be
considered unless stated in the assignment or errors, the trend in modern-day
procedure is to accord the courts broad discretionary power such that the
appellate court may consider matters bearing on the issues submitted for
resolution which the parties failed to raise or which the lower court ignored.”
Let us look at the second exception – plain errors.
What is a plain error ? Because a plain error can be corrected by the appellate court
even if not asked by the parties, plain man? If you will ask me, any plain error is yung
talagang obvious mistake – one which is apparent to the eye.
Now, suppose the trial court made an error in applying a law or in interpreting a law. But
it was not attacked by the losing party and it was not corrected on appeal. Is it a plain
error? It would seem no and yet that is what happened in the 1993 case of SANTOS vs. CA
(221 SCRA 42).
But before we discuss the case of Santos, we have to know the basics. There are two
principles here to remember.
The appellant is the one who appeals and it is he who will file the appellant’s brief and
then he will make the assignment of errors. The appellee will refute the appellant’s
assignment of errors which were committed by the trial court.
376
Q: Can the appellee impute errors or make assignment of errors?
A: The general rule is NO. If you are an appellee, you are not appealing and thus you
are accepting the decision. So if you think the decision is in your favor pero mali pa rin, you
must also appeal.
So an appellee is not allowed to assign errors committed by the trial court except if the
purpose of the assignment of errors is to sustain the decision on another ground. Because
sometimes you agree with the decision but you do not agree with the reason. The decision
is correct but this should be the reason. Because actually, you are defending the decision
on another ground.
Meaning the court made a mistake in arriving at the decision but the decision is correct.
Yan, puwede yan. But if you want the decision to be changed, then you must also appeal.
Now, let us go to the case of SANTOS which involves the law on lease, particularly the
interpretation and the application of Article 1678 Civil Code. Under the law on lease,
suppose I will rent to you my land and you built a building there and there is no agreement
as to who will own the building after the termination of the lease. Suppose there is no
stipulation, who will own the building?
According to the Civil Code, the owner of the land has the option to acquire the building
by paying one half of its value. Pero, if I do not want to appropriate the building, then you
have the right to remove the building provided you will not damage the land. So the option
to pay you belongs to the owner of the land. The lessee cannot compel the owner of the
land to pay.
Let us go now to the case of Santos. This is a very queer case.

221 SCRA 42
FACTS: Artemio Santos et al are lessees of a piece of land. They have not paid
the rentals for 28 years. The lessor filed a case of unlawful detainer against all of
them before the Metropolitan Trial Court of Pasig. The trial court rendered
judgment against Santos et al. So they were ordered ejected.
Now, these people were not satisfied. They still appealed to the RTC. The RTC
affirmed the judgment that they should be ejected but modified it by ordering the
lessor to reimburse the lessees for the latter’s improvements on the leased
property. So, affirmed, but bayaran mo iyong mga bahay ng mga tao. (DEAN I: To
my mind, that portion of the decision is wrong. You cannot order the lessor to
reimburse.)
But despite that, Santos et al were not satisfied. They still appealed to the CA.
The lessor did not appeal so obviously, the lessor is willing to pay. Although he
has no obligation to pay the improvements, pero sige na lang para matapos na!
He did not appeal.
Now, the CA affirmed again the ejectment. So tatlo na. There were three
courts where the occupants lost. But the CA deleted the portion of the RTC
decision ordering reimbursement of the improvements. It was really wrong.
Walang reimbursement diyan.
So this time, Santos et al appealed to the SC. And they say that the portion of
the decision deleting our right to reimbursements is wrong because the owner of
the land is not questioning it, he is not appealing so why should the CA delete it?
So, meaning payag iyong owner. Therefore that portion of the decision of the CA
where we are no longer entitled to reimbursement is erroneous. The CA has no
power to delete that portion of the RTC decision because there was no appeal
from the landowner.
ISSUE: Is the decision of the CA correct?
HELD: YES. The CA is correct. “It is true that the rule is well-settled that a
party cannot impugn the correctness of a Judgment not appealed from by him,
and while he may make counter-assignment of errors, he can do so only to
sustain the judgment on other grounds but not to seek modification or reversal
thereof for in such a case he must appeal. A party who does not appeal from the
decision may not obtain any affirmative relief from the appellate court other than
what he has obtained from the lower court, if any, whose decision is brought up
377
on appeal. However, the Rules of Court and jurisprudence authorize a tribunal to
consider errors, although unassigned, if they involve
(1) errors affecting the lower court's Jurisdiction over the subject
matter,
(2) plain errors not specified, and
(3) clerical errors.”

“Under Article 1678, it is the lessor who has the option to pay for one-half of
the value of the improvements which the lessee has made in good faith. The
lessee cannot compel the lessor to appropriate and reimburse.” Therefore, the
decision of the RTC ordering the lessor is actually erroneous.
“Hence, the award of reimbursement for improvements by the trial court in
favor of petitioners amounts to a plain error which may be rectified on appeal
although not specified in the appellee’s brief.”
But the trouble is, the landowner did not appeal. If we follow the ruling, then lahat ng
mali ng trial court ay plain error na. That is what the SC said. Bakit man naging plain error
ito when actually it will not qualify as plain error ? If we will follow that line of reasoning,
every mistake committed by a trial court can be corrected being a plain error.
To my mind, merong equity ito, eh. Analyze the case. You are occupants for 28 years
and you did not pay. Ayaw mo lumayas, bayaran ka pa? There is something wrong there
already. I think that is the factor eh.
So the SC said that it is too unfair for the landowner still to be required to pay. Imagine
they stayed there for 28 years, hindi pa nagbayad. I think those are the factors. So in other
words, equity bah! So the Court has to look for a reason to justify. Ang nakita is plain error –
when you do not know how to apply the law, then it is plain error. But actually, that should
be an assigned error. It is a very interesting case.
Sec. 9. Promulgation and notice of

judgment. - After the judgment of final
resolution and dissenting or separate
opinions, if any, are signed by the Justices
taking part, they shall be delivered for
filing to the clerk who shall indicate
thereon the date of promulgation and cause
true copies thereof to be served upon the
parties or their counsel. (n)
Sec. 10. Entry of judgments and final

resolutions. - If no appeal or motion for new
trial or reconsideration is filed within the
time provided in these Rules, the judgment or
final resolution shall forthwith be entered
by the clerk in the book of entries of
judgments. The date when the judgment or
final resolution becomes executory shall be
deemed as the date of its entry. The record
shall contain the dispositive part of the
judgment or final resolution and shall be
signed by the clerk, with a certificate that
such judgment or final resolution has become
final and executory. (2a, R36)
378
Sec. 11. Execution of judgment. - Except
where the judgment or final order or
resolution, or a portion thereof, is ordered
to be immediately executory, the motion for
its execution may only be filed in the proper
court after its entry.
In original actions in the Court of

Appeals, its writ of execution shall be
accompanied by a certified true copy of the
entry of judgment or final resolution and
addressed to any appropriate officer for its
enforcement.
In appealed cases, where the motion for

execution pending appeal is filed in the
Court of Appeals at a time that it is in
possession of the original record or the
record on appeal, the resolution granting
such motion shall be transmitted to the lower
court from which the case originated,
together with a certified true copy of the
judgment or final order to be executed, with
a directive for such court of origin to issue
the proper writ for its enforcement. (n)
Q: Now, how do you execute a judgment of the CA?

A: Under Section 11, it depends if it is an original action or an appealed case.
For an appealed case, in case of execution pending appeal, take note that if the
records of the case are already elevated to the CA, motion for execution pending appeal
should already be filed there. And if the CA grants the motion to execute pending appeal, it
will follow the third paragraph there. It will issue the order and direct the RTC to enforce the
judgment.
Now, you should correlate this with Rule 39 Sections 1 and 2:
Rule 39, Section 1. Execution upon judgments or final orders. - Execution

shall issue as a matter of right, on motion , upon a judgment or order that
disposed of the action or proceeding upon the expiration of the period-to appeal
therefrom if no appeal has been duly perfected.
forthwith be applied for in the court or origin, on motion of the judgment
obligee, submitting therewith certified true copies of the judgment or judgments
or final order or orders sought to be enforced and of the entry thereof, with
notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.
Section 2. Discretionary execution.
A. Execution of a judgment or final order pending appeal.- On motion of the

prevailing party with notice to the adverse party filed in the trial court while
it has jurisdiction over the case and is in possession of either the original
record or the record on appeal, as the case may be, at the time of the filing of
379
such motion, said court may, in its discretion, order execution of a judgment or
final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a

special order after due hearing.
B. Execution of several, separate or partial judgments.- A several, separate

or partial judgment may be executed under the same terms and conditions as
execution of a judgment or final order pending appeal.
-oOo-
Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a motion for reconsideration of a
judgment or final resolution within fifteen (15) days from notice thereof, with proof
of service on the adverse party. (n)
Q: Can a party file a motion for reconsideration of a CA decision?

A: YES. That is very obvious. (Section 1)
Sec. 2. Second motion for reconsideration. - No second motion for reconsideration of

a judgment of final resolution by the same party shall be entertained. (n)
Q: Can you file more than one motion for reconsideration?

A: NO. No second motion for reconsideration of a judgment or final resolution by the same party shall be
entertained. (Section 2) There is no such thing as second motion for reconsideration.
Section 2 of Rule 52 is also in accord with Section 11 of the Judiciary law. Section 11 of the Judiciary law
governs how may times you can file a motion for reconsideration in the CA.
BP 129, Section 11. Quorum -
“xxxx A motion for reconsideration of its decision or final resolution shall be

resolved by the Court within ninety (90) days from the time it is submitted for
resolution and no second motion for reconsideration from the same party shall be
entertained.”
Under par. (3), the CA has 90 days from the time it is submitted for the resolution to rule on a motion for
reconsideration.
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion for reconsideration

shall be resolved within ninety (90) days from the date when the court declares it
submitted for resolution. (n)
The CA is given only 90 days to resolve a motion for reconsideration.
Sec. 4. Stay of execution. - The pendency of a motion for reconsideration filed on

time and by the proper party shall stay the execution of the judgment or final
resolution sought to be reconsidered unless the court, for good reasons, shall
otherwise direct. (n)
Q: What happens when a judgment of the CA is the object of a motion for reconsideration? What happens to
the execution?
A: Stayed – it is not yet final unless the court for good reasons shall otherwise direct like when there is a
good ground to execute pending appeal.
Rule 53
NEW TRIAL
Q: What is the ground for new trial in CA?

A: The ground for new trial is newly discovered evidence. (Section 1)
Sec. 1. Period for filing; ground. - At any time after the appeal from the lower court
has been perfected and before the Court of Appeals loses jurisdiction over the case,
a party may file a motion for a new trial on the ground of newly discovered evidence
which could not have been discovered prior to the trial in the court below by the
exercise of due diligence and which is of such a character as would probably change
the result. The motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered evidence. (1a)
380
The ground is newly discovered evidence similar to the second ground for new trial in the RTC
(FAME). Fraud, accident, mistake – hindi kasali. Only newly discovered evidence is the ground
under Rule 53.
Q: Suppose the case is before the SC, can a party file a motion for new trial on the ground of newly
discovered evidence before the SC under Rule 53 in a civil case?
A: NO. The SC said in the case of
NAVARRA vs. COURT OF APPEALS

204 SCRA 850
HELD: The Rules of Court allows only two (2) occasions where a party may file a
motion for new trial on the ground of newly discovered evidence. That motion may be
filed only with the trial court under Rule 37 or with the CA under Rule 53 BUT NEVER
with the SC.
“Time and again, We have stressed that the SC is not a trier of facts. It is not a function of the
SC to analyze or weigh all over again the evidence already considered in the proceedings below. Its
jurisdiction is limited to reviewing only errors of law that may have been committed by the lower
courts.”
If there would be a motion for new trial with the SC and it would be granted, you are converting the SC into
a trial court.
Sec. 2. Hearing and order. - The Court of Appeals shall consider the new evidence
together with that adduced at the trial below, and may grant or refuse a new trial, or
may make such order, with notice to both parties, as to the taking of further
testimony, either orally in court, or by depositions, or render such other judgment as
ought to be rendered upon such terms as it may deem just. (2a)
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion for new trial shall
be resolved within ninety (90) days from the date when the court declares it
submitted for resolution. (n)
Sec. 4. Procedure in new trial. - Unless the court otherwise directs, the procedure
in the new trial shall be the same as that granted by a Regional Trial Court. (3a)
Q: If the motion for new trial is granted, can the CA conduct the new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly section 9, the CA can receive evidence
and act as a trial court. That is why it is a powerful court.
BP 129, Section 9, last paragraph:
“The Court of Appeals shall have the power to try cases and conduct hearings,
receive evidence and perform any and all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction, including the
power to grant and conduct new trials or further proceedings.”
Rule 54
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions. - All the cases of the Court of
Appeals shall be allotted among the different divisions thereof for hearing and
decision. The Court of Appeals, sitting en banc, shall make proper orders or rules to
govern the allotment of cases among the different divisions, the constitution of such
divisions, the regular rotation of Justices among then the filing of vacancies
occurring therein, and other matters relating to the business of the court; and such
rules shall continue in force until repealed or altered by it or by the Supreme Court.
Section 2. Quorum of the court. –
A majority of the actual members of the court shall constitute a quorum for its
sessions en banc.
Three members shall constitute a quorum for the sessions of a division.
The affirmative votes of the majority of the members present shall be necessary
to pass a resolution of the court en banc.
The affirmative votes of three members of a division shall be necessary for the
pronouncement of a judgment or final resolution, which shall be reached in
consultation before the writing of the opinion by any member of the division.
Rule 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
381
The decisions of the CA must be published. Kung wala sa Philippine Reports, nasa Court of Appeals Reports.
They call that CARA (Court of Appeals Reports Annotated).
Section 1. Publication. - The judgments and final resolutions of the court shall be
published in the Official Gazette and in the Reports officially authorized by the court in the
language in which they have been originally written, together with the syllabi therefore
prepared by the reporter in consultation with the writers thereof. Memoranda of all other
judgments and final resolutions not so published shall be made by the reporter and
published in the Official Gazette and the authorized reports.
Section 2. Preparation of opinions for publication. - The reporter shall prepare and publish
with each reported judgment and final resolution a concise synopsis of the facts necessary
for a clear understanding of the case, the names of counsel, the material and controverted
points involved, the authorities cited therein, and a syllabus which shall be confined to
points of law.
Section 3. General make-up of volumes. - The published decisions and final resolutions of
the Supreme Court shall be called "Philippine Reports," while those of the Court of Appeals
shall known as the "Court of Appeals Reports." Each volume thereof shall contain a table of
the cases reported and the cases cited in the opinions, with a complete alphabetical index
of the subject matters of the volume. It shall consist of not less than seven hundred pages
printed upon good paper, well bound and numbered consecutively in the order of the
volumes published.
Powers and Functions of the Supreme Court:

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

Directives
382
Rule 56
PROCEDURE IN THE SUPREME COURT
This is an entirely new provision. In the SC, there are 2 types of cases – ORIGINAL and
APPEALED. The SC has both the original and appellate jurisdiction.
What are the original cases cognizable by the SC?
A.) ORIGINAL CASES
SECTION 1. Original cases cognizable.

–
a. Only petitions for certiorari,

prohibition, mandamus, quo
warranto, habeas corpus,
b. disciplinary proceedings against
members of the judiciary and
attorneys, and
c. cases affecting ambassadors, other
public ministers and consuls may be
filed originally in the Supreme

Court. (n)
You know them no? – Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, cases affecting ambassadors other public ministers and consuls – nasa
Constitution din yan. This is only a repetition of Article VIII, Section 5 (1) of the Constitution.
Aside from that, the Rules of Court give the SC authority to hear disciplinary proceedings
383
against members of the judiciary, disbarment or removal of judges. SC man yan ba! And
they are governed specially for disbarment by Rule 139-B of the Rules of Court.
SEC. 2. Rules applicable. – The

procedure in original cases for
certiorari, prohibition, mandamus, quo
warranto and habeas corpus shall be in
accordance with the applicable
provisions of the Constitution, laws,
and Rules 46,48, 49, 51, 52 and this
Rule, subject to the following
provisions:
a.) All references in said Rules to

the Court of Appeals shall be understood
to also apply to the Supreme Court;
b.) The portions of said Rules dealing

strictly with and specifically intended
for appealed cases in the Court of
Appeals shall not be applicable; and
c.) Eighteen (18) clearly legible

copies of the petition shall be filed,
together with proof of service on all
adverse parties.
The proceedings for disciplinary

action against members of the judiciary
shall be governed by the laws and Rules
prescribed therefor, and those against
attorneys by Rule 139-B, as amended. (n)
a.) All references in said Rules to the Court of Appeals

shall be understood to also apply to the Supreme
Court
Actually, kulang ito eh. These proceedings are actually governed more by Rule 65 and
66. But they are also covered by Rule 46, 48, 49, 51 and 52 (CA) and it also applies to SC.
b.) The portions of said Rules dealing strictly with and specifically intended for
appealed cases in the Court of Appeals shall not be applicable; and
384
This is more of legal and judicial ethics.
Q: When you file a petition before the SC for certiorari, prohibition or mandamus, how
many copies?
A: First filing – 18 copies minimum. Why? Because you do not know whether it
will be considered as an en banc case or a division case. The SC operates in 2
ways. It decides cases either en banc or by division. 18 copies is required
because 15 na ang justices, only three (3) for the clerk.
Q: How about subsequent pleadings? How many copies?

A: Depende.
Kung en banc, all subsequent pleadings, still 18 copies.
Kapag division case, 9 na lang. Now, there are three divisions in the SC – the
first, second and third divisions. And every division is composed of five (5)
members.
The SC meets en banc twice a week – Tuesday and Thursday – unless they
have changed it. It is called an en banc session. Cases are raffled for assignment by
division. Monday and Wednesday, hiwa-hiwalay sila – the 5 justices who belong to the same
division meet together and discuss cases which are raffled to that division. Friday is a NO
SESSION but a working day. That is when they study, prepare their decisions and
resolutions. That is why we can also predict when will the result of the Bar be released
because that is an en banc session. Only the SC en banc can order the release of the
results of the Bar Exam. They have to pass a resolution.
B. APPEALED CASES
SEC. 3. Mode of appeal. – An appeal to

the Supreme Court may be taken only by a
petition for review on certiorari,
except in criminal cases where the
penalty imposed is death, reclusion
perpetua or life imprisonment. (n)
There is only one way of appeal to the SC. The only mode of appeal recognized is
Petition for Review by Certiorari under Rule 45, except in criminal cases when the penalty
imposed by the RTC is death penalty, reclusion perpatua or life imprisonment where only
ordinary appeal (under Rule 41) is required. Outside of that, the only mode of appeal to the
SC is Petition for Review by Certiorari.
Please connect this with Rule 45, Section 9:
Rule 45, Sec. 9. Rule applicable to

both civil and criminal cases.- The mode
of appeal prescribed in this rule shall
be applicable to both civil and criminal
cases except in criminal cases where the
penalty imposed is death, reclusion;
perpetua or life imprisonment.
Rule 56, Sec. 4. Procedure.- The

appeal shall be governed by and disposed
of in accordance with the applicable
385
provisions of the Constitution, laws,
Rules 45, 48, sections l,2, and 5 to 11
of Rule 51, 52 and this rule.
Q: What are the grounds for dismissal of an appeal before the SC?
A: Section 5:
Section 5. Grounds for dismissal of

appeal.- The appeal may be dismissed
motu propio or on motion of the
respondent on the following grounds:
a. Failure to take the appeal within

the reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket

fee and other lawful fees or to make a
deposit for costs;
d. Failure to comply with the

requirements regarding [proof of service
and contents of and the documents which
should accompany the petition;
e. Failure to comply with any

circular, directive or order of the
Supreme Court without justifiable cause;
f. Error in the choice of mode of

appeal; and
g. The fact that the case is not
appealable to the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The grounds are identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of petition. The failure of the

petitioner to comply with any of the foregoing requirement regarding the payment
of the docket and other lawful fees, deposit for costs, proof of service of the
petition, and the contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground
that the appeal is without merit, or is prosecuted manifestly for delay or that
the questions raised therein are too unsubstantial to require consideration.
386
Sec. 6. Disposition of improper appeal
– Except as provided in section 3, Rule
122 regarding appeals in criminal cases
where the penalty imposed is death,
reclusion perpetua or life imprisonment,
an appeal taken to the Supreme Court by
notice of appeal; shall be dismissed.
An appeal by certiorari taken to the

Supreme court from the Regional Trial
Court submitting issues of fact may be
referred to the Court of Appeals for
decision or appropriate action. The
determination of the Supreme Court on
whether or not the issues of fact are
involved shall be final.
This is already discussed in Rule 50, Section 2. A wrong appeal is a ground for a
dismissal of such appeal.
Q: If the appeal is on pure question of law (it should be before the SC) and by mistake
the party appealed to the CA, what will happen?
A: The appeal will be dismissed under Rule 50. The CA will not endorse the case to
the SC.
Q: Suppose you will appeal by certiorari to the SC under Rule 45. Tapos, halo pala – hindi
naman pala question of law lahat – may kasamang question of fact. What will happen now
in the appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss the appeal. It may
refer the matter to the CA – baliktad noh? So it is not the same as Rule 50, Section 2.
Section 7. Procedure if opinion is

divided. Where the court en banc is
equally divided in opinion, or the
necessary majority cannot be had, the
case shall again be deliberated on, and
if after such deliberation no decision
is reached,
the original action commenced in the

court shall be
- dismissed;
in appealed cases,
- the judgment or order appealed
from shall stand affirmed; and
387
on all incidental matters,
- the petition or motion shall be
denied.
What happens if the justices of the SC are equally divided?
For instance, there were 4 in attendance in a division dahil absent ang isa –
the result is 2:2. So, we will deliberate again, but still 2:2. If that is so, the
decision appealed from is considered affirmed. In other words, the ruling in the
lower court is considered correct.
The counterpart of this rule in Criminal Procedure is Rule 125, Section 3. If after
deliberation, the justices are even, they will deliberate again but still even. The decision
must be acquittal. Since you cannot break the tie, it must be in favor of the accused.
EN BANC CASES
Now, before we leave this topic, of course we know very well that when you appeal to
the SC, there are two possibilities – either it will be heard by a division (there are 3 divisions
there) or your case might be decided by the entire SC en banc.
Q: What cases are heard by the SC en banc?

A: There was a circular in 1993 issued by the SC enumerating en banc cases:
1.)Cases in which the constitutionality or validity of any treaty, international

or executive agreement, law, executive order, presidential decree,
proclamation, order, instruction, ordinance or regulations in question. For
example, the recent Oil Deregulation Law;
2.)Criminal cases in which the appealed decision imposes death penalty;

Criminal cases where a change of venue is required to avoid miscarriage
of justice where SC has to make an order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba! Only for death
penalty.
3.)Cases raising novel questions of law;
There is a point of law where there is no decided case yet. Meaning,

such legal issue is raised for the first time.
4.)Cases affecting ambassadors, other public ministers or consuls;
5.)Cases involving decisions, resolutions, orders of the COMELEC, COA, or the

Office of the OMBUDSMAN, SANDIGANBAYAN in administrative disciplinary
cases;
6.)Cases in which the penalty involved is a dismissal of the judge, officer or

employee of the judiciary, disbarment of a lawyer or even suspension of
any of them for a period of more than one (1) year of fine exceeding
P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge or

disbarment, en banc yan. And sometimes, you cannot even identify who
is the ponente. Ang tawag diyan per curiae. The ponente is not
identified.
7.)Cases where a doctrine or principle of law laid down by the Court en banc
or division may be modified or reversed;
A decision by a division can only be reversed by the SC en banc. The

same is true in a decision previously decided en banc. Only SC en banc
can change its mind and reverse its previous ruling.
388
8.)Cases assigned in a division which in the opinion of at least three (3)
members thereof, merit the attention of the Court en banc and are
acceptable to the majority of the actual members of the court en banc;
Meaning, it is a division case but at least three members of the

division are of the view that it should be elevated to the SC en banc.
And the majority of the entire court also agree.
Example: A case is assigned to a division. After deliberating, majority of the 5

hold that the case is so important that referral to the entire membership is
proper. Then when it is referred en banc, majority accepts it, then it is to be
decided en banc.
Specific Example: The case of PEOPLE vs. LUCAS in Criminal Law. ISSUE: Is the
penalty of reclusion perpetua divisible or indivisible? The original ruling there by a
division is that it is a divisible penalty. But upon motion for reconsideration by the
Solicitor General, the first division realized that maraming implications ito. So at
least 3 or 4 voted na itapon natin to the SC en banc and then the entire voted.
BAR QUESTION : A lost in an appealed decision. He filed a motion for

reconsideration. He is insisting that his motion be resolved by the entire
membership of the SC. Can he insist that his motion for reconsideration be heard
by the entire membership of the SC en banc when he lost in a division?
A: NO, because the SC en banc is not a separate court from one of its
divisions. You cannot say that a decision by a division can be appealed
to the SC en banc because it is the same court. The best that can
happen to you is you convince the members of the same division to
refer the matter to the entire court en banc and try to convince the
majority of the court en banc to accept it. That is the correct move.
9.)All other cases as the court en banc, by the majority of its actual members,
may deem of sufficient importance to merit its attention.
These cases are those involving the welfare of the nation like Lotto case, EVAT,
Manila Hotel case. This is also the ground invoked by Imelda Marcos where she
tries to convince the court en banc to hear her motion for reconsideration.
-oOo-
389
PROVISIONAL REMEDIES
We are going to review the concept of Provisional Remedies from Rule 57 to Rule 61. First of all, the word
provisional is suggestive. It is something temporary. Provisional Remedies are remedies which are temporary
and is defined by the Supreme Court as remedies which parties litigants may resort for the preservation of
protection of their rights and interests and for no other purpose, during the pendency of the litigation. So,
just to preserve the rights while the case is pending.
Q: What are the known Provisional Remedies?

A: There are five (5).
[1] Rule 57- Preliminary Attachment;
[2] Rule 58- Preliminary Injunction;
[3] Rule 59- Receivership;
[4] Rule 60- Replevin; (used to be known as Delivery of Personal Property) and
[5] Rule 61- Support Pendente Lite
BASIC PRINCIPLES ABOUT PROVISIONAL REMEDIES
FIRST: A provisional remedy is not a civil action.
It is just incidental or attached to an action. There is no such thing as an action for attachment. You cannot file
a case for attachment. You can file a case to collect a sum of money coupled with a petition or application for
preliminary attachment. So, it must be attached. It is not a remedy by itself but a remedy attached to a main
action.
That is why the Supreme Court said in one case, "it is an ancillary remedy, it is not sought for its own
sake but rather to enable the other party to seek relief from the main action."
SECOND: If you have a good cause of action, it does not follow that you can have a ground for a
provisional remedy that you can attach immediately.
For example, I will sue a debtor who has not paid me and I believe he has no defense. So, I believe that my
chance of losing is zero. I am a sure winner, and even my lawyer agrees that the other party has no defense.
Q: Can I attach his properties?
A: No. In order to attach, let us say preliminary attachment, let us find out whether we have the grounds.
If none, we will just file a case.
Thus, it does not follow that everytime you file a case for collection, you always file for attachment. As a matter
of fact, under Section 20, the plaintiff may win the case but he is held liable for damages for attaching without a
ground- illegal attachment.
390
THIRD: If the provisional remedy is granted, it does not mean that you are already the winner. You
still have to win the main case.
Q: So, what happens if it turns out that you have no cause of action, the main action is dismissed?
A: You are not just a loser, you can also be held liable for damages. For how in the world were you able to get
the right to attach when you have no cause of action in the first place? In other words, even if your
application for provisional remedies is granted, it is not a guaranty that you will win the case. You still have to
prove the existence of a valid cause of action.
RULE 57
PRELIMINARY ATTACHMENT
Section 1. Grounds upon which attachment may issue.- At the commencement of

the action or at any time before entry of judgment, a plaintiff or any proper party
may have the property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in the following cases:
In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
In an action for money or property embezzled or fraudulently misapplied or

converted to his own use by a public officer, or an officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in the course of his employment as such, or
by any other person in a fiduciary capacity, or for a willful violation of duty;
In an action to recover possession of property unjustly or fraudulently taken,

detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by applicant or an
authorized person;
In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance
thereof;
In an action against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud his creditors; or
In an action against a party who does not reside and is not found in the Philippines,
or on whom summons may be served by publication. (1a)
PRELIMINARY ATTACHMENT – a remedy by which the property of the defendant is taken into the custody of
law either at the commencement of action or at anytime before the entry of judgment as security.
Q: What are the changes under the new rule?

A: The new rule states "At the commencement of the action or at any time before entry of judgment". The old
rule's language is "at any time during the progress of the same".
Meaning, while the case is going on. Actually, this is the same, but now it is clearer, "before entry of judgment,
a plaintiff or any proper party may have the property of the adverse party attached".
"A plaintiff or any proper party."

Q: Who is this proper party?
A: The plaintiff, the defendant can attach in the counterclaim. The cross-claimant, 3rd-party defendant, they
are also plaintiffs within the meaning of the law.
TYPES OF ATTACHMENT:
[1] Preliminary Attachment (under rule 57);
[2] Final Attachment/ Levy in Execution
[3] Garnishment.
Preliminary Attachment contemplates Rule 57. You attach the property while the case is going on, before
judgment, or at the commencement, as security for the satisfaction of any judgment that you may recover.
Final attachment is an attachment issued to enforce a judgment or to satisfy a judgment, which has become
final and executory. Meaning, we will attach the property of the defendant to be sold at a public auction for
the purpose of satisfying a judgment.The other name for final attachment is levy on execution governed by
Rule 39.
Garnishment is actually a variation of either attachment or execution. It is a species/type of attachment or

execution for reaching credits belonging to a judgment debtor owing to him by a third person, stranger to the
litigation. This is similar to sequestration.
391
Example of garnishment: when you garnish the bank account of a depositor. You attach it. It is a credit since
the bank is a debtor of the depositor.
The concept of garnishment is explained clearly by the Supreme Court in the case of Perla Compana de
Seguros v. Ramolete, 203 SCRA 487. According to the SC, "Garnishment has been defined as a
species of attachment for reaching any property or credits pertaining or payable to a judgment
debtor. In legal contemplation, it is a forced novation by the substitution of creditors; the
judgment debtor, who is the original creditor of the garnishee is, through the service of the writ of
garnishment, substituted by the judgment creditor who thereby becomes the creditor of the
garnishee." So, I owe you, you owe him, so by garnishment it is not with you that I am indebted with, it is
with him already. In effect, there is a change of creditor.
Garnishment has also been described as a warning to a person having in his possession, property or credits of
the judgment debtor, not to pay the money or deliver the property to the latter but rather to appear and
answer the plaintiff's suits.
Q: How does the court acquire jurisdiction over the person of the garnishee? Do you have to serve him with
summons?
A: The SC said (in the Perla Compania case) NO. It is not necessary that summons be served upon him. The
Rules of Court themselves does not require that the garnishee be served with summons or impleaded in the
case to make him liable. The trial court actually acquired jurisdiction over the garnishee when it was served
with the writ of garnishment, which is the equivalent of summons. The garnishee becomes a “virtual party” to
or a “forced intervenor” in the case and the trial court thereby acquires jurisdiction to bind him to compliance
with all orders and processes of the trial court with a view to the complete satisfaction of the judgment of the
court. That is the concept of garnishment.
Q: How do you distinguish a normal preliminary attachment from garnishment, although as I have said,
garnishment could also be a variation of preliminary attachment or execution ?
GARNISHMENT PRELIMINARY ATTACHMENT
Normally directed to intangible Refers to tangibles (e.g. a car or a house).

properties (e.g. credits, collectibles, bank
accounts).
Involves three (3) parties, namely: the Involves only two (2) parties, the creditor and
creditor, debtor and garnishee. the debtor.
In garnishment by preliminary In attachment, which is even preliminary, there

attachment, there is no actual seizure is seizure of property and it will be placed
of property but in garnishment by under custodia legis. There is actual seizure.
final attachment there is already a
seizure. In other words, if I will garnish
your account in the bank, the money
would still be there. Nobody can
withdraw from it. The sheriff cannot
get the money. It is in the bank.
Q: What is the nature of attachment proceedings?

A: In rem or at least quasi in rem.(Ching Liu & Co. vs. Mercado, 67 Phil. 409). Even if the action is in
personam, once there is an attachment, it is now converted into quasi in rem because a lien is acquired over
a specific property of the defendant.(Banco Español vs. Palanca, 37 Phil. 921)
Q: What is the duration of the attachment?

A: It is indefinite. It continues until the case is terminated, until the account is fully paid (assuming plaintiff
wins), or until such time that the court will order it terminated or dissolved in accordance with certain
grounds under the law.(Chunaco vs. Alano, Jan. 23, 1952)
Q: What are the GROUNDS FOR ATTACHMENT?
a) In an action for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines with intent to defraud his creditors.
So, the defendant is about to run away, with intent to defraud his creditors. Now, what is the change?
The old law says "in an action for recovery of money". Now, "for a specified amount of money or damages".
This supports the ruling of the Supreme Court that for a ground for attachment to exist, the damages must be
liquidated. So, if the damages are unliquidated, there can be no attachment.
That is why the law is clearer now. In moral and exemplary damages, there could be no preliminary
attachment. Liquidated or actual, ok.
Q: What is the reason why in moral and exemplary damages there could be no attachment?
A: Because the amount can’t be determined.
"On a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is
about to depart from the Philippines with intent to defraud his creditors." What is the old law? Cause of action
392
arising from contract “only as compared to the new law, which includes all the five sources of obligation. That
is why there is a need to compare this new rule with the old rule.
b) In an action for money or property embezzled or fraudulently misapplied or converted to his

own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for
a willful violation of duty;
The main action here was based on the act of malversation or estafa.
Q: Suppose you file a criminal case but not able to reserve the civil action, can you file a preliminary
attachment?
A: YES. Under Rule 127, Section 2 – “At the commencement of a criminal action xxx when the civil action for
the recovery of civil liability arising from the offense charged is not expressly waived or the right to institute
such civil action separately is not reserved, the offended party may have the property of the accused attached
as security for the satisfaction of any judgment that may be recovered from the accused xxx”.
c) In an action to recover possession of property unjustly or fraudulently taken, detained or

converted, when the property, or any part thereof, has been concealed, removed, or disposed of
to prevent its being found or taken by applicant or an authorized person;
The prior law speaks of personal property. Now, the word personal is removed. “Property“ (may refer to
real or personal) unjustly or fraudulently taken xxx to prevent its being found or taken by applicant or an
authorized person." That is inserted because the authorized person may be the sheriff or an attorney-in-fact.
d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the performance thereof;
The old rule does not contain "in the performance thereof." Before, it is "guilty of fraud in contracting the debt."
Meaning, the defendant exercised fraud from the very start of the obligation, in contracting. So, it is fraud
in contracting the debt under the old rule. It is not fraud in the performance of an obligation.
Now, it is the same. Whether it is fraud in contracting the debt or in the performance of an obligation, both are
grounds for attachment. Whether it’s dolo causante or dolo incidente. The law is broader.
Q: What does “in the performance thereof” mean?

A: Meaning, the person was in good faith when he borrowed it but in the performance of the obligation, he
contracted fraud. Ayaw na nyang magbayad!
e) In an action against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
Example: You file a case against B. Si B, dahan-dahan, he sold his assets. In this case, you can attach.
f) In an action against a party who does not reside and is not found in the Philippines, or on
whom summons may be served by publication.
The party does not reside and is not found in the Philippines, or on whom summons may be served by
publication. You connect this with summons. You cannot sue by publication when the action is in personam.
So, you need to convert your action to in rem or quasi in rem.
Q: How do you convert an action in personam to action in rem or quasi- in rem?

A: You attach the property. After attaching it, you now apply service of summons by publication under Rule 14.
That is exactly the situation contemplated in the case of Magdalena Estate and all those modes of summons by
publication.
Q: Are the grounds for attachment strictly construed?

A: Yes. The SC said they are. The grounds enumerated are exclusive. In other words, what is not enumerated
is not included. So, in case of doubt, the doubt is resolved in favor of the attached debtor.
To borrow the language of the Supreme Court in the case of
SIEVERT vs. COURT OF APPEALS

December 22, 1988
HELD: "the requirements of the rule in the issuance of preliminary attachment must be strictly and faithfully
complied with in view of the nature of this provisional remedy which exposes the debtor to humiliation
and annoyance."
ABOITIZ vs. COTABATO BUS LINE CO.(CBLC)

June 17, 1981
FACTS: Defendant Cotabato Bus Line Company (CLBC) was on the verge of bankruptcy. The creditor Aboitiz
Marketing was afraid since CLBC has many debts. Thus, they (Aboitiz) filed a case for preliminary
attachment. Ground: the defendant is already in the verge of insolvency. It was granted by the lower court.
ISSUE: W/N the attachment was valid.
393
HELD: It was not a ground for preliminary attachment. You cannot find it in the Rules. So, attachment was
illegal. Even if he is on the verge of insolvency but he is not running away from his creditors, you cannot
attach. You cite another ground.
Section 2. Issuance and contents of order.- An order of attachment may be issued

either ex parte or upon motion with notice and hearing by the court in which the
action is pending, or by the Court of Appeals or the Supreme Court, and must
require the sheriff of the court to attach so much of the property in the Philippines
of the party against whom it is issued, not exempt from execution, as may
be sufficient to satisfy the applicant's demand, unless such party makes deposit or
gives a bond as hereinafter provided in the amount equal to that fixed in the order,
which may be the amount sufficient to satisfy the applicant's demand or the value of
the property to be attached as stated by the applicant, exclusive of costs. Several
writs may be issued at the same time to the sheriffs of the court of different
judicial regions. (2a)
Q: How is an order of attachment issued?

A: 1. ex parte
2. upon motion with notice and hearing.
Q: Can a writ of preliminary attachment be issued ex parte on the application of the plaintiff without the
defendant required to be heard? Meaning, upon the filing of the complaint, you ask for attachment. Is this
allowed?
A: YES.
1.) According to Filinvest v. Relova, 117 SCRA 420, the Supreme Court said: “Nothing in the Rules makes
notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment. A writ of
attachment may be issued ex parte”. There are only two (2) requirements under the law, in Sections 2 and 3.
The Affidavit and Bond. There is no third requirement of a hearing.
The Relova Doctrine is now enshrined in section 2. So, it is now for the court to determine whether to issue
immediately or not yet. But it can issue ex parte based on Sec. 2.
2.) Another reason why it is sometimes necessary to attach without an hearing is because of the urgency of the
situation specially if your ground is that the defendant is departing from the country, or he is disposing of his
assets. If a hearing will be conducted, it will give the defendant more time to conceal or dispose of his assets.
Also, in the case of
CUARTERO vs. CA
212 SCRA 260
The SC said: No notice to the adverse party or hearing of the application for preliminary
attachment is required in as much as the time that the hearing will take, will be enough to enable
the defendant to abscond or dispose of his property before a writ of attachment is issued. In such
a case, a hearing would render nugatory the purpose of the provisional remedies.
Q: Which court can issue an order of attachment?

A: 1. Court where the action is pending,
2. Court of Appeals,
3. Supreme Court.
The CA and the SC can issue the writ anywhere in the Philippines.
Section 3. Affidavit and bond required.- An order of attachment shall be granted only
when it appears by the affidavit of the applicant, or some other person who
personally knows the facts, that a sufficient cause of action exists, that the case is
one of those mentioned in section 1 hereof, that there is no sufficient security for
the claim sought to be enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all legal
counterclaims. The affidavit, and the bond required by the next succeeding section,
must be duly filed with the court before the order issues. (3a)
There are TWO REQUIREMENTS: AFFIDAVIT + BOND.
The affidavit requirement. There must be a sworn/verified application and there must be an attachment bond
to answer for the damages that the defendant may suffer.
Q: What are the allegations in the affidavit?

A: Section 3.
1 That a sufficient cause of action exists.
2 That the case is one of those mentioned in Section 1.
3 That there is no other sufficient security for the claim sought to be enforced.
This is an important allegation. Therefore, if an account is secured by a mortgage, you cannot attach. You
394
already have a security.
BAR Q: What are the instances where the creditor, plaintiff, can still apply for a writ of preliminary attachment
despite the fact that there is a mortgage to secure the debt?
A: There are two (2) :
1 When the mortgage creditor abandons the mortgage and brings an ordinary action to collect the
principal loan or he simply applies for collection of sum of money. He is now an unsecured creditor and
there is a ground for attachment. The creditor can now apply for attachment and he is not limited to
attaching only the mortgage property, any property. So, that is all he has to do.
2 Even if the creditor will not abandon the mortgage, if he will foreclose the mortgage and in the action for
foreclosure, there is a showing that the possible proceeds of the mortgage property are not sufficient to
pay the entire debt and in the meantime the debtor is also trying to dispose of his assets.
4. That the amount due to the applicant, or the value of the property is as much as the sum for which the
order is granted.
Q: Are these grounds for attachment, the affidavit, a strict requirement ?

A: Yes, the SC said in the case of Jardine (Manila) v, CA, 171 SCRA 639, that the authority to issue an
attachment must be strictly construed. Failure to allege in the affidavit the requisites required in the issuance
of the writ of attachment renders the writ fatally defective.
The affidavit is the foundation of the writ and if none be filed, or if filed but fails to set out some facts required
by law to be stated therein, there is no jurisdiction and the proceedings are null and void.
Another illustration is in the case of
TING vs. VILLARIN
August 17, 1989
FACTS: There was a writ of attachment. The allegation of the plaintiff says, "defendants are
guilty of fraud in contracting the obligation, more specifically illustrated by their violation if the Trust
Receipt Agreement."
HELD: There is no ground for attachment because to say that there is fraud is not enough. You
must recite how the fraud as committed. It cannot be issued on a general averment such as
one ceremoniously quoting a pertinent rule. The need for a recitation of factual circumstances
to support the application becomes more compelling considering that the ground relied upon is
fraud. Fraud cannot be presumed. In civil procedure, fraud must be made with particularity.
Section 4. Condition of applicant's bond.- The party applying for the order must
thereafter give a bond executed to the adverse party in the amount fixed by the
court in its order granting the issuance of the writ, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto. (4a)
Let us go to Section 5. How to attach property, the procedure.
Section 5. Manner of attaching property.- The sheriff enforcing the writ shall
without delay and with all reasonable diligence attach, to await judgment and
execution in the action, only so much of the property in the Philippines of the party
against whom the writ is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand, unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond executed to the applicant,
in an amount equal to the bond fixed by the court in the order of attachment or to
the value of the property to be attached, exclusive of costs. No levy on attachment
pursuant to the writ issued under section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint, the application for attachment, the applicant's
affidavit and bond, and the order and writ of attachment, on the defendant within
the Philippines.
The requirement of prior or contemporaneous service of summons shall not apply

where the summons could not be served personally or by substituted service
despite diligent efforts, or the defendant is a resident of the Philippines temporarily
absent therefrom, or the defendant is a non-resident of the Philippines, or the
action is one in rem or quasi in rem. (5a)
Take note of the last sentence of the first paragraph of Section 5. "xxx No levy on attachment pursuant to the
writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment on the defendant within the Philippines."
Q: Did you notice that (underlined provisions)?

A: That is the Davao Light Doctrine. DLPC v. CA, 204 SCRA. The leading case on attachment. It is now
incorporated in the Rules of Court.
395
The attachment can be issued ex parte without even acquiring jurisdiction. The order of the writ of attachment
can be issued even before the court has acquired jurisdiction, but to enforce it (the writ), summons must be
served ahead or simultaneously. Otherwise, the writ of attachment will not be valid. That is the ruling in
Sievert and DLPC.
As stated in the case of Cuartero, the grounds for attachment involve 3 stages:
1. The court issues order granting application.
2. The writ of attachment is issued pursuant to the order granting the writ.
3. The writ is implemented.
For the first two stages, it is not necessary that jurisdiction over the person of the defendant must be obtained.
However, once implementation commences (third stage), it is required that the court must have acquired
jurisdiction over the person of the defendant, for without such jurisdiction, the court has no power or authority
to act in any manner against the defendant. The order issued by the court will not bind the defendant.
So, there must be a prior or contemporaneous service of summons, BUT as explained by the SC in the 1994
case of
Zachry Company Int'l. v. CA

232 SCRA 329
The writ of attachment even if contemporaneously served to the defendant with summons,
does not bind the latter if the service of summons is not valid.
HELD: The validity then of the order granting the application for a writ of preliminary attachment on 21
March 1990 and of the issuance of the writ of preliminary attachment on 26 March 1990 is beyond dispute.
However, the enforcement of the preliminary attachment on 27 March 1990, although simultaneous with the
service of the summons and a copy of the complaint, did not bind Zachry because the service of the summons
was not validly made. When a foreign corporation has designated a person to receive service of summons
pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is
inefficacious. The valid service of summons and a copy of the amended complaint was only made upon it on 24
April 1990, and it was only then that the trial court acquired jurisdiction over Zachry's person. Accordingly, the
levy on attachment made by the sheriff on 27 April 1990 was invalid. However, the writ of preliminary
attachment may be validly served anew.
So, it also requires that the service of summons be valid.
Now, let us go to the last paragraph of section 5, which is also new:
"The requirement of prior or contemporaneous service of summons shall not apply where the
summons could not be served personally or by substituted service despite diligent efforts, or
the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant
is a non-resident of the Philippines, or the action is one in rem or quasi in rem."
Q: Which will come first, the attachment or service of summons?

A: Under the Davao Light Doctrine, service of summons comes first. Because first of all, jurisdiction over the
person of defendant must be acquired before attachment. You must bind the person first.
Two (2) years ago (1996), when this provision in the new rule was not yet in existence, one student who is now
a lawyer, asked me how to reconcile this provision with provision on resident defendant on summons by
publication because according to the SC, if the action is in personam you convert in first to in rem after which
you proceed with summons by publication.
Q: How do you reconcile this, where in this section, summons must come first before publication. In the case of
Magdalena Estate, attachment first before summons by publication, which is confirmed by section 1 [f] of Rule
57, one of the grounds for attachment. I cannot serve summons by publication without attaching first. That is
paragraph [f] of section 1, which is the exact opposite of the Davao Light Ruling.
A: Obviously, that is the exception to the Davao Light Doctrine. That exception is now provided under
Section 5, last paragraph as read:
"The requirement of prior or contemporaneous service of summons shall not apply where the
summons could not be served personally or by substituted service despite diligent efforts," so,
that is by publication only. "Or the defendant is a resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or
quasi in rem."
396
In this provision, the purpose of summons by publication is not to acquire jurisdiction over the person but only
for the purpose of due process and that exception is now incorporated in the Rules. That is not covered by the
DLPC case.
Take Note: The GENERAL RULE is Service of Summons first before Attachment (Davao Light case)
Exception: Section 5, last paragraph. There must first be an attachment before service of summons.
Section 6. Sheriff's return.- After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court from which the writ is sued, with
a full statement of his proceedings under the writ and a complete inventory of the
property attached, together with any counter-bond given by the party against
whom attachment is issued, and serve copies thereof on the applicant. (6a)
Sheriff makes a report after the implementation of the writ.
Section 7. Attachment of real and personal property; recording thereof.- Real and
personal property shall be attached by the sheriff executing the writ in the
following manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon
the record of the registry of deeds of the province in the name of the party against
whom attachment is issued, or not appearing at all upon such records, or belonging
to the party against whom the attachment is issued and held by any other person,
or standing in the records of the registry of deeds in the name of any other person,
by filing with the registry of deeds a copy of the order, together with a description
of the property attached, and a notice that it is attached, or that such real property
and any interest therein held by or standing in the name of such other person are
attached, and by leaving a copy of such order, description, and notice with the
occupant of the property, if any, or with such other person or his agent if found
within the province. Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration Decree, the notice
shall contain a reference to the number of the certificate of title, the volume and
page in the registration book where the certificate is registered, and the registered
owner or owners thereof.
The registrar of deeds must index attachments filed under this section in the names
of the applicant, the adverse party, or the person by whom the property is held or
in whose name it stands in the record. If the attachment is not claimed on the
entire area of the land covered by the certificate of title, a description sufficiently
accurate for the identification of the land or interest to be affected shall be
included in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in
his custody, after issuing the corresponding receipt therefor;
(c) Stocks or shares, or an interest in stock or shares, of any corporation or

company, by leaving with the president or managing agent thereof, a copy of the
writ, and a notice stating that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery, by
leaving with the person owing such debts, or having in his possession or under his
control, such credits or other personal property, or with his agent, a copy of the
writ, and notice that the debts owing by him to the party against whom
attachment is issued, and the credits and other personal property in his possession,
or under his control, belonging to said party, are attached in pursuance of such
writ;
(e) The interest of the party against whom attachment is issued in property
belonging to the estate of the decedent, whether as heir, legatee, or devisee, by
serving the executor or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest is attached. A copy
of said writ of attachment and of said notice shall also be filed in the office of the
clerk of the court in which said estate is being settled and served upon the heir,
legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a copy of the writ of

attachment shall be filed with the proper court or quasi-judicial agency, and
notice of the attachment served upon the custodian of such property. (7a)
Q: With respect to the manner of serving the writ of attachment, how do you do it?
A: It depends on what you are going to attach.
If it is real property, i.e. parcel of land, refer to paragraph [a].
If it is a refrigerator, capable of manual delivery, refer to paragraph [b]. This is also the manner of execution.
How to levy on execution has the same procedure.
If it is shares of stocks, refer to paragraph [c].
There is one recent case regarding section 7[c]. The 1995 case of Phil. Export and Import Corp. v. CA,
251 SCRA 257, which is also related to Corporation Code.
397
Q: When you attach shares of stock under Section 7, is it necessary to record or annotate it in the
corporation's stock and transfer book? Suppose there is no annotation, is there a valid attachment?
A: The Court said: It is not necessary. Both the Rules of Court and the Corporation Code does not require
annotation in the corporation's stock and transfer book for the attachment of shares of stock to be valid and
binding on the corporation and third parties. Attachment of shares of stock is not included in the term
"transfer" as provided in Section 63 of the Corporation Code. There is no transfer. You are just acquiring a lien.
The debtor is still the owner. There is no need for said annotation.
On Section 7(d)- Debts and credits, including bank deposits, financial interest, royalties, commissions and
other personal property not capable of manual delivery, by leaving with the person owing such debts, or
having in his possession or under his control, such credits or other personal property, or with his agent, a copy
of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the
credits and other personal property in his possession, or under his control, belonging to said party, are
attached in pursuance of such writ.
This is what we call GARNISHMENT. The new rule includes bank deposits, financial interest, royalties,
commissions. In the case of
DE LA VICTORIA vs. BURGOS

245 SCRA 374 (1995)
Q: Can you garnish the funds of the government?

A: No, it is prohibited.
FACTS: In this case, what was garnished was the salary check of an assistant prosecutor.
Maybe he does not want to pay his debt. Since his salary is taken from the DOJ, they have
checks which will be given to the prosecutor to distribute. In this case, the check was in the
hands of the City Prosecutor. It was garnished. “Do not give it to the assistant prosecutor
because he has a debt”.
ISSUE: Was there a valid attachment?
HELD: No. In as much as the said check was not yet delivered to the payee (prosecutor), it
did not belong to him and it still had the character of public funds. And as a necessary
consequence, the check cannot be garnished.
The rationale behind this doctrine is the obvious consideration of public policy. Public
funds cannot be garnished. It is only after the check has been given to the payee that you can
garnish it.
Q: Can I attach your share in the estate of the deceased although no specific property yet?
A: Yes. Under Section 7(e).You just serve the executor or administrator a copy of the writ and notice .The same
shall also be filed in the office of the Clerk of Court where the estate is being settled.
Q: Can property which is already attached be attached all over again?

A: Yes. Last paragraph of section 7. "If the property sought to be attached is in custodia legis, a copy of the
writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment
served upon the custodian of such property."
So, a property attached may be attached again but you must inform the court which already attached it.
Q: What is the amendment under the new Rules?

A: "xxx filed with the proper court or quasi-judicial agency xxx". Thus, it may be attached not only
by the court but also by NLRC, etc. You can attach it but you must inform them of the attachment of the
property already attached.
Section 8. Effect of attachment of debts, credits and all other similar personal
property.- All persons having in their possession or under their control any credits
or other similar personal property belonging to the party against whom
attachment is issued, or owing any debts to him, at the time of service upon them
of the copy of the writ of attachment and notice as provided in the last preceding
section, shall be liable to the applicant for the amount of such credits, debts or
other similar personal property, until the attachment is discharged, or any judgment
recovered by him is satisfied, unless such personal property is delivered or
transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of
the court issuing the attachment. (8a)
Section 9. Effect of attachment of interest in property belonging to the estate of a

decedent.- The attachment of the interest of an heir, legatee, or devisee in the
property belonging to the estate of a decedent shall not impair the powers of the
executor, administrator, or other personal representative of the decedent over such
property for the purpose of administration. Such personal representative,
398
however, shall report the attachment to the court when any petition for
distribution is filed, and in the order made upon such petition, distribution may be
awarded to such heir, legatee, or devotee, but the property attached shall be
ordered delivered to the sheriff making the levy, subject to the claim of such heir,
legatee, or devisee, or any person claiming under him.
Section 10. Examination of party whose property is attached and persons indebted
to him or controlling his property; delivery of property to sheriff.- Any person
owing debts to the party whose property is attached or having in his possession
or under his control any credit or other personal property belonging to such party
may be required to attend before the court in which the action is pending, or before
a commissioner appointed by the court, and be examined on oath respecting the
same. The party whose property is attached may also be required to attend for the
purpose of giving information respecting his property, and may be examined on
oath. The court may, after such examination, order personal property capable of
manual delivery belonging to him, in the possession of the person so required to
attend before the court, to the delivered to the clerk of the court or sheriff on such
terms as may be just, having reference to any lien thereon or claim against the
same, to await the judgment in the action. (10a)
You can be required to appear before the court for further questioning. So, the rules under Rule 39, Sections 36
& 37 with respect to the examination of judgment obligor is available also in preliminary attachment.
Section 11. When attached property may be sold after levy on attachment and
before entry of judgment.- Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all the parties to the action
will be subserved by the sale thereof, the court may order such property to be sold
at public auction in such manner as it may direct, and the proceeds of such sale to
be deposited in court to abide the judgment in the action. (11a)
Normally, in Preliminary Attachment, property is not sold. It is just a security.

Exception: Section 11.
1. If it is perishable. E.g. rice
2. If the interest of the parties to the action will be subserved by the sale thereof.
E.g. A piece of land. Somebody wants to buy it five times higher than the assessed value. Makakabenefit ang
parties!
Q: What are the remedies of a defendant whose property has been attached? Is there a way of helping him?
A: Yes. Look at Sections 12 and 13.
Section 12. Discharge of attachment upon giving counter-bond.- After a writ of

attachment has been enforced, the party whose property haw been attached, or
the person appearing on his befalf, may move for the discharge of the attachment
wholly or in part on the security given. The court shall, after due notice and
hearing, order the discharge of the attachment if the movant makes a cash deposit,
or files a counter-bond executed tot he attaching party with the clerk of the court
where the application is made, in an amount equal to that fixed by the court in the
order of attachment, exclusive of costs. But if the attachment is sought to be
discharged with respect to a particular property, the counter- bond shall be equal
to the value of that property as determined by the court. In either case, the cash
deposit or the counter- bond shall secure the payment of any judgment that the
attaching party may recover in the action. A notice of the deposit shall forthwith be
served on the attaching party. Upon the discharge of an attachment in accordance
with the provisions of this section, the property attached, or the proceeds of any
sale thereof, shall be delivered to the party making the deposit or giving the
counter-bond, or to the person appearing on his behalf, the deposit or counter-bond
aforesaid standing in place of the property so released. Should such counter-bond
for any reason be found to be or become insufficient, and the party furnishing the
same fail to file an additional counter- bond, the attaching party may apply for a new
order of attachment.
Section 13. Discharge of attachment on other grounds.- The party whose property
has been ordered attached may file a motion with the court in which the action is
pending, before or after levy or even after the release of the attached property, for
an order to set aside or discharge the attachment on the ground that the same
was improperly or irregularly issued or enforced, or that the bond is insufficient.
If the attachment is excessive, the discharge shall be limited to the excess. If the
motion be made on affidavits on the part of the movant but not otherwise, the
attaching party may oppose the motion by counter-affidavits or other evidence in
addition to that on which the attachment was made. After due notice and
hearing, the court shall order the setting aside or the corresponding discharge of
the attachment of it appears that it was improperly or irregularly issued or
enforced, or that the bond is insufficient, or that the attachment is excessive, and
the defect is not cured forthwith. (13a)
REMEDIES:
First remedy is for the defendant to put up a counter-bond to dissolve the attachment. So, the counterbond
will take the place of the attached property. Or, a cash deposit equal to the claim of the plaintiff.
399
Second remedy is Section 13. The defendant will file a motion to discharge the attachment.
Grounds:
1 that it was improperly or irregularly issued.
2 that it was improperly or irregularly enforced.
3 that the bond of the plaintiff is insufficient.
Q: What is the amendment?

A: The phrase, or enforced. Before, it was improperly or irregularly issued. Now, it is with "or enforced, or
that the bond is insufficient." That is another ground to move to discharge an attachment.
Let us go to Section 12.
Q: Is there such a thing as partial discharge ?

For example, I will attach five (5) parcels of land. The defendant will say, because somebody wants to buy one
of them, "I am moving to discharge only one of them and I will put up a counterbond equal to the value of one
only." In effect, he is asking for a partial discharge based on a partial counterbond. Is this allowed ?
A: Yes, it is now allowed in the new law, which is not found in the old law. Look at section 12, 3rd sentence,
starting with the word "but": "But if the attachment is sought to be discharged with respect to a particular
property, the counter-bond shall be equal to the value of that property as determined by the court."
So, it is allowed. Like an installment, partial discharge by the partial counter-bond. Before, it was all or nothing.
Q: When a defendant puts up a counter-bond under section 12, is the attachment earlier made automatically
discharged?
A: No, according to the case of Belisle Finance vs. State Investment House, (151 SCRA 360) it is only
after hearing and the judge has ordered the discharged of the attachment can it be valid. There must be an
order, mere filing would not suffice.
Q: Can a person file a counter-bond and at the same time move to discharge? Meaning, I will file a counter-
bond to discharge under section12 and then I will move to discharge under section 13. Can you do that, avail
of the two (2) sections?
A: Well, if you will follow the ruling in the case of
CALDERON vs. IAC

155 SCRA 531
The answer is YES. The Court said: Well, the defendant would like to question the legality of
the attachment but he is in a hurry, because there would be a hearing, which would delay him. So,
what should he do? He can file a counter-bond without waiving his right to hearing or he will file
a counter-bond with respect to only one property and continue the hearing under Section 13 with
respect to the other property. You do not waive Section 13 because you applied Section 12.
BUT there was this contrary ruling in the case of
MINDANAO SAVINGS AND LOAN ASSOCIATION vs. CA

172 SCRA 480
HELD: Objection to the impropriety or irregularity of writ of attachment may no longer be invoked once a
counter-bond is filed. By filing a counter-bond under Section 12, he may not file another motion under Section
13 to quash the writ for impropriety or irregularity. Why? The writ had already been quashed by filing a counter-
bond, hence, another motion to quash would be pointless. That is also logical.
But it would seem that there is something wrong about the case especially where there is only a partial counter-
bond under Section 13.
Let us read the first sentence of Section 13. "The party whose property has been ordered attached
may file a motion with the court in which the action is pending, before or after levy or even
after the release of the attached property, for an order to set aside or discharge the
attachment on the ground that the same was improperly or irregularly issued or enforced, or that
the bond is insufficient."
Did you notice that phrase? (underlined one)

That is not present under the old law. You can file a motion to the court to discharge attachment before or
after levy or even after they released the attached property.
So, why will I file a motion to discharge it when it is already released? Obviously, it must have been released by
virtue of a counter-bond. In other words, this amendment seems to support the CALDERON DOCTRINE that
you can avail of the discharge under Section 13 and have the property discharged without waiving your right to
question the validity/correctness of attachment. These are the phrases found in the new law not found in the
old law.
Q: Who has the burden of proof? Is it the burden of the defendant to prove that the attachment is improper or
irregular, or is it the burden on the part of the plaintiff to show that the attachment is proper?
A: Based on decided cases, it is the plaintiff who has the burden to prove the regularity on the challenge made
by the defendant. In the case of FILINVEST where the attachment was on the ground of fraud -
that the defendant committed fraud in contracting the obligation. It is not the duty of the defendant to prove
the lack of fraud. It should be the plaintiff who will prove the regularity because fraud is not presumed.
400
Same message in the case of
BENITEZ VS. IAC
154 SCRA 41
HELD: For the purpose of securing the attachment, the affidavit of the plaintiff is sufficient, but
for purposes of determining whether the allegations therein are true or not, there must be a
hearing.
The denial of the writ of preliminary attachment under Section 13 without conducting a hearing
and requiring substantiation of the allegation of fraud and the allegation is tantamount to
grave abuse of discretion on the part of the judge.
Meaning, affidavit supporting the application for issuance of preliminary attachment may be sufficient to
justify the issuance of the preliminary attachment writ. But it cannot be considered as proof of the allegation
therein.
So, these are merely conclusions of law, not statement of facts.
A writ of attachment may be discharged without filing a cash bond or counter-bond pursuant to
section 13. However, there is also a limitation which is laid down in the case of MINDANAO SAVINGS and
also in the case of CUARTERO vs. CA, and the situation is something like this:
Suppose, I am the defendant and I will move to discharge the attachment because it was improperly issued.
Why? Because the plaintiff has no cause of action against me. Meaning, if he has no cause of action, then the
case is dismissible. and if the case is dismissible, then there is no basis for a writ of preliminary attachment.
Q: Should the court act on that kind of motion?

A: The SC said: You cannot! Kasi, yung ground mo na " there is no cause of action" is now going to the merits of
the case if you will require the plaintiff to prove his cause of action. It is no longer a hearing on a motion to
discharge an attachment but is already a trial on the main action.
The SC said in MINDANAO SAVINGS and in CUARTERO : “An attachment may not be resolved by showing of
its irregular of improper issuance which is upon a ground which at the same time the adverse cause of action
in the main case. Since an anomalous situation will arise when the issues in the main case will be ventilated
and resolved in a mere hearing of a motion.”
OLIB VS. PASTORAL

188 SCRA 692
Suppose,the main action has already been decided by the court and appealed to the CA.
Tapos merong nang attachment. At the same time, the defendant would like to discharge the
attachment either under Sections 13 or 12.
Q: Where should the defendant file the motion to discharge the writ, RTC or CA?
SC: It is the CA and no longer the RTC where the main action is appealed. The attachment
which may have been issued as an incident of the action is also considered appealed and so
removed from the jurisdiction of the RTC.
In the case of:
CHEMICAL EXPORT AND IMPORT VS. IAC
FACTS: Plaintiff filed a case against defendant. And the plaintiff secured a preliminary
attachment. So the defendant's property is attached. So, the case is pending while there was an
attachment. While the case is pending, they entered into compromise agreement and therefore
there was judgment based on the compromise agreement.
ISSUE: Is the attachment lien over the property of the defendant dissolved or vacated
because of the compromise agreement?
HELD: It is not deemed vacated. An attachment lien continues until the debt is paid or until
judgment is satisfied or the attachment is discharged or vacated in the same manner provided
by law. The parties to the compromise agreement would not be deprived of the protection
provided by the attachment lien especially in an instance where one remedy is bases on the
obligation of the contract or agreement.
If we were to rule otherwise, you would in effect create a back door by which debtors can easily
escape its creditors. Consequently, we would be faced with an anomalous situation where a debtor
in order to have time in order to dispose of his property would enter into a compromise
agreement in which he has no intention of honoring in the first place -- the purpose of provisional
remedy or attachment would does be lost. It would become by analogy a toothless tiger.
So, let us wait for the judgment to be satisfied until attachment is discharged.
Q: Is there partial discharge of attachment, where I will move to discharge not the entire property but only a
certain portion?
A: That is allowed under Section 13 which is not found under the Old Law.
This is found in the second sentence, " If the attachment is excessive, the discharge shall be limited to the
excess."
Example, my obligation is one million and the attachment is 1.5 million. So, I can ask for partial discharge of
401
P500, 000. Before, under the Old Law it is not allowed. But now, it is allowed.
Section 14. Proceedings where property claimed by third person - If the property
attached is claimed by any person other than the party against whom attachment
had been issued or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds of such right or title,
and serves such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party, the sheriff shall not
be bound to keep the property under attachment, unless the attaching party or his
agent, on demand of the sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
levied upon. In case of disagreement as to such value, the same shall be decided
by the court issuing the writ of attachment. No claim for damages for the taking or
keeping of the property may be enforced against the bond unless the action
therefor is filed within 120 days from the date of filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property
to any such third-party claimant, if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third person from vindicating his claim
to the property or prevent the attaching party from claiming damages against a
third-party claimant who filed a frivolous or plainly spurious claim, in the same or
separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be required ,and
in case the sheriff is sued for damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held liable therefor, the actual
damage adjudged by the court shall be paid by the National Treasurer out of the
funds to be appropriated for the purpose.
Section 14 is almost a word for word reproduction of Rule 39, Section 16 which is Terceria or third party
claim. In Rule 39, the property levied belongs to a third person who is not the defendant of the case, so the
remedy is TERCERIA.
Ito naman (Section 14), the property attached by way of preliminary writ of attachment does not belong to the
defendant. So, you can file a third-party claim.
Q: Can the 3rd-party question the attachment in the same case? Can he file his objection, ask for the discharge
of the attached property in the same case where he is not a party ?
A: YES, that is allowed!
That is a ground for intervention, remember?
Q: What is the fourth ground for intervention?

A: That the intervenor is so situated that he is adversely affected by the property in the custody of the court.
So, it is a ground for intervention that the property attached is not owned by the defendant.
Q: Suppose there is already a writ of execution under Rule 39-- there is already a decision and writ of execution
and your property is erroneously levied in the same situation, can you question the unlawful levy under the
same case?
A: As a general rule, NO! Because there could be no intervention---since there is already a judgment. The
remedy is a separate action.
In the former example, intervention is proper because there is yet no judgment. But in the latter--- there is a
judgment already. Kung meron nang judgment, wala nang intervention.
REMEDIES OF THIRD PERSONS:
1 File an independent action under Section 14

2 File a 3rd-party claim.
3 File a motion for intervention.
Section 15.Satisfaction of judgment out of property attached; return of the sheriff. - If

judgment be recovered by the attaching party and execution issue thereon, the sheriff
may cause the judgment to be satisfied out of the property attached, if it be
sufficient for that purpose in the following manner:
a By paying to the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the court, or so much as shall be
necessary to judgment;
b If any balance remains due, by selling so much of the property, real or personal,
as may be necessary to satisfy the balance, if enough for that purpose remain
in the sheriff's hands or in those of the clerk of the court;
c by collection from all the persons having in their possessions credits belonging to
the judgment obligor, or owing debts to the latter at the time of the attachment
of such credits debts, the amount of such credits and debts as determined by
the court in the action stated in the judgment, and paying the proceeds of
such collection over to the judgment obligee.
402
The sheriff shall forthwith make a return in writing to the court of his proceeding
under this section and furnish the parties with copies thereof.
Well, there is no problem if a property is attached and when the defendant loses, wala ng problemang
maghanap pa ng property to levy because under Section 15, the judgment can be satisfied out of the
property attached. So, it is more of a security.
Section 16. Balance due collected upon an execution; excess delivered to

judgment obligor. - If after realizing upon all the property attached, including the
proceeds of any debts or credits collected, and applying the proceeds to the
satisfaction of the judgment, less the expenses of proceeding upon the judgment,
any balance shall remain due, the sheriff must proceed to collect such balance as
upon ordinary execution. Whenever the judgment shall have been paid, the sheriff
upon reasonable demand, must return to the judgment obligor the attached
property remaining in his hands, and any proceeds of the sale of property attached
not applied to the judgment.
Section 17. Recovery upon the counter-bond. - When the judgment has become
executory, the surety or sureties on any counter-bond given pursuant to the
provisions of this Rule to secure the payment of the judgment shall become
charged counter-bond and bound to pay the judgment obligee upon demand the
amount due under the judgment, which amount may be recovered from such surety
or sureties after notice and summary hearing in the same action.
Now, suppose the property is released from attachment because of the counter bond under section 17 the
plaintiff will have to enforce the judgment against the sureties of the counter bond. Did you notice that under
section 17, it starts with a phrase: " When the judgment has become executory, the surety or sureties will be
held liable for the counter bond."
Q: Suppose, the judgment is not yet final and executory and there is no execution pending appeal under Rule
39, Section 2. Is the surety of the counter-bond liable for the judgment in an execution pending appeal ?
A: Under the present Rule, NO MORE! It can be applied to execution pending appeal. This is the reversal of the
case PHILIPPINE BRITISH ASSURANCE CORPORATION vs. IAC, 15O SCRA 530. In this case, the SC said: A
counter bond can be liable for any judgment whether final or executory or execution pending appeal because
Section 17 does not distinguish hat kind of judgment.
But now, iba na ang ruling---dahil ang wording ngayon "when the judgment has become executory".
So, the ruling in PHIL. BRITISH ASSURANCE is deemed abandoned.
Section 18. Disposition of money deposited. -Where the party against whom
attachment had been issued has deposited money instead of giving counter-bond,
it shall be applied under the direction of the court to the satisfaction of any
judgment rendered in favor of the attaching party, and after satisfying the
judgment , the balance shall be refunded to the depositor or his assignee. If the
judgment is in favor of the party against whom attachment was issued, the whole
sum deposited must be refunded to him or his assignee.
Section 19. Disposition of attached property where judgment is for party against
whom attachment was issued. - If judgment be rendered against the attaching
party, all the proceeds of sales and money collected or received by the sheriff,
under the order of attachment, and all property attached remaining in any such
officer's hands, shall be delivered to the party against whom attachment was
issued, and the order of attachment discharged.
Under this Section (19), when the judgment for the defendant-- so nanalo ang defendant, what happened to the
attached property? Well, of course, it will be ordered released.
Q: Is the release automatic or must there be an order of release ?

A: There must be an order for the release. This was taken from the case of OLIB vs. PASTORAL. The order of
attachment is not deemed dissolved upon the rendition of judgment upon the defendant. The order of
attachment is deemed discharged when the judgment becomes final and executory and which is not
deemed on appeal.
Section 20. Claim for damages on account of improper, irregular or excessive

attachment. - An application for damages on account of improper, irregular or
excessive attachment must be filed before the trial or before appeal is perfected
or before the judgment becomes executory, to
the attaching party and his surety or sureties, setting forth the facts showing his
right to damages and the amount thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment on the same case.
If the judgment of the appellate court be favorable to the party against whom the
attachment was issued, he must claim damages sustained during of the appeal by
filing an application in the appellate court to the party in whose favor the
attachment was issued or his surety or sureties, before the judgment of the
appellate court becomes executory. The appellate court may allow the application to
403
be heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom the attachment was
issued from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to fully satisfy the award.
Q: Is it possible for the plaintiff to win the case and for the defendant to win the case for the counterclaim? Can
the plaintiff win the case but still liable for unlawful attachment? A: YES! With more reason if the plaintiff lost
the case for he will now answer for all the damages suffered by the defendant while the attachment was going
on. That is why there could be an application for improper, irregular or excessive attachment.
Take note that under the new case--- the attachment was improper, irregular or excessive.
Now, do not confuse Section 20 with Section 17. Section 17 is recovery upon the counter bond---here the
defendant lost the case. In Section 20, it is the claim for damages against the attachment but also claimed by
the defendant.
Q: When are you going to file your claim for damages?

A: Before the trial or before the appeal is perfected or before the judgment becomes final and executory. Ibig
sabihin niyan, you must file your claim for damages in the same case. Notify the surety.
Q: Can you file another case for damages?

A: NO, it is prohibited. It must be claimed and resolved in the same action.
Q: How do you file a claim for damages where the attachment was filed before trial?
A: Simple, by way of counterclaim by the defendant in his answer.
Q: Is the attachment bond posted by the surety liable when actually according to the surety the plaintiff stops
paying his premium years ago?
A: Yes, a bond is not deemed extinguished by reason alone of such non-payment. Otherwise, the party can
diminish his liability by simply not paying the bond.
CALDERON vs. IAC

155 SCRA 531
FACTS: The defendant posted a counter-bond and then later on the defendant is running against the attachment
bond. I put a counter bond but I'm still holding you liable for the attachment bond. Sabi ng Surety Company,
“NO MORE! The attachment bond was deemed automatically dissolved when you posted your counter bond---
so walang attachment bond--- so ano pa ang liability namin?”
HELD: You are wrong again. What is dissolved is the attachment and not the bond. The bond continues to be
liable until the end of the case. What is dissolved or discharged is the writ of attachment not the attachment
bond. It could be used to be held liable. The liability of the surety in proper or regular attachment subsists
despite the counter bond posted by the defendant.
Now, this last paragraph of Section 20 is not found in the Old Law---
Q: If the attachment bond is not enough---can you hold the plaintiff liable for his personal property?
A: Yes. That is allowed and it is to be recovered in the same action. There is no need of filing another case
against him. If the attachment bond is not sufficient, you can run against the property of the attached
property not exempt from execution and you recover them in the same action.
ATTACHMENT
Attachment, as contemplated under Section 1 of Rule 57 of the Revised Rules of Court, is a provisional, auxiliary
remedy available at the commencement or during the progress of an action whereby the property, rights,
credits or effects of a defendant are taken into the custody of the court for the satisfaction of the demands of
the plaintiff. It imports the taking of property into the custody of an officer of the law by virtue of a mandatory
precept issued by the authority in the name of the State.
AUXILLIARY REMEDY
 Being provisional in character, attachment depends for its existence and effectivity upon the
pendency of a principal action in court.
 It does not affect the decision on the merits; the right to recover judgment on the alleged
indebtedness and the right to attach the property of the debtor are entirely separate and
distinct, and the judgment in the main action neither changes the nature nor determines the
validity of the attachment.
 As an aid to a principal action, attachment secures the payment of any judgment the plaintiff
may obtain.
 In effect, attachment is an involuntary dispossession of the defendant in advance of the trial,
wherein the property thus taken is conserved for eventual execution after judgment has been
404
rendered, unless the defendant shall have given other security to release it. It is an anticipated
execution to take and hold the property subject to a judgment in the action.
TWO FOLD NATURE OF ATTACHMENT

A AS A SUIT
Viewed from its aspect as a suit, attachment is a proceeding usually an adjunct to the main suit, the
object of which is to hold property to abide the order of the court for the payment of a judgment in the
event the debt shall be established.
B AS A WRIT
In its aspect as a writ, attachment as issued by the court either at the commencement of an action or
during its progress, is an order commanding the sheriff or other proper officer to take custody of the
property, rights, credits or effects of the defendant to satisfy the demands of the plaintiff.
The writ of attachment is substantially a writ of execution, except that it emanates at the beginning,
instead of the termination, of a suit. Its object is to seize and hold property subject to the claim sued on
and to satisfy them.
PURPOSE AND FUNCTION OF ATTACHMENT
 It seizes upon property of an alleged debtor in advance of final judgment and holds it
subject to appropriation thus prevents the loss or dissipation of the property by fraud or
otherwise.
 It subjects to the payment of a creditor’s claim property of the debtor in those cases where
personal service cannot be obtained upon the debtor.
KINDS OF ATTACHMENT; OBJECT OR PURPOSE
OF REMEDY
Five species of attachment are recognized; this is in

so far as it relates to the taking of the property of
the defendant as a security for the satisfaction of
the judgment that the plaintiff may obtain from the
court or the satisfaction of the plaintiff’s demand.
They are:
Preliminary attachment. It is a writ issued by

a court at the commencement of the action
or during its progress, commanding the
sheriff or other officer to take custody of the
property, rights, credits or effects of the
defendant to satisfy the demands of the
plaintiff.
 Garnishment. It is a writ issued by the court
whereby the plaintiff subjects to his claim
the defendant’s personal property in the hands of third person called the garnishee, as well as money
owed by the third party to the defendant. Garnishment proceedings are usually directed on personal
property.
 Levy on, or writ of execution. It is a writ issued by the court after final judgment by which the property
of the defendant is taken into the custody of the court for the satisfaction of the judgment that the
plaintiff obtains in a particular proceeding.
 Warrant of seizure. It is an order issued by the court either at the commencement of an action or during
its progress, commanding the sheriff to take possession of the personal property, subject of the action,
alleged to be wrongfully detained by the defendant.
405
 Warrant of distraint and levy. This is a writ issued
by quasi-judicial bodies like the Social Security
Commission, against a firm for its failure to remit
the premiums of its employees covered under the
Social Security System; or by the Bureau of
Internal Revenue for failure of a property owner to
pay his taxes.
PARTIES ENTITLED TO ATTACHMENT

The right to process of attachment under Section 1 of Rule
57 is made available to the plaintiff or any other party
who, ordinarily are creditors alone. As a rule, however,
when proper statutory grounds exist for the issuance of an
attachment, any creditor is held entitled to the remedy,
regardless of whether he is an original creditor whose
claim arises out of the transaction between himself and
the debtor or has succeeded by assignment or otherwise
to the claim of a third person against the debtor.
“Any other party” The term plaintiff or “any

other plaintiff” in whose favor an attachment
is granted under the rule, includes also the defendant whenever he asserts a counterclaim against
the plaintiff, whether or not such counterclaim arises out of the same transaction which is the
subject matter of plaintiff’s original claim. Also contemplated in “any other party” is a defendant in
interpleader when he asserts a counterclaim against the plaintiff; in this case, he may attach the
funds in dispute.
METHODS TO PROCURE WRIT OF ATTACHMENT

 The writ may be prayed for in the complaint itself providing that allegations warranting its issuance
are made therein.
 It may be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in
the original complaint
406
GROUNDS FOR ATTACHMENT
Under the Revised Rules of Court, attachment, being a
purely statutory remedy, is available only where one
or more of the grounds enumerated in the statute
exist at the time the writ was sue out, and if the writ is
issued without statutory authority, no valid lien is
created, even though the proceedings are sufficient in
form and substance and the levy properly made.
The rule is that before the extraordinary remedy is

resorted to, the party obtaining it should have proof
upon which to base his action, and the court ought to
be well satisfied from the testimony of the existence
of the grounds charged. Consequently, the
attachment must stand or fall according to the facts
existing at the date of its issuance, and cannot be
based on a subsequent event. So that events
subsequent to the issuance of the writ cannot cure the
defect where the necessary grounds did not exist at
the time of its issuance.
Section 1 of Rule 57 specifically enumerates the

statutory grounds for the issuance of the writ of
preliminary attachment, involving the following cases:
1 In an action for the recovery of money or

damages on a cause of action arising from
contracts, express or implied, against a party
who is about to depart from the Philippines
with intention to defraud his creditors
2 In an action for money or property embezzled
or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his
employment as such, or by any other person in
a fiduciary capacity, or for a willful violation of duty
3 In an action to recover possession of personal property unjustly detained, when the property ,or
any part thereof, has been concealed, removed, or disposed of to prevent its being found or
taken by the applicant or an officer
4 In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in concealing or disposing of the property for
the taking, detention or conversion of which the action is brought.
5 In an action against a party who resides out of the Philippines, or on whom summons may be
served by publication.
407
Accept decision and refund bond
Surrender certificate & annotate
Existing Criminal/
Civil Case
(Grounds for Attachment) Filing of TITLE
Applicant’s Affi
REGISTER OF DEEDS WILL SENDS NOTICE REQUESTING THE PRODUCTION OF DUPLICATE
compliance
REGISTER OF DEEDS WILL REPORT

refusal
SHERIFF’S FILING OF COPY OF THE ORDER, DESCRIPTI
ATTACHMENT REGISTRATION IN THE DAY BOO
COURT SHALL ENTER AN ORDER FOR THE OWNER TO SUR
OWNER
ATTACHMENT - ACTION TO RECOVER MONEY OR DAMAGES

As a general rule, statutes provide that attachment as a remedy is confined to actions for recovery of a sum of
money or damages, or for a claim payable in property having a certain money value.
408
The claim for money may arise from a contract
express or implied. It is essential that a contractual
relation must exist between the plaintiff and the
defendant to entitle the latter to the writ, or else that
the contract made for his benefit. Action for damages
may arise from fraudulent transfers, infringement of
trade mark or trade name, personal injuries, breach
of contracts. In these cases, the plaintiff is entitled to
the issuance of a writ of preliminary attachment.
ATTACHMENT AS A LIEN
 The creditor obtains a charge against such
property, commonly called a lien by the levy
of an attachment on the property of the
defendant.
 Not a fixed lien on property but only a right to
obtain payment out of the property attached
in preference to others, which is inchoate or
contingent until the creditor has obtained
final judgment in the attachment suit.
 Not an interest in property, and is not of the same binding force as a judgment lien.
 It is an actual and substantial security constituting a cloud on the legal title.
 Although it arise by operation of law, it is as if created by virtue of a voluntary act of the debtor and to
stand upon as high equitable grounds as a mortgage lien.
CREDITOR’S ACQUISITION OF A LIEN BY VIRTUE OF AN ATTACHMENT

 Not only sufficient that a writ of attachment has been regularly issued by a competent authority, or
even placed in the hands of an officer.
 There must be an actual and valid levy on the property of the debtor.
 Until such valid levy has been made, the attachment creditor has no rights in his debtor’s property.
 Such levy creates a lien, which nothing thereafter can destroy but its dissolution.
THE RIGHT ACQUIRED BY AN ATTACHMENT OF PROPERTY IS SUFFICIENT:

 To justify the attaching creditor in filing a bill in equity to clear the property from adverse claims,
 or to preserve the lien of the attachment when necessary papers have been lost and cannot be
supplied,
 Or in applying for an injunction against the sale of the property under an execution issued on a
subsequent judgment.
An attachment previously recorded is superior and preferred to a subsequent one.
ENTRY OF ATTACHMENT IN DAY BOOK: SUFFICIENCY.

In involuntary registration, such as an attachment, levy upon execution, lis pendens and the like, entry thereof
in the day book is sufficient motive to all persons of such adverse claim.
EXCEPTION TO BAD FAITH RULE DUE TO PREVIOUS KNOWLEDGE

Where the purchaser at a public auction sale had knowledge, prior to or at the time of the levy, of a previous
lien or encumbrance object of a third party claim, he does not come under the protection of the law. In such
case, his knowledge is equivalent to registration and taints his purchase with bad faith. But if knowledge of any
lien or encumbrance upon the property is acquired after the levy, the purchaser cannot be said to have acted in
bad faith in making the purchase and, therefore, such lien or encumbrance cannot affect his title.
DISCHARGE OF ATTACHMENT
Filing of Motion to Discharge

(no cause of action)
hearing
Court Approval
Denial of Motion to Discharge
Order of discharge of Attachment
Process of
Sheriff will notify Register of Deeds
attachment
409 will proceed
Entry of Discharge in the Day Book
MOTION TO DISCHARGE ATTACHMENT
ORDER OF DISCHARGE
RULE 58
410
PRELIMINARY INJUNCTION
Section 1. Preliminary injunction defined; classes. - A preliminary injunction is an

order granted at any stage of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to refrain from a particular act
or acts. It may also require the performance of a particular act or acts, in which case
it shall be known as preliminary mandatory injunction.
PRELIMINARY INJUNCTION – is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts
or to require the performance of a particular act or acts.
- is sometimes called strong arm of equity.
Q: What are the changes there?

A: The word " final order" was not found in the 1964 Rules. And then, the new Rule says, you can issue a writ of
preliminary injunction not only against a party but even to a court or agency.
TYPES OF INJUNCTION:
1. PRELIMINARY INJUNCTION
2. FINAL INJUNCTION
2 TYPES OF PRELIMINARY INJUNCTION:
1. PREVENTIVE PRELIMINARY INJUNCTION

2. MANDATORY PRELIMINARY INJUNCTION
Q: What is a preventive preliminary injunction?

A: A preventive preliminary injunction is one which requires a person to refrain from doing a particular act or
acts.
[The Ten Commandments is a preventive injunction. Huh! (“,)]
Q: What is a mandatory preliminary injunction?

A: A mandatory preliminary injunction is one which requires a person to perform a particular act or acts.
Q: What is a FINAL INJUNCTION?

A: A final injunction is one which is included in the judgment as the relief or part of the relief granted as the
result of the case. Final injunction is the one mentioned section 9 of this Rule --- tapos na ang kaso.
Section 9: When final injunction granted. - If after the trial of the action it appears that the
applicant is entitled to have the act or acts complained of permanently enjoined, the court shall
grant a final injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary mandatory
injunction.
That is not a provisional remedy. That is the main relief. So, the preliminary injunction becomes now total and
permanent.
So, if I want to permanently stop you from doing an act I will have to file a case for injunction, which is a main
action for injunction.
And if I want to pray, while the case is going on that you should be also prevented from doing the same act---I
have to apply for a writ of preliminary injunction. Kaya sa civil, it is worded this way: Civil case for injunction
with writ of preliminary injunction. The injunction is the final injunction and the writ is the provisional one. So
the former is the main relief while the latter is the temporary relief.
Purpose of preliminary injunction: To maintain the status quo between the parties in relation to the subject
matter. So, to maintain the status quo.
STATUS QUO is the last peaceable and uncontested status of the parties which preceded the pending case
from the controversy.
Because status quo may be preceded like, the squatters entering your land, so nasa loob na sila. So you ask for
preliminary injunction--- so status quo. Sabi ng mga squatters, “status quo--- we will remain in the land!”
Of course, that is not the purpose. The purpose is to bring you out because the status quo is the last peaceable,
uncontested status of the parties which proceeded the pending action or prior to the case.
Even in the labor case, magulo iyan eh, yong last peaceable and uncontested status. An example of injunction
in Labor case, iyong assumption of jurisdiction by the Secretary of Labor. In which the Secretary of Labor
assumes jurisdiction in cases of national interest.
Ano iyon ? When there is a threatened strike --- injunction! And if there is already a strike, strike is lifted and
the employee must have to go back to work and the management will accept those employees under the
terms and conditions before the strike.
Section 2. Who may grant preliminary injunction. - A preliminary injunction may be
411
granted by the court where the action or proceeding is pending. If the action or
proceeding is pending in the Court of Appeals or in the Supreme Court, it may be
issued by said court or any member thereof.
Q: Who may grant a preliminary injunction?

A: 1. The court where the case is pending.
2. CA.
3. SC.
EXPORT PROCESSING ZONE AUTHORITY (EPZA) vs. CHR

April 14, 1992
FACTS: When ordered to stop, the occupants of the export processing zone authority in the
EPZA land where the occupants filed a case in the CHR (Commission on Human Rights), the CHR
issued a writ of injunction or restraining order against the supposed violators of human rights to
compel them to cease and desist from continuing the acts complained of, and the authority of the
CHR to issue an injunction was challenged. Does it have an authority?
And the CHR said, yes---because under the Constitution the principal function of the CHR is not
merely limited in having investigation. It is mandated among others to provide appropriate
legal measures for the protection of the human rights of all persons within the Philippines as
well Filipino abroad. And to provide for preventive measures and legal aid services to the under
privileged whose human rights have been violated.
ISSUE: Does the CHR have the power to issue a writ of injunction?
HELD: The CHR is wrong because as earlier ruled in the case of CARIO VS. CHR, the CHR is not
a court of justice and it is not even a quasi-judicial body. The Constitutional provisions cited
may not be construed to compel jurisdiction of the CHR to issue restraining order or injunction
because if that was the intention the Constitution would have especially said so.
Jurisdiction is conferred only by the Constitution and by the law and is never derived by
implication.
Q: What is the meaning of the term preventive measures or legal measures which the CHR is
allowed to provide under the Constitution?
A: Evidently, that phrase refers to extra judicial and judicial remedies including a preliminary
writ of injunction which the CHR has to seek from the proper courts on behalf of the victims of
human right violations. So, the CHR not being a court of justice has no jurisdiction to issue the
writ because under Section 2 of Rule 58, "A writ of preliminary injunction may only be
issued by a judge or justices of CA or SC."
Section 3. Grounds for issuance of preliminary injunction.-A preliminary injunction

may be granted when it is established:
a) That the applicant is entitled to the relief demanded, and the whole part of
such relief consists in restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of an act or acts either for a
limited period or perpetually;
b) That the commission, continuance, or non-performance of the act or acts

complained of during the litigation would probably work in justice to the
applicant; or
c) That a party, court, agency, or a person is doing, threatening, or is attempting to

do, or is procuring or suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual. (3a)
This Section has some minor changes.
Q: Ano ang changes ?

A: They added the word: non-performance. That is why they emphasized the essence of mandatory, eh! So, f
there is preliminary preventive, there is also, preliminary mandatory.
Q: What is the area of enforceability of a writ of injunction?

A: Go back to the Interim Rules, Section 3-A. If the writ of preliminary injunction is issued by the SC and CA,
there is no problem. That is enforceable throughout the country.
Q: What about an injunction issued by the RTC?

A: It cannot be enforced outside the region where such RTC is located.
Well, there is ONE EXCEPTION. That is in the case of EMBASSY FARMS, INC vs. CA, 188 SCRA 492 reiterating
the earlier case of DAGUPAN ELECTRIC CORP. vs. PAO, 95 SCRA 693.
And here is the best example:
A corporation has extensive agricultural operation for example in Mindanao. But the head office is in Makati.
The management of the company in Makati arrives at a decision regarding certain operations of their business
in Mindanao. and the aggrieved party files a case in the RTC of Makati and sought the issuance of a writ of
412
preliminary injunction against the corporation.
And the Makati court issued a writ of injunction where the act sought to be enjoined is not in Makati but in
Mindanao.
Q: Is the issuance of the writ of injunction of the Makati court proper?

A: And the court said, YES! While it is true that the act to be restrained is going to be done in Mindanao but all
the instruction and decision and decision are coming from Makati. So, the Makati court can enjoin. That is the
exception to the Rule that the RTC injunction is only enforceable within the region.
Note:
GENERAL RULE: No court can issue a writ of preliminary injunction to interfere with the
judgments, processes of a co-equal court. So, the RTC cannot enjoin another RTC. Also, the RTC cannot
enjoin acts/proceedings in connection with a case pending before a co-equal quasi-judicial body. Like for
example: the RTC cannot enjoin the Labor arbiter. The RTC cannot enjoin the SEC. Because these are co-equal
bodies.
So, for example in case of judgment against you in Manila and the Sheriff is now claiming your property and you
want to question the act of the Sheriff because your property was levied. You file your case in Davao to stop
the execution. If there is any irregularity, you better go back and seek relief from the court which issued the
execution.
EXCEPTION:
That situation that no court can interfere in the process of a co-equal court should not be conferred with the
situation which is contemplated in the case of Manila Herald vs.IAC 133 SCRA 141.
Mind you, all the cases asked in the Bar were taken from the exception and not from the general rule.
Manila Herald vs.IAC
133 SCRA 141.
FACTS: A filed a case against B in Davao. B lost the case. So, a writ of execution was issued by the court to the
sheriff. The sheriff levied certain properties of B. Now, here comes C. According to C, the property levied were
not owned by B but by him (C) --- 3rd person, di ba ?
And under the Rule, nothing will prevent him from filing a separate action to raise the question of
ownership. So C filed a case before another court to annul the levy made by the sheriff on his property and to
stop him from continuing with the auction sale.
Now, according to A, the court has no jurisdiction to issue the injunction because it will be an interference with
the process of the court to render judgment.
Q: Can the court validly issue the injunction?

A: Of course many remembered the general rule thatthe court cannot for it will be an interference.
That is wrong. Remember, in those cases with interference there is no 3rd person involved. Ito meron. It is not
B the defendant questioning the levy, it was C, who is not a party, asking to stop the levy.
So, the SC said: The 3rd party can file a separate case.
Q: Is that not an interference?

A: No! It is not an interference because in the judgment ordering the issuance of the writ of execution issued
by the court in favor of A, the Sheriff is commanded to levy on the properties of B and not ordered to levy on
the properties of C. So, if the sheriff will levy on the property of C [or X or W] --- that is not part of the writ. So,
C can question that and he is not interfering.
One thing important about injunction is that there are two requisites:
TWO REQUISITES IN INJUNCTION:
1. The plaintiff must clearly show the existence of a right sought to be protected.
2. And the injunction is directed against the violation of the said right.
So there must be a right sought to be protected. If there is no right which ought to be protected, there could be
no injunction.
An example is the case of
SARENO V. DICTADO
160 SCRA 759
FACTS: Sareno was elected as mayor, he was proclaimed as the winner. Five days later, the
losing candidate filed an election protest before the RTC.
Judge Dictado issued a writ of preliminary injunction to stop Sareno from assuming office
pending resolution of the case (election protest).
HELD: Judge Dictado committed grave abuse of discretion and acted in excess of jurisdiction.
The reason is that the pendency of the election protest is not a sufficient basis to enjoin Sareno
from assuming office as required by law.
The efficiency of public administration should not be impaired until and unless the election
protest is decided against Sareno. During the pendency of the case, he has the lawful right to
assume and perform the duties of a mayor. The claim of the losing candidate to the contested
office is a contingent right which could only ripen into an actual right when judgment is rendered
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to this effect. His alleged right has not been clearly established against Sareno whose right is
actually existing. An injunction is not proper to protect contingent or future rights nor is it a
remedy to enforce an abstract right.
Distinguish the case of Sareno from:
YU v. COURT OF APPEALS
217 SCRA 328
FACTS: Yu is the exclusive distributor of a certain product here in the Philippines. He

discovered that another businessman is selling the same product within the country. He filed a
case against the other businessman and sought an injunction against the latter from selling said
product.
HELD: Injunction is an appropriate remedy to prevent the wrongful interference with contracts
by strangers where other remedies are not sufficient and the resulting injury is irreparable. The
right to an exclusive distributorship and to raise profits resulting from such performance are
proprietary rights which may be protected.
Instances where the issuance of injunction was held to be proper:
1) In petitions for certiorari or prohibition and mandamus.
2) In an action to annul a judgment or enjoin its enforcement.
Instances where injunction is inappropriate:
1) Injunction is inappropriate in enjoining an act which is already consummated.
2) A criminal prosecution cannot be enjoined or restrained.
You cannot prevent the fiscal from conducting criminal investigation and the court cannot prevent him from
conducting an investigation. The remedy is to go to his superior or if you believe that there is no case, the
remedy is to go to trial. But the general rule: The criminal prosecution cannot be enjoined. But there are
exceptions :
BROCKA vs ENRILE
December 10, 1990 (192 SCRA 183)
HELD: The primary issue here is the legality of enjoining the criminal prosecution of a case, since the two
other issues raised by Brocka, et al. are matters of defense against the sedition charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting
to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction,
preliminary or final.
There are however exceptions, among which are:
a. To afford adequate protection to the constitutional rights of the accused "
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions "
c. When there is a pre-judicial question which is sub judice
d. When the acts of the officer are without or in excess of authority
e. Where the prosecution is under an invalid law, ordinance or regulation
f. When double jeopardy is clearly apparent "
g. Where the court has no jurisdiction over the offense
h. Where it is a case of persecution rather than prosecution
i. Where the charges are manifestly false and motivated by the lust for vengeance, and
j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has
been denied.
In the petition before us, Brocka, et al. have cited the circumstances to show that the criminal
proceedings had become a case of persecution, having been undertaken by state officials in bad faith.
ALLADO vs DIOKNO
May 5, 1994 (232 SCRA 192)
FACTS: Two lawyers, assistants of Salonga were charged of murder for the alleged kidnapping of a German.
Salonga asked to stop the criminal prosecution.
HELD: The facts of this case are fatefully distressing as they showcase the seeming immensity of
government power which when unchecked becomes tyrannical and oppressive. The case before us, if uncurbed,
can be illustrative of a dismal trend. Needless injury of the sort inflicted by government agents is not reflective
of responsible government. Judges and law enforcers are not, by reason of their high and prestigious office,
relieved of the common obligation to avoid deliberately inflicting unnecessary injury.
Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the
dictates of government. They would have been illegally arrested and detained without bail. Then we would not
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have the opportunity to rectify the injustice. Fortunately, the victims of injustice are lawyers who are vigilant of
their rights, who fight for their liberty and freedom not otherwise available to those who cover in fear and
subjection.
3) A mandatory injunction cannot be issued to compel one spouse to cohabit with the other.
So, you cannot compel the wife. You are hereby enjoined to cohabit your husband. Hindi yun
puwede. Although she is obliged under the law to live with his husband but no amount of court
order can force the wife to return to her husband kung ayaw niya. Although there are other
sanctions but not injunctions.
Let us go to MANDATORY INJUNCTION. This is rarer than a preventive preliminary injunction. The guidelines
for its issuance are also strict.
PURPOSE: is to re-establish and maintain a pre-existing right rather than to create a

new relationship between them.
If there is already an existing relationship which was arbitrarily interrupted by you, I can file for mandatory
injunction.
Q: When may a court issue a preliminary mandatory injunction?

A: 1. In cases of extreme urgency.
2. Where the right is very clear. PROSPERITY CREDIT RESOURCES, INC. vs CA, January
15,1999. The right of the complainant must be clear and unmistakable because, unlike an ordinary
preliminary injunction, the writ of preliminary mandatory injunction requires the performance of a
particular act or and thus tends to do more than maintain the status quo.
3. Where consideration of relative inconvenience bears strongly in complainant's favor.
4. Where there is a willful and unlawful invasion of plaintiffs’ right against his protest and remonstrance,
the injury being a continuing one.
5. Articles 539 and 1674 of the Civil Code which expressly direct the issuance of mandatory injunction.
Example: A possessor deprived of his possession by forcible entry may, within so many days, file a
complaint in the proper court and ask for a writ of mandatory injunction to restore him in his
possession. And also, in different cases where the defendant appealed, the lessor can ask the appellate
court to issue a mandatory injunction if the appeal is frivolous or dilatory. Those are the instances
when the law expressly grants the remedy.
6. Where the effect of mandatory injunction is rather to re-establish and maintain a pre-existing continuing
relation between the parties recently and arbitrarily interrupted by the defendant.
The example asked in the Bar many times, MERALCO VS. CA, where the electric power of the defendant was
disconnected by Meralco, Then he filed a case questioning the act of Meralco, and he has evidence to show
that he has paying his bills. Something happened somewhere. If he will wait for the time of judgment to be
rendered, that would take years. While the case is going on, he can file for a mandatory injunction to reconnect.
Another example was the case of LEVI VS. VALENCIA, where Levi was the owner of a broadcasting company.
The government raided his radio station and got his transmitter and cut down the power of his transmitter. He
questioned all these acts and in the meantime, he filed for mandatory injunction to allow him to continue
broadcasting because he has contracts with advertisers to comply with .
The SC said, when the petitioner was not able to continue broadcasting due to seizure of his radio transmitter,
this affects his contractual relations with third persons. The court is justified to issuing a mandatory
injunction.
SEC. 4. Verified application and bond for preliminary injunction or temporary

restraining order. - A preliminary injunction or temporary restraining order may
be granted only when:
a.) The application in the action or proceeding is verified and shows facts entitling
the applicant to the relief demanded; and
b.) Unless exempted by the court, the applicant files with the court where the
action or proceeding is pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to the effect that the applicant
will pay to such party or person all damages which he may sustain by reason of
the injunction or temporary restraining order if the court should finally decide
that the applicant was not entitled thereto. Upon approval of the requisite bond,
a writ of preliminary injunction shall be issued.
c.) When an application for a writ of preliminary injunction or a temporary

restraining order is included is a complaint or any initiatory pleading, the case,
if filed in an multiple-sala court, shall be raffled only after notice to and in the
presence of the adverse party of the person to be enjoined. In any event, such
notice shall be preceded, or contemporaneously accompanied, by the service of
summons, together with a copy of the complainant or initiatory pleading and the
applicants affidavit and bond, upon the adverse party in the Philippines.
However, where the summons could not be served personally or by substituted

service despite diligent efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a non-resident thereof, the
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requirement of prior contemporaneous service of summons shall not apply.
d.) The application of a temporary restraining order shall thereafter be acted upon
only after all parties are heard in a summary hearing which shall be conducted
within twenty four (24) hours after the sheriff's return of service and/or the
records are received by the branch selected by raffle and to which the records
shall be transmitted immediately.
Sec. 5. Preliminary injunction not granted without notice; exception. - No

preliminary injunction shall be granted without hearing and prior notice to the party
or person sought to be enjoined. If it shall appear from the facts shown by affidavits
or by the verified application that great or irreparable injury would result to the
applicantbefore the matter can be heard on notice, the court to which the
application for preliminary injunction was made, may issue ex parte a temporary
restraining order to be effective only for a period of Twenty (20) days from service
on the party or person sought to be enjoined, except as herein provided. Within
the twenty day period, the court must order said party or person to show cause, at
a specified time and place, why the injunction should not be granted, determine
within the same period whether or not the preliminary injunction shall be granted,
and accordingly issue the corresponding order.
However, and subject to provisions of the preceding sections, if the matter is of

extreme urgency and the applicant will suffer grave injustice and irreparable
injury, the executive judge of a multiple sala court or the presiding judge of a
single sala court may issue ex parte a temporary restraining order effective only
for seventy two (72) hours from issuance but he shall immediately comply with the
provisions of the next preceding sections as to service of summons and the
documents to be served therewith. Thereafter, within the aforesaid seventy two
(72) hours, the judge before whom the case is pending shall conduct a summary
hearing to determine whether the temporary restraining order shall be extended
until the application for preliminary injunction can be heard. In no case shall the
total period of effectivity of the temporary restraining order exceed twenty (20)
days, including the original seventy two (72) hours provided herein.
In the event that the application for preliminary injunction is denied or not resolved
within said period, the temporary restraining order is deemed automatically
vacated. The effectivity of a temporary restraining order is not extendible without
need of any judicial declaration to that effect and no court shall have authority to
extend or renew the same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof the temporary

restraining order shall be effective for sixty (60) day from service on the party or
person sought to be enjoined. A restraining order issued by the Supreme Court or a
member thereof shall be effective until further orders.
Sections 4 and 5 were taken from existing SC circulars particularly AC 20-95. The trouble is specially section
4, the committee who drafted the new rules inserted so many rules here that it becomes so hard to
understand. Actually, it has become vague.
Let us proceed with the basics. Some of which we have already learned.
Q: What are the requirements for the issuance of the writ of preliminary injunction?
A: Letters a and b of Section 4.
1. A verified application stating the facts showing the existence of a right sought to be protected.
Example: A local businessman entered into a contract with a foreign supplier of items. He became the
exclusive distributor. However, another businessman is selling the same product. Does he have right to
enjoin that another businessman? Yes. Because he has a right sought to be protected.
2. Bond.
Q: Can a writ of Preliminary Injunction be issued ex parte - without hearing ?
A: NO. Section 5 is very clear. No preliminary injunction to be granted without hearing and further notice to
parties sought to be enjoined.
So, the Filinvest ruling, Cuartero, Davao light ruling are not applicable.
There must be a hearing, presentation of evidence. Of course, in the presentation of evidence since you are
only asking for an injunction, the evidence should only be a sample, because if you will present your entire
evidence you are no longer asking for an injunction but a decision.
That was explained by the SC in the 1993 case of
SYNDICATED MEDIA ACCESS CORP. vs CA

219 SCRA 784
HELD: While the evidence to be submitted in the hearing for the motion for preliminary
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injunction need not be conclusive or complete, the evidence needed may only be a sampling
and intended merely to give the court an idea of justification for preliminary injunction pending
the decision of the case on the merits, still such evidence must stand on admissible grounds
an not one which is merely hearsay.
The analogy is the same in case of petition for bail in criminal procedure.
Q: What happens if great or irreparable injury would result to the applicant before the matter
can be heard, meaning, before the preliminary injunction can be acted upon. Is there a remedy
temporarily?
A: YES. You ask for a temporary restraining order. That is the provisional remedy of the
provisional remedy. And the grounds for injunction are found in Section 3. The ground for a
temporary restraining order is that great or irreparable injury would result to the plaintiff before
the matter can be heard.
So, the temporary restraining order may be issued ex parte but it has only a duration of 20
days. As stated by the SC and emphasized in the 3rd paragraph of section 5, the effectivity of the
TRO is unextendible without the need of judicial declaration to that effect and no court shall have
the authority to extend the same on the same grounds. There is no such thing as an extended
TRO. This was taken from judicial declarations.
There seems to be AN EXCEPTION. One of them is cited in the case of

FEDERATION OF LAND REFORM FARMERS OF THE PHILS. vs. CA
246 SCRA 175 (1994).
HELD: Ordinarily, the efficacy of the TRO is non-extendible, and the courts have no discretion to
extend the same considering the mandatory tenor of the rule. However, there is no reason to
prevent the court from extending the 20-day period when the parties themselves ask for some
extension for the maintenance of the status quo. Because of AC 20-95 which has been incorporated
in sections 4 & 5, the SC created a second type of TRO, the so called 72-hour TRO. Because when
you file a case, it has not yet been raffled. So under Circular 20-95, the executive judge in a
multi-sala court can issue ex parte a temporary restraining order but only good for 72
hours or three days. And then within 24 hours, the other party must be notified. There must be a
special raffling within 24 hours. and then the judge must conduct a summary hearing based on the
arguments only, in order to determine whether the temporary restraining order should be
extended beyond 72 hours.
Two kinds of temporary restraining order:

1. Issued by an executive judge valid only for 72 hours.
2. After summary hearing, the judge will now extend and the extension should not be more than 20 days.
The 72 hours is already included in the 20 days. So in effect, the extension is only for 17 days, and the
total life of the TRO is 20 days.
1. Distinguish a writ a preliminary injunction from a temporary restraining order.
One requires a hearing, the other may issued ex parte. Generally, preliminary injunction is indefinite until
dissolved. Normally, a preliminary injunction requires a bond, a temporary restraining can be issued w/out a
bond.
But there is second question.
2. Distinguish a TRO issued by an executive judge from a TRO issued by an ordinary judge.
The former is good for 72 hrs. and the latter for 20 days including the first 72 hrs. The former is issued before
raffling and the latter after raffling. The former is ex-parte and the latter is after summary hearing. For the
72-hr TRO, the ground is extreme urgency. And the ground for the 20-day TRO is that grave and irreparable
injury would result before the matter can be heard.
So 20 days if issued by the MTC or RTC.
Q: How about a TRO issued by the CA?

A: You have the last paragraph, it is now effective for 60 days from service to the parties. The case of Delbros
Hotel Corp. is abrogated because under the said case the lifetime of the temporary restraining order issued by
the CA is only 20 days. So from 20 to 60 days.
Q: How about a TRO issued by the SC ?

A: This time it is indefinite. It shall effective until the case is decided. Actually, The SC can give a deadline.
Sometimes after further orders, sometimes they can limit it.
Q: Is there a necessity of a bond?

A: A bond is required for only a preliminary injunction and as a rule there is no bond for a TRO. You look at
par. a, "and the amount fix by court....." so the bond can now be imposed for a TRO when actually it is only
for injunction as a rule.
Maybe what is intended by the law, 72 hrs. then you ask for an extension up to another 7 days, so 10 days.
Then after 10 days, extension again. That is allowed because it is up to 20 days. Then you give a bond for
the second extension. The court is now empower to fix a bond for the TRO. But definitely in injunction there
is a bond. But you look at the opening clause of par. b "unless excepted by the court." that means to say there
are instances when the court may exempt the petitioner form putting up a bond in injunction when under
417
the rule there is none. That is a radical change.
Take note: Generally. An injunction requires a bond unless exempted by the court.
Under par. c of section 4, the last part has incorporated a portion of the Davao Light ruling. A TRO must be
served prior or contemporaneously with the summons. You can not serve the TRO ahead. It must be served
prior to the summons or at least contemporaneously.
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or
restraining order. - The application for injunction or restraining order may be
denied, upon a showing of its insufficiency. The injunction or restraining order may
also be denied ,or, if granted, may be dissolved on other grounds upon affidavits
of the party or person enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or, if granted, may be dissolved if it appears
hearing that although the applicant is entitled to the injunction or restraining
order, the issuance or the continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be
fully compensated for such damages as he may suffer, and the former files a bond
in an amount fixed by the court conditioned that he will pay all damages which the
applicant may suffer by denial or dissolution of the injunction and restraining
order. If it appears that the extent of the preliminary injunction or restraining
order granted too great, it may be modified.
Q: What are the grounds for the dissolution of a writ of preliminary injunction or objection to its issuance?
A: That is under Sec. 6.
1. When the insufficiency of the application is shown by the application itself. The petition has no basis.
2. Upon affidavits of the party or person enjoined, which may be opposed by the applicant also by
affidavits.
3. Putting up a counter-bond.
Sec. 7. Service of copies of bonds; effect of disapproval of same. – The party filing a
bond in accordance with the provisions of this Rule shall forthwith serve a copy of
such bond on the other party, who may except to the sufficiency of the bond, or of
the surety or sureties thereon. If the applicant’s bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in
amount with sufficient sureties approved after justification is not filed forthwith, the
injunction shall be dissolved. If the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties thereon fail to justify a bond
sufficient in amount with sufficient sureties approved after justification is not filed
forthwith, the injunction shall be granted or restored, as the case may be.
Sec. 8. Judgment to include damages against party and sureties.- At the trial, the
amount of damages to be awarded to either party , upon the bond of the adverse
party, shall be claimed , ascertained and awarded under the same procedure
prescribed in Section 20 of Rule 57.
Q: Can you claim for damages against an injunction bond?

A: YES. The same procedure for recovery of damages against the attachment bond in Section 20, Rule 57.
Before we leave this topic, you must remember that there are SOME SPECIAL LAWS WHICH PROHIBIT THE
ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION OR TEMPORARY RESTRAINING ORDER.
Q: What are these?

A: They are the following:
1. B.P. 227, which prohibits the issuance of injunctions or TROs in labor cases;
2. P.D. 605, prohibiting courts from issuing injunctions and TRO’s against projects for the exploitation or
development of natural resources;
3. P.D. 385, prohibiting injunction against government financing institutions, against mandatory
foreclosures or against CARL;
4. R.A. 7181 as inserted by R.A. 7061, you cannot issue an injunction against the Asset Privatization
Trust;
5. P.D. 1818, prohibiting injunction against public infrastructure projects and public utilities; Under this
law in relation to SC circulars, no injunction also against NAPOCOR.
MALAGA vs. PINASTIUS, JR.

213 SCRA 516
Q: What is the extent of the applicability of P.D. 1818?
Actually, what is prohibited is that the court cannot interfere in injunction in controversies
involving facts for the exercise of discretion in technical cases. Example, we will not award
because the plan is substandard. Only one bidder and he losses. He complains and wants to
question the award of the committee on technical matters.
418
The SC said the Court cannot rule on that. What do we know of technical matters like
engineering? So the court cannot substitute its own decision on technical matters like engineering
or on infrastructure projects. That is prohibited. But if I will ask the court to issue an injunction to
stop an infrastructure project because from the very start including the award has been tainted
with corruption, that is allowed because it refers to legal matters.
So the SC said, “The prohibition pertains to the issuance of injunction against administrative
acts or technical cases. To allow the court to judge on technical matters would disturb the
smooth functioning of the administrative machinery. However, on issues definitely outside of
this dimension and involving questions of law, the court could not be prevented by the
decree for exercising their power to restrain or prohibit administrative acts. P.D. 1818 was not
intended to screen from judicial scrutiny irregularities committed by administrative agencies.”
Section 9. When final injunction granted. – If after the trial of the action it appears
that the applicant is entitled to have the act or acts complained of permanently
enjoined, the court shall grant a final injunction perpetually restraining the party or
person enjoined from the commission or continuance of the act or acts or confirming
the preliminary mandatory injunction.
RULE 59
RECEIVERSHIP
Sec. 1. Appointment of receiver.- Upon a verified application, one or more receivers of the
property subject of the action or proceeding may be appointed by the court where the action is
pending, or, By the Court of Appeals or by the Supreme Court, or a member thereof, in the
following cases:
a.) When it appears from the verified application, and such other proof the court may require,
that the party applying for the appointment of a receiver has an interest in the property
or fund which is the subject of the action or proceeding, and that such property or fund
is in danger of being lost, removed, or materially injured unless a receiver by appointed
to administer and preserve it;
b.) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property in is danger of being wasted or dissipated or materially injured, and that its value
is probably insufficient to discharge the mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
c.) After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the writ of execution
has been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment, or otherwise to carry the judgment into effect;
d.) Whenever in other cases it appears that the appointment of the receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property
in litigation.
During the pendency of an appeal, the appellate court may allow an application for the
appointment of a receiver to be filed in and decided by court of origin and the receiver appointed
to be subject to the control of said court.
RECEIVER - an indifferent person, neutral between the parties, appointed by the court to receive and preserve
the property in litigation pendente lite when it is not seem reasonable to the court that either party will hold it.
Q: Who among the parties does the receiver represent?

A: Neither the plaintiff nor the defendant. He is an AGENT OF THE COURT.
Example: The ownership of a piece of land is in controversy. To be fair for both parties claiming the land,
especially when both of them are in possession of it, the court will manage it. The court will appoint a receiver
and the income will be deposited. So it is the same as an administrator.
Q: Who appoints the receiver?

A: 1. Court where the case is pending.
2. By the CA, or a member thereof.
3. By the SC, or a member thereof.
Under the new rules the application for receivership is now verified.
Q: What are grounds for receivership?

A: We have a,b,c,d of section 1.
a) When it appears from the verified application, and such other proof the court may require, that
the party applying for the appointment of a receiver has an interest in the property or fund
which is the subject of the action or proceeding, and that such property or fund is in danger
of being lost, removed, or materially injured unless a receiver by appointed to administer and
preserve it;
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BAR Q: A filed a case against B to collect unpaid loan. B, the defendant has no other property left except a
piece of land. Meaning of A wins, that land is the only property the he can levy. And to preserve the property A,
the plaintiff filed an application to place the property under receivership. Is the petition proper?
ANSWER: The SC said NO, because receivership is only proper when the property to be placed under
receivership is the subject of the litigation. In this case, the subject of litigation is not the property but money. I
am collecting a loan which is different from recovery of possession or ownership of land.
QUESTION: Suppose the defendant is trying to destroy the property or run away with it or dispose it?
ANSWER: You better get an attachment and not a receivership. That is the tricky part.
b.) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property in is danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in
the contract of mortgage;
This applies or granted by law to a mortgagee.
Under the law on mortgage, if the mortgagor cannot pay, mortgagee can foreclose. And if the property is in
danger of being wasted or dissipated or materially injured, mortgagee can ask for receivership.
Or the parties have stipulated in their agreement that while foreclosure proceeding is going on, they can place
the property under receivership. In Bank Mortgage Contracts, meron nito.
c.) After judgment, to preserve the property during the pendency of an appeal, or to dispose of
it according to the judgment, or to aid execution when the writ of execution has been
returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
Generally, you file a Provisional Remedy while the case is going on. Except under par. c.
Receivership is not only available while the case is pending. It is available even after judgment to:
1. preserve the property during the pendency of an appeal.
QUESTION: Where will you file you petition for receivership? Before the CA or the trial court?
ANSWER: The last par. of sec. 1, appellate court may allow the filing of the receivership in the trial court that
decided it although the trial court has already lost jurisdiction because of the appeal.
QUESTION: Is this supported by Rule 41?

ANSWER: YES. Rule 41, Section 9, last paragraph. Once the appeal is perfected, the trial court losses
jurisdiction over the case except to issue orders for the preservation and protection of the rights of the
parties while on appeal. This is part of the Residual Powers of the RTC.
2. dispose of it according to the judgment.

3. to aid execution when the writ of execution has been returned unsatisfied or the judgment
obligor refuses to apply his property in satisfaction of the judgment.
QUESTION: Is this provision or ground supported by the rules on execution? Is there a provision in the rules
of court ?
ANSWER: YES, in remedies in aid of execution. Rule 39 sec. 41. In the execution stage, you can appoint a
receiver to preserve the property which is to be levied.
4. carry the judgment into effect.
d.) Whenever in other cases it appears that the appointment of the receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.
It’s the broadest. Anything under the sun can fall on this ground.
Sec. 2. Bond on appointment on receiver.- Before issuing the order appointing a receiver, the
court shall require the applicant to file a bond executed to the party against whom the
application is presented, in an amount to fixed by the court, to the effect that the applicant will
pay such party all damages he may sustain by reason of the appointment of such receiver in
case the applicant shall have procured such appointment without sufficient cause, and the court
may, in its discretion, at any time after the appointment require an additional bond as further
security for such damages.
REQUISITES FOR RECEIVERSHIP:

1. Verified application. (under Section 1).
2. Bond (under this section – 2).
Sect. 3. Denial of application or discharge of receiver. – The application may be denied, or the
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receiver discharged, when the adverse party files a bond executed to the applicant, in an amount
to be fixed by the court, to the effect that such party will pay the applicant all damages he may
suffer by reason of the acts, omissions, or other matters specified in the application as ground for
such appointment. The receiver may also be discharged if it is shown that his appointment was
obtained without sufficient cause.
Sect. 4. Oath and bond of receiver.- Before entering upon his duties, the receiver shall be sworn to
perform them faithfully, and shall file a bond, executed to such person and in such sum as the
court may direct, to the effect that he will faithfully discharge his duties in the action or
proceeding and obey the orders of the court.
Do not confuse the bond here with the bond in Section 2.

Section 2 – Bond is posted by the party. Section 4 – Bond is posted by the receiver.
Sect. 5. Service of copies of bonds; effect of disapproval of the same. – The person filing a bond in
accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested
party, who may except to its sufficiency or of the surety or sureties thereon. If either the
applicant’s or the receiver’s bond is found to be insufficient in amount, or if the surety or sureties
thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the application shall be denied or the receiver discharged, as
the case may be. If the bond of the adverse party is found to be insufficient in amount or the
surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the receiver shall be appointed or re-appointed,
as the case may be.
Sec. 6. General powers of receiver.- Subject to the control of the court in which the action or
proceeding is pending, a receiver shall have the power to bring and defend in such capacity,
actions in his own name: to take and keep possession of the property in controversy; to receive
rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or
corporation of which he is a receiver; to compound for and compromise the same; to make
transfers; to pay outstanding debts; to dived the money and other property that shall remain
among the persons legally entitled to receive the same; and generally to do such acts respecting
the property as the court may authorize. However, funds in the hands of a receiver may be
invested only by order of the court upon which consent of all parties to the action.
No action may be filed by or against a receiver without leave of the court which appointed him.
What are the powers of the receiver? Just read the provision. It is like the power of the manager.
The last paragraph is new. The one who files an action for receivership must secure the permission of the court.
Sec. 7. Liability for refusal or neglect to deliver property to receiver.- A person who refuses or
neglects, upon reasonable demand, to deliver to the receiver all the property, money, books,
deeds, notes, bills, documents and papers within his power or control, subject of or involved in
the action or proceeding , or in case of disagreement, as determined and ordered by the court,
may be punished for contempt and shall be liable to the receiver for the money or the value of
the property and other things so refused or neglected to be surrendered , together with all
damages that may have been sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect.
If you refuse or neglect to deliver the property to the receiver, you will be liable for contempt of court.
Sec. 8. Termination of receivership; compensation of receiver.-Whenever the court, motu propio

or on motion of either party, shall determine that the necessity for a receiver no longer exists,
it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver,
direct the delivery of the funds and other property in his possession to the person adjudged to
be entitled to receive them, and order the discharge of the receiver from further duty as such.
The court shall allow the receiver such reasonable compensation as the circumstances of the
case warrant, to be taxed as costs against the defeated party or apportioned as justice
requires.
QUESTION: When do you terminate a receivership?

ANSWER: When the grounds enumerated under section 1 no longer exists.
Sect. 9. Judgment to include recovery against sureties.- The amount, if any, to be awarded to any
party upon any bond filed in accordance with the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure prescribed in Section 20 of Rule 57.
QUESTION: How do you claim for damages?

ANSWER: Follow Rule 57, Sect. 20. Take note: No separate action to claim for damages
R U L E 60
REPLEVIN
Under the previous rule, it is entitled "delivery of personal property". But its popular term is replevin.
Q: What is the main action here?
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A: The main action is the recovery of possession of personal property.
At the commencement of the main action at any time before answer, the plaintiff may pray for an order, for the
delivery of the property to him, meaning, he will ask for the issuance of a writ of seizure or writ of replevin. So,
replevin is a term that could be used to describe the main action or to describe a provisional remedy.
This was stated by the SC in the recent case of
BA Finance Corp. vs. CA
253 S 102
(July 05, 1996)
According to Justice Vitug, replevin as understood is both a form of principal remedy

and a provisional remedy. It may refer either to the action itself, that is to regain
the possession of personal property or to the provisional remedy to disallow the
plaintiff to retain the thing during the pendency of the action. The action is
possessory nature, being to determine who has the right to possession. Replevin is usually
described as a mixed action, being partly in rem and personam. In rem in so far as the recovery of
specific personal property is concerned and in personam as regard to damages involved because
damages are also sought in the pleadings.
Section 1. Application - A party praying for the recovery of possession of personal

property may, at the commencement of the action or at any time before answer,
apply for an order for the delivery of such property to him, in the manner hereinafter
provided.
Q: When do you seek this provisional remedy?

A: Under section 1, at the commencement of the action or at anytime before answer.
So very limited. It is shorter. If you look at the old Rules, it provides for “at the commencement of the action and
at anytime before JUDGMENT and in the new rules, it's anytime before answer.
Again, the main action is recovery of personal property.

Example: Somebody borrowed your personal property. Ayaw isauli. The procedure is to file a case to recover
possession of the personal property and in the meantime that the case is going on, you can apply for a
provisional remedy of replevin.
Section 2. Affidavit and bond.-The applicant must show by his own affidavit or
that of some other person who personally knows the facts:
a. That the applicant is the owner of the property claimed, particularly describing
it, or is entitled to the possession thereof;
b. That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, information,
and belief;
c. That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment,
or otherwise placed under custodia legis, or if so seized, that it is exempt from
such seizure or custody; and
d. The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in double the
value of the property as stated in the affidavit aforementioned, for the return of
the property to the adverse party if such return be adjudged, and for the payment
to the adverse party of such sum as he may recover from the applicant in the action.
Q: What are the ESSENTIAL REQUISITES OF REPLEVIN ?
1.) SWORN AFFIDAVIT executed by the applicant or some other persons who personally knows
the fact alleging the essential allegations as stated in Section 2, a to d.
Q: What does “entitled to the property” mean under letter a?

A: The applicant here is not the owner but he is entitled to the property.
Example: A sold a car to B on installment basis. B, now the owner mortgaged the car to C. B failed to pay A.
So, A became an unpaid seller and one of his remedies is to file a foreclosure proceeding. How can A get the
possession of the property? File a provisional remedy of replevin. A in this case is no longer the owner of the
property but he is entitled to the property.
There is a slight change in par. c compared to the previous Rule. In par. c, the affiant/applicant must allege
under oath that the property has not been distrained or taken for a tax assessment or a fine pursuant to law or
seized under a writ of execution or preliminary attachment or otherwise placed under custodia legis.
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The addition is: “otherwise placed under custodia legis”.
And the last allegation is that the affidavit must allege the actual market value of the property. They added
the word "market value". Before it is only value.
Q: Can the court take cognizance of a replevin suit considering that the object was the recovery of lumber
seized and forfeited by law enforcement agents of the DENR pursuant to P.D. 705?
A: Answer is in the case of Dy vs. CA
DY vs CA
March 9, 1999 (304 SCRA 331)
FACTS: Two trucks with Plate Nos. KAK-542 and KBL-214 and loaded with lumber
approached the checkpoint. They were flagged down by the operatives. Forester
Resurreccion Maxilom of the DENR issued a temporary seizure order and a seizure receipt
for the two vehicles and their cargo consisting of several pieces of lumber . On October
20, 1993, more than two months after the lumber had been forfeited, petitioner, claiming
to be the owner of the lumber, filed a suit for replevin in the Regional Trial Court of
Butuan City (Branch 5) for its recovery. The next day, October 21, 1993, the trial court
issued a preliminary writ of replevin.
HELD: The appeal is without merit. The rule is that a party must exhaust all
administrative remedies before he can resort to the courts. In a long line of cases, we
have consistently held that before a party may be allowed to seek the intervention of the
court, it is a pre-condition that he should have availed himself of all the means afforded
by the administrative processes. Hence, if a remedy within the administrative
machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his
jurisdiction then such remedy should be exhausted first before a court's judicial
power can be sought. The premature invocation of a court's intervention is fatal to
one's cause of action. Accordingly, absent any finding of waiver or estoppel, the case is
susceptible of dismissal for lack of cause of action.
2) The applicant must post a REPLEVIN BOND double the value of the property.
That is to guarantee the return to the adverse party in case the return is adjudged and for damages caused
by the unlawful replevin. What is the basis of the jurisdiction of the court.
Q: Does the MTC have jurisdiction to entertain replevin case ?

A: Yes. If the value of the property is P100,000.00 and below and in Metro Manila, P200,000.00.
Take note: The basis of the jurisdiction is the value of the property and NOT the value of the bond.
Section 3. Order.- Upon the filing of such affidavit and approval of the bond, the
court shall issue an order and the corresponding writ of replevin describing the
personal property alleged to be wrongfully detained and requiring the sheriff
forthwith to take such property into his custody.
The order is issued without hearing. It is based only on the allegation in the pleading because of the time
element.
Section 4. Duty of the sheriff.- Upon receiving such order, the sheriff must serve a
copy thereof on the adverse party, together with a copy of the application,
affidavit and bond, and must forthwith take the property, if it be in the possession
of the adverse party, or his agent, and retain it in his custody. If the property or
any part thereof be concealed in a building or enclosure, the sheriff must demand
its delivery, and if it be not delivered, he must cause the building or enclosure to
be broken open and take the property into his possession. After the sheriff has
taken possession of the property as herein provided, he must keep it in a secure
place and shall be responsible for its delivery to the property entitled thereto
upon receiving his fees and necessary expenses for taking and keeping the same.
Q: What happens after the court issues the writ if replevin ?

A: Section 4. The sheriff has to take possession of the property from the defendant and it will in the sheriff for
5 days.
Section 5. Return of property.- If the adverse party objects to the sufficiency of the
applicant's bond, or of the surety or sureties thereon, he cannot immediately
require the return of the property, but if he does not so object, he may, at any time
before the delivery of the property to the applicant, require the return thereof, by
filing with the court where the action is pending a bond executed to the applicant,
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in double the value of the property as stated in the applicant's affidavit for the
delivery thereof to the applicant, if such delivery be adjudged, and for the payment
of such sum to him as may be recovered against the adverse party, and by serving a
copy of such bond on the applicant.
Section 6. Disposition of property by sheriff.- If within five(5) days after the taking of
the property by the sheriff, the adverse party does not object to the sufficiency of
the bond, or of the surety or sureties thereon; or if the adverse party so objects
and the court affirms its approval of the applicant's bond or approves a new bond,
or if the adverse party requires the return of the property but his bond is objected
to and found insufficient and he does not forthwith file an approved bond, the
property shall be delivered to the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return it to the adverse party.
Under Section 5, there are two options or alternatives for the defendant:
1. Put up a counter-bond which is double the value of the property. If he does so, he has the right to
demand the return of the property to him.
2. Object to the sufficiency of the replevin bond.
Purpose of the counter-bond: The counter-bond is to answer for damages that the plaintiff may suffer if it turns
out that all along the plaintiff is entitled the possession of property. And also if after the case is won by the
plaintiff and defendant is ordered to retain the property, by that time, the property is already dilapidated and
depreciated. Therefore, the plaintiff is no longer willing to accept it and therefore has to hold the counter-bond
liable for the value of the property. Also within the five-day period, either the defendant will put up a counter-
bond or object to the sufficiency of the replevin bond.
According to jurisprudence, if the defendant questions the sufficiency of the bond, then he can no
longer require the return of the property by putting the counter-bond. The authority there is the
ruling in the case of
La Tondena Distillers Inc. vs. CA

209 S 553
The SC explained: If the defendant in the replevin action wishes to have the property
taken be restored to him, he should within 5 days from such taking:
1.) post a counter-bond double the value of the property taken,
2.) serve the plaintiff a copy thereof:
Both requirements as long as compliance therewith within the 5-day period mentioned
being mandatory. Alternatively the defendant may object to the sufficiency of the plaintiff
bonds but if he objects to the sufficiency of the bond, he cannot require the return of the
property by putting up a counter-bond.
Q: What is the reason why the property has to stay with the sheriff for 5 days?
A: Because during the 5-day period, the defendant has to think which of the two options/ alternatives he will
choose.
Q: Suppose the defendant will not use any of the options?

A: The sheriff will deliver the property to the defendant.
Q: Can the defendant file a motion to dissolve the writ of replevin on the ground that the plaintiff has no right
to file a case, meaning, he is not entitled to the possession?
A: As explained by the SC in La Tondena Distillers case, that is not a ground. It should be resolved in the
main action.
Difference between Replevin and Attachment under Rule 57 or Injunction under Rule 58:
Replevin Attachment & Injunction
Title or right to the property cannot be You can question the title or right of the
questioned in the motion to discharge plaintiff to attach the property.
the writ of replevin. It must be
threshed out during the trial.
The court said in La Tondena, “in other words the law does not allow the defendant to file a motion to
discharge or destroy the writ of seizure or delivery on the grounds of insufficiency of the complaint or on the
grounds relied upon therefore and thereby put at issue the matter of title or right of possession over the
specific chattel subject of the replevin. The policy apparently being that said matter should be ventilated and
determined only at the trial on the merits. Therefore, the defendant cannot file a motion to dissolve the writ of
replevin on the ground that the plaintiff has no right”.
In the case of
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Aravest Industrial Philippines vs. CA
216 S 602
HELD: The requirement in Section 5 & 6 that there must be a counter- bond assumes that
the replevin bond validly filed. So, if there is a void replevin bond, there is no obligation for
the defendant to put up a counter-bond. " The requirement of posting a counter-bond to
acquire re-possession of the chattel subject of the writ of replevin presupposes a valid writ of
replevin." The assumption is that the writ of replevin is valid.
Take note: If the defendant puts up a counter-bond, he is saying that the writ of replevin filed by
the plaintiff is valid.
Section 7. Proceedings where property claimed by third person.- If the property

taken is claimed by any person other than the party against whom the writ of
replevin had been issued or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds therefor, and serves
such affidavit upon the sheriff while the latter has possession of the property
and a copy thereof upon the applicant, the sheriff shall not be bound to keep the
property under replevin or deliver it to the applicant unless the applicant or his
agent, on demand of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of disagreement as to such
value, the court shall determine the same. No claim for damages for the taking or
keeping of the property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the date of filing of
the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such
property, to any such third party claimant if such bond shall be filed. Nothing
herein contained shall prevent such claimant or any third person from vindicating
his claim to the property, or prevent the applicant from claiming damages against
a third-party claimant who filed a frivolous or plainly spurious claim, in the same or
a separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be required, and in
case the sheriff is sued for damages as a result of the replevin, he shall be
represented by the Solicitor General, and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of the funds to
be appropriated for the purpose.
Q: Suppose the property seized is claimed by a third person. What is the remedy of the third person ?
A: The same remedy of TERCERIA, third-party claim or, there is nothing there preventing him to file a correct
action to litigate his claim.
So, third party claim is a remedy applicable in execution, preliminary attachment and replevin. Section 7 of
Rule 60 should be read also with Section 16 of Rule 39 and Section 14 of Rule 57 on third party claim on
preliminary attachment.
Section 8. Return of papers.-The sheriff must file the order, with his proceedings
indorsed thereon, with the court within ten (10) days after taking the property
mentioned therein.
The sheriff must make a report to the court as to what happened to the property ordered to be seized by the
court.
Section 9. Judgment - After trial of the issues, the court shall determine who has
the right of possession to and the value of the property and shall render
judgment in the alternative for the delivery thereof to the party entitled to the
same, or for its value is case delivery cannot be made, and also for such damages
as either party may prove, with costs.
Q: What is the nature of the judgment in a replevin action ?

A: The judgment is ALWAYS IN THE ALTERNATIVE, either the defendant will be ordered to return the chattel to
the plaintiff or alternatively to pay for the value.
Q: Why ?
A: According to the SC, the reason is to afford the plaintiff a measure of relief. If the property cannot be
returned in substantially the same condition, the right to reject the property can be exercised not only after
judgment but also in seeking delivery of the property pendente lite. The personal property is useless. So, it
will also answer for damages.
Section 10. Judgment to include recovery against sureties.-The amount, if any, to

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be awarded to any party upon any bond filed in accordance with the provisions
of this Rule, shall be claimed, ascertained, and granted under the same procedure
as prescribed in section 20 of Rule 57.
It should be recovered in the very same case and not in a separate action.
R U L E 61
SUPPORT PENDENTE LITE
The last provisional remedy is support pendente lite or otherwise known as alimony pendente lite, allowance or
support during the pendency of the main action.
Q: What is the main action?

A: Action for Support.
We know that support is something urgent. The plaintiff needs support during the pendency of the action. What
is the use of winning the case after several years when at that time you already starved to death? If you cannot
wait, you can ask for support while the case is going on. But you have to prove your right.
SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any

time prior to the judgment or final order, a verified application for support pendente lite may be
filed by any party stating the grounds for the claim and the financial conditions of both parties,
and accompanied by affidavits, depositions or other authentic documents in support thereof.
Q: What is the amendment in Section 1?

A: The law now requires the application for support pendente lite to be verified under oath.
Your application must be accompanied by affidavit, depositions or other authentic documents such as if the
father abandons the child, the child can prove his status by attaching his birth certificate to his application, the
marriage contract plus the allegation that the plaintiff is not in a position to support himself and the defendant
is very much capable. So, financial condition of the parties must be alleged.
Q: What happens after filing that?

A: The court must give a copy of the application for support and all supporting documents to the adverse party.
SECTION 2. Comment.- A copy of the application and all supporting documents shall
be served upon the adverse party, who shall have five (5) days to comment thereon
unless a different period is fixed by the court upon his motion. The comment shall
be verified and shall be accompanied by affidavits, depositions or other authentic
documents in support thereof.
The defendant is given five (5) days to answer the support pendente lite. Do not confuse this with the answer
to the complaint which is 15 days. The answer to the application for support is 5 days because it is urgent.
Another innovation introduced by the law is the comment of the defendant must also be verified.
The comment it must be proved in the same manner as provided for evidence in motion. So it’s possible to be
affidavits, depositions, authentic documents. Pwede man ang oral testimony.
SECTION 3. Hearing.- After the comment is filed, or after the expiration of the period
for its filing, the applications shall be set for hearing not more than three (3)
days thereafter. The facts in issue shall be proved in the same manner as is
provided for evidence on motions.
After the comment, 3 days thereafter, the court is obliged to hear the motion.
SECTION 4. Order.- The court shall determine provisionally the pertinent facts, and
shall render such orders as justice and equity may require, having due regard to the
probable outcome of the case and such other circumstances as may aid in the
proper resolution of the question involved. If the application is granted, the court
shall fix the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of the applicant
and the resources or means of the adverse party, and the terms of payment or
mode for providing the support. If the application is denied, the principal case
shall be tried and decided as early as possible.
Under section 4, the court will now determine temporarily, provisionally, whether there is a right to
support or not. The hearing of the evidence will come later.
If you are the plaintiff you should not present all your evidence otherwise it will delay your application. Mga
426
simple lang muna. If the application is granted, the court shall fix the amount of money to be provisionally
paid or such other form of support as may be provided, that is added by the law based on the needs of the
recipient and the resources of the obligor.
Like for example, kung gusto mong mamalengke, ikaw ang mamalengke. I know of somebody against whom
support pendente lite was filed. He doesn't want to support his children because of his wife will not give it to the
children. So, we asked the court that instead of money, it is in kind. So, he goes to the market or grocery to buy
things for his children. That is allowed.
SECTION 5. Enforcement of order.- If the adverse party fails to comply with an order
granting support pendente lite, the court shall, motu proprio or upon motion,
issue an order of execution against him, without prejudice to his liability for
contempt.
When the person ordered to give support pendente lite refuses or fails to do so, any
third person who furnished that support to the applicant may, after due notice and
hearing in the same case, obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide such support.
Q: How do you enforce an order for support pendente lite ?

A: Section 5, 1st paragraph. The remedy to enforce an order granting support pendente lite, is an order of
execution against him:
1.) for the unpaid monthly support/ the collection of missed support and,
2.) a possible liability for contempt, that is if the defendant is capable of giving and he refuses.
Take note that the court can issue motu propio or on motion.
The execution is an exception to the general rule in Section 1 of Rule 39, where interlocutory orders cannot
be the subject of execution, to wit:
Section 1. Execution upon judgments or final orders. Execution shall issue as a matter of right, on
motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court or origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires,
direct the court of origin to issue the writ of execution.
General rule: interlocutory order cannot be executed because it is not final.

Exception: order for support pendente lite.
Q: Suppose there is a judgment for support, not an order, and then the defendant refuses to give support,
can the defendant be adjudged liable for contempt ?
A: NO. What is enforceable by contempt is refusal to comply with the order pendente lite, not judgment for
support. It would seem that the only remedy there is execution.
The second part of section 5 is a new provision. Suppose the person ordered to support refuses to give
(pilitin mo muna siya), and the child is in a hurry, naawa ang kapit-bahay, so he gave the support to the child.
Now, he will be the one to execute the judgment, so he can regain what he has given. This is not found in the
old law. Parang solutio indebiti.
SECTION 6. Support in criminal cases.- In criminal actions where the civil liability
includes support for the offspring as a consequence of the crime and the civil
aspect thereof has not been waived, reserved or instituted prior to its filing, the
accused may be ordered to provide support pendente lite to the child born to the
offended party allegedly because of the crime. The application therefor may be filed
successively by the offended party, her parents, grandparents or guardian and the
State in the corresponding criminal case during its pendency, in accordance with the
procedure established under this Rule.
Section 6 is also entirely new. Correlate this with article 345 of the RPC.
Q: What are the civil liabilities in rape, seduction, abduction, or acts of lasciviousness, in case the accused in
found guilty?
A: Under Article 345 of the RPC, to support the offspring.
Take note: Support pendente lite can be availed in a criminal case where there is no reservation of the civil
action.
Q: Who can file the application for support ?

A: The offended party, the parents. It depends on the order of preference under Article 345 of the RPC.
SECTION 7. Restitution.- When the judgment or final order of the court finds that
the person who has been providing support pendente lite is not liable therefor, it
shall order the recipient thereof to return to the former the amounts already paid
427
with legal interest from the dates of actual payment, without prejudice to the
right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give the support. Should the recipient fail to reimburse
said amounts, the person who provided the same may likewise seek reimbursement
thereof in a separate action form the person legally obliged to give such support.
Q: Suppose the defendant who was ordered to give support turned out after the trial to be not liable? What is
his remedy/remedies?
A: The law says he can:
1) order the recipient to return to him the amount actually paid with legal interest from the date of actual
payment. The recipient can file now an action against his original father- the one really obliged to give
support.
2.) But it is also possible according to Section 7 that the first defendant will be the one to file a separate action
against the real defendant. This provision is not found in the old law.
Rule 62
INTERPLEADER
The first Special Civil Action (SCA) is known as the SCA for interpleader. What is this all about? The essence
of interpleader is found in Section 1:
Section 1. When interpleader proper.— Whenever conflicting claims upon the

same subject matter are or may be made against a person who claims no interest
whatever in the subject matter, or an interest which in whole or in part is not
disputed by the claimants, he may bring an action against the conflicting claimants
to compel them to interplead and litigate their several claims among themselves.
(1a, R63)
Let’s go to a problem:
Pao is leasing a building owned by Jet the lessor. Now, Jet died (tsk! tsk! tsk!). So Pao does not know
to whom should he pay the monthly rentals for the following month because he only knew the lessor.
The following month, Judy came to Pao and said, “From now on, you pay the rentals to me because I am
the widow of Jet. I am now the owner of this building.” The following day, another woman in the name of
Maying came to Pao and said, “I am the wife of Jet so from now on you pay the rentals to me.” Pao:
“Paano yun? Kahapon nandiyan si Judy. Siya daw ang widow!” Maying: “No! Anong ‘widow’? Ako ang
widow!!” So Pao contacted Judy, “Kahapon according to you ikaw ang widow. But there is another
woman came here claiming that she is the widow!” Judy: “No! Don’t believe her! I am the widow!”
Naloko na! Sino bang nagasabi ng totoo?! (Sino ba talaga ang black widow in Titser Jet sa kanilang
dalawa? Parehong maputi eh?) I will pay but I don’t know to whom should I pay my rentals! I might pay to
the wrong person. I want to be sure kung sino talaga.
Q: What should I do?

A: You file a SCA against Judy and Maying under Rule 62 and compel them to prove in court who is the real
person entitled to be paid.
Q: Define Interpleader.
A: Interpleader is a special civil action whereby a person who has property in his possession or an obligation
to render, wholly or partially, without claiming any right therein, or an interest which in whole or in part is not
disputed by the claimants, comes to court and asks that the person who consider themselves entitled to
demand compliance with the obligation be required to litigate among themselves in order to determine finally
who is entitled to the same. (Alvarez vs. Commonwealth, 65 Phil. 302)
So that is the correct procedure. Like in Section 1 when “conflicting claims upon the same subject matter
are or may be made against a person who claims no interest whatever in the subject matter.” So kayo lang
dalawa ang mag-aaway dito. I may bring an action against the two of you to compel you to intervene and
litigate your claims among yourselves.
Actually, under American law, the lessee is called the “stakeholder”, S-T-A-K-E, - hindi yong STEAK na
kinakain, - defined as a person entrusted with the custody of property or money that is subject of litigation on
contention between rival claimants in which the holder has no right or property interest.
Another problem:
Rucel deposited his goods to Leo in a contract of deposit and the depositary issued a negotiable
warehouse receipt. Later on, Rayda came to Leo claiming that she (Rayda) is now the holder of the
warehouse receipt because it has been indorsed to her. According to Rucel, “No! Wala! Wala! Because I
never indorsed it and the signature there is falsified; that the document was stolen from me and
therefore Rayda is not the owner!” According to Rayda, “No! The receipt has been validly indorsed!”
428
Naloko na! I do not know who is telling the truth. If you are the warehouseman and you want to be sure
who is really entitled to the goods in your custody, what will you do?
Answer: File an action for Interpleader under Rule 62. That is how this SCA works. Very simple!
As a matter of fact I (Dean I.) remember, I only filed this type of case once in behalf of two persons claiming
the same bank deposit. The deposit was opened by B1 in his name but the following day B2 told the bank,
“Actually, I asked B1 to open the deposit in my name. Ba’t nyo nilagay sa pangalan niya? Akin yan!” But
according to B1, “No! that is my money!”
Now, can you prevent B1 from withdrawing? But actually, the bank is also in danger because there is also a
warning from B2; the bank might make a mistake; and you cannot indefinitely prevent B1 from withdrawing.
Why don’t you ask B2 to file a case with injunction to prevent B1 from withdrawing? The trouble is if B2 will not
bother to file any case. So bank ngayon ang mag-reklamo. What will you do? Simple. The only choice is
Interpleader. With that, the court will not allow B1 to withdraw until the case is decided and they will only follow
whatever the court says.
Sige, we will submit the recommendation to my the office. And then in the afternoon there was an answer.
According to our head office your recommendation was forwarded to the legal department of the head office
and the opinion is: “it is not interpleader.” Ganun? Ano dapat? What is the correct remedy? Wala mang sinabi.
But I asked them, “If I’m wrong, ano ang dapat?” Office: “Okey. We will answer by tomorrow.” Dean I.: “No!
tama na ‘tong interpleader. There is no other remedy.” (Naks!!)
Sec. 2. Order. — Upon the filing of the complaint, the court shall issue an order
requiring the conflicting claimants to interplead with one another. If the interests of
justice so require, the court may direct in such order that the subject matter be paid
or delivered to the court. (2a, R63)
Ayun! Parang similar to cross-claims. Only the action that I will initiate is interpleader. The
court will order the subject matter to be delivered before the court. So if we are the depositary,
safe na tayo because they will just follow court orders.
Sec. 3. Summons. — Summons shall be served upon the conflicting claimants,

together with a copy of the complaint and order. (3, R63)
Sec. 4. Motion to dismiss. — Within the time for filing an answer, each claimant
may file a motion to dismiss on the ground of impropriety of the interpleader action
or on other appropriate grounds specified in Rule 16. The period to file the answer
shall be tolled and if the motion is denied, the movant may file his answer within the
remaining period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial. (n)
Sec. 5. Answer and other pleadings. — Each claimant shall file his answer setting
forth his claim within fifteen (15) days from service of the summons upon him,
serving a copy thereof upon each of the other conflicting claimants who may file
their reply thereto as provided by these Rules. If any claimant fails to plead within
the time herein fixed, the court may, on motion, declare him in default and
thereafter render judgment barring him from any claim in respect to the subject
matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-
party complaints and responsive pleadings thereto, as provided by these Rules. (4a,
R63)
Sec. 6. Determination. — After the pleadings of the conflicting claimants have

been filed, and pre-trial has been conducted in accordance with the Rules, the court
shall proceed to determine their respective rights and adjudicate their several
claims. (5a, R63)
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens — The
docket and other lawful fees paid by the party who filed a complaint under this Rule,
as well as the costs and litigation expenses, shall constitute a lien or charge upon
the subject matter of the action, unless the court shall order otherwise. (6a, R63)
For example ako ang bangko no? I have to spend money for filing fees and other adjudication expenses.
Later on, whoever wins, the court will allow you to deduct such expenses from the deposit.
That takes care of the Interpleader. It is not that really complicated.
Rule 63
DECLARATORY RELIEF (DR) AND SIMILAR REMEDIES
429
Section 1. Who may file petition — Any person interested under a deed, will,
contract or other written instrument, whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation may,
before breach or violation thereof, bring an action in the appropriate Regional Trial
Court to determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
An action for the reformation of an instrument, to quiet title to real property or
remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil
Code, may be brought under this Rule. (1a, R64)
If you have a legal problem: is my position correct or is the position of the other party correct?-- Because
you are already quarreling with something. For example meron kayong contract. Let us say the contract will
take effect next year pa. Then sabi ni Mr. Pito, “You see Mr. Pascua under this contract, you will deliver this to
me next year starting January 2001.” Sabi ni Mr. Pascua, “No. Mali ang interpretation mo! Hindi ako ma-liable!.”
Mr. Pito:“No! Ma-liable ka!” Mr. Pascua:“No! Hindi!”
In other words, sino talaga ang talo sa kanilang dalawa? Now, let us wait for next year to come and then
January, Mr. Pito:“Ok, you comply with this obligation.” Mr. Pascua: “I already told you hindi ganyan ang ibig
sabihin.” Mr. Pito: “Ah! There is breach of contract!” Mr. Pascua: “No! Walang breach!”
So how do we know whether there is a breach or no breach? Of course, Mr. Pito will file a case for specific
performance or damages. Let the court decide. But that is not Special Civil Action (SCA). That is ordinary civil
action (OCA) because may violation na eh! But let’s forget that. So what is the remedy?
As I said, the contract will take effect next year pa. But sa ngayon pa lang nag-away na kayo on what is
exactly the contract means. Now suppose Mr. Pito does not want to wait for next year. He wants to know right
now who is right. Huwag nang hintayin na magkaso-kaso. There should be now a case where we will know who
is right under the contract.
Is there a way of doing this? Yes. You use Rule 63. You file a SCA for Declaratory Relief (DR). You file a case
because you are interested under the contract and you may file before breach or violation because if there is
already a breach or violation, the correct civil action is OCA for specific performance or damages.
Then you file the case (DR) in the appropriate RTC. So it falls within the jurisdiction of RTC to determine any
question of construction or validity arising, and for a declaration of his rights or duties, thereunder.
So you anticipate a risk of a possible quarrel or controversy and I will not wait for it. I only get a ruling now
before the contract takes effect.
So in effect, it is an exception to the rule that you learned in civil law that generally, courts cannot act
unless there is a case. Courts cannot give advisory opinions. Bawal man yan bah! You cannot ask the court for
an opinion as to what is all that means. Kailangan may kaso! But the trouble is, hindi ka magkaso. We will wait
for next year to determine who is right. No, no need. You can file an action now to determine what the contract
will mean. So that is Declaratory Relief.
Now, the other possibility is when there is no deed, will, contract or other written instrument
involved and your rights are affected by a statute, executive order, ordinance, or any other
governmental regulation.
For example, the Sanggunian of Davao will pass an ordinance imposing a certain tax on certain
businessmen which will start on 2001. So the ordinance is passed now and you will pay starting
next year. The trouble is, I believe that I am not covered. I believe that the ordinance is illegal.
So what are my options?
Option 1: when the ordinance will be enforced next year, the city will sue me for violation thereof. And
depensa ko, the ordinance is not valid. Eh kung mali pala ako? I am liable.
Option 2: why wait for the ordinance to take effect and test it in the court? Can I not get a ruling on whether
the ordinance is valid or not, even before it takes effect? Yes, you can. You file an action for declaratory relief. So
the you will now file a case against the city and hopefully before the end of the year, the court will give a
decision: the ordinance is valid, you are bound; or the ordinance is not valid, it cannot be enforced. So ganyan
ang mangyayari. You do not assume the risk of violation of the ordinance.
Now, an action for declaratory relief is only proper when the following requisites are present:
1. there must be a justiciable controversy;

2. the controversy must be between persons whose interests are adverse;
3. the person seeking declaratory relief must have a legal interest in the controversy; and
4. the issue involved must be ripe for judicial determination.
430
Let’s go to the third requisite: the person seeking declaratory relief must have a legal interest in the
controversy. Otherwise, if you have no legal interest, the case will be dismissed because you are not the real
party. As what happened in the case of
TADEO VS. PROVINCIAL FISCAL OF PANGASINAN

January 31, 1962
FACTS: A contract prepared by a lawyer in behalf of 2 people then after signing of the contract,
he notarized the same. After that, nagkaroon ng issue: Is the contract valid or not? The lawyer
became interested, “Uy! This is a very nice question!” So he filed an action for DR.
HELD: NO! You cannot file. You are not a party in the contract. You have no legal interest.
“The appellant not being one of the contracting parties to the deed of sale but took part only as
notary public before whom they acknowledge the execution thereof is not entitled to file an action
for declaratory judgment.”
The ruling in Tadeo was emphasized by the SC in the case of
ATLAS CONSOLIDATED MINING VS. CA,

182 SCRA 166
HELD: A person who is not a party to a contract cannot file a petition for declaratory
relief and seek a judicial interpretation of such contract.
Q: Alright. How do you distinguish SCA for DR from OCA?

1. in OCA, there is already a breach. In DR, you file the case before any possible breach;
2. in OCA, the defendant is alleged to have violated plaintiff’s right. In DR all that is required is an
impending violation of plaintiff’s right; and
3. in OCA, suppose the plaintiff will win, there will be a writ of execution to enforce the order. In DR,
the judgment stands by itself. No executory process follows because there is still no breach. So if I
will file a case now for DR and the court decided that the contract is valid, what is there to execute?
There is nothing. Just follow it. It will just guide you in the future.
Q: Ano bang subject matter in an action for DR. based on section 1? Ano bang pinag-aawayan dyan?
A: The following:
1. Deed;
2. Will;
3. Contract;
4. Other written instrument;
5. Statute;
6. Executive order or regulation;
7. Ordinance; and
8. Other government regulation.
And the SC has ruled already that this enumeration is exclusive. You cannot file an action for DR to
determine the validity or interpretation of something which is not among those mentioned in Section 1.
Illustation:
This really happened. There was a man born in the Philippines. But since he was a child there was
doubts about his citizenship. Some people say, “Ah! You are a Filipino. Under the Constitition you are a
Filipino citizen.” Because ang sabi niya, “ang plano ko someday after college I will take up law pero sabi nila
hindi daw ako pinoy.” “Nooo! Don’t believe them. You are qualified to take the bar.” Pero sabi naman ng
iba, “No you are not a Filipino.” I also tend to by lands. “Don’t worry. Filipino ka.” “No, you are not. You
cannot buy lands.”
“So ano ba talaga ang status ko? Am I Filipino or am I an alien?” So ang ginawa niya, file siya ng action
for DR. These are the facts; this is my background; tatay ko; nanay ko. Ano ba? Am I a Filipino or not? I want
a declaration on what is my legal citizenship.
And the SC said: case dismissed (with matching smile ni Dean), Because there is no mention of
citizenship in Section 1. It is not among the subject matter in Section 1 and the rule is: enumeration is
exclusive.
Let’s us go to Section 1, second paragraph:
An action for the reformation of an instrument, to quiet title to real property or

remove clouds therefrom, or to consolidate ownership under Article 1607, of the
Civil Code, may be brought under this Rule.
These civil actions here are not really actions for DR but they are similar, somehow related and these
actions can be filed under Rule 63. So Rule 63 also applies to the following actions because they are similar to
DR:
1. an action for the reformation of an instrument;
2. to quiet title to real property or remove clouds therefrom; and
3. to consolidate ownership under Article 1607, New Civil Code.
431
Article 1607 of the New Civil Code is a provision on the Law on Sales:
Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of
the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in
the Registry of Property without a judicial order, after the vendor has been duly heard. (n)
Q: I will sell to you a land with right to repurchase within one (1) year. Supposed I did not
repurchase the land within 1 year, are you automatic the absolute owner? Or is there
something first for you to do?
A: You are not automatic the absolute owner. You have to file a petition for consolidation of
your ownership and get a court order. The seller will be summoned. The seller will oppose the
consolidation: “Hindi man talaga sale yon ba! Mortgage lang! Thus, you cannot consolidate.”
Yan! So that is the remedy under the Civil Code which can be governed by Rule 63.
Sec. 2. Parties — All persons who have or claim any interest which would be
affected by the declaration shall be made parties; and no declaration shall, except as
otherwise provided in these Rules, prejudice the rights of persons not parties to the
action. (2a, R64)
Sec. 3. Notice on Solicitor General — In any action which involves the validity of a
statute, executive order or regulation, or any other governmental regulation, the
Solicitor General shall be notified by the party assailing the same and shall be
entitled to be heard upon such question. (3a, R64)
In case a law or statute is questioned under Rule 63, the Solicitor General is entitled to notice and he can
come in. Why? He is the lawyer of the Republic. It is his duty to defend all official acts of the government like
laws or governmental regulations.
Section 3 is similar to Rule 3 Section 22:
SEC. 22. Notice to the Solicitor General. – In any action involving the validity of
any treaty, law, ordinance, executive order, presidential decree, rules or regulations,
the court, in its discretion, may require the appearance of the Solicitor General who
may be heard in person or through a representative duly designated by him. (23a)
Q: What is the difference between Rule 3 and Rule 63 with regards to the appearance of the Solicitor
General?
A: Simple. In Rule 63, the statute is challenged in an action for DR before any breach or violation thereof.
Obviously in Rule 3, if there is already a breach or violation, the validity of the law is questioned in a ordinary
civil action, but just the same the Solicitor General must be informed. Pareho din.
Q: Suppose what is being questioned is the interpretation or validity of a city or municipal ordinance, who
will be notified?
A: Section 4
Sec. 4. Local government ordinances — In any action involving the validity of a

local government ordinance, the corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified and entitled to be heard. If
such ordinance is alleged to be unconstitutional, the Solicitor General shall also be
notified and entitled to be heard. (4a, R64)
The one that should be notified is the office of the City Legal Officer. Kung sa probinsiya, the municipal
attorney if there is one. Kung wala, the provincial fiscal is the provincial attorney.
Sec. 5. Court action discretionary — Except in actions falling under the second
paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may
refuse to exercise the power to declare rights and to construe instruments in any
case where a decision would not terminate the uncertainty or controversy which
gave rise to the action, or in any case where the declaration or construction is not
necessary and proper under the circumstances. (5a, R64)
Take note that it is discretionary upon the court whether or not to entertain an action for DR because
generally, courts should not hear cases when there is still no breach. That’s the rule eh, Rule 63 is the
exception.
The court may refuse to grant a DR under the following conditions:
1. when it would not terminate the uncertainty or controversy which gives rise to the action;
2. when the declaration or construction is not necessary and proper under the circumstances.
432
Sec. 6. Conversion into ordinary action — If before the final termination of the
case, a breach or violation of an instrument or a statute, executive order or
regulation, ordinance, or any other governmental regulation should take place, the
action may thereupon be converted into an ordinary action, and the parties shall be
allowed to file such pleadings as may be necessary or proper. (6a, R64)
Q: The action for DR is filed before the breach of the contract, deed, etc. and while the case is going on, the
contract or the ordinance took effect. So na-overtake-an. Anong mangyari sa kaso?
A: Under Section 6, convert the case into an ordinary civil action.
Can you still remember the case of TEODORO vs. VILLASOR in civil procedure on motion to dismiss on the
ground of litis pendencia?
TEODORO VS. VILLASOR
FACTS: There was a lease contract between the lessor and the lessee and they were already
quarreling. According to the lessor, “Mr. Lessee, our contract will expire at the end of year. And I am
telling you now that hanap ka na ng malilipatan because I will not going to renew the contract
anymore.” Lessee: “Nooo! The contract will not going to expire this year, next year pa!”
So, we don’t know yet if whether the contract will expire this year or next year pa. So, inunahan
ni lessee ang lessor. He filed immediately an action for DR. The case dragged on and the year
ended. So file na si lessor ng Unlawful Detainer on the ground that the lease contract has expired.
So dalawa na ang kaso. May litis pendencia na. One of them must be dismissed. The lessor filed
a motion to dismiss on the ground of litis pendencia. The lessee complained, “Why will you dismiss
my case eh mas nauna ako sa yo?!” In litis pendencia, the prior case will prevail based on the
priority-in-time rule. But there are other criterion such as appropriate-court rule: which court can
appropriate decide the case.
ISSUE: Now, which of the two cases shall prevail?
HELD: What is more proper here is the action for unlawful detainer. Ang i-dismiss, yung DR! Eh,
nauna ito (DR)?! Pagna-overtake-an na ng breach, forget it! Wala na! We will now concentrate in the
ordinary civil action.
Q: Can a defendant in an action for a DR file a counterclaim? Are counterclaims allowed under Rule 63?
A: YES. In the case of
VISAYAN PACKING CORP. vs.. REPARATION COMMISSION

155 SCRA 542
HELD: There is nothing under Rule 63 which prohibits the filing of a counterclaim in a SCA for
declaratory relief. SCA is basically a civil action and the grounds for Ordinary Civil Actions also apply to
SCA unless there is an inconsistency. But where there is no conflict, it should be allowed.
Rule 66
QUO WARRANTO
What is the meaning of Quo Warranto? That is Latin eh! What is the translation of the term Quo Warranto?
Actually, literally that is ‘by what warrant’. By what warrant, what does it mean?
Let us go back to basic law. Warrant…Warrant of Arrest, Search Warrant as understood in Criminal
Procedure. If you are a policeman and you have a warrant of arrest and you arrest a person, can you be held
liable for arbitrary detention or unlawful arrest? Of course not! Because I have a warrant of arrest. If you have
a search warrant, can you be questioned for searching a house or seizing object? Of course not. I have a
search warrant.
What is the significance of the word warrant? You are authorized to search or you are authorized to arrest.
That is the essence of the word warrant. Therefore, warrant is synonymous with authority. You are backed up
by a court authority. Why? For example you are occupying a public office illegally, you are not authorized to
hold such office but you are holding it as if you are appointed. Can you be questioned? Yes, because there is
usurpation. What is the nature of the action to question your act of usurpation? Quo Warranto…by what
authority!
Section 1. Action by Government against individuals — An action for the

usurpation of a public office, position or franchise may be commenced by a verified
petition brought in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act. (1a)
The petition must be verified and brought in the name of the Republic of the Philippines as the plaintiff, as
the general rule. Bakit anong pakialam ng gobyerno? Public Office ito. The government is interested to see to
it that all those performing public officers are validly there. That they are not impostors or usurpers.
433
How about corporation? Well you cannot act as a corporation without the consent or authority of the State.
That is why you have to incorporate and get authority of the State. Therefore if you act as a corporation
without the consent or authority of the State, you are acting without a valid franchise. That is why government
is interested. That is why plaintiff is the Republic of the Philippines. And therefore, if it is the Republic of the
Philippines who is interested. Generally, it is the Solicitor General or prosecutor (provincial fiscal) will file the
case against you.
Q: Define Quo Warranto.

A: Quo Warranto is a demand made by the State upon some individual or association to show by what right
they exercise some franchise or privilege appertaining to the State which according to the constitution and laws
of the land, they cannot legally exercise by virtue of grant or authority of the State. (44 Am. Jur. 88-89)
Sec. 2. When Solicitor General or public prosecutor must commence action — The
Solicitor General or a public prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that
any case specified in the preceding section can be established by proof, must
commence such action. (3a)
Solicitor General…or public prosecutor when directed by the President of the Philippines must commence
the action. When President orders the Solicitor General to solve the issue because there is a possible
usurpation here, ‘File the case’, it is now mandatory for the Solicitor General to file the case.
Or for example, somebody brings to the attention of Solicitor General or public prosecutor na there seems
to be usurpation here and the Solicitor General/fiscal believes that there is usurpation, then under Section 2 he
can also file the action or when upon complaint or otherwise, he has good reasons to believe that any case
specified in the preceding section can be established by proof must commence such action.
Sec. 3. When Solicitor General or public prosecutor may commence action with
permission of court — The Solicitor General or a public prosecutor may, with the
permission of the court in which the action is to be commenced, bring such an action
at the request and upon the relation of another person; but in such case the officer
bringing it may first require an indemnity for the expenses and costs of the action in
an amount approved by and to be deposited in the court by the person at whose
request and upon whose relation the same is brought. (4a)
Sec. 4. When hearing had on application for permission to commence action —

Upon application for permission to commence such action in accordance with the
next preceding section, the court shall direct that notice be given to the respondent
so that he may be heard in opposition thereto; and if permission is granted, the
court shall issue an order to that effect, copies of which shall be served on all
interested parties, and the petition shall then be filed within the period ordered by
the court. (5a)
Did you notice the caption in Section 2 and Section 3.? In Section 2, When Solicitor General or public
prosecutor must commence action. In Section 3, When Solicitor General or public prosecutor may commence
action with permission of court. Yung isa must, yung is naman may.
With that, we will notice that there are two types of Quo Warranto:
(1) Compulsory Quo Warranto under Section 2.; and

(2) Discretionary Quo Warranto under Section 3.
The best example of compulsory quo warranto is when the President of the Philippines directs the Solicitor
General to file the case, then he must comply with the order of the President but that is very rare.
In most cases, Quo Warranto is in Section 3. Like for example when there are 2 people claiming that they
are appointed to the same position. That can happen. Example, Pao and Jet claim that they have the right to a
public office. Of course Pao is the one occupying. Sabi ni Jet, “hindi man siya dapat…dapat ako man!” What
should Jet do under Section 3? You go to the Solicitor General or to the fiscal and you say, “I am supposed to be
the one…” (SolGen: Kinsa ka? Si Keanu? Hawa diha uy!)
Now, it is a public office. So I think that this is the concern of the State of who should be really occupying
whether Pao or Jet. Now what will the Solicitor General or the fiscal do? He may commence the action. He is
allowed. But, he may or he may not. That is why it is discretionary.
Now, if he may, under Section 4, he will have to file a petition in court asking for permission to file the case
in behalf of Jet. And Pao will be notified. Pagsinabi ng court na you are authorized to file, then the Solicitor
General will file. The Solicitor General will take the cudgels for Jet. But under Section 3, the Solicitor General
may ask Jet to deposit some money for expenses.
Sec. 5. When an individual may commence such an action — A person claiming to

be entitled to a public office or position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name. (6)
Example: I am the one claiming to be entitled to a public office, for example, the position of a City Treasurer.
Dapat ako man dyan , di man siya. What are your options.?
Option one will be, you go to the fiscal or Solicitor General under Section 2. Ang problema dito baka he may
not want, sabi niya, “I am not sure eh! Parang ikaw pero I am not convinced. 50-50 (isa gatos tanan!)”
Or (second option), as in most cases, the person who claims that he is entitled to the public office, will not
bother to go to the Solicitor General. He will just get his own lawyer and file it. Now, it is allowed. You become,
434
under Section 5, a person claiming to be entitled to a public office or position usurped who may bring an action
therefore in his own name.
If you are going to get your own lawyer and file the case, you cannot use the Republic of the Philippines as
plaintiff. Pangalan: Angeles vs. Pascua. If Solicitor General will file, then he will institute the case in the name
of the Republic of the Philippines.
So another classification of Quo Warranto:

(1) Quo Warranto in the name of the Philippines; or
(2) Quo Warranto in the name of a private individual.
Sec. 6. Parties and contents of petition against usurpation — When the action is
against a person for usurping a public office, position or franchise, the petition shall
set forth the name of the person who claims to be entitled thereto, if any, with an
averment of his right to the same and that the respondent is unlawfully in
possession thereof. All persons who claim to be entitled to the public office, position
or franchise may be made parties, and their respective rights to such public office,
position or franchise determined, in the same action. (7a)
Q: When the plaintiff, the private individual, files a quo warranto action for usurpation, normally, what are
the essential allegations based on the complaint?
A: There are two:
(1) He must allege that he is entitled to the position;
(2) The defendant is unlawfully in the possession thereof;
Q: Is there a difference, procedurally, when the Solicitor General files the Quo Warranto under Sections 2
and 3, and when the private individual files the Quo Warranto under Sections 5 and 6?
A: The SC said: YES. And how do we distinguish?
In the action commenced by the private individual, it is necessary for the petitioner or plaintiff to
prove his right to the office in dispute. If he fails to prove this, it is unnecessary for the court to pass on
the right of the defendant in office. (Acosta vs. Flor, 5 Phil. 18)
On the other hand, in an action commenced by the Solicitor General, it is not necessary that there
be a person claiming to be entitled to the office alleged to have been usurped, thus, the duty of the
court is to pass upon the right of the defendant only. (Acosta vs. Flor, 5 Phil. 18)
Let us try to illustrate: If you file an action for quo warranto against the one who occupied, the burden of
proof na sa iyo, eh. You have to prove that you are entitled to the position. Suppose, you cannot prove it, the
court will no longer require the defendant to prove his right because he is occupying it. The presumption is, he
is entitled.
Now, if the Solicitor General files, he is questioning immediately the defendant’s authority. Hindi kailangan
that somebody is claiming. And therefore, if you are not entitled, you are out but nobody will take your place.
Just wait for another appointment. Therefore, the court can pass immediately on the right of the defendant, if it
is the Solicitor General filing it. That is the difference. And that distinction has been applied by the SC in
several cases. I have to cite a few:
TARROSA vs. SINGSON

May 25, 1994
FACTS: Singson, the respondent herein referred to is the former Governor of Banko Sentral Ng
Pilipinas (BSP). Now, this petitioner, Jesus Amado Tarrosa is a taxpayer and he filed a petition for
prohibition questioning the appointment of Singson as Governor of BSP because according to
Taroza, the appointment of Singson has not been confirmed by the Commission on Appointments in
Congress and therefore, the petition seeks to enjoin from the performance of his functions as such
official until his appointment is confirmed by the Commission on Appointments.
HELD: Actually , it is not prohibition but it is quo warranto, sabi ng SC because he is claiming
that Singson has no authority to occupy the position, therefore, Singson is guilty of usurpation. And
who is filing the case? Taroza, the private individual.
Now, is Tarrosa claiming that he would be Governor of Central Bank? Di Man! He is questioning
the appointment of Singson but he is not claiming that he is! Sabi ng SC:Ahh, di pwede…because
when quo warranto is filed by private individual, the petitioner must be the one claiming the
position. But he is not! Dismiss. The Court said: The instant petition is under the quo warranto
proceeding as it seeks to oust Singson and allege that the latter is unlawfully holding or exercising
the powers of the Governor of Banko Sentral. Such a special civil action can only be commenced by
the Solicitor General or by the person claiming to be entitled to a public office or position unlawfully
held or exercised by another. So, it’s either the Solicitor General or person claiming to be entitled.
(Naputol na ang side A )
Another case during the time of President Marcos when he was first elected as president under the 1935
Constitution: He was elected in 1965. His first term expired in 1969 but was re-elected. So 1969 plus 4 – his
term must have expired by 1973. However in 1972, he declared Martial Law and he continued beyond 1973.
That is why, after 1973 a group of taxpayers - Civil Liberties Union - something like that, filed a direct action
before the Supreme Court questioning the authority of Marcos to hold office beyond 1973. How did the SC
disposed of the case?
Sabi ng SC : So, you are accusing Marcos of usurpation because he has already overstaying in the
presidency. Quo Warranto ito eh! Sino ang nag-file ng petition? Kayo. Sino sa inyo ang nagsabi na you are
entitled to the presidency? Wala man ba! Sabi nila, we are not claiming to be president. What we are
questioning is, he is a usurper.
Well, kung ganyan, dapat Solicitor General ang mag-file at hindi kayo. Since you are the one who filed, you
must prove that you are entitled to be president. Is anyone of you entitled? Wala…alright, the case is
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dismissed! That’s what happened based on this principle. The only one who can file it if there is no claimant is
the then Solicitor General Estelito Mendoza.
Sec. 7. Venue — An action under the preceding six sections can be brought only
in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising
jurisdiction over the territorial area where the respondent or any of the respondents
resides, but when the Solicitor General commences the action, it may be brought in a
Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme
Court. (8a)
Q: On what courts can you obtain a quo warranto action

A: The following:
1. Supreme Court;
2. Court of Appeals;
3. Regional Trial Court exercising jurisdiction over the territorial where the respondent resides;
4. Sandiganbayan under RA 8249 in cases which are relevant to its jurisdiction.
These 3 here have concurrent jurisdiction but when the Solicitor General is the one filing, there is no need
for him to go to the RTC of the place where the case is filed… directly to the SC or CA na yan!
Q: Does the MTC have jurisdiction to entertain a complaint for quo warranto?
A: In the case of
REGATCHO vs. CLETO
December 21, 1983
HELD: A petition for quo warranto for the disqualification of an elected barangay captain must
be filed with the MTC. So, mga barangay elections lang because under the Barangay Law, election
protests regarding baranggay elections should be filed in the MTC. That is the only instance that a
quo warranto be filed with the MTC.
Sec. 8. Period for pleadings and proceedings may be reduced; action given
precedence — The court may reduce the period provided by these Rules for filing
pleadings and for all other proceedings in the action in order to secure the most
expeditious determination of the matters involved therein consistent with the rights
of the parties. Such action may be given precedence over any other civil matter
pending in the court. (9a)
Sec. 9. Judgment where usurpation found — When the respondent is found guilty
of usurping, intruding into, or unlawfully holding or exercising a public office,
position or franchise, judgment shall be rendered that such respondent be ousted
and altogether excluded therefrom, and that the petitioner or relator, as the case
may be, recover his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of all the parties to
the action as justice requires. (10a)
Very simple, when there is usurpation, the court will render judgment ousting the occupant from the public
office concerned.
Sec. 10. Rights of persons adjudged entitled to public office; delivery of books
and papers; damages— If judgment be rendered in favor of the person averred in the
complaint to be entitled to the public office he may, after taking the oath of office
and executing any official bond required by law, take upon himself the execution of
the office, and may immediately thereafter demand of the respondent all the books
and papers in the respondent’s custody or control appertaining to the office to which
the judgment relates. If the respondent refuses or neglects to deliver any book or
paper pursuant to such demand, he may be punished for contempt as having
disobeyed a lawful order of the court. The person adjudged entitled to the office may
also bring action against the respondent to recover the damages sustained by such
person by reason of the usurpation. (15a)
If the defendant is ousted from office by the judgment in quo warranto, he is supposed to turn over the
office to the rightful occupant, together with the books and papers which are in his possession and if he fails to
do it, it is contemptuous according to Section 10. You can be punished for contempt and damages will also be
recovered by another action after usurpation is confirmed.
Sec. 11. Limitations— Nothing contained in this Rule shall be construed to

authorize an action against a public officer or employee for his ouster from office
unless the same be commenced within one (1) year after the cause of such ouster, or
the right of the petitioner to hold such office or position, arose; nor to authorize an
action for damages in accordance with the provisions of the next preceding section
unless the same be commenced within one (1) year after the entry of the judgment
establishing the petitioner’s right to the office in question. (16a)
One important point to remember is: An action for quo warranto can be filed against the alleged usurper
not later than one (1) year from the date of usurpation. That is a condition precedent more than a prescriptive
period. So after 1 year, wala na.
Q: Bakit one year?

A: SC explains: the reason for the limitation of 1 year is that it is not proper that the title to a public office
be subjected to a continued uncertainty and the people’s interest requires that such right be determined as
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speedily as practicable. (Cuyo vs. City Mayor, O.G. 573, January 18, 1960) Meaning, if there is usurpation that
should be questioned immediately and assuming that is filed an action for quo warranto on time.
You have also one (1) year. to file an action for damages against the usurper because Section 10 also says
that the action for damages must be filed within 1 year after the entry of judgment establishing the petitioner’s
right to the office in question.
Sec. 12. Judgment for costs — In an action brought in accordance with the
provisions of this Rule, the court may render judgment for costs against either the
petitioner, the relator, or the respondent, or the person or persons claiming to be a
corporation, or may apportion the costs, as justice requires. (17a)
This relator is the person mentioned in Sec. 3, the person who will request the Solicitor General to file the
case.
Before we leave Rule 66, we will now compare quo warranto from other known remedies similar to quo
warranto because if we don’t know how to detect the distinction, you may get confused with the type of action
filed.
Let’s go back to mandamus. Rule 65, Section. 3. Do you know the second possible ground for mandamus?
When the respondent has unlawfully excluded another from the enjoyment of an office...parang quo warranto
yun. And therefore, the two remedies can be confused with each other. And problems in the BAR will be ask
where the answer would depend whether you can distinguish one from the other.
CASE #1: For example, you are appointed as City Treasurer and while you are claiming the office, Mr.
Peloton is there also claiming he is the rightful duly appointed Treasurer. Dalawa na kayo. You believe that Mr.
Peloton is a usurper and believe that he is not entitled. What kind of a case you will file against him? That is a
clear case of quo warranto. There is usurpation.
CASE #2: On the other hand, let’s try another problem slightly different from the first problem. A city
treasurer retired. Because he retired, the Assistant Treasurer became the acting until the successor or the new
appointee will come in. Now, you are appointed by the President as the new Treasurer. So you go there and
you are claiming that you are now the appointee and the acting there will say, “di ako maniwala, I do not
believe in your appointment. I refuse to relinquish.” Sabi naman ng isa: “I am the one appointed! You are
supposed to vacate the office because you are only acting.” Assistant Treasurer: “Ah, I don’t believe you, your
papers are defective.” Ano man ang gawin mo? Ayaw niyang umalis. Would you file an action for quo
warranto? The answer is NO. You will file an action for mandamus to compel him to give up the position.
What is the difference between the first and the second? In the first, if we will notice, the person that you
are driving out is also claiming the right to the position. So, there is the essence of usurpation but in the
second example, the acting treasurer is not really claiming a permanent right in the office. So he’s not actually
a usurper, but definitely he is excluded from the enjoyment of office in which he is entitled. The correct remedy
is mandamus to compel him to vacate the position because you are now the new appointee.
Q: So again, how do you distinguish special civil action of quo warranto from the special civil action of
mandamus:
1. Quo Warranto is the remedy to the office and to oust the holder from its enjoyment. On the other
hand, mandamus tries to clear duties. It is not a remedy to disputed titles;
2. when there is usurpation or intrusion to an office, Quo Warranto is the proper remedy but where the
defendant without claiming any right from office excludes the petition therefrom, the remedy is
Mandamus. (Lota vs. CA, June 30, 1961)
Another thing that we have to remember is that there is quo warranto under the Rules of Court. Meron ding
quo warranto under the Election Code. Under the election code, it is only 10 days eh. Within 10 days from the
time the public official is proclaimed.
Q: There are two possible actions that you can file against him: election protest and the other one is quo
warranto. Therefore the question is: Insofar as elective positions are concerned, what is the difference between
a quo warranto and election protest?
1. When somebody is proclaimed and you would like to file an action for quo warranto, what will be your
grounds against a proclaimed or elected candidate? Ineligibility for the position, or disloyalty to the
government. But the most common is ineligibility. For example, you are proclaimed elected yun pala di
ka Filipino citizen. Just like in the case of Gov. Frivaldo because it turned out that he is not a Filipino
citizen. So he is ousted, quo warranto yan eh, he is not qualified pala to run. That is the ground for quo
warranto.
How about election protest? What is the ground? The dispute refers to the counting of votes,
conduct of election, misappreciation of ballots, vote buying, terrorism. You are questioning the manner
or irregularities in the conduct of the election. In quo warranto, you are not questioning the conduct of
the election but you are not qualified to run in the first place. And both election protest and quo
warranto must be filed within 10 days from the date of the promulgation. (Gregorio vs. De Jesus, 65
Phil. 332)
2. In quo warranto, if for example, the elected candidate turned out to be ineligible, you will be declared
as ousted or disqualified. Who will take the place? The second placer? No, the second placer doesn’t
take the place of the ineligible winner because the second placer was not elected by the people. Sino
ang mag- takeover…yung nag-file? No…di ka man din elected. So, sino? Yung Vice-Mayor will now
become the Mayor.
On the other hand, in election protest, the person who filed the protest is the protestant and the
one who was elected is the protestee. So, if the protestant wins in the protest, the protestee is ousted
and the protestant takes over. (Luison vs. Garcia, 55 O.G. 10252)
437
Q: Now, the third point. How do you distinguish a quo warranto as to an elective office form quo warranto
as to an appointive office?
1. In elective position, What is the issue? The issue is ineligibility of the candidate elected. While in
appointive office, the issue is the legality of appointment.
2. Second, we said in quo warranto that if the candidate-elect is found to be ineligible the court cannot
place the candidate occupying the second place in the office because the elective offices are
deternined by prerogative votes. On the other hand, when it comes to quo warranto as to an
appointive office, the court can determine who was legally appointed and can declare who is
entitled to occupy the office. The person who filed could be and he will be declared as the one
rightfully entitled to occupy the office.
3. Where filed? Generally, courts in case of appointive office, or Civil Service Commission. Kung
elective, well, it could be in the proper electoral tribunal or COMELEC or RTC. When it comes to
municipal officials - RTC. That is the proper court.
4. When filed? In appointive - one (1) year. In elective – ten (10) days from the date of promulgation.
Rule 67
EXPROPRIATION
Section 1. The complaint — The right of eminent domain shall be exercised by the
filing of a verified complaint which shall state with certainty the right and purpose of
expropriation, describe the real or personal property sought to be expropriated, and
join as defendants all persons owning or claiming to own, or occupying, any part
thereof or interest therein, showing, so far as practicable, the separate interest of
each defendant. If the title to any property sought to be expropriated appears to be
in the Republic of the Philippines, although occupied by private individuals, or if the
title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to that effect shall be made in
the complaint. (1a)
An action for expropriation is an exercise of the State of its one of the inherent powers: right of eminent
domain.
Q: So how do you define expropriation?

A: It is the power of the sovereign state to take or authorize the taking of any property within its jurisdiction
for public use without the owner’s consent. (18 Am. Jur. 631) If the owner consents, there is no need of filing the
case.
The normal cause of eminent domain is that the government will take your property because it is for public
use and the owner ayaw ibenta. Or, he is willing to sell but ang kanyang selling price masyadong mataas and
the government does not agree with that price. So the government has to file an action for expropriation.
Normally, it is a real action because what is involved is a real property. The venue is the place where the
property is located or situated.
Q: Now, what are the limitations in the exercise of eminent domain?

A: The following are the limitations:
1. Exercised only by the State or its entities authorized by law.

Actually, the inherent power belongs to the national government. Not to the local government.
Q: Does the City of Davao has the power of eminent domain?
A: Yes, because of its charter.
Q: How about other cities?
A: Yes if their charter allows it. Provinces under the local Government Code but it is a delegated
power. They derive their power from the law. Whereas, the Republic has the inherent power.
The power of eminent domain will be exercised only by the state or by such entities as may be
deemed expressly authorized by law.
2. Just compensation must be paid to the property owner. You cannot just confiscate it kung walang
bayad.
3. In the exercise of the power, due process of law must be observed.
Q: What do you mean by that?

A: You must file a complaint in court, the other party is given the right to file his answer, to
oppose, in determining what is the price. You will be given the right to present evidence. Basta due
process will be observed.
4. Only as much property will be taken as necessary for the legitimate purpose of expropriation.
For example, the government needs a strip of land to construct a road traversing your property,
kalsada ba. Maybe two lanes, and your property has an area of 20 hectares.
Q: Should the government expropriate the entire 20 hectares?

A: No. That is too much. We only expropriate yung kailangan mo lang. Not the entire property.
That is another limitation. You only expropriate so much as necessary for the purpose of the public
use intended.
438
Q: What kind of property to be expropriated?
A: While we heard the word expropriation and eminent domain what comes into your mind automatically is
lupa eh, land. That is correct. But actually there is nothing in the law which says that expropriation is limited to
real property. You look at Sec. 1. Section 1 says : the right of eminent domain shall be exercised by the filing of
verified complaint which states with certainty the right and purpose of expropriation, described the real or
personal property sought to be expropriated.
Q: Can you file for expropriation personal property?

A: Yes.
Q: So what kind of property can be expropriated?

A: Any kind of property, real, personal, tangible, intangible except, money. Di pwede i-expropriate ang
kwarta! Because if the government will expropriate money, the government will also pay you with money.
Anong klaseng sytema yun? Nagsaulian lang kayo: I will expropriate your bank deposit of P10 million and then
you will determine just compensation… P10 million din! So yan, hindi pwede i-expropriate. Every property is
subject to expropriation except money. Alright.
Q: And the next is you file the complaint, anong nakalagay sa complaint mo?
A: The basic allegations are there in Section 1. The complaint must state in certainty the right and purpose
of expropriation kung para saan yan. And take note ha, the complaint must be verified. It must describe the
real or personal property sought to be expropriated.
Q: Who should be joined as defendants?

A: All persons owning or claiming to own or interest on the property sought to condemned showing the
separate interest of each defendant. So, if the property is under co-ownership. All the co-owners will be deemed
as defendants. And to be safe, if you have an interest in the property.
Q: Are we referring only to the may-ari? To the registered owner?

A: No. The SC said, all persons having an interest in the property would refer to the mortgagee, bacause if
the property is going to be expropriated. Kawawa yung mortgagee. Mawawala na yung mortgage; a lessee,
because if it is going to be expropriated, the lease will be terminated automatically. The government will take-
over. This should be included, if there is payment of just compensation, babayaran rin sila for the disturbance
of their right. The lessee has to be paid for whatever the damage or indemnity he is entitled That is in the
recent case of:
DE KNECHT VS. CA
290 SCRA 223, May 20, 1998
ISSUE: Who are those persons having a lawful interest in the property to be condemned or
expropriated?
HELD: “The defendants in an expropriation case are not limited to the owners of the property
condemned. They include all other persons owning, occupying or claiming to own the property.
When a parcel of land is taken by eminent domain, the owner of the fee is not necessarily the only
person who is entitled to compensation. In the American jurisdiction, the term "owner" when
employed in statutes relating to eminent domain to designate the persons who are to be made
parties to the proceeding, refers, as is the rule in respect of those entitled to compensation, to all
those who have lawful interest in the property to be condemned, including a mortgagee, a lessee
and a vendee in possession under an executory contract. Every person having an estate or interest
at law or in equity in the land taken is entitled to share in the award. If a person claiming an interest
in the land sought to be condemned is not made a party, he is given the right to intervene and lay
claim to the compensation.”
Sec. 2. Entry of plaintiff upon depositing value with authorized government

depositary — Upon the filing of the complaint or at any time thereafter and after due
notice to the defendant, the plaintiff shall have the right to take or enter upon the
possession of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed value of the property
for purposes of taxation to be held by such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the court authorizes the
deposit of a certificate of deposit of a government bank of the Republic of the
Philippines payable on demand to the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and
the amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer
to forthwith place the plaintiff in possession of the property involved and promptly
submit a report thereof to the court with service of copies to the parties. (2a)
For example, the government needs a portion of your land for the purpose of opening a street. What will the
government do? The government files an expropriation case against you. Of course, you can file your answer if
you oppose. There will be trial, decision. We will wait for the decision to become final. If you lose, you can
appeal. Then we will wait for the decision of the CA. So while we are going to these stages, when will the final
judgment come? Maybe 2 years pa. Matagal pa.
Q: Now, am I trying to say since there is still no judgment or if there is a judgment we have to wait for its
finality, the government cannot proceed with the project?
439
A: Hinde. Under Section 2, if the government deposits with the depositary bank, normally the LandBank, an
amount equivalent to the assessed value of the property (usually seen in the tax declaration), the government
can file a motion to take over the property immediately while the case is still pending.
So you cannot paralyze a government project by resisting this. They can take over. That is the only
condition – the deposit. The money which the plaintiff deposits is also known as Preliminary Deposit. That is not
really determinative of awardship of the value. Parang kwan lang yan e, estimate ba. Assessed value man lang.
Hindi man market value.
Q: What is the purpose of preliminary deposit:

A: There are two (2) possible purposes:
1. If the government wins the case and the amount of just compensation is now fixed by the court, the
deposit is parang down payment na no? So the government will just raise the money to fill the
balance. Yung deposit, nakareserba na sa iyo yun e. In short, it is an advance deposit for just
compensation; and
2. If the government lose the case and it has already explored your land, according to the SC: you are
entitled to claim for damages for the damage sustained by your property because of the entry of
the government and that the money deposited is already an advance deposit by the government to
answer for the damages. (Republic vs. Baylosis, Sept. 30, 1960)
Sec. 3. Defenses and objections. — If a defendant has no objection or defense to

the action or the taking of his property, he may file and serve a notice of appearance
and a manifestation to that effect, specifically designating or identifying the
property in which he claims to be interested, within the time stated in the summons.
Thereafter, he shall be entitled to notice of all proceedings affecting the same. (first
paragraph)
So you are summoned. Suppose wala kang objection; wala kang defense? Well, you can file a notice of
appearance and just manifest: “I am not objecting to the right of the government to expropriate my property.”
Section 3 second paragraph - If a defendant has any objection to the filing of or

the allegations in the complaint, or any objection or defense to the taking of his
property, he shall serve his answer within the time stated in the summons. The
answer shall specifically designate or identify the property in which he claims to
have an interest, state the nature and extent of the interest claimed, and adduce all
his objections and defenses to the taking of his property. No counterclaim, cross-
claim or third-party complaint shall be alleged or allowed in the answer or any
subsequent pleading.
Now, if you resist, you file an answer outlining your objections or defenses to the taking of your property.
And the new rule is: no counterclaims are allowed; no cross-claims are allowed; no third-party claims shall be
alleged in the answer or any subsequent pleadings. Ayan! So it is only complaint and answer.
Section 3 last paragraph - A defendant waives all defenses and objections not so
alleged but the court, in the interest of justice, may permit amendments to the
answer to be made not later than ten (10) days from the filing thereof. However, at
the trial of the issue of just compensation, whether or not a defendant has
previously appeared or answered, he may present evidence as to the amount of the
compensation to be paid for his property, and he may share in the distribution of the
award. (n)
OK. Just like in Ordinary Civil Actions, defenses and objections not alleged in the answer are waived.
Although in the interest of justice, the court may allow to amend your answer within 10 days from filing thereof.
But whether you file an answer or you do not file an answer, you can participate in determining on how
much just compensation you are entitled. That is another story eh. Maybe you have no defense to the
expropriation but you may dispute the amount that they appropriate for you.
Sec. 4. Order of expropriation — If the objections to and the defenses against the
right of the plaintiff to expropriate the property are overruled, or when no party
appears to defend as required by this Rule, the court may issue an order of
expropriation declaring that the plaintiff has a lawful right to take the property
sought to be expropriated, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby. Such appeal, however, shall not prevent the court from
determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to
dismiss or discontinue the proceeding except on such terms as the court deems just
and equitable. (4a)
Q: What happens if the defendant will not file an answer? Parang default no? Or what happens if he files an
answer but his objections and defenses are overruled?
A: The court will issue what is known as Order of Expropriation declaring that the plaintiff has a lawful right
to take the property sought to be expropriated, for the public use or purpose described in the complaint. And
from that moment, your property is deemed automatically expropriated. And that is the end of Part 1 of the
case. And now, you will enter Part 2.
Q: Ano man yang Part 2?
440
A: We will now determine how much you are entitled. Yan na ang Second Part - payment of just
compensation.
Q: But suppose you are declared in default, are you still entitled to prove that you are entitled to this
amount as just compensation?
A: Ah Yes, because you are only declared in default sa first part lang. But you are not declared in default in
the part 2.
Huwag mong sabihing if you are in default because you did not file an answer, your property will be
expropriated and you will not get anything? There is something wrong there! Babayaran ka pa rin! Even if you
will not file an answer, babayaran ka. And if you say “ito ang dapat!”, meron kang personality. You only have no
personality in Part 1.
Q: When you receive the order of expropriation (Part 1), can you appeal from the order? Is the order of
expropriation final or interlocutory? Because if you look at it, parang interlocutory eh because after issuance of
such order, there will still be hearing for just compensation. And the general rule is, an interlocutory order
cannot be appealed until everything is finished.
A: But look at the law. Second paragraph, “A final order sustaining the right to expropriate the property may
be appealed by any party aggrieved thereby.” So the order of expropriation is a final order. You can appeal.
And when you appeal, what will happen to the case? Tuloy! for the purpose of determining how much you
are going to receive. And after hearing the court will say, “you are entitled to receive so much for your
property.” But you are not satisfied. Appeal na pud ka. Pwede ba yan? Answer: Yes. You can appeal for the first
order, you can also appeal for the second order.
So, how many appeals do you have? There are two. This is a perfect example of a civil action wherein
multiple appeals are allowed. Remember?
Second paragraph is not present in the 1964 Rules but it is recognized as an instance were there could be a
second appeal as explained in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA (1989)

180 SCRA 576
HELD: There are two (2) stages in every action for expropriation:
1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the
propriety of its exercise in the context and facts involving the suit. It ends with the order of
dismissal or order of expropriation. Either one is a final order.
If it is a dismissal order, it finally disposes of the action and leaves nothing more to be done
by the court in the merits. So 100% tapos na ang case. The government may now appeal.
If it is an order of expropriation, thereafter objections to the exercise of right to expropriate
or the propriety thereof, shall be filed. From the moment the court will say your property will be
expropriated, that is now the settlement of the right of the government. It is a final statement of
the right of the government. So it is a final order which finally disposes of the first stage.
2. Second stage is the determination by the court of just compensation of the property sought to
be taken. The order of fixing the just compensation would be final too. It could finally dispose of
the second stage of the suit and leave nothing more to be done by the court regarding the issue
of just compensation.
Therefore, the SC concluded: in actions of eminent domain, two appeals are allowed. Yan!
Now, when you say just compensation or the value of the property, what do you mean by value of the
property? Value of the property when the case was filed? Or the value of the property when the property was
taken by the government?
Normally sabay yan when the government files the complaint and they ask for preliminary deposit. I don’t
think the value of the property will change tremendously in one or two months.
But there are instances na malayo ang deperensya when the property was taken ahead of the filing of the
case. And that happened several times. I’ve seen it happened here in Davao, near Dumoy. Somebody owns a
land there near the highway. Nung sinukat nya, his property is part of the highway pala which is also part of his
title.
Obviously, when the government built the road, the government did not know that they are encroaching a
private property. And the owner did not realize it. And I think the taking was as early as 1920 pa. And he only
realize it in 1970.
Q: Suppose the government nagkamali dito, filed an expropriation to legalize the taking of the property 80
years ago. Ano ngayon ang just compensation? Ang presyo nung 1920? Or the value as of year 2000? Malaking
deperensya yan. Maybe at that time, one square meter is only 10 centavos. Maybe now, it is worth hundreds of
pesos. Of course if you are the owner, mas gusto mo yung ngayon because you are only filing the case now.
A: Look at the first paragraph of Section 4: “payment of just compensation to be determined as of the date
of the taking of the property or the filing of the complaint, whichever came first.” Ayun! Whichever came first. If
the filing was ahead of the taking, the value is as of the time of filing. But if the property was taken as early as
1920 and the government is filing the case for the first time now to correct its mistake, they will pay you based
the price in 1920.
Actually, this provision is just a clarification e. Before, there are confusions in the jurisprudence. Ano ba
talaga ang value? Under the 64 Rules, the value at the time of filing. But there were some SC decisions saying
441
that it would be too unfair because when it was taken, the property was practically worthless. But now it’s
valuable. But how come it become valuable? Precisely because may kalsada na. If the government did not enter
to put up a road, walang value. So your property was enhanced by the taking.
So there were some decided cases which the SC ruled that the value at the time of taking, among which
were the cases of:
PROVINCIAL GOVERNMENT OF RIZAL vs. DE ARAULLO 58 Phil 308 (1933)

REPUBLIC vs. LARA 96 Phil 170 (1954)
ALFONSO vs. PASAY CITY 106 Phil 107 (1960)
MUNICIPALITY OF LA CARLITO vs. SPOUSES BALTAZAR 45 SCRA 235 (1972)
And in order to clarify this, nilagay nila under the new rules: “as of the date of the taking of the property or
the filing of the complaint, whichever came first.”
Q: Now, what is the procedure for the determination of just compensation?

A: The court has to appoint commissioner or commissioners not more than 3 to guide and help the court in
determining how much is the amount.
So each party will go to the commissioner to present their evidence for them to study. It’s good to appoint
dito yung mga realtors, assessors or brokers. These are the people who are well-versed on the value of property.
We will have to apply the provisions of Rule 32. Ano man yang Rule 32? Trial by Commissioners. This is a perfect
example of trial by commissioners.
Sec. 5. Ascertainment of compensation — Upon the rendition of the order of

expropriation, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to ascertain and report to the court the just
compensation for the property sought to be taken. The order of appointment shall
designate the time and place of the first session of the hearing to be held by the
commissioners and specify the time within which their report shall be submitted to
the court.
Copies of the order shall be served on the parties. Objections to the appointment
of any of the commissioners shall be filed with the court within ten (10) days from
service, and shall be resolved within thirty (30) days after all the commissioners
shall have received copies of the objections. (5a)
Ok. Not more than three. The court will appoint this committee. If you object to the appointment of any of
the commissioners, you may do so.
Sec. 6. Proceedings by commissioners — Before entering upon the performance

of their duties, the commissioners shall take and subscribe an oath that they will
faithfully perform their duties as commissioners, which oath shall be filed in court
with the other proceedings in the case. Evidence may be introduced by either party
before the commissioners who are authorized to administer oaths on hearings
before them, and the commissioners shall, unless the parties consent to the
contrary, after due notice to the parties to attend, view and examine the property
sought to be expropriated and its surroundings, and may measure the same, after
which either party may, by himself or counsel, argue the case. The commissioners
shall assess the consequential damages to the property not taken and deduct from
such consequential damages the consequential benefits to be derived by the owner
from the public use or purpose of the property taken, the operation of its franchise
by the corporation or the carrying on of the business of the corporation or person
taking the property. But in no case shall the consequential benefits assessed exceed
the consequential damages assessed, or the owner be deprived of the actual value
of his property so taken. (6a)
Sec. 7. Report by commissioners and judgment thereupon — The court may order
the commissioners to report when any particular portion of the real estate shall have
been passed upon by them, and may render judgment upon such partial report, and
direct the commissioners to proceed with their work as to subsequent portions of
the property sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to the court of all
their proceedings, and such proceedings shall not be effectual until the court shall
have accepted their report and rendered judgment in accordance with their
recommendations. Except as otherwise expressly ordered by the court, such report
shall be filed within sixty (60) days from the date the commissioners were notified of
their appointment, which time may be extended in the discretion of the court. Upon
the filing of such report, the clerk of the court shall serve copies thereof on all
interested parties, with notice that they are allowed ten (10) days within which to
file objections to the findings of the report, if they so desire. (7a)
Sec. 8. Action upon commissioners’ report — Upon the expiration of the period of
ten (10) days referred to in the preceding section, or even before the expiration of
such period but after all the interested parties have filed their objections to the
report or their statement of agreement therewith, the court may, after hearing,
accept the report and render judgment in accordance therewith; or, for cause shown,
it may recommit the same to the commissioners for further report of facts; or it may
set aside the report and appoint new commissioners; or it may accept the report in
part and reject it in part; and it may make such order or render such judgment as
shall secure to the plaintiff the property essential to the exercise of his right of
expropriation, and to the defendant just compensation for the property so taken.
(8a)
442
So same procedure in Trial by Commissioner. The commissioner will report and they will give you copy. If
you do not believe in their report, you object. And the court may approve, disapprove or modify it. And once
approved, the findings of the commissioner is automatically the findings of the court.
Let’s go to a leading constitutional case which is also relevant to the appointment of the commissioners. I
am referring to the case of
EPZA VS. DULAY (1987)

149 SCRA 305
FACTS: During the Martial Law, President Marcos issued a lot of Presidential Decrees regarding
valuation of property. And in these decrees, he resorted to shortcuts on how to determine the
market value ng property mo.
Actually, the market value in a tax declaration has 2 columns. In the first column is the value as
declared by the owner. And in the right column is as determined by the assessor.
Now, Marcos issued these decrees among which were PD’s 79, 464, 794 and 1533.
Ito sabi niya: In case of expropriation, in determining the market value of the property,
the market value will be the market value as declared by the owner himself of as found
by the assessor, whichever is lower. Its either the finding of the government through the
assessor or the owner's declaration, meaning, if you under declare your property you
are in estoppel, or if it is the assessor's which has the lower findings, then they will tell
the owner: "why did you not appeal?" You file your appeal in the Board of Assessors. You
are also under estoppel. So either way, yari ka!
HELD: All these decrees are unconstitutional because the determination of just
compensation is a judicial function. You cannot deprive the court of its power to
determine the just compensation. It is a judicial function which cannot be encroached
upon by the legislative or executive branch of the government. That’s why this is also a
leading case in political law.
“The method of ascertaining just compensation under the aforecited decrees
constitutes impermissible encroachment on judicial prerogatives. It tends to render this
Court inutile in a matter which under the Constitution is reserved to it for final
determination. the court has only to choose between the valuation of the owner and
that of the assessor, and its choice is always limited to the lower of the two. The court
cannot exercise its discretion or independence in determining what is just or fair. Even a
grade school pupil could substitute for the judge insofar as the determination of
constitutional just compensation is concerned…”
“The valuation in the decree may only serve as a guiding principle or one of the
factors in determining just compensation but it may not substitute the court's own
judgment as to what amount should be awarded and how to arrive at such amount.”
[And what do you mean by just compensation?] “Just compensation means the value of the
property at the time of the taking. It means a fair and full equivalent for the loss sustained. All the
facts as to the condition of the property and its surroundings, its improvements and capabilities,
should be considered.”
“Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire town…” (Dean I: I think so.)
“To say that the owners are estopped to question the valuations made by assessors since they
had the opportunity to protest is illusory. The overwhelming mass of land owners accept
unquestioningly what is found in the tax declarations prepared by local assessors or municipal
clerks for them. They do not even look at, much less analyze, the statements. The idea of
expropriation simply never occurs until a demand is made or a case filed by an agency authorized
to do so.”
“It is violative of due process to deny to the owner the opportunity to prove that the valuation in
the tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to
allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of
a court…”
“The determination of "just compensation" in eminent domain cases is a judicial function. The
executive department or the legislature may make the initial determinations but when a party
claims a violation of the guarantee in the Bill of Rights that private property may not be taken for
public use without just compensation, no statute, decree, or executive order can mandate that its
own determination shall prevail over the court's findings. Much less can the courts be precluded
from looking into the "just-ness" of the decreed compensation.”
So Sections 5, 6, 7, 8 are all intact. Yan!
MERALCO VS. PINEDA

206 SCRA 196
FACTS: After the issuance of the order of expropriation, the court did not anymore appoint
commissioners saying that even if there are commissioners, the report is only recommendatory.
The court will still have the final say. So the appointment of the commissioners can be dispensed
with.
ISSUE: May the trial court dispense with the appointment of the commissioners in expropriation
proceedings?
HELD: No. The appointment of the commissioners cannot be dispensed with. This is a
mandatory procedure. This is a substantive right of a party. While it is true that the court has the
final say, the court can do that only if there is a showing that the report of the commissioners is
100% wrong. It cannot just disregard the report. The aid of the commissioners is a substantial right
that may not be done away capriciously or for no reason at all.
443
Sec. 9. Uncertain ownership; conflicting claims — If the ownership of the property
taken is uncertain, or there are conflicting claims to any part thereof, the court may
order any sum or sums awarded as compensation for the property to be paid to the
court for the benefit of the person adjudged in the same proceeding to be entitled
thereto. But the judgment shall require the payment of the sum or sums awarded to
either the defendant or the court before the plaintiff can enter upon the property, or
retain it for the public use or purpose if entry has already been made. (9a)
So, there is a conflict or claims in the property subject of expropriation. So what will happen now? The court
will deposit the money and after the conflict is resolved, the money will be given to the right owner.
Sec. 10. Rights of plaintiff after judgment and payment — Upon payment by the
plaintiff to the defendant of the compensation fixed by the judgment, with legal
interest thereon from the taking of the possession of the property, or after tender to
him of the amount so fixed and payment of the costs, the plaintiff shall have the
right to enter upon the property expropriated and to appropriate it for the public use
or purpose defined in the judgment, or to retain it should he have taken immediate
possession thereof under the provisions of section 2 hereof. If the defendant and his
counsel absent themselves from the court, or decline to receive the amount
tendered, the same shall be ordered to be deposited in court and such deposit shall
have the same effect as actual payment thereof to the defendant or the person
ultimately adjudged entitled thereto. (10a)
Q: Assuming the government wins the case, when does the plaintiff become the owner of the property?
A: Usually, upon payment of just compensation. The title to the property will be transferred to the name of
the plaintiff. From that moment, the government has now the right to possess if it does not earlier entered,
because in Section 2 it can take the property earlier upon deposit of the preliminary deposit.
I noticed that one amendment introduced by the 1997 Rules is you are going to pay the just compensation
with legal interest thereon from the date of the taking of the property…because you might be taking the
property as early as 1950 and then case is filed now and the value of just compensation will be based on the
time of the taking. So parang unfair naman no? Legal interest would make it fair enough.
There was a case here in Davao were that statement came eh. ‘Yang whole PTA and some property of the
late Monteverde. The Monterverdes filed a case to recover the property which has been named in the name of
the City I think as early as 1930 or earlier pa.
The City won in the RTC of Davao. In the CA it was reversed and the Monteverdes were declared as owners.
Since the case is sensitive, the lawyer of the City which is the City Legal Office admits that it needs also the
help of some people. The Office of the City Mayor called mga 3-5 lawyers to review the case and help the City in
preparing the appeal to the SC. So there are legal consultants there and Batacan is the recent one. We review
all the requirements, circulars, para there is no way for the case to be dismissed simply because of mere
technicalities. That was our function more or less.
But this was asked: When did the government take over the property? The government has been in
possession already for the past 70 years. Suppose the worst scenario, the SC will affirm the CA, although I
believe it will not and that’s my personal opinion. But assuming it will, the family will get back the PTA. Kalaki
gud nyan. It’s very valuable. But the government will say: we will expropriate even if we lose. Anyway we are in
possession, we will still expropriate. It will still end up as government property.
But the question is asked: Pila man ang bayaran? Of course sabi ng City Legal Office: the value as of the
time of filing of the complaint. I said: I don’t think so because under the new Rules, it is the value at the time of
the taking or at the time of the filing of the complaint whichever came first. Kailan na-take over? 1930. Ayun!
What is the value? The ascertained value as of 1930. Siguro sentabos pa yan nung araw eh. The most you will
pay is legal interest.
So based on the assessment of the City, come what may the City still wins maski anong gawin mo. The
government has options all along.
Sec. 11. Entry not delayed by appeal; effect of reversal — The right of the
plaintiff to enter upon the property of the defendant and appropriate the same for
public use or purpose shall not be delayed by an appeal from the judgment. But if
the appellate court determines that plaintiff has no right of expropriation, judgment
shall be rendered ordering the Regional Trial Court to forthwith enforce the
restoration to the defendant of the possession of the property, and to determine the
damages which the defendant sustained and may recover by reason of the
possession taken by the plaintiff. (11a)
Assuming the government has not entered yet and wins the case then nag-appeal ka. Immediately
executory! Even if the judgment is not yet final, you appeal will not delay the enforcement of the judgment.
On the other hand the government will lose the appeal, bayad! The government will pay you damages also.
That’s why meron ng preliminary deposit.
Sec. 12. Costs, by whom paid — The fees of the commissioners shall be taxed as
a part of the costs of the proceedings. All costs, except those of rival claimants
litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the
owner of the property and the judgment is affirmed, in which event the costs of the
appeal shall be paid by the owner. (12a)
444
Sec. 13. Recording judgment, and its effect — The judgment entered in
expropriation proceedings shall state definitely, by an adequate description, the
particular property or interest therein expropriated, and the nature of the public use
or purpose for which it is expropriated. When real estate is expropriated, a certified
copy of such judgment shall be recorded in the registry of deeds of the place in
which the property is situated, and its effect shall be to vest in the plaintiff the title
to the real estate so described for such public use or purpose. (13a)
Sec. 14. Power of guardian in such proceedings — The guardian or guardian

ad litem of a minor or of a person judicially declared to be incompetent may, with
the approval of the court first had, do and perform on behalf of his ward any act,
matter, or thing respecting the expropriation for public use or purpose of
property belonging to such minor or person judicially declared to be
incompetent, which such minor or person judicially declared to be incompetent
could do in such proceedings if he were of age or competent. (14a)
Q: A property has been expropriated for public purpose and the government won. Suppose someday the
government abandons the public use, will the ownership go back to the original owner or will it still remain as
government property?
A: In an old case sabi ng SC: depende. If the judgement says that if the public purpose is later on
abandoned and there would be reversion, then the property will go back to its original owners. But if the
judgment is silent, the government continues to own the property. There will be no reversion. (Fery vs. Mun. of
Cabanatuan, 42 Phil. 28)
And this ruling always remind me of what happened here in Davao. It’s not really expropriation but it is
similar that the original owner can get back the property from the government.
I am referring to land occupied by the Sentral Bank (Uy! Du-ol ila Maya ug Chelin!). Dyan banda sa Tomas
Claudio, Jacinto. That was owned by the old Province of Davao. Before the division of the Province of Davao into
3, the Province owns several properties.
Before the Province acquired that property, who was the owner? Again, the so-called Monteverdes. Kaya
nga the children, the well-known Mrs. Garcia, the mother of Congressman Garcia and the Tiongco family, mga
descendants man yan ba.
That property was donated by the Tiongco family to the Province to be used as court and jail. However
when the Province of Davao was divided into 3, they have to move outside of the City because they have their
own capital: Digos, Tagum, Mati. What did they do with their property in Davao City? They sold it. Kaya nga
itong Sanggunian was sold in the City and the City wanted to buy that property. But the City was outweighted
by the Sentral Bank.
I remember there was a sort of resentment why it was sold to the Sentral Bank rather than the City at that
time. What was the issue? The heirs of the original owner said based on what they recollect, when that property
was donated to the Province of Davao, in the deed of donation, there was a condition that if the property is no
longer needed for court and jail, isauli! So they wanted to recover, revoke the donation. The trouble is, where is
t he deed of donation? Nobody has a copy! Because you have to invoke it. Yun ang nakalagay eh. The Register
of Deeds cannot find the copy.
What happened to the original documents, to the original archives of the Province? Actually the documents
were also divided into 3. Assuming it is still in the archives of the original Province, ay sus! Kahirap! They could
not find it anymore. They were trying to look out the notarial books of notaries public going back in 1930 to find
out who notarized it. Sus! Kahirap. That is why nothing came out of it.
Actually, if you and your family can recover the property, you’ll become billionaire considering the current
value of real estates in that area.
That’s why I was telling some of them, madali man lang yan ba. Because right now you do not know
whether the document exists or does not exist. Maybe for all you know the deed of donation is completely lost.
But maybe it is intact or nobody is looking for it. Sinabi nila; we look, we look, we look. How did you look? We
went to ask somebody to look. Yun lang? Ah walang mangyari sa inyo nyan! You do not know how to look for the
documents eh.
The first thing, did you go to Zamboanga? Because at that time, the Register of Deeds for the whole
Mindanao was in Zamboanga. So nung City na ang Davao, the documents were transferred there. May mga na-
cancel, so nandu’n yun! Why don’t you go there? Of course archives na yan. You are looking for documents
which are almost 100 years old. Now you need somebody to look for that. Somebody who knows.
Sabi ko, if I were you, I will give the Registrar of Deeds P50,000 to look for it. If you can locate it, another
P100,000! Tingnan natin kung hindi maglabas yan!
Now, because na-hati-hati yung documents noon eh? You go to the 3 provinces. You go there. You invest:
I’m giving you so much to look. If you recover it, I’ll double it. You invest half a million. But if you recover it, that
is worth billions! My golly! Ano man lang yang half million as compared to the value of the land?! That is the
way to move. Hindi pwedeng laway lang yan. Hindi pwede yan. Somebody has to invest money.
Ok. Let’s go to the last point in expropriation.
MUNICIPALITY OF PARAÑAQUE vs. V.M. REALTY CORP.

July 20, 1998 (292 SCRA 678)
445
FACTS: The government filed an expropriation case and by reason of some technicalities the
case was dismissed and the judgment became final. The expropriation is not for public purpose.
After 20 years, the government would like to file another case because of the changed
conditions. Sabi ng defendant, “ah hindi na pwede. Wala na yan! Res judicata!”
ISSUE: Is the principle of res judicata strictly applies to expropriation cases?
HELD: NO. the principle of res judicata does not strictly apply against the State in eminent
domain because you cannot curtail an inherent power of the State.
“…the principle of res judicata, which finds application in generally all cases and proceedings,
cannot bar the right of the State or its agent to expropriate private property… The scope of eminent
domain is plenary and, like police power, can reach every form of property which the State might
need for public use… Thus, the State or its authorized agent cannot be forever barred from
exercising said right by reason alone of previous non-compliance with any legal requirement.”
Rule 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Fundamentals…
Q: Can there be a loan without a mortgage? Yes.

Q: Can there be a mortgage without a loan? No because the mortgage is an accessory contract
and the loan is the principal contract. There is nothing to secure if there is no principal
obligation.
Q: Suppose somebody borrows money from me, secured by a mortgage and the obligation is not paid, what
are the remedies against the debtor-mortgagor?
A: There are two. First, I can enforce my right against the accessory contract by foreclosing mortgage.
Second, I can waive the mortgage and file an action to collect the principal contract. So the choice is either one
of the two but never both.
DANAO vs. COURT OF APPEALS
September 30, 1987
FACTS: The bank file a case to collect a loan. After that, it sought to foreclose the
mortgage.
HELD: There are 2 possible remedies, one or the other. It may pursue either
remedies but not both. “Evidently, the prior recourse of the creditor bank in filing a civil
action against the Danao spouses and subsequently resorting to the complaint of
foreclosure proceedings, are not only a demonstration of the prohibited splitting up of a
cause of action but also of the resulting vexation and oppression to the debtor.”
Now, we are interested here in the second type of remedy – foreclosure of mortgage.
But in our laws there are 2 types of foreclosure of mortgage:
1.Judicial Foreclosure – governed by Rule 68. You file your case in the court;
2. Extra-Judicial Foreclosure - there is no court case here, but there is a procedure for
foreclosing a mortgage governed by Act 3135. Normally, creditor banks apply this type.
Q: Does every mortgagee have the choice of resorting between Judicial and Extra-Judicial foreclosure?
A: NO. The option to resort to extra-judicial foreclosure must be clearly provided for in the contract. The
mortgage contract must contain a Special Power of Attorney constituting the mortgagee as the attorney-in-fact
of the mortgagor to resort to extra-judicial foreclosure. So kung wala, then the mortgagee has only one option –
judicial foreclosure. Yaan!
Now, we are not interested in Exta-Judicial foreclosure because that is governed by another law. We are
interested in judicial foreclosure because it is governed by Rule 68.
Section 1. Complaint in action for foreclosure — In an action for the foreclosure of
a mortgage or other encumbrance upon real estate, the complaint shall set forth the
date and due execution of the mortgage; its assignments, if any; the names and
residences of the mortgagor and the mortgagee; a description of the mortgaged
property; a statement of the date of the note or other documentary evidence of the
obligation secured by the mortgage, the amount claimed to be unpaid thereon; and
the names and residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the mortgage, all of whom shall
be made defendants in the action. (1a)
446
Q: Who are the defendants?
A: The following:
1. Mortgage debtor – the one who borrowed money and mortgage his property; or
2. Mortgagor or owner if the debtor is another person. Pwede ba yan? Yes. I can mortgage my property
to accommodate your loan. So l am the mortgagor, you are the debtor.
Q: What happens if you file a case against the debtor and you will not include the mortgagor as
defendant?
A: Your case will be dismissed. You filed the case without the real party in interest. You are
foreclosing the mortgage, you are not collecting the loan. Therefore the case should be directed
against the owner of the property – the party in the mortgage contract, not the party in the
loan.
3. All person having or claiming an interest in the premises subordinate in the right to that of the
holder of the mortgage.
Q: Example, under the law on mortgage, is it possible for a property mortgaged to be mortgaged again for
the second time?
A: Yes that’s possible. Of course, under the law on land titles, the second mortgagee has a right subordinate
to that of the first mortgagee.
Example, Jaycee borrowed money from Myra and mortgaged his property to secure the loan, so una si Myra.
Then, Jaycee borrowed money from Grace and mortgaged the same property, with the consent of everybody, so
the property is mortgaged to Grace. So dalawa na. Suppose Nanding filed a case against Jaycee and secured a
writ of preliminary attachment and Nanding attached the same property already mortgaged to Myra and Grace.
So the attachment of Nanding is recorded, he is now the third lien holder. Tatlo na sila. We will assume that wala
nang ibang property si Jaycee which Nanding can run against. Now suppose, the first mortgagee Myra, would
like to file an action for foreclosure of mortgage against Jayce.
Q: In the above case, who are the defendants?

A: Of course Jaycee, the mortgage debtor. And under Section 1, you must also include Grace, the second
mortgagee; also Nanding, the attaching creditor of Jaycee, as defendants. So tatlo sila. That’s why the law says
you must also include as defendants all those who have or claim an interest in the property, subordinate in right
to that of the mortgagee who is now foreclosing the mortgage.
Q: Why do you have to include them when they are not the owners of the property, it is Jaycee who
mortgaged the property to you, not Grace or Nanding?
A: The reason is, the purpose of the mortgage is not only to cut-off the rights of Myra over the property, but
also to cut-off all the rights of subsequent lien holders. Take note that Myra has no obligation to respect the
rights of Grace and Nanding.
And of course, if Jayce does not care anymore, and we know just like in execution that Grace and Nanding
have the right to pay the mortgage so that their lien will be alive. Otherwise if Myra acquires the property, then
all their rights will be gone. That’s why the purpose of a mortgage is not only to cut-off the rights of the owner
over the property mortgaged but of all persons who claim an interest over the property subordinate in right to
the mortgage holder. That’s why they have to be included as defendants.
Q: Suppose you will not include them as defendants. Suppose I will file a case only against Jaycee, the
mortgagor, I will not include Grace and Nanding. Can the action for foreclosure of mortgage proceed? Can it be
tried and decided without including Grace and Nanding as defendants as stated in section 1?
A: You have to go back to the basics on indispensable and necessary parties. If you are an indispensable
party, the case cannot go on without you so the action has to be dismissed. But if you are only necessary, the
case can go on without you, although your rights are to be respected by the parties.
That has already been asked in the Bar. Whether the second or the third mortgagee are considered as
indispensable or as necessary parties. The answer is the case can go on without Grace and Nanding. There
could be a judgment against Jaycee, the original mortgagor/owner. So the rights of the mortgage debtor will be
cut-off. But Grace and Nanding still have rights over the property, their lien still exists. You have cut-off the
rights of Jayce but not the right of Grace and Nanding. So what will happen to you now if Grace and Nanding
still have rights over the property? You’ll say that you want to cut them off also. So you better file another case
against them.
In other words, there will be two cases, why not file only one case and include all of them so that you can
cut off all the rights of everybody, and that is the feature of a necessary party -- one who ought to be included
as a party in a case if complete relief is to be accorded between those who are already parties, but if they are
excluded, the case can go on and it can be decided without prejudice to their rights. Thus it will be a double
effort, might as well include everybody as stated in Section 1 of Rule 68.
Sec. 2. Judgment on foreclosure for payment or sale — If upon the trial in such action the
court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due
to the plaintiff upon the mortgage debt or obligation, including interest and other charges as
approved by the court, and costs, and shall render judgment for the sum so found due and
order that the same be paid to the court or to the judgment obligee within a period of not less
than ninety (90) days nor more than one hundred twenty (120) days from the entry of
judgment, and that in default of such payment the property shall be sold at public auction to
satisfy the judgment. (2a)
The case will be tried just like any other case. Now, suppose after trial the court finds that the allegations in
the complaint are true, it will now render judgment for the plaintiff, we call that the foreclosure judgment, now
what will it say? Of course it will discuss that there is a valid cause of action, and under Section 2, the
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foreclosure judgment will now order the defendant, “alright, you pay everything, you are given one last chance
to pay the obligation, interest, charges, etc. within a certain period.” That period according to Section 2, you are
given either 90 days or not more than 120 days. So 3-4 months.
This portion of the decision which says you are given so many days to pay everything is called the “equity
of redemption of the mortgagor”… not right of redemption but equity of redemption. The money will be either
paid to the mortgagee or deposited to the court.
Now, suppose the mortgagor will pay everything within the period? Wala na, goodbye! In other words, the
judgment has been fulfilled, but your property will no longer be sold at public auction, nabayaran mo na eh.
Q: What happens if the period of equity of redemption expires and the mortgagor has not paid everything?
A: Your property will now be sold at public auction. That is what you call the foreclosure sale. That is now
the third step. That’s the one described in Section 3.
Sec. 3. Sale of mortgaged property; effect — When the defendant, after being
directed to do so as provided in the next preceding section, fails to pay the amount
of the judgment within the period specified therein, the court, upon motion, shall
order the property to be sold in the manner and under the provisions of Rule 39 and
other regulations governing sales of real estate under execution. Such sale shall not
affect the rights of persons holding prior encumbrances upon the property or a part
thereof, and when confirmed by an order of the court, also upon motion, it shall
operate to divest the rights in the property of all the parties to the action and to
vest their rights in the purchaser, subject to such rights of redemption as may be
allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period
of redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property unless a
third party is actually holding the same adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a writ of possession, upon motion, from
the court which ordered the foreclosure. (3a)
.
So he failed to pay the entire obligation within the equity of redemption. Next step, the plaintiff will file a
motion asking the court to now order the auction sale of the property and the court will now order the sale of
the property at public auction, we call that the foreclosure sale.
Q: What will be the procedure?

A: You follow Rule 39, because according to this provision, the provisions of Rule 39 on sale of property
levied on execution, is also applicable to sale of property foreclosed by virtue of a foreclosure.
Now, after the sale, what happens now? Because there will be bidding again to the public, and the highest
bidder will pay, o bayad ka na. So he is now the purchaser.
But, we will assume, because in most cases, unless someone is really interested in the property, the highest
or the lone bidder will be the mortgagee. He will just bid equal to the amount of the judgment in his favor. So
now, just like in Rule 39, there will be the sheriff’s certificate of sale. Then when you get the sheriff’s certificate
of sale, after the foreclosure sale, what happens next? Next step, you file a motion in court for confirmation of
the sale. That is mentioned in Section 3.(read Section 3…ang gaganda pa naman ng mga mata mo!…)
Now, did you encounter that procedure in Rule 39 that after the auction sale there will be a sheriff’s
certificate of sale, after that is confirmation? Wala man yan ba! In Rule 39, after the sheriff’s certificate of sale is
issued, next step is you go to the register of deeds to register the certificate of sale, doon lang wala na mang
motion for confirmation of sale. That is one distinction between execution sale and foreclosure sale. In
execution sale, there is no need of confirming the sale, but in Rule 68 that is required. You must get an order
from the court confirming the sale. And the court will issue an order confirming the sale.
Q: Suppose the period of equity of redemption has expired already. So there was an auction sale. After the
auction sale, nagkapera ang defendant, so he now wants to pay. Is it too late to pay the entire obligation
considering the fact that the period of equity of redemption has already expired, and there has already been a
highest bidder?
A: Jurisprudence says pwede pa for as long as there is still no order of confirmation of sale. That’s why this
equity of redemption should be exercised within the period stated in the judgment which shall not be less than
90 or more than 120 days, or even after that period, but before the sale is confirmed. You can still save your
property from being transferred, but once the confirmation of sale is issued by the court, it shall operate to
divest the rights in the property of all the parties in the action and to vest the rights in the purchaser subject to
such rights of redemption as may be allowed by law.
From the moment the court issues the order confirming the sale, the next step is for the purchaser to go to
the register of deeds and to register the sheriff’s certificate of sale in my favor and the order confirming the
sale. That is what you call the Registration of certificate of sale and order confirming the sale. That is the next
step.
And once these documents are registered in the register of deeds, the register of deeds will now cancel the
title of the mortgagor and issue a new one in your favor. Now, how come the property is already his, hindi na sa
akin? Di ba meron pa akong one year to redeem? No. As a general rule in foreclosure sale under Rule 68 the
mortgagor/defendant has no right of redemption. What he enjoys only is equity of redemption.
Right of redemption is the right of a party to redeem the property sold at public auction within one year
from the date of registration of the certificate of sale, but that only applies to execution sale and extra-judicial
foreclosure of mortgage. But in Rule 68, the mortgagor has only one right, equity of redemption, kaya yan lang
ang last chance mo eh. From the entry of judgment you must pay everything dahil pag-nabenta na yan at na-
confirm, goodbye na…you lose the property. That is the difference.
448
But how come the law says, “subject to such rights of redemption as may be allowed by law.” What is the
explanation here? You also have the right of redemption under Rule 68 if the law gives you, if the law does not
give you, then you have no right of redemption. And as a general rule, in Rule 68, the law does not give the
mortgagor the right to redeem. What the law gives you only is equity of redemption.
Q: But give an example of a law where even in judicial foreclosure, aside from equity of redemption, the
mortgagor has another right -- right of redemption and equity of redemption. Doble-doble na ba. So he has the
right to redeem before the sale and after the sale meron pa siyang right.
A: That is allowed only under the General Banking Act (RA 337?), when the mortgagee who is foreclosing
the property is a bank or a credit institution (finance companies). If the mortgagee is not covered by that Act,
they only have the equity of redemption, they have no right of redemption.
Q: So you are now the owner, the title is now under your name, but it is the obligation of the mortgagor to
vacate because hindi na siya ang owner, and he has no more right of redemption as a rule. What if he insists
on remaining, what will you do now? Are you obliged to file another action, for say unlawful detainer or forcible
entry?
A: It is not necessary because under Section 3, the said purchaser or last redemptioner may secure a writ of
possession upon motion from the court which ordered the foreclosure. Pareho ng execution din. With that, the
sheriff will place you in possession, so that is the next step. Writ of possession, if necessary.
Now let’s proceed to Section 4, how are the proceeds of the auction sale disposed off. Now we will assume
that there is a highest bidder and he paid in cash. It’s similar to writ of execution eh, it’s similar to Rule 39.
Sec. 4. Disposition of proceeds of sale — The amount realized from the

foreclosure sale of the mortgaged property shall, after deducting the costs of the
sale, be paid to the person foreclosing the mortgage, and when there shall be any
balance or residue, after paying off the mortgage debt due, the same shall be paid to
junior encumbrancers in the order of their priority, to be ascertained by the court, or
if there be no such encumbrancers or there be a balance or residue after payment to
them, then to the mortgagor or his duly authorized agent, or to the person entitled
to it. (4a)
First we will reimburse the cost of the sale, basta gastos sa sale. The next important is the judgment debt,
which includes the mortgage debt, interest, etc. Kung meron pang natira, the amounts due to junior
encumbrances (if there is a second mortgagee) or yung mga number 2 or number 3 na creditors, bayaran sila.
But if there are no junior encumbrances and there’s still cash remaining, then it will be given to the mortgagor.
Sec. 5. How sale to proceed in case the debt is not all due — If the debt for which
the mortgage or encumbrance was held is not all due as provided in the judgment,
as soon as a sufficient portion of the property has been sold to pay the total amount
and the costs due, the sale shall terminate; and afterwards, as often as more
becomes due for principal or interest and other valid charges, the court may, on
motion, order more to be sold. But if the property cannot be sold in portions without
prejudice to the parties, the whole shall be ordered to be sold in the first instance,
and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such rebate is proper. (5a)
(Important) Sec. 6. Deficiency judgment — If upon the sale of any real property
as provided in the next preceding section there be a balance due to the plaintiff
after applying the proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any such balance for which, by the record of the
case, he may be personally liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of the judgment;
otherwise, the plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which time shall be
stated in the judgment. (6a)
Action in pesonam not in rem, because the intention is to bind the judgment debtor.
Now what happens if the loan secured by the mortgage is let’s say worth 4 million pesos, and after the
auction sale, the proceeds amounted only to P 2 million? Under section 6, he will now file a motion in court to
render what is known as a deficiency judgment. No need to file another case, just file a motion with the same
court who made the judgment to render a deficiency judgment. That is the next step, if necessary.
Q: So how do you define a deficiency judgment?

A: It is a judgment rendered by the court upon motion and showing that the proceeds from the sale of the
property is not sufficient for the payment of the judgment debt.
Therefore, it is possible that under Rule 68 there will be two judgments. The first judgment is the
foreclosure judgment, the second is the deficiency judgment.
Q: Distinguish foreclosure judgment from deficiency judgment:

A: The foreclosure judgment is classified as a judgment quasi-in rem. Why? because it is directed against
the property itself. The object of the judgment is a specific property to be sold. Whereas the deficiency
judgment is a judgment in personam because it is directed against the mortgage debtor personally, because
the judgment will say “alright, mortgage debtor you are directed to pay the balance.” There is no more
mortgage, wala na eh. So how do you enforce that? You follow the rules on Execution. You look for any other
property of the debtor and you levy it under Rule 39, and have it sold again at public auction.
So the rule is a deficiency judgment can be rendered in a foreclosure judgment because of Section 6.
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Q: When may a deficiency judgment not be rendered? When is it improper for the court to render a
deficiency judgment under Rule 68?
A: There are three (3) instances:
1. Where the mortgagor mortgaged his property to secure the debt of another without assuming
personal liability for such debt.
Example: You will borrow P 1 million from the bank, then to help you I will mortgage my
property. So you are the borrower not me. Now hindi ka nag-bayad, my property will be foreclosed
I will be the defendant. Now after my property is sold at public auction, meroong deficiency. Can
the court render a deficiency judgment? Of course not, I am not the debtor you better file another
case against him because I have not assumed personal liability for the loan. So I think the best
procedure in order not to file another case anymore is to include the debtor, you file a case
against the mortgagor and against the debtor, so in case of a deficiency you can ask for a
deficiency judgment against the debtor.
2. Where the mortgagor is a non resident who failed to submit himself to the jurisdiction of the court,
no personal judgment for deficiency can be rendered against him. This has something to do with
summons.
Example, I will mortgage my property to you, then after mortgaging I will migrate to the U.S.
permanently. So I am no longer a resident. Suppose I cannot pay the loan, can you file an action
for foreclosure against me? Yes. Nandito ang lupa, quasi-in rem yan eh. You can resort to service
of summons by publication under Rule 14. Suppose there is a valid judgment but there is a
deficiency? Wala yan, kasi the deficiency is in personam eh. You cannot obtain jurisdiction over
my person.
After I was summoned by publication, suppose I filed an answer. Ayun na, I am submitting now
my person to the jurisdiction of the court, then there can already be a deficiency judgment
against me; and
3. Where the mortgagor dies after the rendition of the judgment of foreclosure.
The proper procedure is found in special proceedings which will still be taken up by you next
semester, you file a claim against the estate of the deceased in the testate or intestate
proceeding, but you cannot ask for a deficiency judgment.
1 Where the mortgagor is not the debtor, if he does not assume personal liability for such debt.
2 defendant not resident of the Philippines
Sec. 7. Registration — A certified copy of the final order of the court confirming
the sale shall be registered in the registry of deeds. If no right of redemption exists,
the certificate of title in the name of the mortgagor shall be cancelled, and a new
one issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of the
mortgagor shall not be cancelled, but the certificate of sale and the order confirming
the sale shall be registered and a brief memorandum thereof made by the registrar
of deeds upon the certificate of title. In the event the property is redeemed, the
deed of redemption shall be registered with the registry of deeds, and a brief
memorandum thereof shall be made by the registrar of deeds on said certificate of
title.
If the property is not redeemed, the final deed of sale executed by the sheriff in
favor of the purchaser at the foreclosure sale shall be registered with the registry of
deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser. (n)
If no right of redemption exists, meaning if the mortgagee is not a bank or a credit institution,
the certificate of title in the name of the mortgagor shall be cancelled, wala na yung right of
redemption and a new one issued in the name of the purchaser.
Now suppose the right of redemption exists because the mortgagee is a bank. Read second
paragraph.
If there is a right of redemption, you apply Rule 39 let us wait for one year because you can still redeem.
The last paragraph is also the same procedure as in rule 39.
Sec. 8. Applicability of other provisions — The provisions of sections 31, 32 and

34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages
under this Rule insofar as the former are not inconsistent with or may serve to
supplement the provisions of the latter. (8a)
Rule 39, Section 31- Manner of using premises pending redemption.

Rule 39 ,Section 32- Rents, earnings and income of property ending redemption.
Rule 39, Section 34- Recovery of price if sale not effective; revival of judgment.
Rule 69
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PARTITION
Partition is related to co-ownership - when a property is owned in common by two or more persons. The
best example here is inherited property.
Most co-ownership are based on inheritance. The property is left by the parents. The children will inherit
the same property in equal shares so the property will be owned by two or more people, magkapatid no.
Now, we know very well that there is a limit to c o-ownership. A person may not want to own the property
with so many people because most co-owned properties are stagnant. There is no improvement because
nobody can move. Marami masyado ang may-ari, eh. Why will I invest money there hindi man akin lahat.
Bawat kilos, dapat lahat ng co owners have to sign. Time will come when one of the co-owners will say ayoko na
(sometimes, nabudlayan na gid ko ‘ya!).
You can actually agree on a partition. I do not have to file a case against you. If we can agree on how to
divide, we will just enter into an agreement --- Deed of Partition. Ang problema, if I want, pero ayaw mo. Pwede
na akong mag-file ng kaso sa iyo.
Q: So how do you define partition of real estate?

A: It is a judicial controversy between persons who being co-owners thereof, seek to secure a division for
partition for themselves of the common property giving to each one of them the part corresponding to each.
That is why it is known as accio commune debidendo---division of the community property. The object of the
action is to enable those who own property in common to put an end to the common ownership so as to vest in
each a sole estate specific property or an allotment of land or tenements.
Section 1. Complaint in action for partition of real estate — A person having the
right to compel the partition of real estate may do so as provided in this Rule,
setting forth in his complaint the nature and extent of his title and an adequate
description of the real estate of which partition is demanded and joining as
defendants all other persons interested in the property. (1a)
Under section 1, who will be named as parties? All co-owners, all persons interested may be joined and this
is the perfect example of indispensable parties as distinguished from necessary parties.
Without naming all of them, even if you just omit one co-owner, the action for partition cannot proceed. All
the co-owners must be named in the action.
Defendants: co owners
Indespansabele that there should be co-owners or coparceners reyes vs cordero 463 phil 368
Civil code provisions
494, 945, 496, 498, 1083, 1084
There will be a trial…. So after the order the parties are allowed to enter into a voluntary partition agreement
and the court will confirm the partition agreement.
Is the order of partiotion appealable??

Yes, because it’s a final order. May include a prayer for accounting
What is the reglementary period for appeal?

30 days from notice of the order. Same in expropriation.
Two stages:
1 Determination whether there is co ownership and the partition is proper. Because it may happen
that there is is co ownership but it is not proper. Order to partition. Parties are given to enter a
voluntary partition.
2 Partition done by the parties in the court. Assistance by not more than three commissioners.
Sec. 2. Order for partition, and partition by agreement thereunder — If after the
trial the court finds that the plaintiff has the right thereto, it shall order the partition
of the real estate among all the parties in interest. Thereupon the parties may, if
they are able to agree, make the partition among themselves by proper instruments
of conveyance, and the court shall confirm the partition so agreed upon by all the
parties, and such partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in which the property is
situated. (2a)
A final order decreeing partition and accounting may be appealed by any party
aggrieved thereby. (n)
Now, an action for partition is similar to an action for eminent domain. There are two stages in eminent
domain cases. Remember?
1. to determine whether the property should be expropriated;
2. to determine the just compensation through the help of commission, assuming that there is an
order of expropriation.
451
Ganoon din ang partition.
DE MESA VS. CA
231 SCRA 773
z
HELD: There are two (2) stages in the special civil action of partition and accounting:
1. determination of whether or not a co-ownership in fact exists and a partition is proper.
Is there a co-ownership? Is partition proper? The court will render a decision. And then,
partition is proper. So according to section 2, after the judgment, the parties will then be
obliged to divide. Suppose they cannot even agree on how to divide, there is no choice but to
divide but they cannot agree on the manner of partition. Alright, we will go to stage two.
2. We will get commissioners to assist the court in determining how to divide. So you apply
Sections 3, 4,5, and 6.
Sec. 3. Commissioners to make partition when parties fail to agree — If the

parties are unable to agree upon the partition, the court shall appoint not more than
three (3) competent and disinterested persons as commissioners to make the
partition, commanding them to set off to the plaintiff and to each party in interest
such part and proportion of the property as the court shall direct. (3a)
Sec. 4. Oath and duties of commissioners — Before making such partition, the
commissioners shall take and subscribe an oath that they will faithfully perform their
duties as commissioners, which oath shall be filed in court with the other
proceedings in the case. In making the partition, the commissioners shall view and
examine the real estate, after due notice to the parties to attend at such view and
examination, and shall hear the parties as to their preference in the portion of the
property to be set apart to them and the comparative value thereof, and shall set
apart the same to the parties in lots or parcels as will be most advantageous and
equitable, having due regard to the improvements, situation and quality of the
different parts thereof. (4a)
Sec. 5. Assignment or sale of real estate by commissioners — When it is made to

appear to the commissioners that the real estate, or a portion thereof, cannot be
divided without prejudice to the interests of the parties, the court may order it
assigned to one of the parties willing to take the same, provided he pays to the
other parties such amounts as the commissioners deem equitable, unless one of the
interested parties asks that the property be sold instead of being so assigned, in
which case the court shall order the commissioners to sell the real estate at public
sale under such conditions and within such time as the court may determine. (5a)
Example: the property co owned is a house, 3 owners? How do you partion?
The court may order to assign it to one party with the proviso that…sec. 5
1st. option. Assign
2nd option sell
Is it mandatory??
Yes, pursuant to sec 5
Sec. 6. Report of commissioners; proceedings not binding until confirmed — The

commissioners shall make a full and accurate report to the court of all their
proceedings as to the partition, or the assignment of real estate to one of the
parties, or the sale of the same. Upon the filing of such report, the clerk of court
shall serve copies thereof on all the interested parties with notice that they are
allowed ten (10) days within which to file objections to the findings of the report, if
they so desire. No proceeding had before or conducted by the commissioners shall
pass the title to the property or bind the parties until the court shall have accepted
the report of the commissioners and rendered judgment thereon. (6a)
The Supreme Court said that the second stage commences when the parties are unable to agree upon the
partition ordered by the court. Where partition shall be effected for the parties by the court with the assistance
of not more than three commissioners. So these are again the two stages in partition.
Q: If there are two stages, there are also two judgments or orders. If there are two orders, is the first order
(the order of partition) a final order or interlocutory, to determine whether the first order is appealable?
A: The first order is a final order under Section 2, last paragraph, “A final order decreeing partition and
accounting may be appealed by any party aggrieved thereby.” So, it is also a final order which can be appealed.
The second paragraph was not found in the old law but it was laid down by SC decisions. So if there is
another order on the manner of partition under Sections 3,4,5, and 6, that is another final order. So I will appeal
again. So anong tawag diyan? A civil action where multiple are allowed. Just like in expropriation.
Sec. 7. Action of the court upon commissioners’ report — Upon the expiration of
the period of ten (10) days referred to in the preceding section, or even before the
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expiration of such period but after the interested parties have filed their objections
to the report or their statement of agreement therewith, the court may, upon
hearing, accept the report and render judgment in accordance therewith; or, for
cause shown, recommit the same to the commissioners for further report of facts; or
set aside the report and appoint new commissioners; or accept the report in part
and reject it in part; and may make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its value, if assigned or
sold as above provided, between the several owners thereof. (7)
Sec. 8. Accounting for rent and profits in action for partition (it may involve
accounting) — In an action for partition in accordance with this Rule, a party shall
recover from another his just share of rents and profits received by such other party
from the real estate in question, and the judgment shall include an allowance for
such rents and profits. (8a)
Labaro vs labatoria 54 phil 1718
Sec. 9. Power of guardian in such proceedings — The guardian or guardian ad

litem of a minor or person judicially declared to be incompetent may, with the
approval of the court first had, do and perform on behalf of his ward any act, matter,
or thing respecting the partition of real estate, which the minor or person judicially
declared to be incompetent could do in partition proceedings if he were of age or
competent. (9a)
Sec. 10. Costs and expenses to be taxed and collected — The court shall
equitably tax and apportion between or among the parties the costs and expenses
which accrue in the action, including the compensation of the commissioners, having
regard to the interests of the parties, and execution may issue therefor as in other
cases. (10a)
Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds —
If actual partition of property is made, the judgment shall state definitely, by metes
and bounds and adequate description, the particular portion of the real estate
assigned to each party, and the effect of the judgment shall be to vest in each party
to the action in severalty the portion of the real estate assigned to him. If the whole
property is assigned to one of the parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state the fact of such payment and of
the assignment of the real estate to the party making the payment, and the effect of
the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action. If the
property is sold and the sale confirmed by the court, the judgment shall state the
name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making the payment or payments, free
from the claims of any of the parties to the action. A certified copy of the judgment
shall in either case be recorded in the registry of deeds of the place in which the real
estate is situated, and the expenses of such recording shall be taxed as part of the
costs of the action. (11a) (matter of reading)
Now, is the word “partition” in partition case literal in meaning…that you have to divide the property
rectangular, triangular, etc.? For example, you have a 100 square-meter parcel of land. Sampu kayong
maghatihati. So, 10 square-meters each. Anong gawin mo dyan sa 10 sq. m. mo? You can’t even put up a toilet
within that area. So it is impractical na.
Usually ang ginagawa ng iba, if there is an order of partition, they will sell the land and divide the proceeds.
So instead of getting a 10 sq. m land, you will get the value equivalent to that portion of land. So, the word
“partition” is not literal in its meaning.
I’ve seen a lot of these cases before. The most famous is the one involving an old house situated along C.M.
Recto. Dyan banda, fronting the Maguindanao Hotel. That old house, if I’m not mistaken, is the oldest building
in Davao City. It was built way back in 1905. And that old house which was made of woods, was owned by the
Villa Abrille’s and the Juna’s.
Now, their heirs, including those within the second generation, partitioned the building. Because each of
them will only get a very small portion of the building, so they decided to sell it and divide the proceeds.
Actually, I met the buyers. I asked them anong ginawa nila sa mga kahoy…dinimolished nila e. Nahirapan
daw sila. You have to exert a lot of energy to demolish the old house. Solid masyado ang mga kahoy na ginamit
nung araw. Mabungi pati ang termites!
Unlike the woods used in the constructions today masyadong commercialized. Today we use hollow blocks
to build a building. But you go there in Intramuros in Manila. The buildings there were built during the Spanish
period. Talagang solid rocks ang ginamit. Even a 7-intensity earthquake will not bother to shake those buildings.
So that’s the architecture if the past. Even the Great Pyramids in Egypt. You will wonder how the ancient
people built these structures that would last for centuries. Hindi pa uso ang cranes nu’ng araw! Kaya nga these
are the wonders of the past. Yan!
Ok. Let’s go back to Partition.
The last important section is section 12.
453
Sec. 12. Neither paramount rights nor amicable partition affected by this Rule —
Nothing in this Rule contained shall be construed so as to prejudice, defeat, or
destroy the right or title of any person claiming the real estate involved by title
under any other person, or by title paramount to the title of the parties among
whom the partition may have been made; nor so as to restrict or prevent persons
holding real estate jointly or in common from making an amicable partition thereof
by agreement and suitable instruments of conveyance without recourse to an action.
(12a)
Example: The property is 10 hectares and the entire property is mortgaged in the bank. Then the property
is subdivided into 10 titles, one hectare per title. What happens now to the mortgage over the original debt? All
the ten titles are also deemed mortgaged. Pasa lahat yan.
So, the partition does not affect the rights of third persons over the property because in a partition, there is
really no transmission of rights. In a partition, a co-owner does not transfer his right to another co-owner. There
is merely a designation and segregation of shares.
So, the rights of third persons are not affected by the partition. And also under Section 12, the parties can
resort to amicable partition by agreement or suitable instrument without recourse to an action.
Q: Now, can there be a partition of personal property?

A: Yes, under Section 13.
Sec. 13. Partition of personal property — The provisions of this Rule shall apply to partitions
of estates composed of personal property, or of both real and personal property, in so far as the
same may be applicable. (13)
Q: What rule applies?

A: The rule also applies to partition of personal property. Halimbawa, namatay ang tatay. So his personal
properties will be divided by his heirs: ang tv sa iyo; the refrigerator, sa kanya; ang dance pad, sa akin (dance
revo addict ako e).
Rule 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Forcible Entry and Unlawful Detainer cases are the most famous Special Civil Actions. Also with Rule 65,
Certiorari. In Bar exams, out of 10 questions in Special Civil Actions, 70% deals with Rule 65 and Rule 70…
Forcible Entry and Unlawful Detainer.
How do you define this kind of SCA? It is a real action which involves possession of real property. It is the
only real action exclusively triable by the Municipal Trial Court.
The other one is accion publiciana provided the property is P20,000.00 or less.
So accion publiciana could be MTC or RTC, but mostly RTC yan because properties are usually more than
P20,000.00. Pero iyong forcible entry, no problem. The jurisdiction of the MTC is not governed by the nature of
the action.
So let us try to go back to the fundamentals of Property.
Q: What are the possible actions to be filed in court governing real property?
A: They are the following:
1. Accion Reinvindicatoria - recovery of ownership
2. Accion Publiciana - recovery of possession
3. Accion Interdictal –
a. forcible entry (detentacion); or
b. unlawful detainer (des halicio)
Now, Forcible Entry (FE) and Unlawful Detainer (UD) are now found under Sections 1 and 2 of Rule 70. Forcible
Entry is Section 1.
SECTION 1. Who may institute proceedings, and when.— Subject to the provisions
of the next succeeding section, a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person, may,
at any time within one (1) year after such unlawful deprivation or withholding of
possession, bring an action in the proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession, together with damages
and costs. (1a)
SEC. 2. Lessor to proceed against lessee only after demand.— Unless otherwise
stipulated, such action by the lessor shall be commenced only after demand to pay
or comply with the conditions of the lease and to vacate is made upon the lessee, or
by serving written notice of such demand upon the person found on the premises, or
by posting such notice on the premises if no person be found thereon, and the
454
lessee fails to comply therewith after fifteen (15) days in the case of land or five (5)
days in the case of buildings. (2a)
Q: As defined under Section 1, how do you describe forcible entry?

A: Forcible Entry consists in depriving a person of the possession of land or building for a period of time not
exceeding one (1) year by force, intimidation, strategy, threat, or stealth (FISTS). (Tenerio vs. Gamboa, 81 Phil.
55)
So, there is a deadline - one year. You can only file it within one year. The entry of the defendant over your
land or building should be through any of the five means. So force, di gaano. Majority is strategy or stealth in
the middle of the night. Squatting ba.
Q: What do you mean by strategy and stealth?

A: Strategy means machinations or artifice. Stealth is defined as any secret, sly or clandestine act to avoid
discovery and to gain entrance into or remain within residence of another without permission. (Sumulong vs.
CA, 232 SCRA 372)
Q: How do you define Unlawful Detainer?

A: Unlawful Detainer consists in the unlawful withholding by a person from another, for not more than one
(1) year, of the possession of any land or building after the expiration or termination of the right to hold such
possession by virtue of a contract, express or implied. (Torres vs. Ocampo, 80 Phil. 36)
Example: You want to eject your lessee from your apartment or house. Actually, the usual grounds are non-
payment of rentals or violation of any conditions of the lease contract. Maybe he has paid his rentals but he
violated other provisions, or expiration of the lease contract. These are the normal grounds for unlawful
detainer.
Q: Distinguish Forcible Entry from Unlawful Detainer ?

1. In forcible entry, possession is unlawful from the very beginning. Like squatters ba.
In unlawful detainer, possession was lawfully acquired and became unlawful only because of
termination of the right. Like a lessee, he occupied the property lawfully but it became unlawful
later. (Medel vs. Militante, 41 Phil. 526)
2. Based on Section 2, in forcible entry, formal demand is not required before filing the action.
In unlawful detainer for failure to pay rent or to comply with the conditions of the lease contract, a
formal demand to pay and to vacate is required otherwise the court has no jurisdiction over the
case. (Dikit vs. Ycasiano, 89 Phil. 44)
The issue to be resolved in forcible entry and unlawful detainer is merely physical possession, not
ownership; not right of possession but physical possession. The only issue to be determined is: Does the
plaintiff have a prior physical possession of property in forcible entry? And then, was he deprived of his
possession unlawfully through FISTS?
Q: Can a squatter occupying a property file a forcible entry case against another squatter who forcibly
ejected him, when technically both of them have no rights? If we will say no because you also have no right,
then what will happen? The first squatter has no recourse under the law so his only recourse is to use force also
to deceive away the second squatter and there will be breaches of peace in the society.
A: So even if he is not the owner, he can file a case because according to the SC, the purpose of the actions,
this is regardless of the actual condition of the title to the property, the party in peaceable and quiet possession
of the land or building shall not be turned out by strong hands of violence or terror. The object of the law is to
prevent breaches of peace and criminal disorder which will ensue if there were no such remedy. (Villaflor vs.
Reyes, January 30, 1968)
Q: How do you distinguish Accion Interdictal from Accion Publiciana because both deal with recovery of
possession ?
1. Forcible entry and unlawful detainer are under the summary proceeding governed by the Summary
Rules the purpose of which is recovery of possession de facto.
Accion publiciana is an ordinary civil action the purpose of which is recovery of the right of possession
which we call possession de jure - Real right.
2. Forcible entry and Unlawful Detainer : exclusive jurisdiction of the MTC

Accion Publiciana: It is with the RTC if it its value exceeds P20,000. If its P20,000 or less, MTC. But it is
not governed by the Summary Rules. Only forcible entry and unlawful detainer are governed by
the Summary Rules.
3. The period to file the action ?

Forcible entry and Unlawful detainer: One (1) year from unlawful deprivation or unlawful withholding of
possession.
Accion publiciana may be filed at any time before ownership or other real rights of the real property
involved are lost by acquisitive prescription. Normally, 10 years. If in bad faith, 30 years.
455
Case: SARONA vs. VILLEGAS G.R. No. L-22984, March 27, 1968
But actually in this distinction, acquisitive prescription applies only to untitled

property. If the property is titled under the Torrens Title, you can file the case even after
100 years because prescription will not work against a Torrens Title.
4. As to the grounds:
Forcible Entry and Unlawful Detainer: Only the causes (FISTS) mentioned in Section 1.
Accion Publiciana: any other cause of unlawful dispossession other than FISTS or even FISTS under
Section 1 but after the lapse of one year.
5. The immediate execution of the Unlawful Detainer or Forcible Entry judgment is governed by
Rule 70, Section 19.
Immediate execution or execution pending appeal in Accion Publiciana is governed by Rule 39 Section 2.
There must be a good reason. So iba ang basis.
Finally, there are instances when it is very easy to determine whether it is FE or UD. But there are some
instances when it is hard eh. What is the correct action? Because the correct action will also determine the
proper jurisdiction. Like in the case of
LIM KIEH TONG VS. CA.

March 18, 1991
FACTS: Reginaldo Lim and his family resided in room 301 of the building of Lim Kieh Tong, Inc.
until they transferred to their new residence in Quezon City. However despite the fact that they
moved to Quezon City, Reginaldo Lim retained possession of the room to keep his important
belongings. So he did not give up the lease of that room 301. The building has only one common
main door through which all the occupants of the various rooms can get in.
Accordingly, all occupants including Reginaldo Lim were given a key to the main door lock by
Lim Kieh Tong Inc.
However, when Reginaldo Lim wanted to go inside his room on September 30 to get some
things which he needed, he found out that the key he possessed was no longer compatible with the
lock. So pinalitan na yung lock sa main door, di na mabuksan ng susi niya.
He requested Lim Kieh Tong to provide him with the appropriate key but his request was denied.
So Reginaldo Lim filed a complaint against Lim Kieh Tong alleging those grounds. And he alleges
that he has a clear and unmistakable right to the use of the room and he prays that Lim Kieh Tong
be commanded to provide him the appropriate key to the lock of the main building. That was the
complaint.
ISSUE: What kind of a complaint is that? Is that a complaint for FE or a complaint for specific
performance wherein jurisdiction is vested with the RTC?
HELD: The SC said from the facts of the case it appears that Lim Kieh Tong Inc. through stealth
deprived Reginaldo Lim of the possession of the rented room. Therefore, the suit is one for FE under
Rule 70 of the Rules of Court.
TIME BROADCASTING NETWORK VS. CA

June 19, 1997 (274 SCRA 366)
FACTS: Petitioner Times Broadcasting Network leased a portion of Hotel Arocha in Ozamis City
owned by private respondent Filomeno Arocha. The subject of the lease consisted of two rooms with
a total area of 7 meters by 11 meters, a terrace with an area of 25 square meters, and the rooftop
of the four-storey building. The premises were to be used by petitioner to operate a radio station.
In June 1993, petitioner began installing its equipment and apparatus in the leased premises.
Petitioner, however, installed its radio antenna on the third floor rooftop of the hotel, instead of the
fourth floor rooftop as stipulated in the contract.
Private respondent Arocha filed before the Municipal Trial Court in Cities (MTCC) of Dipolog,
Branch 1 a verified complaint for ejectment with payment of back rentals and damages against
petitioner
Petitioner moved to dismiss the complaint. It argued that the MTCC has no jurisdiction over the
case because private respondent's cause of action is actually not for ejectment but for specific
performance. Petitioner contended that private respondent's action was not simply for recovery of
possession of the premises but was for compliance with the terms of the lease contract. Hence,
petitioner asserted that it was the Regional Trial Court (RTC), not the MTCC, which had jurisdiction
over the case.
ISSUE: Whether the complaint filed by private respondent is one for ejectment or specific
performance.
HELD: The nature of the action and the jurisdiction of courts are determined by the allegations
in the complaint. The aforequoted complaint shows that the private respondent is the owner of the
Hotel Arocha building in Ozamis City and that the petitioner, through stealth and strategy, and
without any authority from the owner, used the third floor rooftop of the building as mounting pad
of its radio antenna.
In the case at bar, private respondent was unlawfully deprived of the possession of the third
floor rooftop of Hotel Arocha when petitioner used it as mounting pad for its antenna. Private
respondent sought to recover physical possession thereof through an action for ejectment filed
before the MTCC. Hence, the case properly falls within the jurisdiction of the MTCC.
Q: In a FE case, what are the important allegations which must appear in the complaint?
456
1. The plaintiff must allege that he has been in prior physical possession of the questioned land or
building; and
2. The plaintiff was unlawfully deprived of his possession by the defendant through any of the means
recognized by law (FISTS).
Q: In one case, the complaint for forcible entry alleges “that defendant unlawfully turned the plaintiff out of
the possession of the property in question.” Is that an allegation of prior physical possession? Is the complaint
sufficient?
A: YES. While it is not true that there was an express allegation of prior physical possession by the plaintiff,
this fact can be inferred from the words "unlawfully turned the plaintiff out of possession" for how can a person
turn someone out of possession if the latter was not in the physical possession of the property. The allegation of
prior physical possession by the plaintiff need not be express. It is enough that said allegation is inferable from
the other allegations in the complaint. (Maddammu vs. Mun. Court of Manila, 74 Phil. 230)
Q: On the other hand, suppose the complaint for FE alleged “that before plaintiff could take possession of
and occupy the said house, defendant surreptitiously occupy the same without the knowledge and consent of
the plaintiff.” Is the complaint sufficient?
A: NO, it is not sufficient. It is clear from the allegation that the plaintiff have not had prior physical
possession because “before plaintiff could take possession of…” (Maddammu vs. Mun. Court of Manila, 74 Phil.
230)
Q: In another case of FE, the complaint alleged that the plaintiff has been “deprived” of the land in
question by the defendant. Is it a sufficient complaint for FE?
A: NO. There was no allegation that the deprivation of possession was illegal though FISTS. Thus, you must
alleged that you were deprived through FISTS. (Gumiran vs. Gumiran, 21 Phil. 174)
How about in Unlawful Detainer cases?
Q: What is the important allegation?

A: Of course, you must have to admit that the defendant was already there legally. And then there must be
an allegation that the defendant is unlawfully withholding possession of plaintiff. (Co Tiamco vs. Diaz, 75 Phil.
672)
Like in a lease, you admit that you lease your building to him, and then he could not pay rentals; you asked
him to leave; you gave him until the end of the month to vacate; he did not vacate. Therefore from that
moment, he is now unlawfully withholding possession of the land or building.
Take note in Section 2, the basic distinction between FE and UD is that a demand to vacate is not required
in FE. But a demand to vacate by the plaintiff and the defendant refuses to vacate, is an essential requisite in
UD. That is where you determine that the defendant is unlawfully withholding.
The possession of the defendant cannot be unlawful until you asked him to leave and he refuses to leave.
Therefore, if there is no demand to vacate, the case will be dismissed because the MTC has no jurisdiction. So
that is a jurisdictional requirement. Why? Because if there is no demand to vacate, according to the SC, your
action actually is accion publiciana which is normally cognizable by the RTC.
That is why Section 2 says “Lessor to proceed against lessee only after demand”. Obviously, Section 2
applies only to UD.
Q: What is the demand?

A: 1. Demand to pay or comply with the conditions of the lease contract; AND
2. Demand to vacate.
The normal ground for UD is failure to pay rentals. Or even if the defendant has been paying rentals, if he
violates the other conditions of the lease contract, then that is also a ground because “demand to pay OR to
comply”. So it is either of the two because logically, failure to pay is already a violation of lease contract, di ba?
Take note, “failure to pay or to comply with the condition of the lease AND to vacate.” ‘AND to vacate’!
Suppose I will write you a letter. “This is to remind you Mr. Lessee that you have not been paying your
rentals for the past 3 months. I hereby giving you exactly one week to pay all your rentals.” He did not pay. I
will file a case after one week. But where is you demand to vacate? Your demand is only to pay rentals. You
should say “I am giving you one week to pay your back rentals and to vacate!” Yan! Kailangan ‘yung “and to
vacate” eh, because if it is only failure to pay rentals, there is no demand to vacate; your claim is a sum of
money.
Now, we will go to the issue of demand…
Q: Suppose “Mr. Lessee, this is to inform you that starting next month, your monthly rentals will be
increased from P1,000/month to P1 ,500/month. Therefore I am giving you until next month to pay the
increased rentals OR to vacate.” Meaning, if you will pay, no problem. Kung ayaw mo, lumayas ka. Now, is that
a sufficient demand? Alternative kasi eh.?
A: Here, there are some conflicting decisions:
LESACA vs. CUEVAS

125 S 384
HELD: An alternative demand to pay rentals or to vacate is legally sufficient for the purpose of
ejectment suit. A more definite and unconditional demand to vacate is not necessary where the
lessee has no legal right to remain in the premises for his refusal to pay the increased rentals.
457
PEÑAS, SR. vs. CA
233 SCRA 704
“I am giving you until next month to pay OR to vacate.”
HELD: No proper demand to vacate. In other words, it should be “pay the rentals AND to
vacate!” Hindi pwedeng you may vacate or you may not vacate. Kailangan talaga merong word na
and to vacate.
GOLDEN GATE vs. IAC

152 SCRA 684
FACTS: The lessee was in arrears for P18,000 so he received a letter from the lessor . "I am
giving you 5 days to pay back rentals, otherwise I will file an ejectment case against you." Of course
after the deadline, he did not pay. So the lessor filed a case for UD.
According to the defendant, there is no demand to vacate; you are definite to file a case against
me but where is the demand to vacate?
HELD: The letter is sufficient. Pwede na ‘yon! And the SC said, “When the private respondents
defaulted in the payment of rents in the amount of P18,000.00, they lost their rights to remain in
the premises. Hence, when the petitioner demanded payment of the P18,000.00 due and unpaid
rentals or a case for ejectment would be filed against them, the owner was giving strong notice that
"you either pay your unpaid rentals or I will file a court case to have you thrown out of my property."
The word "vacate" is not a talismanic word that must be employed in all notices. The alternatives in
this case are clear cut. The tenants must pay rentals which were fixed and which became payable in
the past, failing which they must move out. There can be no other interpretation of the notice given
to them. Hence when the petitioner demanded that either he pays P18,000.00 in five days or a case
for ejectment would be filed against him, he was placed on notice to move out if he does not pay.
There was, in effect, a notice or demand to vacate.”
Compare that with the case of
LA CAMPANA FOOD PRODUCTS vs. CA

233 SCRA 151
Here, the lessee has not also been paying his rentals and water bills. So the lessor wrote a letter
to the lessee, “Warning: Upon your failure to pay your unpaid rentals and unpaid water bills, I will
forward this matter to our legal counsel for proper action.” Is there a sufficient demand?
HELD: No. We do not see in this statement an unequivocal or even an implied demand on the
lessee to vacate from the premises. The doctrine in the Golden Gate case is therefore not
applicable.
BANDOY vs. CA
175 SCRA 459
FACTS: Prior to filing of ejectment case against the defendant, the plaintiff brought the matter to
the Barangay Captain, but to no avail. A certification to file a case was issued by the Barangay
Captain. So nag-file ng kaso ang plaintiff. The complaint for UD contained no allegation that there
was a prior demand to vacate.
“Motion to dismiss,” sabi ng defendant, “no demand to vacate. Have you written me a letter?
Did you notify me to vacate?”
According to the plaintiff, “My golly! We have already talked with the Baranggay. May usapan
na tayo dun! Pareho na rin yun!” So the plaintiff contended that no further demand to vacate is
needed after a certification to file a case was issued by the Barangay Captain for the reason that
the case was already certified to court for action. Any further demand to vacate is merely repetitive
and unnecessary.
HELD: Plaintiff is wrong. Mali! The certification of the Barangay Captain is not conclusive as to
the jurisdiction of the Court to which the case was subsequently filed. What was certified by the
Baranggay Captain was that no settlement was reached by the parties in the Barangay level. It did
not certify that all the requisites for the filing of the UD case was complied with. Therefore the case
is dismissed.
So demand to vacate is jurisdictional. Kaya to play it safe, sabihin mo na lang “I am requesting you to pay
your rentals AND TO VACATE!” I-capitalize mo yung ‘AND TO VACATE’ para wala ng samok… because it has
been the cause of so many problems eh. It reaches the SC just because of the issue: was there a demand to
vacate? The best thing is to use that words so that there could be no room for controversy.
Q: Is there a possibility that an UD case will be filed without a prior demand to vacate?
A: It would seem so. Demand to vacate, if you observed, is essential if you ground for UD is non-payment of
rentals or failure to comply the condition of the lease.
Q: Now, suppose the ground for ejectment is expiration of the lease contract. Example: “Mr. Lessee, this is
to remind you that the lease contract will going to expire at the end of this month. I will not renew your contract
so you better look for another place to move.” Well, that is just a reminder. There is no demand to vacate. At
the end of the month, nandun pa rin ang lessee. File ka ng UD. But where is the demand to vacate?
A: There are some decided cases where the SC said that the demand to vacate may be dispensed with
because anyway, the ground for ejectment is not non-payment of rentals or violation of conditions of the lease
contract. Meaning, the defendant should be informed straight ahead that he could not extend his stays
anymore.
458
That is what Section 2 seems to convey, “…such action by the lessor shall be commenced only after
demand to pay or comply with the conditions of the lease and to vacate…”
Actually I experienced this eh years ago. I filed an action for UD without any demand to vacate because my
ground is expiration of the lease contract. The defendant filed a motion to dismiss because no demand to
vacate. I was telling the court, “Your Honor, demand to vacate is not really necessary in all cases. When the
ground is expiration of lease contract, hindi na kailangan. And these are decided cases...”
And the judge does not know the cases. He does not know the exception. He knows the general rule! So I
appealed to the old CFI. Na-reverse. Bumalik. The hearing took almost 8 months.
And I said, this is a lesson for me. I will stick with the general rule most of the time because you do not
expect the judge to know the exception. So that is a lesson in my practice.
Q: Where do you compute the one year period ?

A: For Forcible Entry, from the date of unlawful deprivation.
For Unlawful Detainer, from the date of unlawful withholding. That is evident by the demand to vacate
because you give a deadline. You count the one year period from your deadline.
Q: Suppose, hindi nag-vacate. Hindi ka rin nag-file ng case. Pinabayaan mo lang. Then after one year you
gave another demand to vacate. When do you count the one year period ? From the date of the first demand or
second demand?
A: Standing Rule : LATEST DEMAND.
PEÑAS, JR. vs. CA
233 SCRA 794
HELD: The one year period provided for in Section 1, Rule 70 should be counted from the last
letter of demand to vacate. The reason being that the lessor has the right to waive his right of
action based on the previous demand and let the lessee remain in the meanwhile. In effect, I
legalize his possession all over again by not doing anything.
Now, the next provisions starting form Section 3 to 14 are new provisions and reiterations of the rules of
Summary Procedure. Remember when we took up Summary Procedure, all FE and UD cases are covered by the
Summary Rules. That is why in 1997 when the SC decided to amend the rules in Civil Procedure, sinama na
nila ang mga ito.
Sec. 3. Summary procedure — Except in cases covered by the agricultural tenancy laws or
when the law otherwise expressly provides, all actions for forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be
governed by the summary procedure hereunder provided. (n)
Sec. 4. Pleadings allowed — The only pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All
pleadings shall be verified. (3a, RSP)
Sec. 5. Action on complaint — The court may, from an examination of the allegations in the
complaint and such evidence as may be attached thereto, dismiss the case outright on any of
the grounds for the dismissal of a civil action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons. (n)
Sec. 6. Answer — Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or cross-claims shall be served and filed within
ten (10) days from service of the answer in which they are pleaded. (5, RSP)
Sec. 7. Effect of failure to answer — Should the defendant fail to answer the complaint
within the period above provided, the court, motu proprio or on motion of the plaintiff, shall
render judgment as may be warranted by the facts alleged in the complaint and limited to what
is prayed for therein. The court may in its discretion reduce the amount of damages and
attorney’s fees claimed for being excessive or otherwise unconscionable, without prejudice to
the applicability of section 3 (c), Rule 9 if there are two or more defendants. (6, RSP)
Sec. 8. Preliminary conference; appearance of parties — Not later than thirty (30) days
after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18
on pre-trial shall be applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for the
dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in accordance with the next preceding section. All
cross-claims shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in
accordance with the next preceding section. This procedure shall not apply where one of two or
more defendants sued under a common cause of action who had pleaded a common defense
shall appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly

meritorious grounds and without prejudice to such sanctions as the court in the exercise of
sound discretion may impose on the movant. (n)
459
Sec. 9. Record of preliminary conference — Within five (5) days after the termination of the
preliminary conference, the court shall issue an order stating the matters taken up therein,
including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admissions made by the
parties, judgment may be rendered without the need of further proceedings, in which event the
judgment shall be rendered within thirty (30) days from issuance of the order;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case. (8, RSP)
Sec. 10. Submission of affidavits and position papers — Within ten (10) days from receipt of
the order mentioned in the next preceding section, the parties shall submit the affidavits of
their witnesses and other evidence on the factual issues defined in the order, together with
their position papers setting forth the law and the facts relied upon by them. (9, RSP)
Sec. 11. Period for rendition of judgment — Within thirty (30) days after receipt of the
affidavits and position papers, or the expiration of the period for filing the same, the court shall
render judgment.
However, should the court find it necessary to clarify certain material facts, it may, during
the said period, issue an order specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit
or the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the rendition of
the judgment. (n)
Sec. 12. Referral for conciliation — Cases requiring referral for conciliation, where there is
no showing of compliance with such requirement, shall be dismissed without prejudice, and may
be revived only after that requirement shall have been complied with. (18a, RSP)
Sec. 13. Prohibited pleadings and motions — The following petitions, motions, or pleadings
shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by
the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
Sec. 14. Affidavits — The affidavits required to be submitted under this Rule shall state only
facts of direct personal knowledge of the affiants which are admissible in evidence, and shall
show their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits the same
to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof
from the record. (20, RSP)
Sec. 15. Preliminary injunction.— The court may grant preliminary injunction, in accordance
with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer may,
within five (5) days from the filing of the complaint, present a motion in the action for forcible
entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion within thirty (30) days from the
filing thereof. (3a)
Q: Can the court issue a writ of preliminary injunction ?

A: YES under Section 15, to prevent the defendant from further acts of disposition.
Q: Can the plaintiff file in an action for UD and FE a petition for mandatory injunction ?
A: YES
Q: Is the remedy of preliminary injunction available in UD and FE cases, especially the remedy of
preliminary mandatory injunction to restore the plaintiff immediately in the possession of real property?
A: YES.
If you look at Article 539 of the New Civil Code, Preliminary Mandatory Injunction (PMI) is only possible in FE
cases. There is no such thing under the CC as PMI in UD cases. You cannot get a PMI against your lessee.
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But you look at the new law, Section 15 “A possessor deprived of his possession through forcible entry or
unlawful detainer…” Therefore the remedy of PMI has been made applicable also under the new rules to UD
cases. Naging broader na.
The applicability of PMI in UD cases was first laid down by the SC before 1997 in the case of DAY vs. RTC of
ZAMBOANGA Branch 13, 191 SCRA 610.
Before, I was wondering when this thing came out. How about the objection: Did the Rules of Court a
procedural law, amended the Civil Code which is a substantive law? This is tantamount to Rules of Court
amending Article 539 of the CC. Of course may reason talaga ang SC nyan. But where did the SC get also that
rule?
I went back to the case of DAY vs. RTC to find out the basis. And the SC said it was authorized by SEC 33 of
the Judiciary Law BP 129 that MTC can issue Provisional Remedies in all cases.
“(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases…” Sec. 33, BP 129
That’s how the SC explained. Actually, the Judiciary Law is substantive law. This was passed by the
Congress. So in effect, the Judiciary Law has already amended Article 539 of CC which is also a substantive law.
It is not the SC that modified or expanded the substantive right in the CC. It was the Congress and the SC is just
interpreting it. Yaan!
This reminds me about the first question asked in Political Law in last Sunday’s Bar Exam: A senator makes
a remark: “The Supreme Court is a continuing constitutional convention.” Do you agree or disagree?
Actually, both sides are defensible. But you have to understand what the question is…because if you cannot
understand, it can bother you: how can the SC be a constitutional convention where a constitution can only be
amended by a convention called for that purpose by the Congress in joint session? How can the SC amend the
constitution? That would be unconstitutional!
But you go deeper: who interpret the Constitution? Supreme Court man ba! Kaya nga sabi ng isang
American Justice: ‘The Constitution is what the Supreme Court says.’ Kahit mali ang pag-interpret, tama man
ba!. And take note, decisions of the SC form part of the law of the land. So everytime there is a constitutional
issue and the SC interprets it, they are made into doctrines. So in effect, you can say that the SC keeps on
amending the Constitution by interpreting the different provisions of the Constitution. So in that sense, the SC is
a continuing constitutional convention.
SEC. 16. Resolving defense of ownership. When the defendant raises the defense of
ownership in his pleadings and the question of possession cannot be resolved without deciding
the issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession. (4a)
Now this is taken almost word for word from the Judiciary Law, Sec 33.
Judiciary Law Sec 33 - Jurisdiction of MTC, RTC and MCTC in Civil Cases
“…2.Exclusive original jurisdiction over cases of FE and UL provided that when in some
cases the defendant raises the question of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership. The issue of ownership
shall be resolved only to determine the issue of possession. “
.
The language is identical. So this is taken from that provision.
In FE and UD, the issue or controversy is possession. Ownership is irrelevant, immaterial in FE and UD. Not
even possession as a right or possession de jure but purely physical possession. That is why a squatter can file
an action for FE, even if technically, he has no legal right to the property he is possessing. Why? Because
ownership is not the issue. Who has the legal right should be threshed out in accion publiciana.
The only issue is the recovery of physical possession.
Q: What happens if there is also the issue of ownership? Can the MTC rule on the issue of ownership if it is
raised?
A: YES, if it is necessary to rule on the issue of possession. Sometimes the issue of possession hinges on
the issue of ownership. But if the court says that based on the evidence, the court is of the opinion that the
owner is A, that is a declaration of ownership which is only prima facie. The court really has no power to rule on
the issue of ownership in FE and UD.
If you want to quarrel on ownership, you want to find out who really is the owner, punta kayo sa RTC… dun
kayo mag away, huwag dito. But if I (MTC) will rule on ownership only as a preliminary step only to decide on
the issue. That is only prima facie.
That is why the SC said :When the defendant raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding on the issue of ownership, the issue of ownership
shall be resolved only to determine the issue of possession. The decision of ownership is not final. That should
be decided with the RTC
Q: Is it possible that we have two cases against each other? In the MTC on possession in the FE or UD, in
the RTC we are fighting on the issue of ownership.
A: YES. There is no interference.
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Q: Suppose I file a case against you for FE or UD. Now you file a case also in the RTC where you raise the
issue that you are the owner. I'm claiming possession in the MTC and you are claiming ownership in the RTC.
Suppose the person claiming ownership would say, "Alright, since we are quarrelling on ownership already in
the RTC, the MTC should not try the case of FE or UD. The cases of FE or UD should be dismissed because the
issue of ownership is being litigated in the RTC.” Is that a correct position?
A: NO. The two can continue. RTC decides on ownership, the MTC decides on possession. The two are
separate issues. If I will file a case against you for FE or UD, which is actually a summary proceeding for
ejectment, you can easily defeat that by filing a case against me in the RTC where you raise the issue of
ownership, although your opposition is not serious. You will then contest the ownership just to kill my case. That
would be improper.
REFUGIA vs. CA,
258 SCRA 347. July 5, 1996
HELD: By virtue of the express mandate set forth in Section 33, paragraph 2 of the Judiciary
Law, which is also Section 16, inferior courts or first level courts, i.e. MTC, have the power to resolve
the question of ownership raised as an incident of an ejectment case where the determination
thereof is necessary for a proper and complete adjudication on the issue of possession. Any such
pronouncements made affecting ownership is to be regarded merely as provisional.
Hence it will not bar nor prejudice an action between the same parties involving title to the
land.
HILARIO vs. COURT OF APPEALS
260 SCRA 420
HELD: Even where the defendant alleges ownership or title to the property in his or her answer,
the first level court will not be divested of its jurisdiction. (It will not be deprived of its role) A
contrary rule will pave the way for the defendant to trifle with the ejectment suit which is summary
in nature. He could easily defeat the same through the simple expedient of asserting ownership.
In the MTC, we are quarrelling with the issue of possession. In the RTC, we are quarrelling with the issue on
ownership. The MTC does not have to give way to the jurisdiction of the RTC. That is the principle to remember.
There are some RARE instatnces na baliktad pa nga. There are two cases between the same parties and
the court said everything should be decided on the ejectment case or UD. It should be the RTC (to give way for
the MTC)... baliktad. One of them is UNIVERSITY PHYSICIANS SERVICES INC. vs. CA (233 SCRA 86).The
case is related to one of the grounds for a motion to dismiss i.e. litis pendentia. There is another action pending
between the same parties for the same cause.As a general rule, when there are two cases pending between the
two parties, for the same cause, which should be dismissed? The first or the second case? Based on priority in
time, the second will be dismissed.
Q: Is there a possibility that it should be the first (which must be dismissed)?

A: YES. When the first case was filed as an anticipatory suit, on the theory that the best defense is an
offense. You are converting your defense as a cause of action. That is what happened here.
UNIVERSITY PHYSICIANS SERVICES INC. vs. CA

233 SCRA 86
FACTS: UPSI is a corporation that operates a school. It bought 2 parcels of land in Manila where
an apartment was constructed. The obvious purpose of the company is to demolish it. They will
put up a school (building) there or classrooms. However, one unit of the apartment was occupied
by a certain Jocelyn Formentira. Despite the demand to vacate, Formentira refused. Hence UPSI
commenced the demolition of the apartment.
When Formentira saw that the apartment was demolished little by little, what she did was to file
a complaint for damages against UPSI, claiming that the demolition was unlawful. With it was a
prayer for preliminary injunction and restraining order against UPSI in the RTC. As main relief, she
demanded that UPSI be permanently enjoined from doing any act to force out or cause her
ejectment from said apartment unit.
UPSI, in turn, filed a complaint for ejectment against formentira in the MTC of Manila. Dalawa
na ang kaso:
1. The first by Formentira i.e. damages with Preliminary Injunction; and

2. The second was filed by UPSI for ejectment.
ISSUE: Which of the two cases shall take precedence over the other? If we follow the rule of
first-come-first-serve, we will conclude that the case filed by UPSI (the second case) should be
dismissed.
HELD: Formentira's action for damages should be dismissed. It is the RTC case filed ahead that
should be dismissed. Formentira cannot deny that the complaint for damages taken in its full
context was meant to prevent UPSI from ejecting her. The main action kunuhay, is damages.
Kunuhay lang ba! But with the prayer for injunction, in effect she is using the case for damages to
stop her ejectment from the apartment. Her complaint for damages bears unmistakable earmarks
that show of its true nature and character, touching as it does, on her alleged right to continue
possession of the premises.
Though not couched in specific terms, Formentira is virtually asking for an indefinite extension
of the lease of the disputed premises. Admittedly, while she claims indemnity for what she believes
were wrongful and illegal acts committed against her by the UPSI, it is nevertheless indisputable
that the pivotal issue presented by the complaint involves the determination of her right or the lack
of it over the disputed property. It follows therefore that the damages allegedly suffered by her is
merely an incident to the question of possession disputed by the parties.
The issue of whether Formentira has the right should be threshed out in an ejectment suit and
not an action for damages, though the question of possession is likewise in issue. We cannot simply
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ignore the fact that Formentira, after her unjustified refusal to vacate the premises was aware that
an ejectment case against her was forthcoming.
Sec. 17. Judgment. If after trial the court finds that the allegations of the complaint are true,
it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly
due as arrears of rent or as reasonable compensation for the use and occupation of the
premises, attorney’s fees and costs. If it finds that said allegations are not true, it shall render
judgment for the defendant to recover his costs. If a counterclaim is established, the court shall
render judgment for the sum found in arrears from either party and award costs as justice
requires. (6a)
There will be hearing, and after these and the court finds that the allegations in the complaint are true, it
shall render judgement in favor of the plaintiff.
Q: Ano ang judgment?

A: The judgment ordering the defendant to vacate .the property involved or the restitution… surrender the
possession, the sums due as arrears of rent. So if UD, you pay all the back rentals. And the back rental could
go as high as more than P200,000 or as reasonable compensation for the use and occupation of the premises.
For example, in FE, what rentals are you talking about? How can you compute the rental? If it is UD, klaro.
The rental of the lessee is, lets say P2,000 a month. Kung FE anong rental ang sinasabi mo dun? Wala mang
rental, squatter man yan. But he has to pay… the reasonable compensation of the use and occupation of the
premises. Meaning, how much, by way of damages is the plaintiff entitled to recover for the use and
occupation of the property.
The court will now fix the reasonable compensation. The court can also award attorney's fees and costs. It
should not exceed P20,000.
If the allegations are not true, then the case will be dismissed and if there is a counterclaim, the same can
be awarded.
Q: Suppose you occupy my property, so I file FE. I will pray for ejectment, payment for reasonable
compensation for the use of my property, attorney’s fees, costs, damages i.e. moral and exemplary, unrealized
profits (somebody wanted to lease my property but cannot kasi andyan ka!). Or, if UD, I will eject you from my
building, may sira ang bahay, nasira ang walls, roof, floor, windows, doors, etc. So I will pay for damages for
the deterioration you caused to my building. My question is: Can the court award these damages i.e. moral,
exemplary, or unrealized profits, for the value of the destroyed portions of my house or building?
A: NO. The only thing you can recover are unpaid rentals, or in case of FE, reasonable compensation,
attorney's fees and costs.
Q: How about my claims for damages and unrealized profits?

A: If you want to recover, you file another case. Damages are not recoverable in FE and UD except such
damages as attorney’s fees, costs, unpaid rentals, or reasonable compensation. All other damages are not
recoverable. File another case.
While damages seems to be recoverable, these are limited only to:

1. attorney's fees;
2. costs;
3. unpaid rentals; and
4. reasonable compensation.(REYES vs. CA ,38 SCRA 138; BAEN vs. CA, 125 SCRA 634)
SEC. 18. Judgment conclusive only on possession; not conclusive in actions involving title or
ownership. The judgment rendered in an action for forcible entry or detainer shall be conclusive
with respect to the possession only and shall in no wise bind the title or affect the ownership of
the land or building. Such judgment shall not bar an action between the same parties
respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial Court
which shall decide the same on the basis of the entire record of the proceedings had in the
court of origin and such memoranda and/or briefs as may be submitted by the parties or
required by the Regional Trial Court. (7a)
When there is a judgement in a FE or UD, they will be conclusive with respect to the possession only.
Definitely, the MTC has no power to rule on the issue of ownership or title.
There is no res adjudicata. But there is as to the issue of possession.
However, if you say that the court has the power to rule on the issue of possession, it also means all other
issues incident to the possession, e.g. has the lease contract expired? Or on the interpretation of terms and
provisions of the contract?
These issues are res adjudicata, except as to ownership. That is why Section 18 is related to Section 16.
When there is an issue raised in the pleadings as to the ownership, such will be resolved for the purpose of
resolving the issue of possession. But definitely, there should be another case to be filed as to the ownership.
Sec. 19. Immediate execution of judgment; how to stay same if judgment is rendered against
the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected
and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal
Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down
to the time of the judgment appealed from, and unless, during the pendency of the appeal, he
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deposits with the appellate court the amount of rent due from time to time under the contract, if
any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he
shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the
premises for the preceding month or period at the rate determined by the judgment of the lower
court on or before the tenth day of each succeeding month or period. The supersedeas bond shall
be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the Regional Trial
Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or authorized
government depositary bank, and shall be held there until the final disposition of the appeal, unless
the court, by agreement of the interested parties, or in the absence of reasonable grounds of
opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the
defendant fail to make the payments above prescribed from time to time during the pendency of
the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall
order the execution of the judgment appealed from with respect to the restoration of possession,
but such execution shall not be a bar to the appeal taking its course until the final disposition
thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court by the
defendant for purposes of the stay of execution shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the
defendant has been deprived of the lawful possession of land or building pending the appeal by
virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of
possession and restoration of possession may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal. (8a)
Plaintiff files a complaint for FE or UD. The complaint prays for the decision to order the defendant to vacate
the property. Chances are rentals are included. After the hearing, the court renders the judgment:
"WHEREFORE. finding the plaintiff to have proven his cause of action, the same being meritorious, the court
hereby (orders the defendant) to pay all his unpaid rentals, beginning last year, at the rate of P1,000 a month,
until he vacates." Or kung FE, "pay P1,000 as reasonable compensation for the occupation of the property
from the time he entered it to the time he vacates." plus attorney's fees. So oredered.”
So panalo ka. The decision will be furnished to you. Following the usual pattern.
If we follow the general rules of civil procedure, the judgement is not yet final. The defendant has 15 days
to appeal. Now under the Rules, the plaintiff can file a motion to execute after the period to appeal, when there
is no appeal.
That is the rule, although as an exception, the plaintiff can file a motion for discretionary execution i.e.
execution pending appeal, provided there is a good reason… yun lang. So kung walang good reason, pasensya.
So you have to convince the court that there is a good reason. Otherwise you stick to the general rule.
Now, I file a case of FE against you or UD. Decision… panalo ako. Of course we assume that I will also
receive the decision today. It is not yet final. Now, under Section 19, tomorrow, I will file a motion for immediate
execution, because under the Rules, the judgement for UD or FE is IMMEDIATELY executory.
Palag si Cholo: "Wala mang good reason?"
Q: Does the plaintiff have to cite good reason?

A: No good reason is required. The only reason is – I won. And according to the SC " it is a ministerial duty
of the MTC to order." Hindi kailangan na you have to wait for the judgment to become final. It is not necessary
that you wait for it to be final – that is only applicable to ordinary cases. Pagtanggap…file ka bukas. And the
court will issue an order of execution… because under Section 19 "a judgement is immediately executory".
That is a unique rule no? (tuod gid eh!)
We will now go to the side of the defendant. So there is now an order to eject you. The sheriff will go to
you anytime and kick you out. Is there a way for me to stop him?
Q: (As defendant) Can I stop the order of execution?

A: YES. There are three (3) things that you must do:
1. You must appeal.- You must appeal the judgement to the RTC. Appeal to the RTC.. Meaning,
prevent the judgment from becoming final.
2. The defendant must file a supersedeas bond to the RTC. - Ano ang supresedeas bond? A
supersedeas bond will answer for all the amount due to the plaintiff up to the date of the judgment.
Halimbawa ang back-rentals mo ay one year na. You have not been paying your rentals for
a year. At P1,000 a month, lets say P12,000. You post a supersedeas bond for P12,000. If the
rental is P2,000 a month, you pay a bond of P24,000.
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You appeal, file bond, and you let the court approve the bond. With that the MTC will now
withdraw the order of execution.
Your appeal will now proceed. The records will be elevated to the RTC. The money you
deposited will be with the clerk of court. When the case reaches the RTC you do the third
requirement.
Remember, you filed the bond to answer the accounts due to the plaintiff under the
judgement.
3. Pagdating sa RTC, be sure that every month you go to the office of the clerk of court. You make
periodical deposits of the rents falling due during the pendency of the appeal every month.
Example, each month P2,000 (if such is the monthly rental). While the appeal is going on, takbo
nang takbo yung rental.
Kailan? Not later than the 10th day of the months succeeding. On or before the 10 th day of
the succeeding month or period. E.g. If the rental is due on September, on or before September
10. For October, not later than October 10.
What happens if nalimutan mo? Nalimutan… ? What will the plaintiff do? The plaintiff,
through his lawyer will now file a motion to execute in the RTC… to execute the judgement of
the MTC. Bakit? Non-compliance. According to jurisprudence, it is the ministerial duty of the
RTC to order the execution.
So out. Paano yung appeal mo? Tuloy! Your appeal will continue, but in the meantime, out
ka. Kung nanalo ka, pabalikin ka. In the meantime, out ka!
The purpose of this law is to prevent the prolonged agony of the plaintiff.. The squatter or
the delinquent lesee can always delay. Kahit na talo na sige appeal… appeal… appeal (isang
appeal pa… appeal! umm!). These are the counter-measures.
Remember the three requirements. You fail to observe one, yari ka!. That is the rule. These are all
intended to restore the possession of the property to the plaintiff. That is the rule to remember. This is unique
eh.
Q: Now, when do you file the supersedeas bond? What if I file my notice of appeal on the 10th day, and the
bond on the 16th?
A: The SC said, EXECUTE! The supersedeas bond should be deposited together within the 15 days. Hindi
pwede ma-extend. NO EXTENSION for the filing of the supersedeas bond.
CORDOVA vs. GABAYLEN

249 SCRA 172, October 10, 1995
HELD: While it is true therefore that defendant deposited the amount which approximates the
monetary judgment for unpaid rentals, since the same was filed late, it could not qualify as a
supersedeas bond. What is considered material for the purpose of the stay of execution pending
appeal under Rule 70 is not the fact of payment but more importantly, the timeliness of the filing of
the supersedeas bond. Execution could not be legally stayed by reason of the admittedly belated
filing of the aforequoted supersedeas bond.
CHUA vs. COURT OF APPEALS

286 SCRA 437, February 24, 1998
ISSUE: When do you file the supersedeas bond? Now there is no problem about the notice of
appeal. Your notice of appeal is filed within 15 days, otherwise it is file out of time. But is there a
deadline for the filing of the supersedeas bond? If you look at the law, wala man.
HELD: If the defendant-appellant perfected the appeal but failed to file a supersedeas bond,
immediate execution of the judgement automatically follows. Conversely, the filing of the
supersedeas bond will not stay the execution if the appeal is not perfected also. (Kailangan
dalawa). Necessarily then, the supersedeas bond should be filed within the period for the
perfection of the appeal.
So everything within 15 days in order for the execution to not proceed. Take note of that.
Now normally, sino ba ang dapat mag-deposit while the case is on appeal? Normally defendant eh. Yung
natalo. Now in the old case of Cruz v. Hugo (77 Phil), the person under obligation to make the rental deposits is
the defendant. Not the plaintiff. But let us see what happened in the case of
CITY OF MANILA vs. CA

149 SCRA 150
FACTS: In a case involving the premises of an underpass in the Quiapo district, which is owned
by the City of Manila, below are stalls which the City is leasing. The stall owners were paying
rentals per month, lets say P4,000 a month. Manila increased the rental, let's say from P4,000 to
P6,000. Ayaw nila. They refuse to pay.
The City filed UD. The old city court of Manila rendered a decision upon.. . BINAYOT BA: "Ok, the
City Can increase the rental from P4,000 to P5,000”. Halfway bah! Payag ang mga store owners. It
is the City that is aggrieved, and it appealed. It appealed on that issue on whether the court was
authorized to fix its own rate as against what the lessor is setting. So appeal. And when the appeal
was going on, these defendants did not deposit in the clerk of court the P5,000 monthly rental. So
that City moved to execute. The judgement.
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HELD: The SC said that the rule that immediate execution of judgement should be applied is not
only when it is the defendant appealing but also when it is the plaintiff appealing. Both sides.
Remember that the decision of the city court is P5,000, ayaw ng City. Ikaw (defendant), payag
ka? “Yes, payag" O, kung payag ka, ba’t ayaw mong mag-deposit (gago!)! There is something
wrong there. You are not questioning the decision yet you refuse to deposit. So you should deposit.
“We rule that Sec. 8 of Rule 70 (referring to the 1964 Rules) can apply even if it is the lessor
who appeals in the sense that in such a case, if the lessee desires to prevent execution pending
appeal, he (the lessee) must still file the supersedeas bond and deposit in court the accruing
rentals. Our doctrine in CRUZ, ET AL. vs. FERNANDO JUGO, ET AL. is reversed insofar as it conflicts
with the present case. The rationale for Our ruling is simple: why should the lessee continue
occupying the premises without filing the supersedeas bond and making the necessary deposit for
ensuing rentals (particularly when, by his failure to appeal, the lessee does not question said
accrued and incoming rents)?”
Q: Under Section 19, what is the RTC executing?

A: The RTC is executing the judgment of the MTC. The case will still be decided by the RTC
Sec. 20. Preliminary mandatory injunction in case of appeal. Upon motion of the plaintiff,
within ten (10) days from the perfection of the appeal to the Regional Trial Court, the latter may
issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court
is satisfied that the defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff
is prima facie meritorious. (9a)
There are two (2) instances when preliminary mandatory injunction can be availed of under Rule 70. The
first is Section 15, second paragraph i.e. before the case is decided, immediately upon the filing of the
complaint. Now, (second) eto namang appeal, in case the defendant will appeal or the plaintiff will appeal, the
plaintiff can still ask for it on appeal. That is on appeal if the defendant is frivolous or dilatory or the appeal of
the plaintiff is prima facie meritorious.
That is different from yung failure to file the supersedeas bond
Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court The
judgment of the Regional Trial Court against the defendant shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom. (10a)
So, talo ka sa MTC, you appeal to the RTC, you post bond, pay rentals, so plaintiff cannot file for execution
pending appeal.
Natalo ka parin sa RTC. Appeal ka sa CA under Rule 42, Petition for Review. But I will file a motion to
execute because the decision of the RTC is immediately executory.
You can appeal and cause more delay of a case under the summary procedure.
Under Section 17, you will file a motion in the RTC for the execution of the MTC decision. The RTC decided
to affirm the decision, so you will also file another motion for execution under Section 21.
Q: Where will you file your motion to execute under Section 21?
A: MTC or RTC.
Q: What are you actually executing?

A: The decision of the RTC or the MTC as affirmed by the RTC. (City of Manila vs. CA, 204 SCRA; SY vs.
Romero, 214 SCRA; Salientes vs. IAC, 246 SCRA 150 [1995]- the latest.)
What you are going to execute is the original decision of the MTC, so the records are brought back there and
you file your motion to execute in the MTC.
Rule 71
CONTEMPT
Q: How do you define contempt?

A: Contempt - it is a disregard of or disobedience with rules or orders of a judicial body, or an interruption of
its proceedings by disorderly behavior, or insolent language, in its presence or so near thereto, as to disturb the
proceedings or to impair the respect due to such a body. (17 C.J.S. 4)
According to SC, the power to punish contempt, is inherent in all courts; its existence is essential to the
preservation of order in judicial proceedings and the enforcement of judgements, orders and mandates of the
court, and, consequently to the due administration of justice. (Perkins vs. Dir. of Prisons, 58 Phil. 271) The court
said, the reason behind this power to punish for contempt is that respect of the courts guarantee, the stability
of that institution, without such guarantee, such institution will be resting on a very shaky foundation. (Cornejo
vs. Tan, 85 Phil. 772)
Rule 135 (5) inherent power of the courts, - to compel obedience to its orders, to maintain its dignity while
proceedings are going on (that’s the essence). Violation of the same, you will be held liable for contempt.
466
Section 1. Direct contempt punished summarily — A person guilty of misbehavior in the
presence of or so near a court as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court, offensive personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully
required to do so, may be summarily adjudged in contempt by such court and punished by a
fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if
it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding
two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.
(1a)
Sec. 2. Remedy therefrom — The person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended pending resolution of such petition, provided
such person files a bond fixed by the court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the petition be decided against him. (2a)
Sec. 3. Indirect contempt to be punished after charge and Hearing — After a charge in
writing has been filed, and an opportunity given to the respondent to comment thereon within
such period as may be fixed by the court and to be heard by himself or counsel, a person guilty
of any of the following acts may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,
including the act of a person who, after being dispossessed or ejected from any real property by
the judgment or process of any court of competent jurisdiction, enters or attempts or induces
another to enter into or upon such real property, for the purpose of executing acts of ownership
or possession, or in any manner disturbs the possession given to the person adjudged to be
entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court
not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by
virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing
process to bring the respondent into court, or from holding him in custody pending such
proceedings. (3a)
Classifications of Contempt:
As to the manner of commission:
1. Direct Contempt under Section. 1
2. Indirect Contempt under Section. 3
As to the nature of Contempt:

1. Criminal Contempt
2. Civil Contempt
Q: Distinguish Civil from Criminal Contempt:

A: A civil contempt consists in the failure to do something ordered to be done by a court or judge in a civil
case for the benefit of the opposing party therein; whereas a criminal contempt consists in conduct that is
directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or
discrediting the authority and dignity of the court or judge, or in doing a dully forbidden act. Perkins vs. Dir. of
Prisons, 58 Phil. 271)
A good example of civil contempt is when you are file an injunction with a TRO. On the other hand, when
You are inside the court room and while the trial is going on, you start singing and dancing inside the court
room, that is Criminal Contempt. It is directed against the dignity, that is disrespect to the court while
proceeding is going on.
REMMAH ENTERPRISE, INC. vs. CA

268 SCRA 68, February 26, 1997
ISSUE: How do you characterize whether the contempt is civil or criminal?

HELD: The SC said, the real character of the proceedings in contempt cases is to be determined
by the relief sought or by the documents purpose. When you ask the court to cite somebody in
contempt, what is the purpose behind that? The proceedings are to be regarded criminal when the
purpose is primarily for punishment. And it is civil when the purpose is primarily compensating or
remedial.
In general, criminal contempt proceedings should be conducted in accordance with the
principles and rules applicable to criminal cases, in so far as such procedure is consistent with the
summary nature of contempt proceedings. Strict rules that govern criminal prosecution apply to a
prosecution for criminal contempt. The accused will be accorded with protections provided in
regular criminal cases and proceedings under the statutes governing them are to be strictly
construed. We just follow the general principles in criminal cases. However, criminal proceedings
are not required to take any particular form so long as the substantial rights of the accused are
preserved.
467
Civil contempt proceedings, according to the SC, are generally held to be remedial and civil in
nature, that is for the enforcement of some duty and essentially, the remedy resulted to preserve
and enforce the right of a private party to an action and to compel obedience to a judgement or
decree intended to benefit such party litigant.
The rules of procedure governing criminal contempt proceedings or criminal prosecutions or
devarily are inapplicable to civil contempt proceedings.
Q: what are considered acts of direct contempt?

A: a.) misbehaviour in the presence of or disrespect towards the court or judge or to abstracts… Some
lawyers are guilty of this, minsan nagaaway or nagmumura na sila sa courtroom. One must
maintain ones cool and professionalism. Don’t treat the courtroom like a market place because the
judge may hold you in contempt.
b.) refusal to be sworn or to answer as witness. This is related to evidence. So, if you refuse to answer,
the judge may declare you in contempt of court
c.) Refusal to subscribe to an affidavit or deposition when lawfully required to do so.
Q: How is a person made liable?

A: He may be summarily adjudged in contempt of court. Summarily means no hearing!
Q: What is the penalty?

A: If you are found guilty of contempt, the maximum imprisonment is ten (10)days. The maximum fine is
P2,000 - or both penalties may be given. This is before the RTC and CA. In MTC, the maximum fine is P200 and
imprisonment should not exceed 1 day - or both.
Sec. 2. Remedy therefrom — The person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended pending resolution of such petition, provided
such person files a bond fixed by the court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the petition be decided against him. (2a)
Q: Is an order of direct contempt appealable?

A: NO, you cannot appeal.
Q: Suppose the judge held you in direct contempt with grave abuse of discretion?
A: Yur remedy is certiorari or prohibition - not an appeal.
And maybe the court will give you few days to file your opposition. On the meantime, the judgement will be
suspended but you put up a bond. The bond will be a condition that you will abide by and perform the
judgement should the opposition be decided against you.
Q: How is a charge for indirect contempt made?

A: There must be a charge in writing and the respondent is given opportunity to comment thereon and he
can be heard. That is one main difference between direct and indirect contempt. In direct contempt, there is no
hearing, there is no charge, there is no petition. On the spot! Your are not given the chance to comment. But in
indirect contempt, the normal due process is observed. Similar to a trial after which only then can a court within
you are guilty.
Q: What are the grounds for Indirect Contempt?

A: The following:
a.) disobedience of an officer in court…
What’s the difference between this act and in Sec.1? The difference is, in Sec.1, your act of
misbehaviour is right there in the presence of the judge. In Sec.3, it is something that you do in the
performance of your duty and somebody brings to the attention of the court, so it must be heard.
Lawyers can be held liable here because they are held officers of the court. (ex. Sheriff, clerk of
court, etc.)
b.) disobedience…
A good example would be resistance to heed an order or writ of preliminary injunction (TRO)
A resistance to be considered contemptuous, some requisites must be considered:

1.) It must appear that an order was in fact made by a court requiring the performance of some
particular act.
2.) The act which is forbidden or required to be done must be clearly and precisely defined so as to
leave no reasonable doubt to what specific act is required or forbidden.
3.) The order must be lawful. (Ex. TRO, after the lapse of 30 days, wala ng violation dyan because
the TRO already expired.
4.) The disobedience must be willful or deliberate (not just negligence or mistake)
Q: Suppose you are sued for forcible entry. After trial you lost the case and you are ordered, to
vacate. But despite the judgement, you refused to leave the property. Can you be held liable for indirect
contempt?
A: No, there is no contempt here because back to execution, there are two types of judgements:
Ordinary and Special Judgment(Rule 39):
A party can be punished for contempt if it is based on a special judgement, but if it is an ordinary
judgement - you will not be punished. Special judgement is a judgement which required a party to
perform an act other than to pay money or to deliver a property.
468
Whose judgements are ordinary? Ex. Judgement ordering a party to pay a sum of money. But if the
defendant will not pay, will you ask the court to render him in contempt of court? No- you just ask to
levy his property, you don’t send him to jail! Order to vacate - (ordinary judgement) delivery of property
- No contempt, But if it is a special judgement, you may be held in contempt. Ex. Rule 65 (9), the law
says, disobedience thereto, shall be punished for contempt - that provision is for a special judgement.
So what is the correct procedure in an ejectment case when the losing party fails to vacate?- You
get a writ of execution and the sheriff now will forcibly eject the defendant from your land. And then
after a month, balik na naman sya! What will you do now? You look at Section 3 par (b).- Ayan contempt
ka na! That is the difference between the two situations.
So if you are enforcing a judgement - no contempt but if the judgement is enforced already, and you
come back - that is when you will be liable for contempt under paragraph b of Section 3.
C.) Abuse of Court process…

Example: Postponement of trial on the ground that a party is very, very sick and the court believes
but later found out that the same was not true and it was proven. Now, can you hold him guilty for
contempt? Yes. You abuse a court process. What process? The process of postponement. In this case,
you are trying to abuse the court process.
Another example is forum-shopping - this is an abuse of court process.
D.) Any impropper conduct… though courts are very lenient about this.
Example: the media… writing stories about a certain case or the life of the accused, this is
subjudice. There should be no commentary. What if you comment on a pending case, what happens?
That is contemptuous! An improper conduct degrading the wheel of justice.
What if the case has been disposed of? You many comment but not when the case is pending. But
what , if you say that the decision is wrong because the judge is ignorant, he doesn’t know the law!
Now, that is different and is already contemptuous because you are tending to degrade the
administration of judgement. Take note that this is already after the judgement was given!
You ask why it is contemptuous to comment a case while it is pending? The answer would be that it
might influence or affect the proceedings and judgement of the case.
However, supposed the judge is strong-willed or he never read or heard of the story- so, your
attempt to influence will not really affect him. Can you still be held liable for contempt? Yes, because
you still degrade the administration of judgement.
Another reason is that you will influence the mind of the public that would defeat the principle that
an accused is held innocent until proven guilty. This may degrade the court/judge who rules on evidence
because the public may insist the guilt of the accused. Remember that the court is not guided by
publicity.
E.) Appearing as an attorney for a party without authority, that is contemptuous!

A.) Failure… Ayaw magsipot sa court!
B.) Interfering with court processes.
Sec. 4. How proceedings commenced — Proceedings for indirect contempt may be initiated
motu proprio by the court against which the contempt was committed by an order or any other
formal charge requiring the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition
with supporting particulars and certified true copies of documents or papers involved therein,
and upon full compliance with the requirements for filing initiatory pleadings for civil actions in
the court concerned. If the contempt charges arose out of or are related to a principal action
pending in the court, the petition for contempt shall allege that fact but said petition shall be
docketed, heard and decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and decision. (n)
If you will notice Section 4 is a new provision in Rule 71
Q: How will you receive charges (?) in contempt proceedings?

A: If you look at the first paragraph, there are two ways:
1.) Motu propio by the court
2.) And other formal charge requires the respondent to show the cause why he should not be
punished for contempt. This proceeding is taken from the rulings of the SC, particularly…. (end
of tape)
NAZARENO vs. BARNES

136 SCRA 37
FACTS: This case was originated in Municipality of Bagangga, Davao. del Norte. The petitioner
here is Dr. Nazareno, the respondent is former late judge Roque Barnes(?) who was assigned there
before as judge of the CFI. Now, there must have been some bad blood between the petitioner and
the respondent because Nazareno distributed letters to different people (Pres., SC etc.) attacking
judge Barnes - questioning the latter’s integrity. The petitioner tried to convince the judiciary to
disallow or deny further appointment for Judge Barnes under the Judiciary Reorganization Act. Now,
Barnes felt that the acts of petition are contemptuous. The question is where there is contempt?
Judge Barnes was convinced that there is, but how will he institute a contempt proceeding in his
own sala without complaint?
Now, since the case is criminal in nature, Judge Barnes followed the procedure in filing a
criminal complaint first by filing an information so and so for contempt. Of course there are so
469
many things discussed in the Sala of judge Barnes. Then Nazareno went to SC on certiorari and one
of the issues was, how are contempt proceedings initiated?
If the judge initiates contempt, do you initiate it by way of information using the rules of
criminal procedure?
HELD: The SC said that the contempt proceedings against Nazareno was wrongfully initiated.
The nature there of being that of an indirect contempt/a written change(?) being necessary, of
course you went to Sec. 3 of Rule 71. The written charge may partake the nature of:
1.) An order requiring the respondent to show cause why he should not be punished for
contempt for having committed a contemptuous act imputed upon him.
2.) A petition for contempt by way of special civil action under Rule 71
The first procedure will apply only when the indirect contempt is committed against a court or
judge who possessed and endowed with contempt powers.
Therefore in the case of Nazareno vs. Judge Barnes, neither of the two modes of commencing
an indirect contempt proceedings was availed in the instant case. What was filed against Nazareno
was, to all intents and purposes, was an information in a criminal case.
“Contempt however is not in the nature of a criminal offense within the meaning of the law, and
need not be instituted by means of an information.”
“The institution of charges by the prosecuting official is not necessary to hold persons guilty for
civil or criminal contempt amenable to trial and punishment by the court. The law only requires that
there will be a charge in writing during trial in court and the opportunity for the person charged to
be heard.”
Distinction between two modes: The first is initiated by the judge (motopropio), the second is inititated by
another person through a verified petition with supporting particulars and with full compliance in filing
indicating pleadings. The second paragraph is a new and radical change from the old because the case for
contempt will be decided separately from the main action. Therefore, the case will be treated as a new case,
docketed and heard - panibagong kaso yan! So it’s possible that the contempt proceeding under second
paragraph will be handled by another judge. But for convenience, you may ask for consolidation of the
contempt charge and the principal action for a joint hearing.
Before, a contempt charge is treated as a mere motion. The same docket no. etc. But now it’s different!
Bingo na!
GERMINO vs. RAMOS
Example is you file a written charge of contempt, is there a particular from, in Section 3, there
seem to be none but in Section 4, there is such as the filing, attachment of particulars and full
compliance of requirements for filing on initiating pleading (non-forum shopping etc.)
Do you have to furnish a copy of the contempt case to the respondent? No, because there will
be another summon, so and so . This is another case. The next question in this case is:
Suppose there will be a promulgation in the judgement for contempt, either one is aquitted or
held liable, how will you promulgate the decision in a contempt proceeding? Will you follow the rules
in criminal proceeding for promulgation (ready for contempt, presence of the accused in court etc.)
Is that also the procedure for contempt proceedings?
HELD: The SC said NO, just serve a copy of the decision to him just like the other civil case. So
you don’t really have to follow all the rules in criminal procedure 100%.
REYES vs. PALSIS

193 SCRA 649
FACTS: Whether somebody has a legal personality to file a contempt proceeding? I think the
contempt charge here is under Section 3 (b) - disobedience of or resistance to a court order. Usually
who will file this? The party in whose favor the order was issued - siya man ang agrabyado!
But in this case, the one who filed the petition is somebody who is not part of the case. A
complete stranger. He is not the person who benefited by the order and yet, he is the one inititating
the petition against one of the parties their for disobedience on a lawful court order. Now, if you are
the respondent, how will you challenge? As usual - You have no personality. So, that is what has
been resolved in this case.
ISSUE: Will a charge of contempt for alleged diobedience properly lie if it is initiated by a
person/s not party/ies to the action or proceeding in which the order is issued?
HELD: The SC said YES, because of the following reasons:

1.) There is nothing in the Rule 71 that says only the party/ies to the case has the personality
to receive the contempt proceeding.
2.) In the exercise of the court’s power to punish for contempt, the interest of private parties,
either litigants or not in a case, in which it is invoked is at best only a coincidental, not a
necessary or indispensable factor. Meaning, the interest of the private parties are merely
incidental, not indispensable.
Sec. 5. Where charge to be filed — Where the charge for indirect contempt has been
committed against a Regional Trial Court or a court of equivalent or higher rank, or against an
officer appointed by it, the charge may be filed with such court. Where such contempt has been
committed against a lower court, the charge may be filed with the Regional Trial Court of the
place in which the lower court is sitting; but the proceedings may also be instituted in such
lower court subject to appeal to the Regional Trial Court of such place in the same manner as
provided in section 2 of this Rule. (4a)
470
For example you want to file a petition for indirect contempt for disobeying am RTC order. You file the
petition in the RTC. How about a resistance to a MTC order? You file the petition for contempt in the MTC but you
can also file it in the RTC.
In other words, petition for contempt in the MTC order can be initiated either in the MTC or RTC. So the RTC
can declare you guilty of contempt by disobeying an order of the MTC.
Sec. 6. Hearing; release on bail — If the hearing is not ordered to be had forthwith, the
respondent may be released from custody upon filing a bond, in an amount fixed by the court,
for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed
to investigate the charge and consider such comment, testimony or defense as the respondent
may make or offer. (5a)
In the indirect contempt, it is possible for the respondent to be held already in custody -unless you file a
bond, but it is discretionary.
Sec. 7. Punishment for indirect contempt — If the respondent is adjudged guilty of indirect
contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding
six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he
may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding
one (1) month, or both. If the contempt consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he may also be ordered to make complete
restitution to the party injured by such violation of the property involved or such amount as may
be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a
judgment imposing a fine unless the court otherwise provides. (6a)
Sec. 8. Imprisonment until order obeyed — When the contempt consists in the refusal or
omission to do an act which is yet in the power of the respondent to perform, he may be
imprisoned by order of the court concerned until he performs it. (7a)
When you are supposed to perform something, ayan no, the court will order you to be imprisoned, to be
released when you are already willing to comply. Example, failure to comply with the order to support pendente
lite- ayaw magbayad. The court can order you na ikulong to be released if you are willing to give the support
already.
Sec. 9. Proceeding when party released on bail fails to answer — When a respondent
released on bail fails to appear on the day fixed for the hearing, the court may issue another
order of arrest or may order the bond for his appearance to be forfeited and confiscated, or
both; and, if the bond be proceeded against, the measure of damages shall be the extent of the
loss or injury sustained by the aggrieved party by reason of the misconduct for which the
contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be
for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and
disposed of as in criminal cases. (8a)
When you are released through bail and if you fail to appear, the bond will be confiscated, just like in
criminal cases.
Sec. 10. Court may release respondent — The court which issued the order imprisoning a
person for contempt may discharge him from imprisonment when it appears that public interest
will not be prejudiced by his release. (9a)
The same with Sec. 6, because the court can order you to be placed in custody while the contempt charge
is pending. But Sec. 10 said, the court, which orders you to be in prison, may discharge you from imprisonment
when the interest of the public will not be prejudiced by the release. This is discretionary on the part of the
court.
Sec. 11. Review of judgment or final order; bond for stay — The judgment or final order of a
court in a case of indirect contempt may be appealed to the proper court as in criminal cases.
But execution of the judgment or final order shall not be suspended until a bond is filed by the
person adjudged in contempt, in an amount fixed by the court from which the appeal is taken,
conditioned that if the appeal be decided against him he will abide by and perform the
judgment or final order. (10a)
If you are judged guilty for contempt of court, you are guilty of indirect contempt of court – one (1) month
imprisonment, can you appeal? Yes, this is unlike direct contempt because in direct contempt, there is no
appeal. Dito pwede. Therefore, the judgement sentencing you to 1 month imprisonment will be suspended until
the appeal is resolved.
Q: Supposed the respondent is declared not liable, he did not commit an act of contempt, can the adverse
party appeal?
A: The SC said No because we follow the rule in criminal prosecution - the prosecution cannot appeal from
an order of acquittal (double jeopardy). If you are liable, of course, you can appeal, just like the accused.
471
PEOPLE vs. GODOY,
March 29, 1995
Q: The case originated in RTC, after it was decided, it was appealed to the CA. Supposed you are
the party who commit the contempt in the RTC, who will declare him in contempt? The RTC or CA?
Remember that the case started in the RTC and once it was appealed, the RTC lost jurisdiction over
the case. So, who will now declare the party in contempt?
A: In this case, it is the CA because the appeal completely transfers the records and the
proceedings thereto, or where there is tendency to affect the status quo or otherwise interfere with
the jurisdiction of the appellate court.
Q: Second, is it possible that a case of libel be filed against him under the penal code and the
case for contempt afaisnt him under the Rules of court? Pwede ba yung dalawa?
A: Yes - both may be filed. The fact that the act of constituting a contempt is also criminal and
punishable by indictment or other method of criminal prosecution does not prevent the outraged
court from punishing him of contempt. This principle stems from the fundamental doctrine that an
act may be punished as a contempt even though it has been punished as a criminal offense. The
defense of anyone made in jeopardy based on the conviction of a criminal offense would not lie a
bar the contempt proceedings on the proposition of the contempt may be on the offense against
the dignity of a court and at the same time an offense against the peace and dignity of the people
of the state, because in criminal, the offended party is the people of the Philippines, while in
contempt it is directed against the court. So there is no inconsistency.
In the case of Godoy, the judge was maligned just like in Nazareno’s case. Here the defendant
said to be the judge that he should not file a contempt charge because talo siya, pano judge ang
kalaban, eh, File ka na lang ng libel, that way pareho tayo, pantay ang bakbakan.
But the SC said No, the suggestion that judges who are unjustly attacked can be remedied in an
action for libel is without rational basis and the principle according to the SC. In the first place, the
outrage is not directed to the judge as a private individual but in a judge as such and to the court as
an organ for the administration of justice. In the second place, public interest will greatly suffer
where the judge as such will from time to time be pulled down in his room, of his judicial authority,
to face his on equal grounds and prosecute cases in his behalf as a private individual.
Q: The last question, if a lawyer does a contemptuous act, can you file two cases against him - a case for
contempt and a case for disbarment (ethical grounds)?
A: The SC said YES, the basic rule is that the power to punish for contempt and the power to disbar are
separate and distinct ant that the exercise of one does not exclude the other. A contempt proceeding or
misbehaviour in court is designed to vindicate the authority of the court, On the other hand, the object of
disciplinary proceeding is to heed the fitness of the court’s officer to continue in that office to preserve and
protect the court from the official ministrations of persons unfit or unworthy to hold such an office. (People vs.
Godoy)
Iba ang purpose nang contempt sa disbarment. The position required as a penalty in a contempt proceeding
is not considered res judicata to a subsequent charge for unprofessional conduct. That is for the lawyer to show
cause, why he should not be punished for contempt cannot be considered as a notice to show cause why he
should not be suspended from the grounds of law, considering that each of them, there is a separate object and
for each of them a different procedure is established.
Contempt of court is governed by the procedure laid down under the Rule 71 of the Rules, whereas
disciplinary actions in the practice of law are governed by Rules 138 and 139 of the Rules. So, that the holdings
in the case of People vs. Godoy
Sec.12. Contempt against quasi-judicial entities — Unless otherwise provided by law, this
Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising
quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of
the place wherein the contempt has been committed shall have jurisdiction over such charges
as may be filed therefor. (n)
Q: Do quasi-judicial bodies have the power to punish for contempt?

A: No, unless a court or a law specifically grants this body the power. Remember, the power to punish for
contempt is inherently judicial. Now, if the law gives you the power - no problem.
Q: But suppose there is no such provision. There is no power. What if you will misbehave before these
bodies, ex. NLRC, what will the remedy be?
A: The procedure is to file a petition declaring in contempt to the RTC. Meaning the RTC will be the one to
hold him liable for contempt in the NLRC because the NLRC has no power, pero kung meron doon kana magfile.
472
CRIMINAL PROCEDURE
Rule 110
PROSECUTION OF OFFENSES
Q: How are criminal cases or actions instituted?

A: Section 1, Rule 110.
SECTION 1. Institution of criminal actions.– Criminal actions shall be instituted as

follows:
(a) For offenses where a preliminary investigation is required pursuant to section
1 of Rule 112, by filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the
office of the prosecutor. In Manila and other chartered cities, the complaints shall be
filed with the office of the prosecutor unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise provided in special laws. (1a)
The language has been changed no? If you try to compare it with the old Rules, merong major changes,
meron man ding pareho. The language is now simplier.
Q: Is there a difference between commencement of criminal action and institution of criminal action?
A: Yes. When you say “commencement”, generally it is already in the court once it is filed in court. But
“institution” is earlier. When you file a complaint with the fiscal’s office, it is already an institution.
Q: Is preliminary investigation required in all criminal cases? Because there are some criminal cases which
do not require preliminary investigation.
A: Generally, all RTC cases require preliminary investigation. But right now under the new rules, some cases
triable by the MTC may also require preliminary investigation.
For example in the RTC, more than 6 years, kailangan may preliminary investigation yan. Under Section 1,
from the moment you file a complaint with the proper officer for the purpose of conducting a preliminary
investigation, it is already institution.
Q: Who are these officers referred to?

A: They are mentioned in Section 2, Rule 112:
SEC. 2. Officers authorized to conduct preliminary investigations. –

The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions. (2a)
Q: How about those other offenses which DO NOT require preliminary investigation?
A: Under the new rules, yung below 4 years and 2 months ang penalty – they are triable by the MTC. (If the
penalty is 4 years, 2 months and 1 day, it requires preliminary investigation.)
Q: How do you institute them? Like slight physical injuries…

A: You have two (2) options:
1. File a complaint with the prosecutor’s office in the city or provincial who will now file the case in
court; or
2. Kung gusto mo, direct filing. You can file the complaint directly to the MTC. Like sa munisipyo, police
man ang mag-file ba.
However in Davao City we do not see that because under the rules, in Metro Manila and other chartered
cities, the complaint shall always be filed with the office of the prosecutor unless the charter of the city provides
otherwise.
So again, the complaint can be filed either in the MTC in the province or office of the fiscal merely for
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preliminary investigation. Unlike in chartered cities na puro fiscals lang ang authorized to conduct preliminary
investigation. For example: Murder, the police can file a complaint for murder before the MTC of Sta. Cruz,
Davao del Sur. That is not for trial but only for preliminary investigation because the MTC of Sta. Cruz has no
power to try a murder case.
The institution of the criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise provided in special laws. (last
paragraph, Section 1, Rule 110)
QUESTION: Does the filing of the complaint with the prosecutor’s office interrupt the running of the
prescriptive period of the crime?
In the old case of People vs. del Rosario (1964), SC: No. When a complaint is filed in the municipal court
only for the purpose of preliminary investigation, it does not interrupt the running of the prescriptive period.
What interrupts is the filing of the complaint in court which has jurisdiction to try the case.
That is reiterated 3 years later in the case of People vs. Coquia. The SC modified it in the case of People vs.
Olarte where a complaint for murder is filed in the MTC for preliminary investigation. The issue is: Is the running
of the prescriptive period interrupted? SC: Yes, abandoning the case of Coquia and del Rosario. Why? Because
the Penal Code says, the filing of the complaint interrupt the running of the prescriptive period. Article 91 of the
RPC does not distinguish whether the filing is for trial or merely for preliminary investigation. However the SC
said here, the complaint is filed in court for preliminary investigation. If it is filed in the fiscal’s office also for
preliminary investigation, Hindi [does not interrupt]!! “Court” not “Fiscal”. That is the original ruling.
However in 1983 in the case of Francisco vs. CA, the SC made it total na: the filing of the complaint whether
in the MTC or the fiscal’s office for preliminary investigation is sufficient to interrupt the running of the
prescriptive period. However, in 1985 when the rules were revised, the SC rejected the ruling in the Francisco
case: the filing of the complaint in the fiscal’s office does not interrupt the running of the prescriptive period.
But in 1988, in-amend na naman ang rules: the filing of the complaint in the fiscal’s office is sufficient to
interrupt the running of the prescriptive period.
And here comes the 1992 case of Zaldivia vs. Reyes Sr. (211 SCRA 277) which was a criminal case covered
by the Summary Rules.
ZALDIVIA vs. REYES SR.

211 SCRA 277
FACTS: It was a violation of a municipal ordinance. Arresto Menor lang yan e. F-in-ile sa fiscal’s
office. The fiscal is relaxed because according to him: the filing of the case with the fiscal’s office is
sufficient to interrupt the running of the prescriptive period. So, relax siya… he took his time.
F-in-ile niya (fiscal) sa court after 3 months. Pag-file niya, motion to quash: “Prescribed!” Fiscal:
“Hindee! When the case is filed with the fiscal’s office, the running of prescriptive period is
interrupted!”
HELD: You (fiscal) are wrong. The filing of this case before your office did not interrupt the
running of the prescriptive period. You should have filed that on time before the court.
REASON: You look at the first paragraph of Section 1 (1988 Rules): “in cases not covered by
the Rules of Summary Procedure…” So, that rule only applies in cases not covered by the Summary
Rules. But the case at bar is covered by the Summary Rules precisely because it is only arresto
menor.
Therefore, when the case is covered by the Rules of Summary Procedure, the filing of the case with the
fiscal’s office does not interrupt the running of the prescriptive period (Zaldivia vs. Reyes, Jr, 211 SCRA 277). It
should be the filing of the case before the court which will interrupt. So, klaro yan until the 1998 case of
REODICA vs. COURT OF APPEALS

292 SCRA 87, Davide, Jr. J. (choy!)
FACTS: The charge here was slight physical injuries through reckless imprudence which is
actually punishable by arresto menor. It was filed with the fiscal’s office within 2 months but it was
filed in the court beyond 2 months. And definitely, it is covered by the Summary Procedure. In
Zaldivia case, the filing in the fiscal’s office interrupts the running of the prescriptive period.
NOTE: Remember, the case of Zaldivia involved a violation of an ordinance.
HELD: But in the case at bar, this is a felony under the Penal Code. [Dean I: Ginawan pa ng
distinction!] If it is a felony, the filing with the fiscal’s office is sufficient to interrupt the running of
the prescriptive period even if it is covered by the Summary Rules. But, if it is a light offense
punished by a special law like an ordinance and therefore covered by the Summary Rules, then the
filing in the fiscal’s office does not interrupt the running of the prescriptive period.
So I start to wonder: Saan ba nanggaling ‘yung distinction na ‘yun? The SC cited Act 3326 which is the law
governing prescription of crimes punished by special laws. Whereas, Article 90 of the RPC refers to prescription
of felonies under the Penal Code. And under Act 3326, it is very clear that the prescription period for the crime
(punished by a special law) is interrupted only upon judicial proceeding – filing in the court.
Ayun pala! Akala ko the Zaldivia case settled the rule after all. Meron pa palang Reodica.
The SC said: The revised rules of Summary Procedure “cannot be taken to mean that the prescriptive period
is interrupted only by the filing of a complaint or information directly with said courts. It must be stressed that
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prescription in criminal cases is a matter of substantive law. Pursuant to Section 5(5), Article VIII of the
Constitution, this Court, in the exercise of its rule-making power, is not allowed to diminish, increase or modify
substantive rights. Hence, in case of conflict between the Rule on Summary Procedure promulgated by this
Court and the Revised Penal Code, the latter prevails.” (Reodica vs. CA, supra)
Yan! When I was reading this case, I said, what happened to Zaldivia case? Was it reversed? SC: No! No! We
never reversed Zaldivia. “Neither does Zaldivia control in this instance. It must be recalled that what was
involved therein was a violation of a municipal ordinance; thus, the applicable law was not Article 91 of the
Revised Penal Code, but Act. No. 3326, x x x x x Under, Section 2 thereof, the period of prescription is
suspended only when judicial proceedings are instituted against the guilty party. Accordingly, this Court held
that the prescriptive period was not interrupted by the filing of the complaint with the Office of the Provincial
Prosecutor, as such did not constitute a judicial proceeding; what could have tolled the prescriptive period there
was only the filing of the information in the proper court. In the instant case, as the offenses involved are
covered by the Revised Penal Code, Article 91 thereof and the rulings in Francisco and Cuaresma apply. Thus,
the prescriptive period for the quasi offenses in question was interrupted by the filing of the complaint with the
fiscal's office three days after the vehicular mishap and remained tolled pending the termination of this case.
We cannot, therefore, uphold petitioner's defense of prescription of the offenses charged in the information in
this case” (Reodica vs. CA, supra).
Yan! And I think the Reodica case is now incorporated in the new rules. You read the last paragraph of
Section 5, Rule 110:
“The prosecution for violation of special laws shall be governed by the provision
thereof. (n)”
It is an entirely new sentence. Tama man yan ba: The prosecution for violation of special laws shall be
governed by the provision thereof. I think that’s the Reodica case: when it comes to prosecution for violations of
special law, you follow the special law.
SEC. 2. The complaint or information – The complaint or information shall be in

writing, in the name of the People of the Philippines and against all persons who
appear to be responsible for the offense involved (2a)
Q: How do you file a complaint?

A: The complaint shall be in writing in the name of the People of the Philippines and against all persons who
appear to be responsible for the offense involved.
Q: What happens if the criminal complaint or information is filed in the name of the private complainant?
A: According to the SC, the complaint is defective. It can be quashed but it is only a formal defect. In case it
proceeds to trial, it should be corrected but it is not really a fatal mistake. It can be cured at any stage of the
action by amending the information or even if it is not cured, there is a valid judgment, you are found guilty, it
shall no be voided merely because the title is defective. It will not invalidate the proceedings.
Now the law says, “against all who appear to be responsible.” Meaning, it is the sworn duty of a policeman
or fiscal to file a case against all who appear to be responsible. It does not say who are guilty.
Q: How do you define complaint?

A: Section 3, Rule 110:
SEC. 3. Complaint defined. – A complaint is a sworn written statement charging a

person with an offense, subscribed by the offended party, any peace officer, or other
public officer charged with the enforcement of the law violated. (3)
Q: Supposes a complaint is filed but it was not sworn to or signed, is it valid?

A: The SC said, it is a formal defect. It can be cured. Generally, the signature is not needed.
Q: How do you define information?

SEC. 4. Information defined. – An information is an accusation in writing charging a

person with an offense, subscribed by the prosecutor and filed with the court. (4a)
Q: Who are the people authorized to institute or commence criminal cases?

A: The following:
1. Offended party;
2. Peace officer;
3. Prosecutor; and
4. Public officer charged with the enforcement of the law.
Q: How do you distinguish a complaint from information?

1. As to who files the complaint or information

A COMPLAINT is filed by the (a) offended party; (b) any peace officer; (c) prosecutor; (d) or any
public officer charged with the enforcement of the law.
On the other hand, an INFORMATION is prepared and signed by the prosecutor.
2. As to purpose
A COMPLAINT filed in court is either for preliminary investigation or for trial, but an
INFORMATION filed in court is only for trial.
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3. As to where to file
A Complaint may be filed in court or in the office of the prosecutor, but an INFORMATION is
always filed in court.
4. A COMPLAINT can be filed in court, for trial or for mere preliminary investigation, or it can even be
filed not in court but in the prosecutor’s office for preliminary investigation. But where an
INFORMATION is filed, it is always filed in court and always for trial.
The complaint contemplated in Section 2 could be filed in the MTC for trial (e.g. physical injuries), or it could
be a complaint for murder in the MTC, not for trial but for preliminary investigation.
The complaint filed in the fiscal’s office, city or province, is known in Spanish as “ DENUNCIA” which is filed
for preliminary investigation as distinguished from the real complaint mentioned in Section 3. In Section 3, it is
always filed by the offended party. Although in some cases like when the offended party died, it is the police
who files the affidavit complaint before the prosecutor’s office for preliminary investigation.
EXAMPLE: Pedro was a victim of robbery. Can he file a complaint for robbery? YES. What if he died before
he could file?
Q: Can the family of Pedro file a complaint under Section 3?

A: No, because they are not the offended party. They should file a complaint in the fiscal. If you are talking
of a complaint filed under Section 3, you must be the offended party. But a complaint filed with the fiscal, need
not be by the offended party. (Evarle vs. Sucaldito, 156 SCRA 808)
That is the distinction, and the fiscal has the authority to investigate any crime whether the one
complaining is the victim or not because the offended party is the People of the Philippines.
SEC. 5. Who must prosecute criminal actions. – All criminal actions commenced by a
complaint or information shall be prosecuted under the direction and control of the
prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when
the prosecutor assigned thereto or to the case is not available, the offended party,
any peace officer, or public officer charged with the enforcement of the law violated
may prosecute the case. This authority shall cease upon actual intervention of the
prosecutor or upon elevation of the case to the Regional Trial Court.
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both are alive, nor, in any case, if
the offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be
prosecuted upon a complaint filed by the offended party of her parents,
grandparents or guardian, nor, in any case, if the offender has been expressly
pardoned by any of them. If the offended party dies or becomes incapacitated before
she can file the complaint, and she has no known parents, grandparents or guardian,
the State shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of
the offenses of seduction, abduction and acts of lasciviousness independently of her
parents, grandparents, or guardian, unless she is incompetent or incapable of doing
so. Where the offended party, who is a minor, fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to file the action granted to
parents, grandparents, or guardian shall be exclusive of all other persons and shall
be exercised successively in the order herein provided, except as stated in the
preceding paragraph.
No criminal action for defamation which consists in the imputation of any of the
offenses mentioned above shall be brought except at the instance of and upon
complaint filed by the offended party. (5a)
The prosecution for violation of special laws shall be governed by the provision
thereof. (n)
However once the case is in court, the complaint or information filed shall be prosecuted under the direction
and control of the public prosecutor. This shows the control of the government. This is one feature of the
Inquisitorial System of criminal procedure. The fiscal has the absolute control.
Q: Can the offended party hire his own lawyer to prosecute?

A: YES, the offended party can hire his own lawyer who is known as the private prosecutor. The personality
of the private prosecutor is based on the provision in the RPC that every person criminally liable is also civilly
liable. It is because of this civil liability that the offended party has an interest in the criminal case.
Even if the public prosecutor may turn over the active conduct of the trial to the private prosecutor, he
must be present during the proceedings because he is, by law, duty-bound to take charge of the prosecution of
the case until its termination.
If the public prosecutor or fiscal and the private prosecutor do not agree on how to prosecute, the fiscal will
prevail because the private prosecutor is under the direct control of the fiscal.
Q: What happens if there are no fiscal in a municipality?

A: According to Section 5, Rule 110: “However, in Municipal Trial Courts or Municipal Circuit Trial Courts
when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or
public officer charged with the enforcement of the law violated may prosecute the case.”
This provision that if there is no prosecutor, puwede sila, is taken from the ruling of the SC in the case of
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People vs. Beriales, 17 SCRA 24. Usually, in the absence of the fiscal, it is the police authorities who act as
prosecutors. However, according to the SC in the 1992 case of
PEOPLE vs. RAMOS
207 SCRA 144
FACTS: The case is triable by the MTC of Ilocos Norte. The offended party went to the fiscal and
filed the information. During the trial, the judge declared the fiscal in contempt of court as when the
case was called for trial, the fiscal was not around. The fiscal answered in writing. When asked to
explain why he refused to come to court despite the previous order, he said his office is
undermanned or understaffed. Thus he could not personally appear and prosecute. At any rate, the
fiscal pointed out in his explanation that the prosecution of the case can be handled by the offended
party or any peace officer.
ISSUE: Who should prosecute the case? The public prosecutor or any of the persons mentioned
in Section 5, Rule 110?
HELD: It is the public prosecutor who should prosecute the case because he already knew
about the case. He was the one who investigated the case. Therefore, he should continue in the
prosecution of the case in court. While it is true that the law allow the offended party, any peace
officer, or other public officer to prosecute a criminal case in places where there are no fiscals
available, that is only the EXCEPTION.
The GENERAL RULE is that the fiscal himself should handle the prosecution of the criminal case.
It is his duty and moral obligation to prosecute the case after having conducted the investigation
and, believing that there is a case, filed an information in court.
“The Court feels that in those cases where the prosecutors themselves have filed the criminal
charges, there is all the more reason for them to actively intervene in their prosecution. Having
presumably made the necessary investigation of these cases before filing the corresponding
informations, they are the best position to handle their prosecution on the basis of their initial
findings. If the prosecutor had not determined the prima facie guilt of the accused, he should not
have filed the information in the first place. At any rate, there is something not quite correct in the
prosecutor filing the information himself and then leaving the offended party in the lurch, as it were,
by asking him to fend for himself in prosecuting the case.
“The exception provided in Section 5 must be strictly applied as the prosecution of crime is the
responsibility of officers appointed and trained for that purpose. The violation of the criminal laws is
an affront to the People of the Philippines as a whole and not merely the person directly prejudiced,
who is that the prosecution be handled by persons skilled in this function instead of being entrusted
to private persons or public officers with little or no preparation for this responsibility. The exception
should be allowed only when the conditions therefor as set forth in Section 5, Rule 110 of the Rules
on Criminal Procedure have been clearly established.”
According to Section 5, the criminal action shall be under the control and supervision of the prosecutor. That
is only applicable if you are talking of the trial court. But if the criminal case is lifted in the CA or SC on appeal,
wala ka nang pakialam. It should be the Solicitor General who must represent the People of the Philippines.
The next paragraphs of Section 5 are somehow reiterated in Article 144, RPC, which is popularly known as
PRIVATE CRIMES:
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both are alive, nor, in any case, if
the offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be
prosecuted upon a complaint filed by the offended party of her parents,
grandparents or guardian, nor, in any case, if the offender has been expressly
pardoned by any of them. If the offended party dies or becomes incapacitated before
she can file the complaint, and she has no known parents, grandparents or guardian,
the State shall initiate the criminal action in her behalf.
Take note that in the third paragraph, RAPE is already deleted. It is not a private crime anymore. It is
already a crime against person because of the new law – RA 8353, Anti-Rape Law of 1997 – amending the RPC.
Now, it can be prosecuted without the private complainant.
Q: The SC said in one case that there is no such animal as Private Crimes because every crime is against
the State. But why do we call these private crimes - adultery, concubinage, seduction, abduction, and acts of
lasciviousness?
A: It is because of all these requirements: the complaint is duly prepared, signed and sworn to by the
offended party. Actually, the correct name of these crimes is CRIMES WHICH CANNOT BE PROSECUTED DE
OFFICIO.
Q: What is the reason for the requirement that they shall be prosecuted upon complaint of the offended
party?
A: This requirement was imposed out of consideration for the offended party or her relatives who might
prefer to suffer the outrage in silence rather than go through with the scandal of a public trial. (Sumilin vs. CFI,
57 Phil. 298; People vs. Santos, 101 Phil. 798)
In ADULTERY or CONCUBINAGE, the offended party is only the husband or the wife. The parents have
nothing to do with the adultery or concubinage. In adultery, it is not allowed that the husband files a complaint
477
against his wife without including her paramour. Nor is it allowed that the husband files a case for adultery
against his wife’s lover without including his wife. The law provides, “xxx the offended party cannot initiate
criminal prosecution without including the guilty parties, if both are alive, xxx”. The same rule applies in
concubinage.
In either case, consent or pardon by the offended party is a bar to criminal prosecution. Consent indicates
allowance.
SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS. If the victim is already of AGE, the decision of filing or
not filing the case belongs to her.
Q: What happens if the offended party is a MINOR and does not want to file?
A: The parents, grandparents, or guardian may file the complaint.
Q: Suppose the minor is incompetent as in the case of insanity, who will file the complaint?
A: Her parents, grandparents or guardian my institute the case.
Q: Suppose the minor has no known parents, grandparents, or guardian?

A: The State shall initiate the criminal action in her behalf under the principle of Parens Patriae.
Q: What happens when an information for adultery or concubinage is filed without a complaint? Is it a
jurisdictional effect?
A: According to some rulings, it is a jurisdictional defect. The SC held that compliance in Article 344 and
counterpart (as well as other crimes against chastity) is jurisdictional, and not merely a formal, requirement.
While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just as jurisdictional mandate since it is that complaint which starts
the prosecutory proceeding and without which the court cannot exercise its jurisdiction to try the case. (People
vs. Mandea, 60 Phil. 372; People vs. Surbano, 37 SCRA 565; People vs. Babasa, 97 SCRA 672; Pilapil vs. Ibay-
Somera, 174 SCRA 653)
But there is a SECOND VIEW: You can question the filing but it is not jurisdictional. It is a condition
precedent but not jurisdictional because if you say jurisdiction, they are vested by the judiciary law. There is
nothing in the judiciary law which can speak about complaint filed in court by the offended party. (People vs.
Estrebella (1986); People vs. Saniaga (1988); People vs. Bugtong (1989); People vs. Tarul (1989); People vs.
Cabodac (1992); People vs. Leoparde (1992); People vs. Hilario (1993)
PROBLEM: Suppose a victim of a private crime in a municipality prepared a complaint, swore to it, and
FILED IT IN THE MTC FOR PRELIMINARY INVESTIGATION. [Remember that in provinces, there are two (2)
possibilities if you want to file a case in the RTC: (1) file a complaint in the MTC for preliminary investigation, or
(2) file a complaint with the provincial fiscal’s office also for preliminary investigation. Unlike in the cities we
only file with the fiscal because only one is allowed to conduct preliminary investigation in chartered cities.]
After the preliminary investigation, the judge said there is a probable cause and therefore, forwarded the case
to the provincial fiscal. The fiscal filed the information in the RTC.
Q: Can the RTC try the case when there is no complaint by the offended party in the RTC?
A: The SC said YES. The complaint filed in the MTC for preliminary investigation will already serve the
purpose. There is no need for another complaint to be prepared and signed by the victim to be filed with the
RTC.
PROBLEM: Suppose the offended party of a private crime in a municipality, instead of filing the complaint
in the MTC, she filed it in the office of the provincial fiscal or prosecutor.
Q: Will the case prosper?

A: The SC said NO. The case must be dismissed because the complaint contemplated by the law, signed
and sworn to by the victim, is a complaint FILED IN COURT, not a complaint filed in the fiscal’s office.
Q: What should be the correct procedure?

A: After preliminary investigation, the fiscal should prepare a complaint and should prepare an information
signed by him and the victim. Unlike where the complaint filed in the MTC for preliminary investigation, there is
no need for another complaint to be filed in the RTC. But if the complaint (denuncia) is filed in the fiscal’s office,
the rule is: it will not serve as the basis for a criminal prosecution. In connection with this principle is the leading
case of
PEOPLE vs. ILARDE
125 SCRA 11
FACTS: This is a case for adultery originated in the City of Iloilo. A man caught his wife in an act
of adultery. The next thing he did was to execute an affidavit-complaint, which he filed in the office
of the City Prosecutor of Iloilo City. In his affidavit he said, “I’m formally charging my wife and X and
would request this affidavit be considered as a formal complaint against them.” While the case was
pending before the fiscal for investigation, he died. So the Fiscal asked how he can file an
information in court when there is no complaint because the rule is, the complaint filed with the
fiscal’s office is not the complaint contemplated by law; there must be a complaint filed signed by
the offended party. But in this case, the complainant was already dead. Although there was an
affidavit-complaint.
The fiscal knew that and so he prepared an information for adultery charging the wife and her
paramour. In the information he stated: “The undersigned City Fiscal upon sworn statement
originally filed by the offended party, xerox copies of which are hereto attached as annexes A and B
…xxx” So what he did was to incorporate the affidavit of the deceased offended husband in the
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information.
Now, the wife and the paramour moved to quash the information alleging lack of jurisdiction
upon the offense charged because under Article 344 of the RPC, the requirement for the complaint
of adultery was not complied with citing the case of People vs. Santos, 101 Phil. 798, where it was
held that the complaint filed in the fiscal’s office for a private crime is not the complaint
contemplated by law. On that basis, RTC Judge Ilarde dismissed the case.
The prosecution went to the SC on certiorari.
HELD: The respondent trial court is wrong. The order of dismissal is hereby set aside and is
directed to proceed with the trial of the case. “It must be borne in mind, however, that this legal
requirement was imposed out of consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a public trial. Thus, the law leaves it to
the option of the aggrieved spouse to seek judicial redress for the affront committed by the erring
spouse. And this, to Our mind, should be the overriding consideration in determining the issue of
whether or not the condition precedent prescribed by said Article 344 has been complied with. For
needless to state, this Court should be guided by the spirit, rather than the letter, of the law.”
“In the case at bar, the desire of the offended party to bring his wife and her alleged paramour
to justice is only too evident. Such determination of purpose on his part is amply demonstrated in
the dispatch [speed] by which he filed his complaint with the fiscal’s office [because he filed the
complaint the day after the crime happened]. The strong and equivocal statement contained in the
affidavit filed with the Fiscal's Office that “I am formally charging my wife of the crime of adultery
and would request that this affidavit be considered as a formal complaint against them” – is a clear
show of such intent.”
“The ruling in People vs. Santos is not applicable to the case at bar. In that case, the sworn
statement was not considered the complaint contemplated by Article 344 of the Revised Penal Code
because it was a mere narration of how the crime was committed. Whereas, in the case at bar, in
the affidavit-complaint submitted by the offended husband, he not only narrated the facts and
circumstances constituting the crime of adultery, but he also explicitly and categorically charged
private respondents with the said offense – “I’m charging my wife and her paramour with adultery.”
“Moreover, in Santos, the SC noted that the information filed by the fiscal commenced with the
statement ‘the undersigned fiscal accuses so and so,’ the offended party not having been
mentioned at all as one of the accusers. But in the present case, it is as if the husband filed the
case.”
“The affidavit of the husband here contains all the elements of a valid complaint under Section
5, Rule I10 of the Rules of Court. What is more, said complaint-affidavit was attached to the
information as an integral part thereof, and duly filed with the court. Therefore, the affidavit
complaint became the basis of the complaint required by Section 5.”
So it became sort of an exception to the general rule that the affidavit-complaint in the fiscal’s office is not
the one contemplated by law. While I was reading this case, I noticed that the fiscal was very imaginative on
what he is going to do, kasi alam niya ang rules eh. That fiscal is now Solicitor General Galvez. And I was
surprised why the husband drafted the affidavit that way. Maybe he knew he was dying. Later, they found out
that the husband was a lawyer. And do not be shocked, the paramour was also a lawyer! So that was a very
interesting case. The ruling was reiterated in the 1991 case of PEOPLE vs. JAROL (June 19, 1991).
Last paragraph, Section 5, Rule 110: No criminal action for defamation which
consists in the imputation of any of the offenses mentioned above shall be brought
except at the instance of and upon complaint filed by the offended party.
The fifth paragraph of Section 5 is taken from Article 360 of the RPC. Article 360 refers to the crime of libel
or slander.
Q: Is the crime of defamation [slander is when you defame somebody orally; libel is when the defamation is
in writing] a private crime?
A: NO.
Q: Can a case of slander be filed in court without a complaint signed and sworn to by the offended party?
A: As a GENERAL RULE, YES, EXCEPT when the defamation imputes to the offended party the commission of
any of the crimes mentioned above. Meaning, it imputes to the offended party the commission of a private
offense like adultery, concubinage, abduction, seduction, acts of lasciviousness (ACASA). In this case, the
criminal action shall be brought at the instance of and upon a complaint filed by the offended party.
Q: Is the accusation “mang-aagaw ng asawa ng may asawa!” an imputation of adultery?

A: No. It is a mere implication of a vice or defect, not an imputation of adultery. The phrase was translated
as “seducer of the husbands of other woman.” It implies that the person to whom it is addressed is a FLIRT, a
TEMPTRESS, or one who indulges in inciting another’s husband. (Gonzales vs. Arcilla, November 18, 1991)
The last paragraph states that “The prosecution for violation of special laws shall be governed by the
provision thereof.” The best example is the case of Reodica vs. CA, which we already discussed, that
prescription for violation of a special law is not governed by the RPC but by special law. The ruling was
emphasized in the 1996 case of
LLENES vs. DICDICAN
July 31, 1996
HELD: “The institution of the complaint in the prosecutor’s office shall interrupt the period of
prescription of the offense charged under Section 1, Rule 110. The rule, however, is entirely
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different under Act No. 3326, as amended, whose Section 2 explicitly provides that the period of
prescription shall be interrupted by the institution of judicial proceedings, i.e., the filing of the
complaint or information with the court.” Therefore, the filing of the complaint in the fiscal’s office
does not interrupt the running of the prescriptive period. That is only true in felonies under the RPC.
But when in comes to special laws, we follow the special law.
Q: When is a complaint or information sufficient?

A: Read Section 6, Rule 110
SEC. 6. Sufficiency of complaint or information. – A complaint or information is

sufficient if it states the name of the accused; the designation of the offense given
by the statute; the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate date of the commission of the offense;
and the place where the offense was committed.
When an offense is committed by more than one person, all of them shall be
included in the complaint or information. (6a)
Q: Suppose the information is defective, kulang-kulang ba, there are some essential facts required by law
which are not stated. Can it be cured during the trial?
A: YES. Any defect in the complaint or information may be cured by evidence introduced by the prosecution,
EXCEPT:
1. when the defect is jurisdictional (People vs. Abad Santos, 76 Phil. 744); or
2. when the complaint or information does not charge any offense. (People vs. Austria, 94 Phil. 897)
SEC. 7. Name of the accused. – The complaint or information must state the name
and surname of the accused or any appellation or nickname by which he has been or
is known. If his name cannot be ascertained, he must be described under a fictitious
name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some
other manner to the court, such true name shall be inserted in the complaint or
information and record. (7a)
Q: One of the requirements under Section 7 is that the name of the accused must be stated in the
information. Eh kung nagkamali ka? Is that fatal? What is the effect of an erroneous name given to the accused
in the complaint or information?
A: The defect is not fatal. The error will not produce any adverse effect because what is important is the
identity of the person of the accused, not his name . (People vs. Ramos, 85 Phil. 683) Kung nagkamali, eh di
palitan! [problema ba yun? Ha!] This reminds me of the Fortun brothers – the Delia Rajas incident during the
impeachment trial.
SEC. 8. Designation of the offense. – The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it. (8a)
SEC. 9. Cause of the accusation – The acts or omissions complained of as

constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstance and for the court to pronounce judgment. (9a)
There is one major change here. The law now specifically emphasizes under Section 8 and Section 9 that
you do not only mention the crime. You must also specify the aggravating and the qualifying circumstance.
What is new here is the “aggravating.”
The old rule is, there is no need of specifying the aggravating circumstances because anyway, they are not
elements of the crime. They are only circumstances that affect the criminal liability and if the aggravating
circumstances are proven, they can still be applied against the accused. The new law now says you do not only
specify the qualifying, you also mention the aggravating. Now, how does it affect the old jurisprudence?
Q: My question is this, based on my own interpretation of Sections 8 and 9, Problem: the information does
not allege the aggravating circumstances. In the course of the trial, the prosecution starts proving. Under the
new rule, the defense can object to any evidence to prove the aggravating circumstance because the same is
not mentioned in the information. But I will go further: an aggravating circumstance is not alleged in the
information and the prosecution starts proving and there was no objection on the part of the defense. Now, can
the court in imposing the penalty, consider the aggravating circumstance?
A: My personal view is YES because of the waiver for failure to object, in the same manner that an
aggravating circumstance not alleged may still be considered as such. My only interpretation of this provision is
that if this is not alleged in the complaint or information and the prosecution starts proving it, the defense can
object and that objection must be sustained. But if there is no objection, the old rule can still be applied
because of estoppel or waiver.
Well, that is my personal view on that matter. I do not know whether my view is correct or not. But I believe
my view is correct because anyway even the judges here in Davao are asking for my view. I receive calls from
time to time from these people. [ehem!]
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Q: Let’s go to Section 9. Suppose the offense says, “criminal case for murder” but in the body of the
information there is no allegation of a qualifying circumstance. What does the fiscal charge, Murder or
Homicide?
A: HOMICIDE. The SC held that the designation of the offense is not an essential element of a complaint or
information, because, at most that is a mere conclusion of the fiscal. What is controlling is the recital of facts
appearing in the body of the complaint or information. (People vs. Agito, April 28, 1958; People vs. Cosare, 95
Phil. 656)
But there are some EXCEPTIONS like what happened in the case of
U.S. vs. TICZON

25 Phil. 67
FACTS: A complaint was filed by the woman stating that “while the offended party was inside
her house at night and all the doors were locked and all the windows were closed, the accused
surreptitiously entered the house and approached the offended party who was asleep, raised her
skirt and at that very moment the woman woke up and resisted.” [This can be an attempted rape
but the element of the crime was not fully accomplished because of an act or accident other than
her own resistance.] But sabi ng caption, “for trespass to dwelling” – pwede man din.
HELD: Sabi mo, “trespass”. OK, eh di trespass! So the caption prevails. When the facts
appearing in the complaint or information are so stated that they are capable of two or more
interpretations, then the designation of the offense in the caption controls.
Take note that under the new rape law, RA 7659, there are some circumstances which if present call for the
mandatory death penalty. In the case of
PEOPLE vs. MANHUYOD, JR.
May 20, 1998
HELD: When you charge somebody with a heinous crime such as rape, the information must
make reference to the new law. If not, it will only be translated as an ordinary aggravating
circumstance because the information was charged after the effectivity of the heinous crime law.
“Finally, a few words on the lack of care devoted to the preparation of the information filed
before the trial court. The Office of the Provincial Prosecutor had in its possession evidence that the
crime was committed by a father against his 17-year old daughter after the effectivity of R.A. No.
7659, hence the imposable penalty was death. It was then necessary to make reference to the
amendatory law to charge the proper offense that carried the mandatory imposition of capital
punishment.”
“Prosecutors are thus admonished to exercise utmost care and diligence in the preparation of
complaints or informations to avert legal repercussions which may prove prejudicial to the interest
of the State and private offended parties.”
Q: According to Section 9, the elements of the crime must be recited in the complaint or information. Must
the exact language of the law be used?
A: NO. You can use other words provided it would convey the same idea or thought.
EXAMPLE: THEFT. The information does not contain the allegation “intent to gain” which is an element of
the crime of theft. The SC said it is not required because those words are presumed from the information that
the accused appropriated to himself the things belonging to the offended party. (U.S. vs. Alabot, 38 Phil. 698)
EXAMPLE: ROBBERY WITH FORCE UPON THINGS. There was no allegation that the accused entered the
house of the victim with the use of force upon things but the information alleges that the accused entered the
house of the victim by passing through a hole in the ceiling, an opening not intended for entrance. Ano yan?
The SC said that is tantamount to use of force upon things. (People vs. Lareza, 73 Phil. 658)
EXAMPLE: MURDER. There was no allegation of treachery (alevosia) but the information says that when the
accused killed the victim, the latter was not in the position to defend himself. The SC said they mean the same
thing. In fact, it became clearer. (People vs. Gustahan, 47 Phil. 376)
Another interesting case of treachery is the case of
PEOPLE vs. ABUYEN

213 SCRA 569 (1992)
FACTS: The accused here killed two (2) children, one was aged 6 years and the other was 13
years old. He stabbed them. The information charges the accused with the killing the 2 minors.
There is no statement that there was treachery. All that the information says is that the accused
killed the 2 “minors.”
ISSUE: Was there a murder?
HELD: YES. When the accused killed the minors, that is equivalent of killing by treachery and
therefore qualifies the killing to murder.
“It has, time and again, been held that the killing of minor children who, by reason of their
tender years, could not be expected to put up a defense is considered attended with treachery even
if the manner of attack was not shown. The allegation in the Information that the victims are both
481
minors is to be considered compliance with the fundamental rule that the qualifying circumstances
should be alleged in the information.”
“It is commonly understood in practice that when the victim in physical injuries, homicide, or
murder cases is a child of tender years, he is described in the information as a minor. Minority in
such a case should not be equated with its statutory meaning — that is, below eighteen (18) years
old. It is used not so much as to state the age of the victim (otherwise, the charging fiscal would
have simply placed the exact ages) rather, it is more of a description of the state of helplessness of
the young victim.”
Q: CONSPIRACY. Jet and Pao are charged for murder pero ang sinasabi sa information, it was Jet who killed
the victim. Now, in conspiracy, the act of one is the act of all. Would that sufficiently charge Pao?
A: NO. Kailangan mong i-describe ang conspiracy para matamaan si Pao. Klaruhin mo yung conspiracy,
otherwise if the allegation of conspiracy is not shown against Pao, then, there is no crime of conspiracy. This is
the guideline laid down by the SC in the 1998 case of
PEOPLE vs. QUITLONG
292 SCRA 260
HELD: “Unlike the omission of an ordinary recital of fact which, if not excepted from or objected
to during trial, may be corrected or supplied by competent proof, an allegation, however, of
conspiracy, or one that would impute criminal liability to an accused for the act of another or
others, is indispensable in order to hold such person, regardless of the nature and extent of his own
participation, equally guilty with the other or others in the commission of the crime. Verily, an
accused must know from the information whether he faces a criminal responsibility not only for his
acts but also for the acts of his co-accused as well.”
Meaning, if you are charging me for what my companion did, you better be clear that there is
conspiracy para ma-apply yung doctrine na ‘the act of one is the act of all.’
“The opinion of the trial court to the effect that conspiracy may be inferred from the allegation
of abuse of superior strength and with the aid of armed men is difficult to accept. the information
must state that the accused have confederated to commit the crime or that there has been a
community of design, a unity of purpose or an agreement to commit the felony among the accused.
Conspiracy must be alleged, not just inferred, in the information on which basis an accused can
aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence
that may be required to prove it.”
You can prove conspiracy by direct evidence. But kahirap niyan uy unless you were there listening. In
criminal law, when two or more persons act together in unison to attain the same criminal objective, then
conspiracy can be inferred. Meaning, you can use that as evidence to convict a person but for purposes of filing
the case, you must expressly allege it.
Therefore, for purposes of charging – express. For purposes of proving – implied. Yan! This is precisely
because directly proving it, is difficult. The manner of charging is different from the manner of proving. (People
vs. Quitlong, supra)
EXAMPLE: DIRECT ASSAULT. The SC said it is not enough for the information to say that the victim is a
person in authority. The charge for such offense must be so framed as to clearly allege the functions of the
person assaulted, so as to show that he comes under the definition of person in authority. (People vs. Carpizo,
80 Phil. 234) Of course, I believe that if the position is obvious, the court will take judicial notice of that. There is
no need to describe. But if it comes to some position which are not really common, the information must recite
the functions.
EXAMPLE: TREASON. An information for treason is insufficient if it merely alleges generally that the
accused had adhered to the enemy, giving her aid and comfort. The charge must be specific by stating what is
termed as overt act of giving aid and comfort to the enemy. (Guinto vs. Veluz, 77 Phil. 798)
EXAMPLE: LIBEL. In charging libel, the prosecution must single out the libelous statements and quote
verbatim in the complaint or information. (People vs. Bustos, 59 Phil. 375)
We will go to another issue regarding HABITUAL DELINQUENCY. The case is
PEOPLE vs. VENUS
63 Phil. 435
FACTS: The City Fiscal of Manila file with the CFI of Manila an information charging the accused
with the crime of robbery in an inhabited house. The information alleges, among others,” that the
accused is a habitual delinquent, he having been previously convicted by final judgement rendered
by a competent court, once for the crime of attempted robbery in an inhabited house and once for
theft, the date of his last conviction being November 14, 1934.
Note: There is habitual delinquency when, for a period of ten (10) years, from the date of his
last conviction or release for a crime of serious or less serious physical injuries, robbery, theft,
estafa and falsification, he is found guilty of any of said crimes, a third time or oftener.
ISSUE: Was there a sufficient allegation of habitual delinquency?
HELD: NO. “Habitual delinquency, can not be taken into account in the present case because of
the insufficiency of the allegation on this point in the city fiscal's information. While the information
specifies the particular offense (attempted robbery in an inhabited house) for which the defendant-
482
appellant was alleged to have previously been convicted and also the date of the last conviction for
theft which occurred prior to the date of the commission of the offense now charged. But this does
not make the information sufficient in law for it fails to specify the date of the conviction of the
accused for the crime of attempted robbery. For all we know, the two previous convictions for
attempted robbery in an inhabited house and theft may have taken place on the same date
(November 14, 1934) or on two different dates so close together as to warrant the court in
considering the two convictions as only one for the purposes of the application of the habitual
delinquency law.”
“Upon the other hand, it may happen that a person accused of robo, hurto, estafa or
falsificacion may have been convicted of any of said offenses after the commission of the crime
with which he is charged. We have already held that previous convictions in order to be considered
for the purpose of imposing the additional penalty for habitual delinquency, must precede the
commission of the crime charged. Other instances may be mentioned but those given suffice to
demonstrate the necessity of charging the existence of habitual delinquency with sufficient
clearness and certainty to enable the courts to properly apply the provisions of our law on the
subject.”
“It is therefore urged upon prosecuting attorneys that in the prosecution of cases of this nature,
they should not content themselves with a general averment of habitual delinquency but should
specify the dates:
1. of the commission of the previous crimes,
2. of the last conviction or release, and
3. of the other previous convictions or release of the accused. “
“Informations filed in these cases should be sufficiently clear and specific to avoid the improper
imposition of the additional penalty on a plea of guilty to a general allegation of habitual
delinquency, no less than the frequency with which hardened criminals escape the imposition of the
deserved additional penalty provided for by law.”
Q: Must excepting clauses be alleged in a complaint or information?

A: It DEPENDS. If the excepting clause forms part of the definition of the offense, it must be alleged; but if it
is a matter of defense, it need not be alleged in a complaint or information. (U.S. vs. Chan Toco, 12 Phil. 262)
Sometimes it is hard to distinguish what is an element of a crime, and what is a matter of defense as stated
in a law. The exceptive clauses such as “provided further”, and “provided furthermore” are very confusing.
Sometime you get lost. Ano ba itong “provided further”? Is this part of the crime or is it a part of the defense?
Confusing ba! Like in the old case of
U.S. vs. POMPEYA
31 Phil. 245
FACTS: The municipal government passed an ordinance which requires all able-bodied male
residence of the municipality between the ages of 18 and 35 to assist in peace and order campaign
in the municipality by rendering services. The accused violated the ordinance. So he was charged.
The information says he is a resident of the municipality, he is male, he is able-bodied and he
refuses to render service to the government. According to the accused, the information is defective,
it does not reconcile all the elements because it does not state how old he was. But according to the
prosecutor, “No! I do not have to allege your age. It is for you to prove that you are below 18 or
more than 35!”
ISSUE: Whether or not the clause in the ordinance pertaining to the age range of 18 to 35 is
part of the crime, because if it is part of the crime, then it must be alleged.
HELD: The SC ruled that the age requirement is an element of the crime and therefore must be
alleged. Failure to allege it is fatal because he may belong to the exempt age in which case the
prosecution may not prosper.
Let us try to compare that in the case of
U.S. vs. YAO SIM

31 Phil. 301
FACTS: The accused was charged with violation of the opium law. The opium law was the
predecessor, the great grandfather of the Dangerous Drugs Act. That was the old law which
prohibits the use and smoking of opium without the prescription of a licensed practicing physician.
The accused argued that there is no crime committed because the information did not allege
that the accused has no prescription from a duly licensed or a practicing physician. But the
prosecution contended that it is for the accused to prove that he has a prescription. The element of
the crime is only smoking opium.
HELD: The SC said, the prosecution is correct. It is not part of the crime, it is a matter of
defense. The crime is smoking opium, period! But if you say you have prescription, then you prove
it.
That is sometimes the difficult areas in the law. You don’t know whether it is part of a crime or just a part of
your defense. There are things that we have to determine. This is part of our study of Section 9.
Q: Like for example, yung ILLEGAL POSSESSION OF FIREARMS. Do you have to allege that the firearm is not
licensed?
A: The SC said YES, that is part of the crime.
483
Q: But in DANGEROUS DRUGS ACT, iba man. If you are in possession of opium, marijuana or whatever, you
are liable if without authority of law. Now, who will prove the authority of law? Is that part of the definition of the
crime?
A: The SC said NO. It is for you to prove that you are authorized. The crime is the possession or use of
marijuana. That you are authorized to possess or smoke is a matter of defense.
Now let’s go to the next section. You must allege the place of the commission of the crime. You must also
allege the date of the commission of the crime.
SEC. 10. Place of commission of the offense. – The complaint or information is

sufficient if it can be understood from its allegations that the offense was committed
or some of its essential ingredients occurred at some place within the jurisdiction of
the court, unless the particular place where it was committed constitutes an
essential element of the offense charged or is necessary for its identification. (10a)
Q: When you say place, do you have to be very specific as to the place where the crime was committed?
You must describe the kalsada, the street?
A: NO. As a matter of fact, if you look at the information, it just says, you committed the crime in Davao City
without even stating what barangay or barrio. So, the place of the commission of the crime maybe stated
generally. What is only important is it is within the territorial jurisdiction
EXCEPTION when the place of the commission of the crime constitutes an essential element of the crime
charged. Yan! You must be specific. Examples:
EXAMPLE: TRESPASS TO DWELLING. You must specify that the crime was committed by entering into the
dwelling of somebody. You cannot just say that he committed it in Davao City. You must say na pumasok siya sa
bahay na ito. Or
EXAMPLE. ROBBERY IN AN INHABITED HOUSE, PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP. You
must state the particular house. Kailangan specific ka diyan.
SEC. 11. Date of commission of the offense. - It is not necessary to state in the
complaint or information the precise date the offense was committed except when it
is a material ingredient of the offense. The offense may be alleged to have been
committed on a date as near as possible to the actual date of its commission. (11a)
Q: How about yung date? Is it necessary that it should be very accurate?

A: NO. What is important is that the information alleges that the crime was committed “on or about” a
certain date.
Q: The information said that Judy committed homicide on January 20. During the trial, pinalabas na
December 20 pala – one month earlier. Is that harmless or fatal?
A: It is still covered by the phrase “on or about.” A variance of a few months between the time set out in the
indictment and that established by the evidence during the trial has been held not to constitute an error so
serious as to warrant reversal of a conviction solely on that score alone. (Rocaberte vs. People, 193 SCRA 192)
But when you say December 2000 and then the crime pala was committed in 1995, ay sobra na yan! That
is too much. Five (5) years is no longer covered by “on or about.” That is already violative of Section 11. A
variance of several years, or the statement of the time of the commission of the offense which is so general as
to span a number of years has been held to be fatally defective. (Rocaberte vs. People, 193 SCRA 192)
Q: And what is the remedy in that case?

A: The remedy against an indictment that fails to allege the time of the commission of the offense with
sufficient definiteness is a motion for a bill of particulars (Rocaberte vs. People, 193 SCRA 192). Do not dismiss
the information. That was commented by the SC in the recent case of People vs. Garcia, November 6, 1997
(281 SCRA 463).
I have to admit that the rules now try to make a gap between the date of the commission of the crime as
alleged in the information and the actual date of commission to be not so far. You look at Section 11: “xxx The
offense maybe allege or committed on a date as near as possible to the actual date of its commission.” That
phrase “as near as possible” is not found in the 1985 rules.
The ONLY EXCEPTION is just like in the Section 10, UNLESS the date of the commission of the crime is an
essential element of the crime. Like for example:
EXAMPLE: VIOLATION OF ELECTION CODE, drinking liquor during election day. You must be specific kung
anong araw yun. Hindi pwedeng “on or about election day.” Hindi pwede yan! If you drank liquor before, wala
mang crime. If you drink liquor after, wala mang crime ba!
EXAMPLE. INFANTICIDE. It is committed by killing a child less than 3 days old or less than 72 hours. If the
infant is exactly 3 days old, it is no longer infanticide. So the information must be very specific that the child
was born on this day, on this time and the killing was done on this day, on this time.
SEC. 12. Name of the offended party. – The complaint or information must state the
name and surname of the person against whom or against whose property the
offense was committed, or any appellation or nickname by which such person has
been or is known. If there is no better way of identifying him, he must be described
under a fictitious name.
484
(a) In offenses against property, if the name of the offended party is unknown,
the property must be described with such particularity as to properly identify the
offense charged.
(b) If the true name of the person against whom or against whose property the
offense was committed is thereafter disclosed or ascertained, the court must cause
such true name to be inserted in the complaint or information and the record.
(c) If the offended party is a juridical person, it is sufficient to state its name, or
any name or designation by which it is known or by which it may be identified,
without need of averring that it is a juridical person or that it is organized in
accordance with law. (12a)
Let’s go to the next rule – name of the offended party. You must allege also who is the victim. We are talking
here about the victim – the private offended party.
Q: Why is it that the name of the offended party must be alleged in the information?
A: First, the general rule is that, aside from the People of the Philippines, there is a private victim. Second,
so that we will know to whom the court will award the civil liability.
Q: Is there a possibility by which the name of the offended party is not mentioned in the information but the
same is still valid?
A: YES. Paragraph [a], in a crime against property. If you do not know who is the victim of theft or robbery,
it is enough that you describe the property in the information.
EXAMPLE: A thief, nahuli and he was found in possession of stolen goods and he admitted he stole.
Kanino? “Ewan ko. Basta gi-snatch ko man lang ito.” Can the police file a case? YES. You just describe the
property in the information even if we don’t know the owner because you commit theft when you take personal
property belonging to another with intent to gain. What is important is that, it belongs to another.
PEOPLE vs. CFI OF QUEZON BR. 5
209 SCRA 704
FACTS: The accused was charged with timber smuggling or illegal cutting of logs from public
forest under PD No. 320. Ayan, wala talagang private offended party diyan. The only offended party
is the government. But the information does not mention that the offended party is the State. The
accused challenged the information on this ground.
HELD: Even if the State is not mentioned, the information is NOT defective. Why? You look at
the caption of the case – “People of the Philippines”. That is actually the offended party.
Q: What happens if there was an erroneous naming of the offended party?

A: In the case of
PEOPLE vs. UBA

99 Phil 134
FACTS: Vidz, on a certain date, was alleged to have uttered publicly slanderous words against
Jessamyn. So Jessamyn is the victim of the slander. Alam niyo during the trial, it turned out that the
victim pala was Lyle, not Jessamyn. But everything is the same – the date and place of the
commission, the defamatory words – pare-pareho! Only, there was an erroneous designation of the
offended party.
ISSUE: Can the court convict Vidz for the crime of slander?
HELD: NO. Although the words are the same, the slander against Lyle is a separate offense.
Meaning, you are charging a different offense from the crime proven. You cannot convict a person of
a crime not properly charged.
“A mistake in putting in the information the name of the offended party is a material matter
which necessarily affects the identification of the act charged. The case should be dismissed for
variance between the allegations of the information and the proof.”
However, there were exceptions in the past like where the accused, who is not a doctor, was charged of
illegal practice of medicine. The information stated that the offended party is Paul. Pag-trial, hindi pala si Paul.
Si Inay pala dapat ang victim. The SC said the accused can be convicted. Why? The crime is illegal practice of
medicine regardless of whether the victim is Paul or Inay. (Diel vs. Martinez, 76 Phil. 273) Yan! It is different from
the case of Uba.
SEC. 13. Duplicity of the offense. – A complaint or information must charge only one
offense, except when the law prescribes a single punishment for various offenses.
(13a)
The complaint or information must charge only one offense. It cannot charge 2 or more offenses. If it does,
it is called duplicitous complaint or information.
Q: What is the remedy there?

A: Actually, you can file a Motion to Quash under Section 3 [f], Rule 117. But the defect is waivable because
if you do not file a Motion to Quash, the trial can proceed and if you are found guilty for committing 2 or more
crimes, then there will be 2 or more penalties (Section 4, Rule 120). Dapat diyan, one information, one crime.
485
That is the GENERAL RULE.
This seems to go against the rule in civil procedure about joinder of causes of action. In one complaint you
can join 2 or more causes of action, although you can also file 2 or more cases. Ano’ng tawag diyan? Joinder of
parties or joinder of causes of action. There is no such thing as joinder of crimes in criminal procedure.
EXAMPLE: The Patrick got a gun, went out of the street, then met three people. Binaril niya: Bang! Bang!
Bang! Tatlong tao patay!. Now, he commits three (3) crimes of homicide.
Q: Can I file one information accusing Patrick of 3 homicide committed on that day?
A: NO. That is duplicitous. There must three (3) informations, one for each victim.
Q: But that is troublesome. The evidence or the witnesses are identical. What is the remedy?
A: You file a Motion to Consolidate your trial – joint trial for the 3 criminal cases. That is the remedy, but not
1 information charging 3 acts of homicide unless the other party does not question the duplicitous character of
the information.
EXCEPTION. The rule prohibiting duplicitous complaints or informations provides for exceptions: “Except
when the law prescribes a single punishment for various offenses.” When the law provides only one penalty for
2 or more offenses then Section 13 is not violated. Examples:
EXAMPLE: COMPLEX CRIMES – when a single act produces 2 or more grave or less felonies or when one
offense is a necessary means to commit another. Actually, parang duplicitous yun eh kung tingnan mo because
you are accusing somebody of 2 homicides based on 1 single act. But that is only an exception. There is one
penalty anyway.
EXAMPLE: SPECIAL COMPLEX CRIMES. Robbery with homicide or Rape with Homicide. That is not
duplicitous. There is one penalty there.
EXAMPLE: DELITO CONTINUADO. The accused stole 2 rooster owned by 2 different people. Actually, there
are 2 acts of taking but in the eyes of the law, there is only one crime. The accused was motivated by single
criminal resolution.
EXAMPLE: Babang was charged of the crime of REBELLION. Rebellion – she took up arms against the
government, killed soldiers, burned government properties. “Duplicitous yan! Kadami-dami nyan o!” NO. That is
not duplicitous because based of the absorption doctrine – the common crimes are not to be treated as
separate crimes but are already absorbed in the rebellion. The SC said there is no crime such as rebellion
complexed with murder or homicide. But why do you have to recite all these things? That is merely a recital of
the manner of the crime of rebellion. That is not a violation of Section 13.
PEOPLE vs. BUENVIAJE
47 Phil. 536
FACTS: There was a special law penalizing in once section the crime of illegal practice of
medicine AND illegally advertising oneself as a doctor. The penalty of 5-year imprisonment shall be
imposed on a person who, not being a physician, practice medicine or advertise himself as a
physician. There is only one penalty for these acts. The information alleges: “That the accused is
charged of violating that law because he practiced medicine, or IN THE ALTERNATIVE, he advertised
himself as a doctor when in fact, he is not.”
ISSUE: Is the information duplicitous?
HELD: NO. When the information merely recites in the alternative or otherwise the different
ways of committing the offense like the information charges the accused for illegal practice of
medicine and with illegally advertising himself as a physician, there is only one crime because these
are only alternative ways of committing the crime.
The rule is different when the accused is charged of violating 2 different sections of the same law with
distinct penalties which, if charged in a single information, would render it duplicitous. (People vs. Ferrer, 101
Phil. 234)
SEC. 14. Amendment or substitution. – A complaint or information may be amended,

in form or in substance, without leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information, can
be made only upon motion by the prosecutor, with notice to the offended party and
with leave of court. The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the offended party. (n)
If it appears at anytime before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in accordance
with section 19, Rule 119, provided the accused shall not be placed in double
jeopardy. The court may require the witnesses to give bail for their appearance at
the trial. (14a)
In civil procedure, formal amendment – no problem. It can be allowed at any stage. Substantial amendment,
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for as long as there is still no responsive pleading, the plaintiff can amend his complaint anytime. Once a
responsive pleading is filed, substantial amendment is allowed but with leave of court.
In criminal procedure the rule is: for as long as the accused has not yet entered his plea – wala pang
arraignment, the accused has not yet pleaded guilty or not guilty – the information can be amended either in
substance or in form.
Q: What happens if the accused has already entered his plea? Can the information still be amended by the
prosecution?
A: As to FORM – Yes, as a matter of judicial discretion. Kailangan merong permission.
As to SUBSTANCE – Never! Bawal! 100% prohibited.
Q: How do you determine whether the amendment is formal or substantial? Sometimes madali, sometimes
mahirap. Kung wrong spelling lang, talagang formal yan.
A: According to the SC based on certain cases, the following are considered substantial and therefore
cannot be allowed after plea:
1. if the amendment changes the manner of the commission of the offense; (People vs. Zulueta, 89
Phil. 752)
2. if it changes the name of the offended party; (People vs. Uba, 99 Phil. 134)
3. if it changes the date of the commission of the offense; (People vs. Opemia, 98 Phil. 698)
Let’s say, from the year 2000 to 5 years backwards. Hindi pwedeng maging formal yan.
4. when the purpose of amendment is to make the information charge an offense when the original
information does not charge an offense; (Wong vs. Yatco, 99 Phil. 791) or
5. when it changes the fact or ground of responsibility alleged in the original information. (People vs.
Labatete, 57 O.G. 6783)
Example: from accomplice, gagawin kang principal. The same is not formal.
Q: How do you determine whether the amendment is as to form or substance?

A: An amendment which merely states with additional precision something which is already contained in the
original information, and which, therefore, adds nothing essential for conviction for the crime charged is an
amendment to form that can be made at anytime. (People vs. Montenegro, 159 SCRA 236)
Q: The amendment is substantial if the amendment will prejudice the rights of the accused. How do you
determine whether the rights of the accused are prejudiced?
A: The test as to when the rights of an accused are prejudiced by the amendment of a complaint or
information is when a defense under the complaint or information, as it originally stood, would no longer be
available after the amendment is made, and when any evidence the accused might have, would be inapplicable
to the complaint or information as amended. (People vs. Montenegro, 159 SCRA 236) Meaning, evidence which
could help you in the first place will no longer help you after the amendment – that is prejudicial.
BUHAT vs. COURT OF APPEALS

265 SCRA 701, December 17, 1996
FACTS: Danilo Buhat was charged with homicide in an information which alleged that the
accused killed the victim using superior strength. [Dapat diyan murder eh because of superior
strength] Accused Buhat pleaded not guilty. After that the prosecution sought to amend the
information by upgrading the crime charged from homicide to the more serious crime of murder.
ISSUE: Is the amendment SUBSTANTIAL or FORMAL?
HELD: It is FORMAL because the allegation of superior strength is already there. In other words,
from the very start, it was really meant to be murder. Mabuti sana kung dinagdag lang yung
superior strength. It is already there all along.
“The real nature of the criminal charge is determined not from the caption or preamble of the
information nor from the specification of the provision of the law alleged to have been violated, they
being conclusions of law which in no way affect the legal aspects of the information, but from the
actual recital of facts as alleged in the body of the information.”
“Petitioner in the case at bench maintains that, having already pleaded “not guilty” to the crime
of homicide, the amendment of the crime charged in the information from homicide to murder is a
substantial amendment prejudicial to his right to be informed of the nature of the accusation
against him. He utterly fails to dispute, however, that the original information did allege that
petitioner stabbed his victim “using superior strength”. And this particular allegation qualifies a
killing to murder, regardless of how such a killing is technically designated in the information filed
by the public prosecutor.”
Meaning, in the case of Buhat the prosecutor believes originally that it is homicide, but it is murder pala all
along. We are not adding anything new.
Kaya nga when I read it, I think there’s something wrong here with this kind of ruling. Just imagine, na-
capital crime ka, tapos formal amendment lang? You know my personal view in the case of Buhat, it should be
treated only as homicide with the aggravating circumstance of abuse of superior strength. But that was what
the SC said eh. Wala tayong magawa.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information, can
487
be made only upon motion by the prosecutor, with notice to the offended party and
with leave of court. The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the offended party. (n)
(second paragraph, Section 14, Rule 110)
The second paragraph of Section 14 is new. Take note in the case of Buhat, from homicide to murder. Ito
naman, baliktad. Let’s say before arraignment, sabi ng Fiscal: “Teka muna, di pala murder, homicide lang pala,”
So, gi-downgrade ba!
Now, if prosecutor will do that, he must notify the offended party, at least the family, so that he can be
heard before the trial court allows. So this time, the amendment is not a matter of right.
Again, when you amend a complaint or information to downgrade the nature of the offense or when the
amendment is to exclude an accused from the complaint or information, of course, it can only be done by
motion of the prosecutor, notice to the offended party, and decree of court. That is a new provision.

the trial. (Last paragraph, Section 14, Rule 110)
Let’s go to basic.
Q: After the trial, the crime proven is different from the crime charge. However, the former is included in the
latter. Will you dismiss the case?
A: NO, just convict the accused for the crime proven since the crime proven is included in the crime
charged.
EXAMPLE: Jenny was charged with murder. After trial, the prosecution proved homicide. What will the court
do? Dismiss the complaint for murder? NO. Jenny should be convicted for homicide because all the element of
homicide are also included in the crime of murder. (Rule 119)
However, that is not what Section 14 contemplates. What is contemplated by Section 14 is, the offense
proven is completely different from the crime charged and therefore the accused cannot be convicted for the
crime proven because the crime proven is not included in the crime charged.
Q: So what should the court do?

A: The court should dismiss the complaint or information upon the filing of a new information by the
prosecution. Provided, the principle of double jeopardy is not applicable.
Remember the case of Uba, where Vidz was charged with oral defamation for uttering slanderous remarks
against Jessamyn on a particular date and time. But during the trial, it turned out that the slander was
committed against Lyle. Now, can Vidz be convicted for the crime of slander against Lyle, when the information
says the crime was against Jessamyn? NO. Although the crime proven is the same, however the erroneous
designation of the offended party deals with entirely another crime committed against a different person.
Q: What should the court do in that case?

A: Following Section 14, the fiscal should file a new information almost exactly the same as the old one, now
the offended party is Lyle. The court will now dismiss the original charge which is entirely different.
Q: What do you call that?

A: SUBSTITUTION of complaint or information.
Q: Now, how do you distinguish substitution of information from amendment of information?

A: The case of
TEEHANKEE JR. vs. MADAYAG
207 SCRA 134
FACTS: This case was about the murder of Maureen Hultman. She was shot but did not die
immediately. So the crime charged was frustrated murder. But while the case was pending, Hultman
died. Therefore, the fiscal filed a new information for consummated murder.
ISSUE: Distinguish amendment of information from substitution of information? [This would be

clearer when we reach Rule 112 on Preliminary Investigation]
HELD: The first paragraph provides the rules for amendment of the information or complaint,
while the second paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information may be
made before or after the defendant pleads, but they differ in the following respects:
1. AMENDMENT may involve either formal or substantial changes, while SUBSTITUTION

necessarily involves a substantial change from the original charge;
2. AMENDMENT before plea has been entered can be effected without leave of court, but
SUBSTITUTION of information must be with leave of court as the original information has to
be dismissed;
488
3. Where the AMENDMENT is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in SUBSTITUTION of information,
another preliminary investigation is entailed and the accused has to plead anew to the new
information; and
4. An AMENDED information refers to the same offense charged in the original information or
to an offense which necessarily includes or is necessarily included in the original charge,
hence substantial amendments to the information after the plea has been taken cannot be
made over the objection of the accused, for if the original information would be withdrawn,
the accused could, invoke double jeopardy. On the other hand, SUBSTITUTION requires or
presupposes that the new information involves a different offense which does not include or
is not necessarily included in the original charge, hence the accused cannot claim double
jeopardy.
In amendment, you are not changing the crime. The crime is the same. Therefore, after the accused has
pleaded, you cannot change the information anymore. That is why substantial amendments can never be
allowed after the plea. If this rule is violated, he will be placed in double jeopardy because you are charging him
for the same offense or an offense necessarily included in the original charge.
On the other hand, substitution presupposes that the new information or complaint involves a different
offense which is not necessarily included in the in the original charge. Therefore, the accused cannot claim
double jeopardy. How can you invoke double jeopardy in substitution when the new charge is completely
different from the original charge?
I remember this was a 1992 decision. During the 1994 Bar exams, this was one of the questions that
entered into my mind. Nahulaan ko na lalabas ito eh. (ehem!): distinguish amendment from substitution. Just
remember the case of Teehankee Jr. vs. Madayag. I think that question was only 3 points. Alright.
SEC. 15. Place where action is to be instituted. (a) Subject to existing laws, the
criminal action shall be instituted and tried in the court of the municipality or
territory where the offense was committed or where any of its essential ingredients
occurred.
(b) Where an offense is committed in a train, aircraft, or other public or private
vehicle in the course of its trip, the criminal action shall be instituted and tried int eh
court of any municipality or territory where such train, aircraft, or other vehicle
passed during its trip, including the place of its departure and arrival.
(c) Where an offense is committed on board a vessel in the course of its voyage,
the criminal action shall be instituted and tried in the court of the first port of entry
or of any municipality or territory where the vessel passed during such voyage,
subject to the generally accepted principles of international law.
(d) Crimes committed outside the Philippines but punishable under Article 2 of
the Revised Penal Code shall be cognizable by the court where the criminal action is
first filed. (15a)
In civil case we call this venue. In criminal procedure, venue is also jurisdiction. It refers to territorial
jurisdiction. So if you file a criminal case in the wrong place, the accused could question the jurisdiction of the
court over the offense. This is one difference between civil and criminal procedure.
(a) Subject to existing laws, the criminal action shall be instituted and tried in
the court of the municipality or territory where the offense was committed or where
any of its essential ingredients occurred. (Section 15, Rule 110)
The word municipality here includes cities because it could be a city. Municipality definitely refers to a crime
triable by the MTC. The word territory refers to a crime triable by the RTC because of the provision of Section
18, BP 129 that every RTC has its own territory over which it resides, for purposes of venue in civil cases and
jurisdiction in criminal cases where the offense was committed or where any of the essential ingredients
occurred.
Q: Why does the law prescribes that the case be filed or tried in the place where the crime was committed?
A: The following are the reasons:
1. The interest of the public requires that, to secure the best results and effects in the punishment of
crimes, it is necessary to prosecute and punish the criminal in the very place, as near as may be
where he committed his crime (MRR Co. vs. Atty. General, 20 Phil. 523);
2. As to the interest of the accused, it would cause him great inconvenience in looking for witnesses
and other evidence in another place. (Beltran vs. Ramos, 96 Phil. 149)
The law says, the criminal case will be tried, where?

1. where the offense was committed; or
2. where any of the essential ingredients occurred.
WHERE THE OFFENSE WAS COMMITTED
This refers to what you call local offense. What do you mean by a local offense? It is an offense, which is
fully consummated in one place. Meaning, all the elements of the crime happened in that place.
WHERE ANY OF THE ESSENTIAL INGREDIENTS OCCURRED
489
This refers to what text writers call the continuing offense – where the elements occurred in 2 or more
places – one element occurs here, the other in another place. So either one can try the case. The venue in this
case is the choice of the prosecution.
And mind you, the word “continuing offense” should not be confused with the concept in criminal law – the
so-called continuous crime under Article 48 also known as “delicto continuado.” Dalawang klaseng continuing
crime, eh. One of the relatives of complex crime is “delicto continuado” – where a person performs a series of
acts but all emanating from one criminal resolution – but the issue to be resolved is: how many crimes were
committed by the accused? Yun ang tanong dun.
Ito namang “continuing offense”, the question here is: in which court of what place will the crime be tried?
Yan!
Q: How do you define a continuing offense or transitory crime?

A: It is a crime where the elements occur in several places.
EXAMPLE: KIDNAPPING or ABDUCTION. The accused kidnapped Eltor in Davao City and brought the Eltor in
Cotabato and hidden there. Same thing with abduction: Karen was abducted in Davao City and brought in
Cotabato.
Q: Where should the case of kidnapping or abduction as the case may be, be filed?
A: It could be filed in Davao where the victim was taken or abducted, or in Cotabato were the victim was
brought.
Q: Brod Pito took your vehicle here in Davao and brought it to Cotabato. Where should the crime of qualified
theft be tried? Davao or Cotabato? Is that a continuing offense or not?
A: Davao. It is a local offense. From the moment the car was taken in Davao, the crime has already been
consummated. It is not an indispensable requisite of theft that the thief carry, more or less far away, the thing
taken by him from its owner. (Duran vs. Tan, 85 Phil. 476) Theft is committed by taking personal things. Taking
is instant. From the moment it came to y our possession, tapos na!
Let’s go to the issue of FENCING – you buy stolen property. If you have known it is stolen, you are liable. But
take note: there can be no fencing if there is no robbery or theft. Fencing presupposes there is robbery or theft.
Q: Inday stole a property in Digos. It was brought here and Maritess bought it here in Davao. Maritess is now
charged with fencing. Of course Maritess can be charged here in Davao City because she bought it here. But
can the crime of fencing be also filed in Digos where the theft was committed on the theory that: how can there
be fencing unless there was theft? Therefore everything can go back to the place where the original crime was
committed. Is that correct?
A: It is NOT correct because fencing is not a continuing crime. It is a local offense. It is different from the
crime of theft or robbery. Both crimes are two different crime. The law on fencing does not require the accused
to have participated in the criminal design to commit, or to have been in any wise involved in the commission
of, the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in
order that it can be consummated. True, the object property in fencing must have been previously taken by
means of either robbery of theft but the place where the robbery or theft occurs is inconsequential.
It may not be suggested, for instance, that, in the crime of bigamy which presupposes a prior subsisting
marriage of an accused, the case should thereby be triable likewise at the place where the prior marriage has
been contracted. (People vs. De Guzman, October 5, 1993)
Q: ESTAFA or MALVERSATION. The company’s head office is in Makati. Kenneth is the representative of the
company assigned in Davao. He collects payments from customers in Davao and he is supposed to remit all his
collections to Makati. Kenneth did not remit his collections to Makati. Where should the case of estafa be
brought? Davao or Makati?
A: Either of the two. The crime is continuing. It shall be instituted in the place where the misappropriation
was committed OR in the place where the accused was to render his accounting. (U.S. vs. Mesina, 42 Phil. 67)
Let’s go to BOUNCING CHECKS law. Where should the criminal case for violation of bouncing checks law be
filed? Sometimes, fiscals get confused. You owe me, you are in Manila, then you issue a check in Manila and
sent it to Davao. Then I will deposit the check in Davao. Of course the bank will forward it to Manila for
clearance. The Manila bank dishonored it kay walang pondo. Where is the venue for such crime? That is what
happened in the case of
PEOPLE vs. GOROSPE
January 20, 1988
(reiterated in Lee vs. CA [1995])
FACTS: The accused is from Bulacan. He was a dealer of San Miguel products and he is under
the control of the Central Luzon Regional Office of San Miguel Corporation (SMC) which is in San
Fernando, Pampanga. So a representative of SMC went to Bulucan, collected from him, he issued
checks which were drawn in Bulucan. The checks were received by the representative of SMC and
went to the Head Office in Pampanga and turned-over it. The Pampanga office of SMC deposited the
checks with its depositary bank in San Fernando, Pampanga. The checks were sent to Bulacan for
clearing. Talbog! With this, series of cases were filed. Some cases were estafa. Some were for
violation of BP 22.
The accused challenged it because all these cases were filed in San Fernando, Pampanga eh.
According to him, the cases should be filed in Bulacan. Remember, the checks were Bulucan checks
and it was dishonored also in Bulacan. He said, “I did not deliver it in San Fernando. I gave it to your
490
representative. So the check was delivered to a representative. So the delivery was made in
Bulacan. Thus the Pampanga court has no jurisdiction.”
ISSUE: Is the contention of the accused correct?
HELD: NO! Mali! Actually, the crime is continuing because the crime continues up to the
delivery of the check to the Central Luzon Office of SMC in Pampanga. Under the Negotiable
Instruments Law, the delivery of the check must be made to a person who takes it as a holder or
bearer of the instrument. The checks are intended to be delivered in the Head Office because it is
the delivery in Pampanga which makes the payee the bearer or the holder – not the employer who
went to Bulacan. So tinamaan ang Pampanga court. In effect, it is a continuing crime.
In respect of the Bouncing Checks case, “it is likewise true that knowledge on the part of the
maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the
offense is by itself a continuing eventuality, whether the accused be within one territory or another.
Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of
Pampanga.” Meaning, wherever the checks go, the knowledge of insufficiency is a continuing
element.
Q: Where shall the criminal action for FALSIFICATION of a private document be filed?
A: It shall be filed in the place where the document was falsified, regardless of whether it was or was not
put to the illegal use for which it was intended. (U.S. vs. Barretto, 36 Phil. 204)
Q: Genie executed a false affidavit in Manila. It was sent to Davao to be used in a certain proceeding or
case. Where is the venue of the PERJURY?
A: It should be filed in the place where the false evidence was submitted and NOT in the place where the
false affidavit was subscribed and sworn to. (U.S. vs. Cañete, 30 Phil. 371)
Let’s go to some EXCEPTIONS:
Q: Are there instances where the crime is committed in this place but the trial can be filed in another place,
other than the place where the crime was committed?
A: YES, if the law says so because of the opening clause of paragraph (a) of Section 15 which says, “subject
to existing laws.” Meaning, this is the applicable rule unless other existing law says otherwise.
Q: Give instances where the crime maybe committed in one place but the law provided for a different venue
of trial.
A: The following:
1. Libel – under Article 360 of RPC, it is to be filed where the libelous matter was printed or first
published, or where the injured party resides or where he holds office;
2. Sandiganbayan Law – cases falling under the jurisdiction of the Sandiganbayan are tried in
designated places;
3. Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place of trial
to avoid a miscarriage of justice as what happened in the case of Sanchez and Misuari.
Those are the exceptions. All the rest covers other cases Paragraph (d) refers to crimes committed on board
a Philippine ship or airplane abroad. It is triable in the Philippines. Where in the Philippines? – where the criminal
action is first filed. Kung saan, mamili ang prosecution kung saan i-file.
SEC. 16. Intervention of the offended party in criminal action. – Where the civil action
for recovery of civil liability is instituted in the criminal action pursuant to Rule 111,
the offended party may intervene by counsel in the prosecution of the offense. (16a)
Of course, the prosecution is under the control of the fiscal but the law says, the private offended party can
intervene through counsel. That is what you call the appearance of the private prosecutor.
Q: When is it allowed?
A: The following are the requirements:
1. if there is civil liability arising from the crime because the purpose of the private prosecutor is to
protect the civil liability of the offended party;
2. there is no waiver. The offended party should not waive the civil liability;
3. the offended party should not have reserved to file a separate civil action because once you have
made a reservation, wala na. You cannot anymore hire a private prosecutor;
4. the civil action has not been previously instituted because if the civil action is already filed, you
cannot intervene in the criminal case.
Q: What are the rights of the offended party in a criminal action?

A: The following:
1. to take part in the prosecution of the offense;
2. to recover civil liability from the accused arising from the crime; and
3. to appeal from any judgment or order adversely affecting his claim to such civil liability. (People vs.
Velez, 77 Phil. 1026)
Q: Give the limitations to the offended party’s right of intervention in a criminal action.
A: The following:
1. such intervention shall be under the direction and control of the fiscal (Section 5);
2. such intervention shall only be for the purpose of enforcing the accused’s civil liability arising from
the crime. (People vs. Velez, supra)
One of the interesting case decided based on Section 16 is the 1987 case of
491
BANAL vs. TADEO, JR.
156 SCRA 325
FACTS: This is a case for violation of BP 22. The offended party hired a private prosecutor to
prosecute the case. The accused challenged the appearance of the private prosecutor on the
ground that BP 22 does not provide for any civil liability and therefore there is no civil liability.
So the trial court disqualified the private prosecutor. The offended party went to the SC.
ISSUE: Is a private prosecutor allowed to intervene in a BP 22 case?
HELD: YES. A private prosecutor is allowed to intervene in a BP 22 case because there is a civil
liability in BP 22 even if the law silent about it.
Normally lawyers would say that civil liability in a criminal case arises from the crime; because
of the crime, there is civil liability. According to the SC: WRONG!! It is not the crime which is the
source of the civil liability. It is the damage that the accused caused to the victim!
“The generally accepted notion that the civil liability actually arises from the crime a
misconception or fallacy. [Masyadong malalim ang discussion ng SC dito] “While an act or omission
is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things pragmatically, we can readily see
that what gives rise to the civil liability is really the obligation and the moral duty of everyone to
repair or make whole the damage caused to another by reason of his own act or omission, done
intentionally or negligently, whether or not the same be punishable by law. In other words, criminal
liability will give rise to civil liability only if the same felonious act or omission results in damage or
injury to another and is the direct and proximate cause thereof. Damage or injury to another is
evidently the foundation of the civil action. Such is not the case in criminal actions for, to be
criminally liable, it is enough that the act or omission complained of is punishable, regardless of
whether or not it also causes material damage to another. Article 20 of the New Civil Code provides:
“Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.”
“Regardless, therefore, of whether or not a special law so provides, indemnification of the
offended party may be had on account of the damage, loss or injury directly suffered as a
consequence of the wrongful act of another. The indemnity which a person is sentenced to pay
forms an integral part of the penalty imposed by law for the commission of a crime. Every crime
gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action
for the restitution of the thing, repair of the damage, and indemnification for the losses.”
The ruling in Banal seems not to jive with Article 1157 of the New Civil Code. Under Article 1157, the
following are the sources of obligations:
1. laws;
2. contracts;
3. quasi-contracts;
4. quasi-delicts;
5. acts or omissions punishable by law.
According to Article 1157, a crime punishable by law is a source of obligation. But in the case of Banal, the
SC says NO, it is not the act or omission but the damage or injury resulting from such act or omission. That is
how to reconcile these two ideas.
Q: We will go back to the issue in Banal – is there civil liability in BP 22 cases?

A: YES because the offended party cannot get back his money. If there is damage, there is civil liability even
if the law is silent. Huwag mo na lang hanapin ang provision ng civil liability. For as long as there is damage,
there is civil liability. Yaaann!
Rule 111
PROSECUTION OF CIVIL CASES
SECTION 1. Institution of criminal and civil actions. – (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it separately or institutes
the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made
before the prosecution starts presenting its evidence and under circumstances
affording the offended party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by
way of moral, nominal, temperate, or exemplary damages without specifying the
amount thereof in the complaint or information, the filing fees therefore shall
constitute a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon
the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for
actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused
in the criminal case, but any cause of action which could have been the subject
thereof may be litigated in a separate civil action. (1a)
492
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed
to include the corresponding civil action. No reservation to file such civil action
separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party
shall pay in full the filing fees based on the amount of the check involved, which
shall be considered as the actual damages claimed. Where the complaint or
information also seeks to recover liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall pay additional filing fees based on the
amounts alleged therein. If the amounts are not so alleged but any of these damages
are subsequently awarded by the court, the filing fees based on the amount awarded
shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with
the court trying the latter case. If the application is granted, the trial of both actions
shall proceed in accordance with section 2 of this Rule governing consolidation of the
civil and criminal actions. (cir. 57-97)
We will now go to Rule 111. This rule has been subjected to many amendments although the amendments
may not be very radical. As a matter of fact, they only incorporate jurisprudence or principles laid down in
decided cases. The main principle is: when a criminal action is filed, the civil action of the recovery of the civil
liability arising from the offense charged is deemed instituted with the criminal action.
What is the basis for that principle? The basis is Article 100 of the RPC, “Every person criminally liable is
also civilly liable.” When you say deemed instituted, it does not only cover the civil liability of the accused
himself but also the probable subsidiary civil liability of the employer under Article 103. You already knew of
that rule that when an employee-accused is adjudged criminally liable and is insolvent, the employer of that
accused who committed the crime while he was in the discharge of his duties will be the one to answer the civil
liability. That is why the SC said that whether he likes it or not, he is covered. It is advisable for the employer in
that situation to help his employee in the criminal case because he will also be prejudiced if his employee will
be convicted. To borrow the language of the SC, whether he likes it or not, he is a forced intervenor in the
criminal case filed against his employee.
Q: When is a civil action arising from a crime NOT deemed instituted with the criminal action?
A: The civil action is NOT deemed instituted with the criminal action:
1. when the offended party has waived the civil aspect of the case;
2. when the offended party has reserved his right to file a separate civil action; or
3. when the civil action was filed or instituted ahead of the criminal action.
4. when the crime is one to which no civil liability attaches. (People vs. Maceda, 73 Phil. 679)
5. when the civil action was filed in court before the presentation of the evidence for the prosecution
in the criminal action of which the judge presiding on the criminal cases was duly informed. (Yakult
Phils. vs. CA, 190 SCRA 357);
According to the second paragraph, the reservation must be made before the prosecution starts presenting
its evidence and under circumstances affording the offended party reasonable opportunity. Before the trial,
kailangan mag-reserve na siya. Otherwise the court will consider the civil aspect deemed instituted.
YAKULT PHILS. vs. COURT OF APPEALS

190 SCRA 357 (1990)
FACTS: In a criminal case, the offended party did not make a reservation but there is still no
trial. However, without making a reservation, the offended party filed a civil action. After such filing,
the offended party told the court trying the criminal case, that he has already filed a separate civil
case so that the court will not include anymore the civil aspect.
ISSUE: Is there a proper filing of the civil action without making a reservation? Was the civil
action filed ahead of the criminal case?
HELD: NO. However, there is no question that after filing the civil case he told the court that he
already filed a separate civil action and that is even a better reservation. In effect, there was an
automatic reservation although normally, reservation is done before the filing of the criminal case.
Ito naman, filing before he informed the court.
Q: Has the offended party the right to claim and prove damages in the criminal action where the complaint
or information is silent as to such claim?
A: Every person criminally liable is also civilly liable. Therefore, even if the complaint or information is silent
as to damages, the offended party has the right to claim and prove them in the criminal case, unless a waiver
or a reservation of the civil action is made. (People vs. Rodriguez, July 29, 1959; Roa vs. dela Cruz, Feb. 13,
1960)
So it is possible for the information to recite the claim for civil liability or hindi na kailangan. The only
difference is: if the information mentions the claim of the civil liability, the offended party is required to pay the
docket fee provided the docket fee is only for any claims for moral, exemplary and nominal damages. There is
no docket fee for actual damages.
Q: Suppose there was no mention of any claim for moral or exemplary damages, can he still prove them
during the trial? YES. But he did not pay docket fee?
A: Never mind, once it is awarded, there is now a lien in the judgment for the payment of the docket fee.
493
So there is difference in the rule in docket fee in civil and criminal cases. Remember the case of Sun
Insurance in civil procedure? If the docket fee was not mentioned in the complaint in the civil case they are
deemed waived. You must pay the docket fee at the start of the case though if it is not mentioned, you are
given the chance to complete the payment or amend the complaint within reasonable time. In criminal cases,
even if there is no mention of damages in the information, you can still prove and claim them as long as there is
no waiver or reservation.
So in criminal cases, if the claim for moral or exemplary damages is mentioned in the information, you must
pay the docket fee upon filing of the information. But whether alleged in the information or not, you can claim
for actual damages and there is no docket fee for actual damages except in cases under BP 22. That is the
exception which is now embodied in Section 1 paragraph [b] which was take from SC circular 57-97 – there is no
payment of docket fee for actual damages except in criminal cases for violation of BP 22 because paragraph [b]
says:
Upon filing of the aforesaid joint criminal and civil actions, the offended party
shall pay in full the filing fees based on the amount of the check involved, which
shall be considered as the actual damages claimed.
Now, take note of the ruling in the case of Cabaero vs. Cantos mentioned in civil procedure which is now
incorporated in the last paragraph of Section 1, paragraph [a]:
No counterclaim, cross-claim or third-party complaint may be filed by the accused

in the criminal case, but any cause of action which could have been the subject
thereof may be litigated in a separate civil action.
That’s the Cabaero case which reversed Javier vs. IAC, (171 SCRA 376) and Shaffer vs. RTC, (167 SCRA
376).
SEC. 2. When separate civil action is suspended. – After the criminal action has been
commenced, the separate civil action arising therefrom cannot be instituted until
final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been
instituted, the latter shall be suspended in whatever state it may be found before
judgment on the merits. The suspension shall last until final judgment is rendered in
the criminal action. Nevertheless, before judgment on the merits rendered in the
civil action, the same may, upon motion of the offended party, be consolidated with
the criminal action in the court trying the criminal action. In case of consolidation,
the evidence already adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of the prosecution to
cross-examine the witness presented by the offended party in the criminal case and
of the parties to present additional evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.
During the pendency of the criminal action, the running period of prescription of
the civil action which cannot be instituted separately or whose proceeding has been
suspended shall be tolled. (n)
The extinction of the penal action does not carry with it extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist. (2a)
Let’s go to Section 2. Suppose the offended party made a reservation to institute a civil action and a
criminal case is filed, he cannot file the civil action – that’s the rule. He must wait for the outcome of the
criminal case. The criminal case enjoys priority.
The reason here is that there might be an embarrassment in the administration of justice. You allowed the
filing of the civil and criminal cases together. Same evidence, same incident. In the criminal case, the accused
was convicted but in the civil case the claim for damages was dismissed because the offended party failed to
proved his claim by preponderance of evidence. That is something absurd!
So the best thing is unahin muna ang criminal case because anyway if there is an acquittal in the criminal
case, you can still recover in the civil case because it is only a preponderance of evidence, or the accused may
be acquitted by reason of an exempting circumstance and yet it does not exempt him from civil liability in
another civil action.
Take note that what is suspended is the civil action arising from the criminal act. (opening paragraph of
Section 2; Article 1157, New Civil Code)
Q: What happens if na-una na-file yung civil action?

A: According to Section 2, from the moment the criminal case is filed, the trial of the civil case is suspended
to wait for the outcome of the criminal case.
Q: Is this prejudicial to the offended party?

A: There is a way out according to Section 2. The first thing for him to do is to file a petition to consolidate
the trial of the criminal and civil case for them to be tried together and the evidence already presented in the
civil case is deemed automatically reproduced in the criminal case. This is what you call the consolidation of the
civil and criminal action under Section 2.
Q: Is this consolidation mandatory?

A: NO. It is permissive. Actually, the offended party is the one to initiate this because if not, then he has to
wait for the criminal case to be terminated before he can file the civil case.
494
Q: What are the instances when the offended party is not allowed to make a reservation therefore requires
a mandatory consolidation?
1. Violations of BP 22. (Paragraph b, Section 1, Rule 111);

2. Libel – under Article 360, RPC;
3. Mandatory consolidation under the Sandiganbayan law. For example, a criminal case is supposed to
be tried by the SB and then you file a civil case before the ordinary courts. What will happen now to
the civil case? The law says there must be a mandatory consolidation of both cases in the SB.
Q: What happens if the filing of the civil action will have to wait for the outcome of the criminal case, baka
nag-prescribed na yung civil action?
A: Read 3rd paragraph of Section 2:
During the pendency of the criminal action, the running period of prescription of
the civil action which cannot be instituted separately or whose proceeding has been
suspended shall be tolled. (n)
Ayun! The running of the prescriptive period shall be suspended. This was the doctrine in the case of People
vs. Bayotas.
There is something new in the 2nd paragraph about consolidation. When the civil case is filed ahead, the
filing of the criminal case will suspend the civil unless there is a petition to consolidate in which case the
evidence presented in the civil case is automatically considered reproduced in the criminal case. Now read this
part, third paragraph of Section 2:
“x x x In case of consolidation, the evidence already adduced in the civil action

shall be deemed automatically reproduced in the criminal action without prejudice to
the right of the prosecution to cross-examine the witness presented by the offended
party in the criminal case and of the parties to present additional evidence. x x x”
What is new here is the phrase “without prejudice to the right of the prosecution to cross-examine the
witnesses presented by the offended party in the criminal case…” I was wondering, there is something wrong
here. I believe there is a typographical error here. Di ba the witnesses of the offended party in the civil case are
also the witnesses of the prosecution in the criminal case? I was wondering why will the fiscal cross-examine his
witnesses? I think the phrase really means “the witnesses presented by the accused”.
Let’s go to some decided cases.
CAÑOS vs. PERALTA

115 SCRA 843
FACTS: The case of Caños was decided before the 1985 Rules. Here, there was reservation.
There were two (2) cases arising out of the same incident. At that time, there was still no specific
rule on consolidation. Judge Peralta ordered the consolidation of the criminal and civil cases and
that was questioned.
ISSUE: Was the consolidation proper? If so, how do you reconcile these cases because the
degree of proof in the criminal case is not the same in the civil case?
HELD: The consolidation was proper under Rule 31 because there is a common question of fact
and law. They can be consolidated but for purposes of decision, the court will now apply two (2)
different criteria: Proof beyond reasonable doubt in the criminal case and preponderance of
evidence in the civil case. So there is no incompatibility.
Now, here comes the 1985 Rules on consolidation and one of the first cases which reached the SC involving
the new Rules was the case of Naguiat.
NAGUIAT vs. IAC

164 SCRA 505
FACTS: Naguiat filed a case against a subdivision development corporation where he bought a
lot in installment basis. Under the subdivision law kapag bayad na, you issue the title. But according
to Naguiat, bayad na pero hindi binigay yung title. So he filed a case for specific performance with
damages against the subdivision and he also filed a criminal case against the president of the
corporation for failure to deliver to him the title of the land under PD 957. Now, he filed a motion to
consolidate under Rule 111.
ISSUE: Is the motion to consolidate proper?
HELD: NO. They cannot be consolidated under Rule 111 because what can be consolidated is a
criminal case together with a civil case for damages from the crime committed. In other words,
damages “ex delicto.” But here, the criminal case was filed against the officers of the corporation
for damages and a civil case for specific performance was also filed against the same officers. That
civil case arose from a contract, i.e. “ex contractu.” [So if the civil case arose from a contract, it
cannot be consolidated with the criminal case under Rule 111.]
But because it cannot be denied that it would be better if we try them together because we are
talking of the same incident – failure to deliver the title – why not consolidate the two cases under
Rule 31, citing the case of Caños vs. Peralta. In that case, the only ground was there was a common
question of fact and law so they should be consolidated under Rule 31 and NOT Rule 111.
495
The extinction of the penal action does not carry with it extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist. (2a) (Last paragraph, Section 2,
Rule 111)
Yan! If the accused is acquitted, it will not bar the offended party from filing a civil action because the
extinction of the penal action does not carry with it the extinction of the civil action because for all you know in
the civil case the accused may be found liable.
It is now emphasized in the new rules “however, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist.” This means that if the accused is acquitted based on reasonable
doubt, there could still be civil liability arising from the crime or when the accused is acquitted based on an
exempting circumstance. But when the accused is acquitted on the ground that the act or omission from which
the civil liability may arise did not exist, that is the end of the civil liability arising from a crime.
Q: However, if I file an action based on quasi-delict, can it prosper?

A: YES, because it is now established that the action based on delict is extinguished but not on quasi-delict,
a contract, or other sources of obligation. This is the ruling in the case of Bayotas in criminal law – that, for
example, once the accused dies, the civil liability arising from crime is already extinguished but you can still file
a case against the estate of the deceased accused provided you can find another source of the obligation. This
ruling was emphasized in the 1998 case of
SALAO vs. COURT OF APPEALS

284 SCRA 493, January 22, 1998
HELD: The civil liability referred to in this Rule is the civil liability arising from crime ( ex delicto).
It is not the civil liability for quasi-delict which is allowed to be brought “separately and
independently” of the criminal action by Art. 33 of the Civil Code. The civil liability based on such
cause of action is not extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. Indeed, because the
offended party does not intervene in the criminal prosecution, it is entirely possible that all the
witnesses presented in the civil action may not have been presented by the public prosecutor in the
criminal action with the result that the accused in the criminal case may be acquitted.
So remember ha, in the case of Salao the offended party has no intervention in the criminal case. He does
not know how the public prosecutor handled the case, baka ang testigo kulang kaya na-acquit. So paano ako
(offended party)? I will file my own civil case and maybe I will use quasi-delict as the basis and no longer the
delict.
These are the complicated portion of this rule. As a matter of fact, there are queer cases decided by the SC
even before the new rules like the 1987 case of
RUFO MAURICIO CONSTRUCTION vs. IAC

November 27, 1987
FACTS: A driver of the construction company collided with a car, killing the owner. What was
filed was a criminal case against the driver. No reservation was made. Therefore the civil liability
arising from the crime is already instituted. The driver was convicted. On appeal, the driver died.
ISSUE: What will happen to the civil liability arising from the crime? Can you enforce it against
the employer based on Article 103, RPC on subsidiary liability?
HELD: NO, because there was no judgment of conviction which became final. There must be a
judgment of conviction against the employee; it must be final; he must be proven insolvent. But the
trouble is he died. So you cannot enforce the subsidiary liability of the employer.
However, if this was quasi-delict, you can file a direct action against he employer because in
quasi-delict, the liability of the employer is primary, not subsidiary. The SC treated the case as an
action for quasi-delict against the employer but that is unfair for the employer because he never
participated in the trial of the civil case. According to the SC, we will put it back and now you will
cross-examine them (Dean I: Ano’ng klaseng procedure ito?!). This is what the SC said:
“The death of the accused during the pendency of his appeal or before the judgment of
conviction became final and executory extinguished his criminal liability but not his civil liability
should the liability or obligation arise not from a crime but from a quasi-delict. The liability of the
employer here would not be subsidiary but solidary with his driver unless said employer can prove
there was no negligence on his part at all, that is, if he can prove due diligence in the selection and
supervision of his driver.”
“Inasmuch as the employer was not a party in the criminal case, and to grant him his day in
court for the purpose of cross-examining the prosecution witnesses on their testimonies on the
driver's alleged negligence and the amount of damages to which the heirs of the victim are entitled,
as well as to introduce any evidence or witnesses he may care to present in his defense, the
hearing on the motion to quash the subsidiary writ of execution must be reopened precisely for the
purpose adverted to hereinabove.”
This is the only instance I knew that the criminal case against a driver ended up as a case for quasi-delict
against the employer. In other words, sh-in-ort-cut-short-cut ng SC yung procedure eh!
496
SEC. 3. When civil action may proceed independently. – In the cases provided in
Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil
action may be brought by the offended party. It shall proceed independently of the
criminal action and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same act or
omission charged in the criminal action. (3a)
Let’s go back to basic rules.
Q: Which takes precedence when there is reservation, the criminal or the civil action?
A: The criminal action takes precedence. The filing of the criminal suspends the filing of the civil action. If
the civil action is filed, the civil action is deemed suspended unless there would be consolidation.
Now, the rule about the filing of the criminal action will suspend the filing of the civil action, and the rule
about the subsequent filing of the criminal action will suspend the trial of the civil case, however, DOES NOT
apply if the civil action is classified as an independent civil action under Section 3. This is another important
provision.
Q: What are the independent civil actions under the law?

A: They are those covered by Articles 32, 33, 34, and 2176 of the New Civil Code.
Take note that you have to know what is Article 32, 33, 34, 2176. It is not enough that you memorize the
articles. What is Article 32 all about? What kind of civil action is referred thereto? Or what is the civil action
referred to in Article 34? I think nandito yung when the civil action is based on a violation of a constitutional
right. Article 33 is the most famous… when the civil action is defamation, fraud and physical injuries.
Here (Section 3), the criminal action and the civil action can be filed simultaneously and the trial of the two
cases can go on separately and independently of the other without regard to the latter. Unlike when the civil
action is not classified as independent, where it is governed by Section 2, it will be suspended in the meantime.
That is the important point to remember in this rule.
COJUANGCO, JR. vs. COURT OF APPEALS

203 SCRA 629
FACTS: In this case, there was an independent civil action for recovery of civil liability arising
from defamation filed by Cojuangco against a media company. So there were two (2) cases – a
criminal action for libel under the RPC and a civil case for damages arising from defamation under
Article 33 of the Civil Code. The question is: can the two cases be consolidated under Section 2? –
because one argument is you only consolidate the civil action if it is not independent action. But
anyway, independent man ito – why will consolidate?
ISSUE: May a civil action for damages arising from defamation (independent civil action) and
the criminal case for libel be consolidated?
HELD: YES, they can be consolidated under Rule 31 of the Rules of Court, citing again the case
of Caños vs. Peralta, because there is a common question of law and fact.
“Section 1, Rule 31 of the Rules of Court authorizes consolidation of actions involving common
questions of law or fact pending before the court. The purpose or object of consolidation is to avoid
multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets,
simplify the work of the trial court, and save unnecessary costs or expense; in short, the attainment
of justice with the least expense and vexation to the parties litigants. This provision applies to both
civil and criminal actions. The case Caños had removed any doubt on this point.” [So even if we
disregard Rule 111 Section 2, it can be consolidated under Rule 31]
“There is yet a further consideration why in the instant case consolidation of civil case and the
criminal case should be allowed. What is involved is the crime of libel. As correctly stated by
petitioners, per the third paragraph of Article 360 of the Revised Penal Code, as amended, the
criminal case for libel and the civil action for damages arising therefrom must be filed in the same
court.”
In other words, if there is a second reason why consolidation should be allowed, that reason is
Article 360 of the RPC on libel. While there maybe 2 separate actions in libel – damages and
criminal case – Article 360 orders the consolidation of the two. That is mandated under Article 360.
The next question is: Suppose I will file an independent civil action, do I have to make a reservation? The
civil action specified is an independent one. Take note that under Section 1, when you file a criminal case
without making a reservation, the civil action is already deemed instituted unless you make a reservation.
There were some confusions on that point because in the old cases of GARCIA VS. FLORIDO (52 SCRA),
ABELLANA VS. MARABE (57 SCRA), the SC implied that when the civil action is independent, there is no need to
make a reservation. That is an implication because it is independent – why should its filing be dependent on
reservation?
However, the 1985 Rules on criminal procedure made reservation mandatory even in independent civil
actions. Section 3 of the 1985 Rules says, “in the cases provided in Articles 32, 33, 34 and 2176 of the Civil
Code, the independent civil action which has been reserved may be brought by the offended party, shall
proceed independently.” So in the instructive case of MANIAGO VS. CA, (253 SCRA 674) as well as the case of
SAN ILDEFONSO VS. CA, (289 SCRA 568), the SC ruled that there is still a need, whether a civil action is
independent or not, to make a reservation, otherwise the civil action is deemed instituted.
497
NOW, you will notice in Section 3 of the new rules, that phrase “which has been reserved” is deleted. So
based on the language of the new rules, babalik na naman tayo sa FLORIDO and MARABE ruling, that an
independent civil action NEED NOT BE RESERVED. Therefore, the ruling in the MANIAGO and SAN ILDEFONSO
cases is deemed abandoned by the SC.
SEC. 4. Effect of death on civil actions. – The death of the accused after arraignment
and during the pendency of the criminal action shall extinguish the civil liability
arising from the delict. However, the independent civil action instituted under
section 3 of this Rule or which thereafter is instituted to enforce liability arising from
other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the
case may be. The heirs of the accused may be substituted for the deceased without
requiring the appointment of an executor or administrator and the court may appoint
a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the
manner especially provided in these rules for prosecuting claims against the estate
of the deceased.
If the accused dies before arraignment, the case shall be dismissed without
prejudice to any civil action the offended party may file against the estate of the
deceased. (n)
Section 4 is entirely new. The first sentence is enunciated in the case of Bayotas – the death of the accused
after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from
the delict – the civil liability arising from the crime is deemed extinguished which you have taken up already in
criminal law. However, the independent civil action instituted under Section 3 of this Rule or which thereafter is
instituted to enforce liability arising from other sources – meaning, another source other than the delict – may
be continued against the estate or legal representative of the accused after proper substitution as the case may
be.
Balik na naman tayo sa civil procedure nito. The action survives – there will be substitution. This is actually
a repetition of civil procedure – “the heirs of the accused maybe substituted for the deceased without requiring
the appointment of an executor or administrator and the court may appoint a guardian…” That is a repetition of
Rule 3, about substitution of a party. But the civil action here refers to a civil action where the source of a claim
is not a crime, wala na eh, extinguished na kaya it could be a contract or a quasi-delict.
Q: On the third paragraph, assuming there is a judgment. How will you enforce it? By execution?
A: NO. You must file it as a claim against he estate. As a rule, there is no execution. All the creditors mush
share equally with the assets. That is Special Proceedings: what claims must be filed against the estate of the
deceased?
Q: Last paragraph. In case before arraignment, namatay – wala na! – the criminal liability is extinguished.
What happens now to any possible civil action which the offended party may file?
A: He can file it against the estate of the deceased but the assumption is, it is based on quasi-delict or any
other sources of obligation other than the crime.
SEC. 5. Judgment in civil action not a bar. – A final judgment rendered in a civil action
absolving the defendant from civil liability is not a bar to a criminal action against
the defendant for the same act or omission subject of the civil action. (4a)
Section 5 is the exact opposite of Section 2 because the last paragraph of Section 2 says “the extinction of
the penal action does not carry with it the extinction of the civil action.” Itong Section 5 naman, baliktad! – the
extinction of civil action. Is the criminal action also extinguished? NO. “A final judgment rendered in a civil
action absolving the defendant from civil liability is not a bar to a criminal action against the defendant.”
Now, what is new here is the last clause – “for the same act or omission subject of the civil action” –
because for all you know, the evidence submitted in civil case might be incomplete and the government has
better evidence in the criminal action.
SEC 6. Suspension by reason of prejudicial question. – A petition for suspension of the

criminal action based upon the pendency of a prejudicial question in a civil action
may be filed in the office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal action at any time before the
prosecution rests. (6a)
SEC. 7. Elements of prejudicial question. – The elements of a prejudicial questions

are: (a) the previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action, and (b) the resolution
of such issue determines whether or not the criminal action may proceed. (5a)
The concept of prejudicial question is the exact opposite of Section 2 because in Section 2, unless
independent civil action, the filing of the criminal action will cause the suspension of the civil action. Ito naman,
baliktad – the filing of the civil case will suspend the criminal case – that is, if there is a prejudicial question
involved in the civil case.
Q: What is a prejudicial question?
498
A: A prejudicial question is that arising in the civil case but which is so intimately connected with the issues
involved in the criminal case as to be determinative of the innocence or guilt of the accused. (Mendiola vs.
Macadaeg, February 27, 1961)
So the resolution of the civil action will determine the guilt or innocence of the accused in the criminal case.
The guilt or innocence of the accused will depend on the outcome of the issue in the civil case kaya paunahin
natin ang civil.
Q: How do you determine whether a question is prejudicial?

A: The elements of a prejudicial question are found in Section 7:
1. the previously instituted civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action, and
2. the resolution of such issue determines whether or not the criminal action may proceed.
Q: What will happen to the criminal case filed in the court?

A: It will be suspended. The accused will have to file a motion for the suspension of the proceeding.
For example, Rod is accused of bigamy for marrying twice. However, there is a civil case also pending
where the issue is whether his first marriage is valid or not. Kung valid yon, patay ka! – bigamy! Kung void
naman yun, there is no bigamy.
PEOPLE vs. ARAGON

94 Phil. 357
FACTS: Pches contracted a second marriage with Cholo, a married man. The latter
subsequently married Thea, the second girl. Cholo was prosecuted for bigamy. Thea, the second
wife filed an action to declare her marriage as defective because of the force employed against her
by Cholo. And, even if his first marriage is not valid, sabi niya (Thea), yung akin ay voidable pa rin
because my consent was secured through force or intimidation.
Sabi naman ni Cholo, kung ganun, it is prejudicial. We will have to wait for the result of that
case filed by the second wife (Thea) whether really I used force or intimidation to get her consent.
So the case of bigamy should not be tried.
HELD: Cholo is wrong because it was him, who is accused of bigamy, who employed the force.
Cholo cannot use his own malfeasance to defeat the action based on the criminal act. Ikaw and nag-
gawa ng force tapos you use the force to suspend the criminal case? Di puwede yan! There is
something wrong in that situation.
But assuming it is Thea who is accused of bigamy for contracting a second marriage with the man. And the
woman says, “It is true pero pinilit niya ako. Ayoko man ba!” So she filed an action to declare the second
marriage defective on the ground of vitiated consent. Ayan! Prejudicial yan because she is the victim [of force
and intimidation]. Really, if her second marriage was obtained without her consent, how can she be guilty of
bigamy? Yan! Pwede yan!
CASE: (decided by Court of Appeals) A criminal case was filed against Kenneth for forcible abduction with
rape. While the criminal case was pending, there was a supposed marriage between him and his victim
(Hannah) para ma-extinguish ang criminal liability ni Kenneth. But Hannah filed a case to declare the marriage
as null and void. Question: Will the pendency of the civil case for nullity of marriage filed by Hannah be
considered as prejudicial question to determine whether the forcible abduction case will proceed to the SC?
RULING: According to the CA, YES because of this argument: suppose it is proven that the marriage
between the Kenneth and the Hannah is null and void, therefore, the criminal liability of Kenneth for forcible
abduction with rape cannot be extinguished because the marriage is a false one. However, if it turned out that
the marriage is really valid, then the criminal case for abduction will definitely be extinguished.
CASE: This one is squatting. André was accused under the anti-squatting law for occupying the property of
Eumir. In another civil case, the issue is ownership of the same property between André and Eumir. They are
quarreling as to who is really the owner. Here, kailangan muna matulog ang criminal case. Depende yan kasi
kung sinong manalo sa civil case. How can you be a squatter if it turns out that you are the owner of property.
So it is considered as prejudicial question.
The last point to consider here:
Q: Can you raise a prejudicial question as a ground to suspend the preliminary investigation before the
fiscal’s office? Or, does the issue of prejudicial question only applicable when the case reaches the court?
A: Prejudicial question can be raised as a ground to suspend a preliminary investigation. Section 6 says, “a
petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action
may be filed in the office of the prosecutor or the court conducting the preliminary investigation.”
Of course, when the criminal action has been filed in court, the petition for suspension must be filed in the
same criminal action.
The first case where the SC said that prejudicial question can be raised even in the preliminary investigation
was first laid down in the 1940 case of DE LEON VS. MABANAG (72 Phil. 202).
However in 1962, the SC had a change of mind in the case of DASALLA VS. CITY ATTORNEY, (5 SCRA 193)
where the SC said, the suspension on the ground of prejudicial question only applies when the case is already in
court but not where the case is still under preliminary investigation. The ruling in Mabanag is abandoned. The
Dasalla ruling was reiterated in the case of FALGUI VS. PROVINCIAL FISCAL OF PAMPANGA, 62 SCRA 462.
499
However, when the 1985 rules were enacted, you will notice in Section 6 that the issue of prejudicial
question may be raised in the office of the prosecutor or the judge conducting the preliminary investigation.
That means the resurrection of the Mabanag ruling in 1940 and the abandonment of the subsequent cases of
Dasalla and Falgui, Jr. So binalik nila ang Mabanag.
Rule 112
PRELIMINARY INVESTIGATION
SECTION 1. Preliminary investigation defined; when required.– Preliminary

investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is
required to be conducted before the filing of a compliant or information for an
offense where the penalty prescribed by law is at least four (4) years, two (2)
months and one (1) day without regard to the fine. (1a)
Alright. We will now go to Preliminary Investigation. This is one of the features of the inquisitorial system of
criminal procedure. The government is the boss. The purpose is for determining whether there is probable
cause, not guilt or innocence of the accused, because what is probable cause to you may not be probable
cause sa akin. That is why you can see the fiscal as a very powerful person in the government. He could say
that there is probable case or there is none. Depende kung anong gusto niya.
So, the government through the investigating officer will decide whether there is a case or no case. He will
first conduct an investigation and if he believes that there is a probable cause, then he will prepare a resolution
recommending to this superior that the respondent be indicted in court.
The purpose of preliminary investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and
anxiety of a public trial, and also to protect the state from useless and expensive trials. (Marcos vs. Cruz, 68
Phil. 96; Hashim vs. Boncan, 71 Phil. 216)
Q: Is Preliminary Investigation required in all criminal cases?

A: Under the new rules, it is required when the crime for which the respondent is charged carries a penalty
of at least four (4) years, two (2) months, and one (1) day.
Q: What happen if a case is filed in court without preliminary investigation? Can the accused file a motion to
quash the information on the ground of absence of a preliminary investigation?
A: Of course there is no question that there is a denial of a right. However, if there is an irregularity, that is
not a ground for dismissal. An information cannot be dismissed because there was no preliminary investigation.
The procedure is for the court to suspend the proceedings and refer the matter back to the proper officer for
preliminary investigation (People vs. Oliveria, 67 Phil. 427; People vs. Manlapas, L-17993, August 24, 1962)
Q: Who has the discretion whether to prosecute or not to prosecute?

A: The public prosecutor. That is why he is a powerful officer. He exercises quasi-judicial function because he
is the one to determine whether to file a case against you or not. He has the authority to file or the authority to
dismiss.
Q: Can the discretion of a public prosecutor be controlled? Can you file a petition for mandamus to compel a
public prosecutor to file a case?
A: General Rule: The public prosecutor cannot be compelled by mandamus to prosecute a case because it is
discretionary eh! Maybe you can prove grave abuse of discretion. Maybe the probable cause is very, very clear
or obvious, then ayaw pa nyang i-file, ayan na!
Q: What are the remedies of the offended party if a fiscal refuses to file a case even when there is a
sufficient evidence n which action may be taken?
A: There are three (3) possible remedies:
1. He may take up the matter with the Secretary of the Justice who may then take such
measures as may be necessary in the interest of justice; or to his superior officer, the
Regional State Prosecutor;
2. He may also file with the proper authorities or court criminal or administrative charges
against the fiscal. That is what you call prevericacion in the Revised Penal Code;
3. He may file a civil action for damages under Article 27, New Civil Code.
There are other cases where the Supreme Court (SC) commented on this aspect about the quasi-judicial
power of the public prosecutor. In the case of GUIAO VS. FIGUEROA (94 Phil. 1018), the SC said that the
prosecution, as an exception, may be compelled by mandamus if he abuses his discretion and refuses to
include a person as a co-accused against whom there appears to be at least a prima facie evidence. That is
grave abuse of discretion. However, this extraordinary writ is available only if the petition shows that he has
first exhausted all remedies in the ordinary course of law such as a motion filed with the trial court for the
indictment of the person or persons excluded by the prosecutor.
SANCHEZ vs. DEMETRIOU

November 9, 1993
HELD: “The decision of the prosecutor may be reversed or modified by the Secretary of Justice
or in special cases by the President of the Philippines. But even this Court cannot order the
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prosecution of a person against whom the prosecutor does not find sufficient evidence to support at
least a prima facie case. The courts try and absolve or convict the accused but as a rule have no
part in the initial decision to prosecute him. “
“The possible exception is where there is an unmistakable showing of a grave abuse of
discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the
proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition.”
Let’s go back in the case of
TEEHANKEE JR. vs. MADAYAG

March 6, 1992
FACTS: Here, Claudio Teehankee, Jr. was originally charged for the crime of frustrated murder
for shooting Hultman na na-comatose for how many months. In the course of the trial, Hultman
died. The prosecution sought to change the information from frustrated murder to consummated
murder. Teehankee Jr. questioned the new charge for lack of preliminary investigation thereon .
There are three (3) questions to be answered here:
ISSUE #1: Was there an amendment of the information or substitution when the information
was changed from frustrated murder to consummated murder?
HELD: There is an amendment. “There is an identity of offenses charged in both the original
and the amended information [murder pa rin!]. What is involved here is not a variance of the nature
of different offenses charge, but only a change in the stage of execution of the same offense from
frustrated to consummated murder. This being the case, we hold that an amendment of the original
information will suffice and, consequent thereto, the filing of the amended information for murder is
proper.”
ISSUE #2: What kind of amendment? Formal or substantial?

HELD: Formal. “An objective appraisal of the amended information for murder filed against
herein petitioner will readily show that the nature of the offense originally charged was not actually
changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim
was merely supplied to aid the trial court in determining the proper penalty for the crime [So it is
still murder.]. That the accused committed a felonious act with intent to kill the victim continues to
be the prosecution's theory. There is no question that whatever defense herein petitioner may
adduce under the original information for frustrated murder equally applies to the amended
information for murder.”
So halimbawa sabihin ng prosecutor: “You shot Hultman who almost died.” Teehankee Jr.: “Wala
man ako du’n ba! I was at home asleep!” Alibi ang defense niya ba. Now, namatay si Hultman. Ano
man ang depensa mo? Mau man gihapon: “Wala man ako du’n!”
So you are not prejudiced because the same defense available to you is still available to you
now.
ISSUE #3: Is there a need of a preliminary investigation on the new charge?

HELD: No need because you have not changed the crime. If you change the crime or when
there is substitution, kailangan ng preliminary investigation. Since it is only a formal amendment,
preliminary investigation is unnecessary. “The amended information could not conceivably have
come as a surprise to petitioner for the simple and obvious reason that it charges essentially the
same offense as that charged under the original information. Furthermore, as we have heretofore
held, if the crime originally charged is related to the amended charge such that an inquiry into one
would elicit substantially the same facts that an inquiry into the other would reveal, a new
preliminary investigation is not necessary.”
SEC. 2. Officers authorized to conduct preliminary investigations. –The following may

conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions. (2a)
Q: Going back to Rule 110, Section 1, how is a criminal action instituted?

A: Read Section 1, Rule 110:

follows:
Q: Who are those proper officers?

A: They are the officers authorized to conduct preliminary investigation and they are mentioned in Section
2:
1. Provincial, city prosecutors and their assistants;
2. Judges of the MTC, MCTC;
3. Other officers as may be authorized by law to conduct preliminary investigation.
501
An example of “Other officers as may be authorized by law to conduct preliminary investigation” is the
Ombudsman. In the case of UY VS. SANDIGANBAYAN (312 SCRA 77 [August 9, 1999]), the Ombudsman and
his deputies are only authorized to conduct preliminary investigation of public officers in cases which are falling
within the original jurisdiction of the Sandiganbayan (SB).So even if the crime is a violation of the Anti-Graft law,
or a crime committed by a public officer in relation to his office, if he is below Grade 27, the proper court is not
the SB, but the MTC or RTC. Before kasi, the original SC interpretation of the Ombudsman law as laid down in
the first case of DELOSO VS. DOMINGO (November 21, 1990), is that, all crimes committed by public officers
should be investigated by the Ombudsman.
HOWEVER, Ombudsman Desierto filed a Motion for Further Clarification in the SC in relation to the case of
UY where I think the Ombudsman is trying to convince the SC to change its mind because it is practically
making that office a useless office. Now, SC resolved to consider the same. Therefore the ruling in UY is
reversed in a SC resolution (dated March 20, 2001 [G.R. 105965-70]) where the SC went back to its original
ruling that the Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal
cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but
those within the jurisdiction of the regular courts as well. So take note of that.
SEC. 3. Procedure. – The preliminary investigation shall be conducted in the

following manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as other
supporting documents to establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the official file. The affidavits
shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary
public, each of whom must certify that he personally examined the affiants and that
he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense.
If the evidence is voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to dismiss in lieu
of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating office shall
resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party or a witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness
concerned.
The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for trial.
(3a)
Q: What is the procedure for Preliminary Investigation?

A: You read Section 3 step by step. Actually it’s a battle of affidavits eh. It is the same as the old rules.
Anyway I’ll just mention the changes no:
1. In 2nd paragraph of [b] “The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them at his expense.”
2. paragraph [c]. What is new here is the last sentence – “The respondent shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.” So you can file your counter-affidavit. Do not file a
motion to dismiss;
3. “[d] If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating office shall resolve the complaint based on the
evidence presented by the complainant.”
4. paragraph [e]. What is new is the 2nd paragraph, “the hearing shall be held within 10 days…”
Actually here, tapos na ang affi-affidavits. But if you want to clarify something, you can call the
witnesses for clarificatory questioning, pero he has a deadline to do it – 10 days.
In the case of
TATAD vs. SANDIGANBAYAN

159 SCRA 70, March 21, 1988
502
FACTS: The preliminary investigation lasted for 3 years. So Tatad questioned the information.
ISSUE #1: Is the 10-day period to issue a resolution mandatory or directory?

HELD: “The 10-day period fixed by law is merely “directory,” yet, on the other hand, it can not
be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that
the law has included a provision that is deliberately intended to become meaningless and to be
treated as a dead letter.” So all of the information filed must be dismissed for violation of the right
for speedy trial.
ISSUE #2: The government contended that a total lack of preliminary investigation is not a
ground for dismissing an information, how come the delay in terminating a preliminary investigation
becomes now a ground for dismissal?
HELD: “It has been suggested that the long delay in terminating the preliminary investigation
should not be deemed fatal, for even the complete absence of a preliminary investigation does not
warrant dismissal of the information. True — but the absence of a preliminary investigation can be
corrected by giving the accused such investigation. But an undue delay in the conduct of a
preliminary investigation can not be corrected, for until now, man has not yet invented a device for
setting back time.”
SANTIAGO vs. GARCHITORENA

December 2, 1993
FACTS: Anti-graft charges were filed against Miriam Defensor-Santiago when she was still the
Immigration Commissioner. Santiago raised this issue (on delay) because the offense was allegedly
committed on or about October 17, 1988 and the information was filed only on May 9, 1991 or
almost 3 years later. The amended information was filed only on December 8, 1992 or 4 years later.
So following the Tatad ruling they shall be dismissed.
HELD: “[Santiago] cannot complain that her constitutional rights to due process were violated
by reason of the delay in the termination of the preliminary investigation. Tatad v. Sandiganbayan,
159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an unexplained
inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues
involved therein. In the case at bench, there was a continuum of the investigatory process but it got
snarled because of the complexity of the issues involved. “
“We note that [Santiago] had previously filed two petitions before us involving 2 criminal cases.
Petitioner has not explained why she failed to raise the issue of the delay in the preliminary
investigation and the filing of the information against her in those petitions. A piece-meal
presentation of issues, like the splitting of causes of action, is self-defeating.” So it is like splitting
your causes of action working against you. Yaan!
SOCRATES vs. SANDIGANBAYAN

253 SCRA 773, February 20, 1996
NOTE: I think Socrates was a governor of Palawan. He was also facing cases in the
Sandiganbayan where he invoked the Tatad ruling.
HELD: “In the application of the constitutional guaranty of the right to speedy disposition of
cases, particular regard must also be taken of the facts and circumstances peculiar to each case. It
is palpably clear that the application of the Tatad doctrine should not be made to rely solely on the
length of time that has passed but equal concern should likewise be accorded to the factual
ambiance and considerations. It can easily be deduced from a complete reading of the adjudicatory
discourse in Tatad that the three-year delay was specifically considered vis-a-vis all the facts and
circumstances which obtained therein.”
So you just don’t consider the time element. You must also consider the facts. Panahon ni Marcos yung kay
Tatad eh.
SERVANTES vs. SANDIGANBAYAN

307 SCRA 149, May 18, 1999
NOTE: The Tatad ruling was applied in this case.

FACTS: Here, Elpidio Servantes was charged for violation of Section 3(e) of the Anti-Graft law. It
took the special prosecutor six (6) years from the filing of the initiatory complaint before he decided
to file an information for the offense in the Sandiganbayan. Servantes filed a motion to quash for
violation of the right to speedy disposition of the case. Special prosecutor tried to justify the delay in
the resolution of the complaint by stating that no political motivation appears in the prosecution of
the case in apparent reference in the case of Tatad because in the case of Tatad there was political
motivation dun eh kaya na-delay.
Special Prosecutor: “Servantes here was insensitive to the implications and contingencies
thereof by not taking any step whatsoever to accelerate the disposition of the matter.” Meaning, 6
years anong ginawa mo? Hindi ka man nagreklamo! You did not file a motion to hurry up. So you are
estopped.
HELD: “We find Servantes’ contention meritorious. He was deprived of his right to speedy
disposition of the case, a right guaranteed by the Constitution. We cannot accept special
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prosecutor’s ratiocination. It is the duty of the prosecutor to speedily resolve the complaint as
mandated by the Constitution regardless of whether Servantes did not object to the delay although
the delay was with his acquiescence provided it was not due to causes directly attributable to him.”
So the mere fact that he was not complaining is not a factor. What is the factor is when the delay
was caused by him. Yaan!
I know a case decided here during the time of former deputy Ombudsman Delpacio(?) when he was still
here in Davao. For more than 4 years the preliminary investigation has not been terminated. The respondent
filed a mandamus direct to the SC to compel the dismissal of his case citing Tatad case. With this mandamus,
the SC required the Ombudsman to comment. So what the Ombudsman did, pinaspasan niya! So he came out
with a resolution immediately – a resolution to file. Then he answered the SC: “I already terminated the
preliminary investigation in fact there is now a resolution to file. Cured na! There is no more delay.” Sabi ng SC:
“Hindi na puwede yan! i-dismiss mo na!”
Let’s go back to paragraph [b]:
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense.
If the evidence is voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
There is no mention that after the counter-affidavit, the complainant can also file a reply-affidavit. There is
nothing which says that it cannot be done, there is nothing which says that it can be done. Well, my position is,
since it is not prohibited, try it. Anyway wala mang bawal ba.
Q: Going back to paragraph (b) when the respondent is subpoenaed, he is supposed to file his counter-
affidavit. Paano kung di siya ma-subpoena or even if subpoenaed he does not submit his counter-affidavit?
A: The investigating officer shall resolve the complaint based on the evidence presented by the
complainant.
MERCADO vs. COURT OF APPEALS

July 5, 1995
HELD: “The New Rules on Criminal Procedure does not require as a condition sine qua non to
the validity of the proceedings [in the preliminary investigation] the presence of the accused for as
long as efforts to reach him were made, and an opportunity to controvert the evidence of the
complainant is accorded him. The obvious purpose of the rule is to block attempts of offenses by
hiding themselves or by employing dilatory tactics."
SEC. 4. Resolution of investigating prosecutor and its review. – If the investigating

prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath in- the information that he, or
as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence. Otherwise,
he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or
his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within ten (10) days from
their receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint
but his recommendation is disapproved by the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information against the respondent,
or direct another assistant prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu propio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without
conducting anther preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the Ombudsman.
(4a)
504
The investigating prosecutor after the preliminary investigation will now issue a resolution to be approved
by his superior recommending the filing or dismissal of the case. If he finds probable cause to hold the
respondent for trial, he shall prepare the resolution and information and he will certify under oath that he, or as
shown by the record, an authorized officer, has personally examined the complainant and his witnesses that
there is a reasonable ground to believe that a crime has been committed that the accused is probably guilty
thereof, that the accused was informed of the complaints and of the evidence submitted against him and that
he was given opportunity to submit controverting evidence. That is a standard form in the information filed by
the prosecutor.
Q: Suppose the prosecutor failed to make that certification in the information, is the information valid or
defective?
A: It is still VALID. “Notwithstanding the absence in the information of a certification as to the holding of a
preliminary investigation, the information is nonetheless considered valid for the reason that such certification
is not an essential part of the information itself and its absence cannot vitiate it as such.” (Alvizo vs.
Sandiganbayan, 220 SCRA 45)
Q: After that, what will he do? To whom will he forward his resolution?
A: To the provincial or city prosecutor or chief state prosecutor depending on who is conducting the
preliminary investigation;
Q: Is the resolution of the prosecutor appealable?

A: YES. It is appealable to the Secretary of Justice. The last paragraph of Section 4 gives the power of review
to the Department of Justice – that is, if the case originally started in the Fiscal’s office.
The DOJ can reverse or modify resolution of a city or provincial prosecutor and the procedure for review is
governed not by the Rules of Court, but by a department order. There is also a procedure there for appeal or
review by the DOJ (2000 DOJ Rules on Appeal, July 3, 2000).
One of the cases we have to remember here is the leading case of CRESPO VS. MOGUL, (June 30, 1987).
Here are some points discussed in this case:
Q: What happens if the DOJ sustains the appeal?

A: It will reverse the resolution of the prosecutor.
Example:
PROSECUTOR: “Dismiss! The case should not be filed.”
DOJ: “Reversed! You file the case.”
Walang magawa ang fiscal diyan. He must file the case because that is the order of his superior. What if:
Example:
PROSECUTOR: “There is probable cause. I will file the case.”
RESPONDENT/ACCUSED: “Appeal!”
DOJ: “I will reverse. You are hereby ordered not to file.”
Q: E kung na-file na?

A: Under the new rules, the fiscal is ordered to file a motion to dismiss the case in court.
There is no problem if the resolution of the fiscal is to dismiss and then ang DOJ order is “to file.” Ang
mahirap is if the resolution of the fiscal is to file and na-file na, and then sabi ng DOJ, “ah walang probable
cause – do not file!” Prosecutor: “Eh, na-file na?” DOJ: “Okey, you move to dismiss the case.”
So the fiscal will file a motion to dismiss. His argument will be, there is no probable cause according to DOJ –
my superior and the Secretary of Justice has ordered me to move for the dismissal of the case. Eh kung sabihin
ng court:
COURT: “Ayoko! Tuloy ang kaso!” [ay naloko na!!]

FISCAL: “Sorry Your Honor but that is the order of my superior. I cannot go against the DOJ.”
COURT: “Superior mo, hindi akin! It is not my superior! Ituloy ang kaso!
Yaan!! That was the issue in the case of CRESPO. And the SC ruled that:
CRESPO vs. MOGUL

June 30, 1987
HELD: The power of the fiscal is practically absolute whether to file or not to file. But once the
case is filed in court, the power now belongs to the judge and he is the one who will determine
whether to proceed or not to proceed. The court will be the one to decide because control over the
case is already shifted in the court. The court now has the absolute power and once the court tell
the fiscal ‘you proceed,’ then the fiscal has to proceed. The latter should not shirk from his
responsibility of representing the People of the Philippines. So the absolute power of the fiscal ends
upon the filing of the case in court.
“As an advise [advise lang, hindi naman order], that in order to avoid this unpleasant situation
where the opinion o the Secretary of Justice is not to proceed but the opinion of the judge is to
proceed, and the fiscal is caught in the middle [naipit ba!], when the case is already filed in court,
as much as possible huwag ka (DOJ) ng makialam. The Secretary of Justice as much as possible,
should not review the resolution of the fiscal to file when the case is already filed in court to avoid
this unpleasant situation because it will really cause a conflict of opinion between the two (2)
offices.”
505
There are other cases where the SC elaborated on this but the leading case is CRESPO. I will just cite to you
some of these cases where the SC had something to comment about this issue as we have no more time to go
over them one by one:
1. REPUBLIC VS. SUNGA (162 SCRA 191);

2. MARCELO VS. CA (235 SCRA 39);
3. PEOPLE VS. CRUZA (237 SCRA 410);
4. MARTINEZ VS. CA (237 SCRA 575);
5. MOSQUERA VS. PANGANIBAN (258 SCRA 473);
6. LEDESMA VS. CA, 278 SCRA 658 (September 5, 1997).
And based on some of these cases in relation to reinvestigation, the SC held that once the case is already in
court and the accused would like to have his case reinvestigated, the court must agree. There must always be
the concern of the court because of the absolute control is already in the court once the case is filed. And take
note that there is no double jeopardy in preliminary investigation.
SEC. 5. Resolution of investigating judge and its review.– Within ten (10) days after the
preliminary investigation, the investigating judge shall transmit the resolution of the
case to the provincial or city prosecutor, or to the Ombudsman or his deputy incases
of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction, for appropriate action. The resolution shall state the findings of facts
and the law supporting his action, together with the record of the case which shall
include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits,
counter-affidavits and other supporting evidence of the parties; (c) the undertaking
or bail of the accused and the order for his release; (d) the transcripts of the
proceedings during the preliminary investigation; and (e) the order of cancellation of
his bail bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city
prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the
resolution of the investigating judge on the existence of probable cause. Their ruling
shall expressly and clearly state the facts and the law on which it is based and the
parties shall be furnished with copies thereof. They shall order the release of an
accused who is detained if no probable cause is found against him. (5a)
Section 5 applies to preliminary investigations conducted by MTC judges. Remember, aside from fiscal, MTC
judges are also allowed to conduct preliminary investigations. But in Metro Manila and chartered cities, MTCC
judges do not conduct preliminary investigations – everything is given to the state prosecutor.
What happens if the judge or the MTC judge will conduct a preliminary investigation? The judge will conduct
a preliminary investigation. Ang kanya, there is a probable cause or there is no probable cause, either way he
must forward his resolution to the provincial prosecutor. The provincial prosecutor will be the one to decide.
Q: Do you mean to tell me the provincial prosecutor will conduct again another preliminary investigation?
A: NO. He will just review the findings of the judge. Maybe the provincial fiscal will simply adop the finding
of the MTC judge.
Q: Suppose sabi ng fiscal, “Di ako kuntento. I am not satisfied with the preliminary investigation by that
judge. I will conduct another preliminary investigation” Puwede ba yan?
A: YES. The provincial prosecutor has 100% control. He may adopt the finding and just follow the
recommendation filed, or he may conduct his own preliminary investigation.
Q: What happens if his decision is different from what the MTC judge believes? Whose decision will prevail?
A: Fiscal’s decision will prevail. He can reverse the resolution of the MTC judge.
And in case the respondent has been arrested while the case is under preliminary investigation and
detained in jail, according to Section 5, last paragraph, last sentence, the provincial fiscal shall order the release
of an accused who is detained if no probable cause is found against him. This is one instance where the opinion
of the provincial prosecutor prevails over that of the judge. The fiscal can reverse the findings of the judge eh.
Q: Bakit naman ganun? Why are we giving the provincial fiscal more power than the MTC judge when it
comes to preliminary investigation?
A: The reason is simple: who will prosecute the case – the judge or the fiscal? Of course, it is the fiscal. He
will be the one to handle the case and not the judge.
Another reason is given by the SC in one case that actually, preliminary investigation is not really the
function of the judiciary. The power to determine whether to file or not file does not belong to the judiciary.
“When a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an
exception to his usual judicial duties. The assignment of that function to judges of inferior courts and to a very
limited extent to courts of first instance was dictated by necessity and practical considerations. Consequently,
the findings of an investigating judge are subject to review by the provincial fiscal.” (Castillo vs. Villaluz, March
8, 1989)
Alright. Let’s go to Section 6 – a very important provision – when warrant of arrest may be issued.
SEC. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within
ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
506
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. Incase of doubt
on the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of information.
xxxxxx
Let us picture what happens here. The case is triable by the RTC – so this means, 6 years and 1 day up.
Now, the fiscal conducts a preliminary investigation. Assuming after finding probable cause, he will file
information. After that, what will happen? The judge may issue a warrant of arrest to arrest the accused
because in his opinion, there is probable cause to issue the warrant of arrest. So that is the situation.
So you will notice that this word – “probable cause” – has many functions. When the fiscal file the
information, he believes that there was probable cause – probable cause to file the case. Pagdating sa court,
the RTC judge will present probable cause na naman to issue warrant of arrest. Iba yan eh! Kanya-kanya yan –
probable cause to file, probable cause to issue warrant. That is why in the case of
CASTILLO vs. VILLALUZ

March 8, 1989
HELD: “The fiscal prevails over the judge only in the determination of the existence of a
probable cause justify the filing of a complaint or information. This task is concededly executive. But
the determination of probable cause to justify the issuance of a search warrant or a warrant of
arrest is the constitutional prerogative of the judge and may not be withdrawn from him or even
only limited by statute or the Rules of Court. This task is undoubtedly judicial.”
“The findings of the fiscal in the preliminary investigation do not control or foreclose the
exercise of the power conferred personally on the judge under Section 2 of the Bill of Rights. That
power is his alone.”
Q: Now, under the Constitution, before the RTC judge issued the warrant of arrest because of probable
cause, anong dapat gawin niya?
A: He must personally examine the complainant and his witnesses to determine whether there is probable
cause to issue or not to issue a warrant of arrest.
How do you interpret the phrase, “personally examine”? I have to admit that the cases before were
somehow confusing. There were some case na literal – pag-file mo ng kaso, the RTC judge has to call the
complainants, tanong… tanong… tanong… to determine the probable cause to issue a warrant. Otherwise if I
will not examine them, it is unconstitutional for to issue a warrant. Or in another case, RTC judge: ‘sabi ng fiscal,
may probable cause to file eh. Tama na yon! I believe him. I will now issue the warrant.’ But there are some
cases that say na hindi puwede yan because you are giving now to the fiscal the right to determine your duty
under the Constitution. You cannot do that because the law says you must personally examine. Otherwise, the
fiscal is the one who is determining.
But meron namang mga kaso where the SC said that if we will require the RTC judge to personally examine
the complainant and his witnesses to determine probable cause before issuing the warrant, he might have no
more or nothing to do more except to do that. He cannot anymore try cases, wala na, puro na lang probable
cause. So he may not have time anymore to do his usual duty. Thus he can rely on the findings of the fiscal.
So this really cause some kind of confusion. Now, these confusions are now reconciled. There are many
cases such as ROBERTS VS. CA (the PEPSI-COLA “349” tansan case). But the first one the SC really discussed
the issue exhaustively was the 1991 case of
LIM, SR. vs. FELIX

194 SCRA 292 [1991]
FACTS: The information was filed – information lang and a certification by the fiscal that based
on the investigation, there is probable cause. And on the basis of that information certification, the
judge issued a warrant of arrest.
ISSUE: May a Judge without ascertaining the facts through his own personal determination and
relying solely on the certification or recommendation of a prosecutor that a probable cause exists
issue a warrant of arrest?
HELD: In order to clarify this rule once and for all, the SC went over all the cases where this
issue kept coming back, starting from: US VS. OCAMPO (18 Phil.); AMARGA VS. ABBAS (98 Phil.);
PLACER VS. VILLANUEVA (126 SCRA 463); SULTA VS. CA (143 SCRA 228); SOLIVEN VS. MAKASIAR
(167 SCRA 393); CASTILLO VS. VILLALUZ (171 SCRA 39); PEOPLE VS. INTING (187 SCRA 798); to
PEOPLE VS. DELGADO (189 SCRA 725).
This is the dilemma: “if a Judge has to personally question each complainant and witness or go
over the records of the Prosecutor's investigation page by page and word for word before he acts on
each of a big pile of applications for arrest warrants on his desk, he may have no more time for his
or her more important judicial functions. At the same time, the Judge cannot ignore the clear words
of the 1987 Constitution which requires probable cause to be personally determined by the judge,
not by any other officer or person.”
“If a Judge relies solely on the certification of the Prosecutor, he has not personally determined
probable cause. The determination is made by the Provincial Prosecutor. The constitutional
requirement has not been satisfied.”
“The Judge does not have to personally examine the complainant and his witnesses. The
Prosecutor can perform the same functions as a commissioner for the taking of the evidence.
However, there should be a report and necessary documents supporting the Fiscal's bare
certification. All of these should be before the judge. The judge must go beyond the Prosecutor's
507
certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case
so require.”
“We reiterate that in making the required personal determination, a judge is not precluded from
relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends
on the circumstances of each case and is subject to the judge's sound discretion. However, (as
happened in the case of Lim) the judge abuses that discretion when having no evidence before him,
he issues a warrant of arrest.”
How did the SC reconcile that? When the fiscal files an information, the judge will require the fiscal to attach
to the information all the records of the preliminary investigations – affidavits, counter-affidavits, or other
whatever documents. All the evidence will be submitted to the judge and he will review them. After reading
them, if the judge is not satisfied that there was probable cause, he may summon the witnesses. BUT if he is
satisfied, he can issue the warrant without the need for summoning the witnesses. He can rely on the affidavits.
That is what personally examined means.
ROBERTS vs. COURT OF APPEALS

March 5, 1996
FACTS: This is the Pepsi-Cola 349 tansan case. Pag-file ng fiscal, marami, makapal ang
documents. The records of the case is voluminous. Maraming nanalo ng 349 nu’n eh. So pag-file,
after 20 minutes the judge issued the warrant of arrest. The accused challenged it:
ACCUSED: You did not determine probable cause.
JUDGE: Bakit? All the supporting documents are attached in the information.
ACCUSED: Yes, but how can you go over them in less than 20 minutes? You did not go
over them. Ibig sabihin binasa mo lahat yan within 20 minutes only?
So it is now doubtful that the judge will go over the entire records within 20 minutes. Ang kapal
ng records eh!
HELD: Sabi ng SC: “Eh kung mabilis pala mag-basa ang judge? [Ano’ng pakialam mo? Ha!] Ang
importante nandoon ang records!
Now, these issues were further supplemented by other cases in 1997. The leading case is
HO vs. PEOPLE OF THE PHILIPPINES

280 SCRA 365, October 9, 1997
ISSUE: Is it required that everything that was filed in the fiscal’s office will really be included?
Lahat ba talaga? Eh kung makapal?
HELD: “It is NOT required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have
sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to
the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s
recommendation.”
Going back to Section 6 (a):
(a) By the Regional Trial Court. – Within ten (10) days from the filing of the
complaint or information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. [This is a new sentence:]He may
immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. [The last
sentence is also new:]In case of doubt on the existence of probable cause, the judge
may order the prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30) days from the
filing of the complaint of information.
This brings to my mind one of the leading cases on this issue which was asked in the Bar and which I also
asked in some examinations here. The case of
AMARGA vs. FISCAL

98 Phil. 739
FACTS: The provincial fiscal filed an information in the CFI (now, RTC). Normally, the judge will
issue the warrant. Nag-alanganin naman ang judge. What the judge did was to issue an order
requiring the fiscal to appear before him and convince him that there is probable cause for the
judge to issue warrant. Eh ayaw ng fiscal, “My golly! That is already an insult for me as a quasi-
judicial officer! I found probable cause. That is my finding. The judge should believe me because
508
that is my prerogative.” So ayaw mag-sunod ng fiscal. Judge, “Ayaw mo ha! Okey! Case is
dismissed!”
Remember, there are two (2) questions there asked in the bar:
ISSUE #1: Does the court have the power to require the fiscal to present evidence to convince
the judge that there is probable cause to issue the warrant of arrest when the fiscal already found
probable cause to file the case?
HELD: YES. The power of the fiscal is to determine probable cause to file while for the judge is
probable cause to issue the warrant of arrest. Iba yung iyo, iba rin yung sa akin! You cannot say that
simply because you found probable cause, I will follow you. [We already discussed that principle and
it is already stated in the rules] So, it will be the power of the judge to inform the prosecutor and to
require the fiscal to convince him that there is probable cause to issue the warrant. (now last
sentence of Section 6 [a])
ISSUE #1: Since the fiscal refuses to comply, did the judge act correctly in ordering the
dismissal of the information?
HELD: NO. This time mali ang judge. If the fiscal does not want to comply with the judge’s
order, the remedy of the judge is not to issue the warrant. Ayaw mong sumunod? – then do not
issue the warrant. But do not dismiss the case because this time we are already encroaching the
power of the prosecutor. (c.f. second sentence of Section 6 [a])
Now, based on the present rules, we will now ask the same questions today.
Q: Can the judge require the fiscal to present evidence of probable cause in convincing him to issue the
warrant of arrest?
A: YES. That is the prerogative of the judge. (AMARGA VS. ABBAS)
Q: If fiscal refuses, has the judge the power to dismiss the case?
A: In the case of Amarga, no. However, under Section 6, the judge may immediately dismiss the case if the
evidence on record clearly fails to establish probable cause.
That is a new sentence, “xxx he may immediately dismiss the case xxx” not found in the prior rule. To my
mind, that has change the answer. While before, the judge may not have the power to dismiss the case if he
finds no probable cause. Right now, the rules says YES because of that new provision, “he may immediately
dismiss the case if the evidence on record clearly fails to establish probable cause” even if the fiscal has
already found probable cause. In other words, this has changed the ruling in the old case of Amarga.
Let’s go to Section 6 [b]: (Preliminary Investigation conducted by MTC judge)
(b) By the Municipal Trial Court. – When required pursuant to the second paragraph
of section of this Rule, the preliminary investigation of cases falling under the
original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the
judge or the prosecutor. When conducted by the prosecutor, the procedure for the
issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of
this section. When the investigation is conducted by the judge himself, he shall
follow the procedure provided in section 3 of this Rule. If his findings and
recommendations are affirmed by the provincial or city prosecutor, or by the
Ombudsman or his deputy, and the corresponding information is filed, he shall issue
a warrant of arrest. However, without waiting for the conclusion of the investigation,
the judge may issue a warrant of arrest if he finds after an examination in writing
and under oath of the complainant and his witnesses in the form of searching
questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends
of justice.
Obviously, this rule does not apply in chartered cities but in municipalities. Sa probinsiya, for example, the
case is murder. That is not triable by MTC but you can file the complaint for murder before the MTC not for the
purpose of trial but for the purpose of preliminary investigation. That is the difference.
We already learned that he resolution of the judge, whether to file or not to file, is ipasa niya sa Provincial
Prosecutor who has the final say. That’s why the rule says, if his findings and recommendations are affirmed by
the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is
filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the
judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the
complainant and his witnesses in the form of searching questions and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the
ends of justice.
Let’s compare.
Q: Does the fiscal have the power to issue warrant of arrest?

A: NO. His power is to conduct preliminary investigation and if there is probable cause – File!
Q: Who will issue the warrant?

A: RTC.
Pero ang municipal judge, iba eh. The police will file a complaint for homicide in MTC for preliminary
investigation. Pag-basa ng MTC judge, “aba! Grabe ito! There is probable cause. Pero teka muna, delikado ito
baka makawala – arrest him!” So even before the case is filed in the RTC, the MTC judge has the power to issue
warrant of arrest.
509
That is the difference between the power of the MTC judge and the power of the Provincial Prosecutor. Both
of them have the power to conduct a preliminary investigation in the province. But the fiscal has no power to
issue a warrant but the judge has the power to issue warrant even while the preliminary investigation is going
on. That is why in the province, complainants prefer to file sa MTC para issue dayun ang warrant.
The issuance of warrant by the MTC judge is ex parte. He will just determine it based on the affidavit of the
complainant and his witnesses after searching questions and answers. So the examination conducted by the
judge is literal in meaning. And once you are arrested, tuloy tayo. You now follow preliminary investigation. You
submit now your counter-affidavits. For what purpose? We will determine whether the case will be filed in the
RTC or not.
So there are two (2) stages:
1. first stage – Preliminary Examination – to determine whether or not to issue a warrant of arrest. This
is done ex parte.
2. second stage – Preliminary Investigation proper - to determine, after you are arrested, whether or
not you will be indicted in the RTC.
Q: Is it mandatory that every time you file a case in the MTC, the judge will always issue a warrant or
arrest?
A: NO. Hindi naman sinabi yun because in order to determine whether a warrant of arrest will be issued, the
judge will conduct the examination. He will examine in writing under oath of the complainant and witnesses in
the form of searching questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice.
So if you file a case for homicide against somebody in the municipality; tao na kilala mo; mayaman at may
malalaking properties; if I’m the judge, I will not issue a warrant of arrest. Tatakbo ba yan? I don’t think so. I
may or may not issue the warrant but my criterion is: is there a necessity of placing him under immediate
custody in order not to frustrate the end of justice? But suppose the accused has no permanent address, ayan!
Delikado na yan, baka makawala! I will now issue a warrant of arrest.
Now, what has changed the picture now is this: there is no question if the case is triable by the RTC, the
MTC judge will conduct a preliminary investigation in order to determine whether or not the case should be filed
in the RTC.
Q: But now, when is the preliminary investigation required?

A: When the crime is punishable by 4 years, 2 months and 1 day and up.
Q: The case has a maximum penalty of 6 years – therefore triable by the MTC. Is the MTC judge required to
conduct a preliminary investigation?
A: YES. Mandated man yan ba! Although it is triable by the MTC, it is still mandatory for the MTC judge to
conduct preliminary investigation because any crime which carries the penalty of 4 years, 2 months and 1 day
or up, is subject to preliminary investigation.
Q: In this case, who will conduct the preliminary investigation? The fiscal or the MTC judge?
A: Either one of them. Let us read the opening paragraph of Section 6 (b):
(b) By the Municipal Trial Court. – When required pursuant to the second paragraph
of section of this Rule, the preliminary investigation of cases falling under the
original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the
judge or the prosecutor.
But I was wondering with this issue. This happens in places where there is only 1 branch, 1 judge. For
example, ako ang judge and the case is filed before me – preliminary investigation ito ha! – 4 years, 2 months
and 1 day. There is a probable cause so I will continue. Now, who will try the case? Ako rin di ba? Sabihin ng
defense, “Ah wala na. Talo na kami. Bias ka na eh!” Naloko na! This might be a ground for disqualification eh
because you already found probable cause, chances are dire-diretso na ito – you will convict me, you are no
longer impartial. This is now the danger because of this new provision.
Suppose sabihin ng judge, “Hindi man. I found probable cause only for the case to proceed to trial but for all
you know during the trial, I might find you innocent, not guilty beyond reasonable doubt. Ang criterion ko diyan
is probable cause man lang – probably you are guilty. But when I will try it, it should be guilt beyond reasonable
doubt.” Yan ang delikado dito! Mabuti sana if the fiscal was the one who conducted the preliminary
investigation. But when I am the one who conducted the preliminary investigation and then I will also be one to
try the case, there might be complaints of biases or prejudgment. So there are provisions in the new rules which
might create practical problems.
Let’s go to the last portion of Section 6. Let’s read Section 6 [c]:
(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the
accused is already under detention pursuant to a warrant issued by the municipal
trial court in accordance with paragraph (b) of this section, or if the complaint or
information was filed pursuant to section 7 of this Rule or is for an offense penalized
by fine only. The court shall them proceed in the exercise of its original jurisdiction.
(6a)
Normally, when the information is filed in court, the court issues a warrant of arrest. However, there are
instances when the court need not issue a warrant of arrest.
Q: What are the instances when the court need not issue a warrant of arrest?
510
A: Under Section 6 [c], the following are the instances:
1. if the accused is already under detention pursuant to a warrant issued by the MTC in accordance
with paragraph [b] of Section 6. If the MTC issues the warrant of arrest and later on the cases
reaches the RTC because there is probable cause, there is no need for the RTC to issue another
warrant because there is already a warrant issued by the MTC. And as a matter of fact, the accused
has already been detained;
2. when the complaint or information is filed pursuant to Section 7 of this rule. Section 7 – the accused
is arrested for committing a crime in the presence of a peace officer, the fiscal will only conduct an
inquest preliminary investigation and there is no need to issue a warrant because the accused is
also under detention already. Normally, what the court there issues is a commitment order, just to
confirm the detention of the accused; and
3. if the accused is charged for an offense penalized by fine only – di na kailangan ang warrant of
arrest. There are crimes where there is no penalty for imprisonment but only fine like damage to
property through reckless imprudence. Based on the new rules, there is no need for a warrant, just
an order to appear is sufficient.
SEC 7. When accused lawfully arrested without warrant. – When a person is lawfully
arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without
need of such investigation provided an inquest has been conducted in accordance
with existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace officer directly with the
proper court on the basis of the affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of
the provision of Article 125 of the Revised Penal Code, as amended, in the presence
of his counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence in
his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)
Section 7 is another important provision. This is called INQUEST PRELIMINARY INVESTIGATION, related to
Rule 113, Section 5 [a] and [b] on warrantless arrest. Here, there is no need for preliminary investigation
because there is a deadline for the accused to be detained. Otherwise the peace officer will be guilty of
arbitrary detention – delay in the delivery.
If we will conduct a preliminary investigation, that will last for many days. So what will happen to a person
who committed a crime if we will conduct a regular preliminary investigation? Well, to avoid this possibility,
wala ng preliminary investigation. The prosecutor will conduct an INQUEST preliminary investigation based only
on the affidavit of the complainant, the police maybe, and his witnesses so that the court may issue a
commitment order. With that, the deadline has been met – you have been delivered to the proper judicial
authorities.
Now, there is a new sentence inserted in Section 7, first paragraph – “In the absence or unavailability of an
inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper
court.” – a very radical provision.
The normal procedure is: for example, the offended party or the peace officer will file the case before the
fiscal to inquest preliminary investigation. And then the fiscal will now file the information in court let’s say in
the RTC.
Q: However, suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is not
available, what will happen now to the case?
A: The new provision says, “the complaint may be filed by the offended party or a peace officer directly with
the proper court” so that the accused should be delivered.
Why is this a very radical change? There is no problem with the MTC because you can file directly in the
MTC. But as a matter of practice, you cannot file a complaint directly with the RTC. Everything here is done by
information. The RTC does not entertain complaints filed by the police or the offended party.
But now, puwede na eh, under this situation lang: – (1) the accused is arrested without a warrant and (2)
there is the absence or unavailability of an inquest prosecutor. With that situations, the new rules now allow a
direct filing of the complaint by the offended party or the peace officer directly with the proper court even in the
RTC. That is why this is radical change.
Now, whether this is the one or the other, you cannot deny the fact that the accused is entitled to a
preliminary investigation. You cannot deprive him of this right. When there is a case filed in court without
preliminary investigation so that he can be detained indefinitely in which case, he can ask for a preliminary
investigation in accordance with this rule – but after the case is filed. Baliktad!
Normally, the preliminary investigation comes before the filing of the case. Dito naman, filing comes before
preliminary investigation – baliktad! During preliminary investigation, if there is no probable cause, the
complaint will be dismissed or the fiscal will move to dismiss the case. But if you insist on that right to
preliminary investigation before filing, ayaw mo ng inquest, then you must sign a WAIVER in the presence of
your counsel – waiver of your right under Article 125, RPC. Here, while the preliminary investigation is still going
511
on, you remain under detention. The second paragraph applies if he insist on the right to a regular or ordinary
preliminary investigation.
Correlate this with Section 2 [e] of RA 7438 – Law Protecting Rights of Persons under custody – i.e. he must
be assisted by his counsel. Otherwise the waiver is not valid.
Now, if there is no insistence, the case will be filed ahead. After it was filed, you can still ask for preliminary
investigation within 5 days from the time you learn of the filing of the case. So within 5 days lang, otherwise
you are deemed to have waived your right to preliminary investigation
Note that the SC had ruled that the period of 5 days is NON-EXTENDIBLE – that is absolute. (PEOPLE vs. CA,
242 SCRA 645). The five-day period is absolute. After 5 days, you have no more right to ask for a preliminary
investigation.
Take note that the general rule, once you post bail, you are waiving your right to a preliminary investigation.
In PEOPLE VS. CA, if you do not want to waive your right to preliminary investigation, then if you post bail, you
must make a reservation. You must say, “I’m posting bail but I’m not waiving my right to preliminary
investigation. In fact, I am asking for it.” In Section 7, last paragraph, when the accused post bail for his
provisional release, he is deemed to have waived his right to preliminary investigation. To avoid the waiver,
there must be a previous or simultaneous demand for a preliminary investigation upon posting of bail bond.
SEC. 8. Records. – (a) Records supporting the information or complaint. – An

information or complaint filed in court shall be supported by the affidavits and
counter-affidavits of the parties and their witnesses, together with the other
supporting evidence and the resolution on the case.
(b) Record of preliminary investigation. – The record of the preliminary
investigation, whether conducted by a judge or a prosecutor, shall not form part of
the record of the case. However, the court, on its own initiative or on motion of any
party, may order the production of the record or any of its part when necessary in
the resolution of the case or any incident therein, or when it is to be introduced as
an evidence in the case by the requesting party.
Section 8 is just a reiteration of a doctrine that when the fiscal files an information, he should back up his
certification of probable cause with appropriate records. An information with mere certification is not enough.
(Lim, Sr. vs. Felix, supra)
SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on
Summary Procedure. – (a) If filed with the prosecutor. – If the complaint is filed directly
with the prosecutor involving an offense punishable by imprisonment of less than
four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a)
of this Rule shall be observed. The prosecutor shall act on the complaint based on
the affidavits and other supporting documents submitted by the complainant within
ten (10) days from its filing.
(b) If filed with the Municipal Trial Court – If the complaint or information is filed
with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered
by this section, the procedure in section 3 (a) of this Rule shall be observed. If within
ten (10) days after the filing of the complaint or information, the judge finds no
probable cause after personally evaluating the evidence, or after personally
examining in writing and under oath the complainant and his witnesses in the form
of searching questions and answers, he shall dismiss the same. He may, however,
require the submission of additional evidence, within ten (10) days from notice, to
determine further the existence of probable cause. If the judge still finds no
probable cause despite the additional evidence, he shall, within ten (10) days from
its submission or expiration of said period, dismiss the case. When he finds probable
cause, he shall issue a warrant of arrest, or a commitment order if the accused had
already been arrested, and hold him for trial. However, if the judge is satisfied that
there is no necessity for placing the accused under custody, he may issue summons
instead of a warrant of arrest. (9a)
Section 9 – Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure.
Obviously, Section 9 talks only of cases (a) cognizable only by MTC; (b) the penalty does not exceed 4 years 2
months because even if it is 4 years 2 months 1 day (up to 6 years), it still requires a preliminary investigation
under the new rules; and (c) it should not be covered by the Rules of Summary Procedure. The coverage of
summary procedure is up to 6 months penalty.
Q: What cases are covered by Section 9?

A: Where the prescribed penalty exceeds 6 months but not more than 4 years and 2 months. These does
not require preliminary investigation and also not covered by the summary rules.
Q: Now, going back to Rule 110. In cases cognizable by the MTC, how is it instituted?

follows:
(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the
office of the prosecutor. In Manila and other chartered cities, the complaints shall be
filed with the office of the prosecutor unless otherwise provided in their charters.
512
xxxxx
So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor and the provincial prosecutor
will file the information.
Let’s go to Section 9. If it is filed with the prosecutor, the procedure in Section 3[a] of this rule shall be
observed. There is no need for preliminary investigation. The prosecutor will simply find out based on the
affidavit of the complainant and his witnesses whether or not there is probable cause. Wala ng counter-affidavit.
There is no need for the prosecutor to give a chance to the respondent to give this counter-affidavits. Section
3[a] lang sundin eh. There is no mention of [b], [c] or [d].
Section 9[b]. What happens if it is filed in the MTC directly? Again, the judge will observe the same
procedure in Section 3[a] of this rule. If the judge finds no probable cause after personally evaluating the
evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form
of searching questions and answers, he shall dismiss the same. So he has the power to dismiss the case. Why
continue if there is no probable cause?
The next sentence is new: “He may, however, require the submission of additional evidence, within ten (10)
days from notice, to determine further the existence of probable cause.” If the judge still finds no probable
cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said
period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused had already been arrested, and hold him for trial. [The next sentence is new again:]
However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue
summons instead of a warrant of arrest.”
So it is not really necessary that every time a case is filed in the MTC with a penalty not more than 4 years
and 2 months, kailangan mag-warrant of arrest agad ang judge. Wala na yan! That is the old practice.
Sometimes it is very tedious. Lalo na sa MTC. Karamihan ng kaso sa MTC is bouncing check law. If I were the
MTC judge, bouncing check law, sino ba yang akusado? “Di ko kilala. Balita ko maraming kaso yan.” Ah sige, I
will issue a warrant.
Pero halimbawa, sino yang akusado? “He is Jet Pascua, Your Honor.” Uy! Kilala ko ito! Businessman ito, titser
pa sa Ateneo. Mayaman ito! Sus! Minalas lang. If I am the judge, I will not issue a warrant. Tatakbuhan ka ba
niyan?
So the judge need not issue a warrant. You better tell that to those judges because they are automatic ba! –
warrant! warrant! warrant! Just imagine kahit respectable man, first time offender – warrant kaagad ang mga
MTC judges.
Well, under the new rules, hindi man kailangan bah! Even if there is probable cause to file, if he is satisfied
that there is no necessity to put the accused in custody, he may issue summons. Summons here is not really
the same in the Rules of Court. It is just a notice bah – notice that you are required to appear. And that is a new
provision.
Now, we will go to some decided cases related to this rule.
PEOPLE vs. NAVARRO

270 SCRA 393, March 25, 1997
NOTE: This case signifies that once the case reached the court, the court has the absolute
power. Anything that you like to happen in the case like reinvestigation or absence of preliminary
investigation, the judge will be the one to approve.
FACTS: The RTC judge felt that the case should be reinvestigated, or maybe there is no
preliminary investigation. So he orders the fiscal to conduct preliminary investigation, then submit
the result to him afterwards what happened. Siguro, the judge had particular confidence in the
assistant provincial prosecutor. Sabi ng judge, “The preliminary investigation should be conducted
by this particular prosecutor – provincial assistant prosecutor Boyd Atensor.” Siya ang nag-pili ba.
Sabi ng provincial prosecutor, “Hindi! Ako ang magpili and not you!”
ISSUE: In remanding the complaint or information to the provincial prosecutor, may a regional
trial court judge name or designate a particular assistant prosecutor to conduct the preliminary
investigation of the case?
HELD: NO. The RTC judge is already interfering with the office of the prosecutor. “It must be
stressed that preliminary investigation is an executive, not a judicial, function. That an RTC judge
has no authority to conduct a preliminary investigation necessarily means that he cannot directly
order an assistant prosecutor, particularly over the objections of the latter's superiors, to conduct a
preliminary investigation. To allow him to do so is to authorize him to meddle in the executive and
administrative functions of the provincial or city prosecutor.”
Q: Can a preliminary investigation be stopped by asking the court to grant a preliminary injunction or a
restraining order? Can a criminal prosecution be enjoined or restrained?
A: NO, as a GENERAL RULE. If you believe that you are not guilty, then you prove that in court. Anyway if
you are not guilty, you will be acquitted.
However, the SC came out with EXCEPTIONS where courts is authorized to stop a criminal prosecution.
These exceptions were all cited in the case of
BROCKA vs. ENRILE

192 SCRA 83
513
HELD: Indeed, the general rule is that criminal prosecution may not be restrained or stayed by
injunction, preliminary or final. There are however exceptions, among which are:
a. To afford adequate protection to the constitutional rights of the accused;

b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions;
c. When there is a pre-judicial question which is sub judice;
d. When the acts of the officer are without or in excess of authority;
e. Where the prosecution is under an invalid law, ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by the lust for vengeance; and
j. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied.
There are some interesting cases where the SC intervened. Normally, hindi nakikialam ang SC eh – i-acquit
mo na lang yan sa trial. But there are cases when the SC is convinced that there is no probable cause, bakit mo
pa pahirapan yung tao? You can order the case to be dismissed. These are rare instances where the SC
becomes activist.
In the case of ALEADO VS. DIOKNO (232 SCRA 192) two (2) lawyers: Atty. Diosdado Jose Aleado and Atty.
Roberto Mendoza who were associates in the office of senator Jovito Salonga were implicated in the murder of a
German national. There was an investigation and a case was filed against them. Salonga entered into picture
and questioned whether or not there is probable cause. [Normally, hindi dapat yan eh. Yang probable cause, sa
fiscal lang yan, hindi dapat sa SC.]
But surprisingly, the SC reviewed and said that there was no probable cause which justified the issuance of
order of arrest of the 2 lawyers. The SC ordered that the warrant of arrest be set aside and the trial court is
permanently enjoined from further proceeding against them. In effect, the respondent judge was ordered to
dismiss the information before him. (Aleado vs. Diokno, supra)
It was a very rare situation. That does not happen every year. It does not happen even in 10 or 20 years!
Yan ang mga kuyaw where the Court has the power to issue injunction order to stop a case when there is no
probable cause. Salonga yata yan!
Rule 114
BAIL
Q: Define Bail.
A: Under Section 1:
SECTION 1. Bail defined. – Bail is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, to guarantee his appearance
before any court as required under the conditions hereinafter specified. Bail may be
given in the form of corporate surety, property bond, cash deposit, or recognizance.
(1a)
Ano ba yang bail? Pyansa! As a general rule, once a case is filed in court and there is probable cause, the
judge will issue a warrant. So sa presohan ka. Paano yan because you are still presumed innocent? Ang tawag
diyan is preventive detention. That is why if you are convicted, that is already credited as advanced service
under Article 29 of the Revised Penal Code.
But that will be too tedious. You are already detained, and you are still presumed innocent. The remedy is
you apply for bail – you post bail – because bail is, as a rule, a constitutional right.
Q: And what is the primary purpose of bail?

A: American jurisprudence says the purpose of bail is (a) to combine the administration of criminal justice
with the convenience of a person accused but not yet proven guilty; (b) to relieve the accused of imprisonment,
and the State of burden of keeping him, pending trial. (6 Am. Jur. 61)
Can you imagine without the provision on bail? There will be thousands of people who are already in jail and
all at the expense of the government. So, we have to combine these two – the convenience of the accused and
the convenience of the State.
Now, let us go to some political law basic questions: When there is invasion or rebellion, the Constitution
authorizes the Commander-In-Chief to suspend the privilege of the writ of habeas corpus. You can be arrested
on suspicion that you are engaged in rebellion even if there is no warrant and there is no case.
Q: Are you entitled to bail? Does the suspension of the privilege of the writ of habeas corpus also carry with
it the suspension of the right to bail?
A: That issue bugged the Supreme Court several times prior to the 1987 Constitution where the SC gave
conflicting answers.
In the case of NAVA VS. GATMAITAN, (90 Phil. 172) the SC said, Yes, he is entitled to bail once the case has
been filed in court. At least 5 out of 9 justices said that. Very close fight! Once the case is filed in court, the
right to bail can be availed of. So, the right to bail is different from the suspension of the privilege of the writ of
habeas corpus.
But when that issue came out during the martial law regime, the SC gave a different answer eh. So, that
issue came out again in the case of BUSCAYNO VS. MILITARY COMMISSION (109 SCRA 273), GARCIA-PADILLA
514
VS. ENRILE (121 SCRA 472). Is there a right to bail when the privilege of the writ of Habeas Corpus is
suspended? Ang sabi ng Supreme Court, NO! because the government’s campaign to suppress rebellion
might be ineffective. Captured rebels, would no doubt rejoin their comrades in the field and jeopardize the
success of the government efforts to end the rebellion. That sounds logical. Just imagine, why are you
suspending the privilege of the writ? To arrest suspected rebels. Pag naaresto, and then entitled to bail, balik
na naman sila sa mga kasama nila! Anong klaseng campaign ito? That is the reasoning in the case of Buscayno
and Ponce Enrile.
I think that debate is already moot and academic. There is now a direct provision in the Constitution, Article
3 Section 13 which says that the right to bail exists and is not suspended by the suspension of the privilege.
Talagang settled na.
Another interesting case on bail. These are the cases that cropped up after the 1989 coup d’ etat attempt
against Cory Aquino because some of the RAM suspects were detained. Many of them were detained because of
court martial charges. They are charged for violating military law pero nakakulong sila. Some of them applied
for bail.
Q: Are the same military officers facing charges before a court martial entitled to bail?
A: In COMMENDADOR VS. DE VILLA (200 SCRA 80) the SC said: NO, “the right to bail has traditionally not
been recognized and it is not available in the military as an exception to the general rule as embodied in the Bill
of Rights.” There is no such thing as bail in the military. So, that’s an exception to the general rule. “The right
to speedy trial is given more emphasis in the military where the right to bail does not exist.”
The dissenter in the case of Commendador is Abraham Sarmiento. Diyan mo makikita pagiging
humanitarian lawyer niya. During the time of Marcos he hates the military [gi-lubot siguro siya]. But he was the
one who said that they are entitled to bail [nalamian siguro siya] because sabi niya, “according to the majority
the right to bail has traditionally hot been recognized in the military. I’ve been looking in the bill of rights and I
cannot find that exception. Where did the majority get that? You mean to tell me the military before are not
citizens of the Philippines anymore?” According to Isagani Cruz who is the ponente in that case, “They are not
entitled to bail as a matter of tradition in the military!” Sarmiento: “No! We are a government of laws, not a
government of traditions.” Mag-isa lang siya, wala siyang nagawa.
PROBLEM: Tato is charged with a capital crime. So, no bail. Ayaw mag-surrender. Gusto niya bail muna bago
surrender. (Anyway, even if you are charged with a capital crime, you can file a petition for bail.) But he got a
lawyer and the lawyer filed a petition for bail in his behalf.
Q: In this case, can Tato apply for bail?

A: NO. The SC said, We cannot entertain the petition for bail because Tato is not in custody! Simple: what is
the definition of bail? “Security given for the release of a person in custody of law.” You are even at large then
you’re asking for bail? Surrender first bago ka makahingi ng bail. (Marigbasa vs. Luna, 98 Phil. 466; Feliciano
vs. Pasicolan, July 31, 1961)
Q: What do you mean by “in custody of law”?

A: “In custody of law” may mean
1. physical or actual custody; or
2. constructive custody. (Panderanga vs. CA, 247 SCRA 41)
PANDERANGA vs. COURT OF APPEALS

247 SCRA 417
FACTS: This case originated in CDO. The accused was charged of murder – non-bailable. So,
ayaw niyang magpahuli. Pero actually, he wants to face the case pero dapat lang may bail. Pero
problema niya how can he file a petition for bail when you are not even in custody? (In custody,
you have to surrender or you must be arrested. Kaya nga ayaw niya yun eh. As much as possible,
pag-surrender niya, meron ng bail. Then what happened?) He entered the hospital, may sakit daw
and then his lawyer filed a petition for bail before the RTC, “We are appearing for the accused for
his petition for bail. We would like to manifest that he is right now in the hospital. Will you please
consider him already in the custody of the court?” Sabi ng court, “[Sure!] OK, let’s proceed.”
ISSUE: Is the accused already in custody? Can the court entertain his petition for bail even if
he was not arrested, and the lawyer said he was in the hospital and the court never bothered to ask
a policeman to go there, check, verify, bantayan mo yung hospital until he gets well?
HELD: YES, he is already in the CONSTRUCTIVE custody of the law. “It may be conceded that he
had indeed filed his motion for admission to bail before he was actually and physically placed under
arrest. He may, however, at that point and in the factual ambience thereof, be considered as being
constructively and legally under custody. Thus, in the likewise peculiar circumstances which
attended the filing of his bail application with the trial court, for purposes of the hearing thereof he
should be deemed to have voluntarily submitted his person to the custody of the law and,
necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. The
undeniable fact is that Panderanga was by then in the constructive custody of the law.
Q: What are the types of bail?

A: There are four (4) types of bail under Section 1:
1. Corporate surety;
2. Property bond ;
3. Cash deposit; and
4. Recognizance.
Q: What are the conditions of a bail?

A: Section 2:
515
SEC. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the
following conditions:
(a) The undertaking shall be effective upon approval, and unless cancelled, shall
remain in force at all stages of the case until promulgation of the judgment of the
Regional Trial Court, irrespective of whether the case was originally filed in or
appealed to it;
(b) The accused shall appear before the proper court whenever required by the
court of these Rules;
(c) The failure of the accused to appear at the trial without justification and
despite due notice shall be deemed a waiver of his right to be present thereat. In
such case, the trial may proceed in absentia; and
(d) The bondsman shall surrender the accused to the court for execution of the
final judgment.
The original papers shall state the full name and address of the accused, the
amount of the undertaking and the conditions required by this section. Photographs
(passport size) taken within the last six (6) months showing the face, left and right
profiles of the accused must be attached to the bail. (2a)
Q: So, for example in the MTC, you are arrested, natalo ka, you will appeal. How about pag-appeal mo sa
RTC, what will happen to your bail?
A: Tuloy-tuloy pa rin yan because under paragraph [a], your bail is effective up to the RTC.
Q: Another example: na-convict ka sa RTC and you want to go to the CA, are you still entitled to bail?
A: The answer is MAYBE. This is one instance where bail is discretionary.
Q: But assuming that the court will say, “OK, you are entitled to bail on appeal.” What happens now to your
bail?
A: The GENERAL RULE is you get another bail bond because your bail is only up to the level of the RTC. This
is back to the 1964 rules. In the 85 Rules, iba naman – the bail is tuloy-tuloy up to the CA. Now, RTC level lang.
You have to ask for another bail bond if you want to go further to the CA. So, it’s back to the 64 rules ‘no?
Q: Paragraph [b] – you will appear before the proper court whenever required by the court or these rules.
Normally, when is a person required by the court to appear?
A: Generally, ARRAIGNMENT or PROMULGATION lalo na pag convicted ka. But there are others for example,
let’s read Rule 115 Section 1 [c]:
“(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment. The accused may,
however, waive his presence at the trial pursuant to the stipulations set forth in his
bail, unless his presence is specifically ordered by the court for purposes of
identification. x x x x x x”
That is one instance where the court may require his presence. His presence there is not a privilege but an
obligation.
Q: Now supposed you failed to appear in court without justification. Like for example, you escaped, you
jumped bail and disappeared? What will happen to the case?
A: Tuloy pa rin according to paragraph [c] because that would be a waiver of your right.
Q: Anong tawag niyan?

A: TRIAL IN ABSENTIA pursuant to Section 14, 2nd paragraph, Article 2 of the Constitution.
Q: A bail bond required the bondsmen to pay the fine of the accused, in addition to the usual condition. Is
this additional condition valid?
A: NO. The additional condition is void because it made the obligation of the bondsmen more onerous, in
violation of the constitutional provision that no excessive bail shall be required may not impose additional
conditions because it might prevent or render it impossible for the accused to secure his liberty during the trial.
(Bandoy vs. CFI of Laguna, 14 Phil. 620)
Q: A condition in a bail bond states that the sureties do not undertake to deliver the person of the accused if
the reading of the sentence is postponed to a later date, nor do they consent to such extension. Is this condition
valid?
A: YES, the condition is valid, because it is not contrary to law or public policy, and, besides, it lightens the
obligation of the bondsmen, which is allowable. Conditions restricting liability on the bond when accepted by
the court and not contrary to public policy are valid. (People vs. Wong Pun, 48 Phil. 713)
SEC. 3. No release or transfer except on court order or bail. – No person under

detention by legal process shall be released or transferred except upon order of the
court or when he is admitted to bail. (3a)
Now, we go to these important issues on bail:

1. When bail is a matter of right;
2. When bail is discretionary;
3. When bail is not available.
As a general rule, bail is a matter of right. That is a constitutional right. And Section 4 tells us what are the
instances when bail is a matter of right.
BAIL AS A MATTER OF RIGHT
516
Q: When is bail a matter of right?
A: Section 4:
SEC. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to
bail as a matter of right, with sufficient sureties, or released on recognizance as
prescribed by law or this Rule (a)before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the Regional Trial court of an offense not
punishable by death, reclusion perpetua, or life imprisonment. (4a)
Q: So you are charged in the MTC; no conviction yet. So you are still an innocent. Are you entitled to bail?
A: Yes, as a matter of right.
Q: Suppose you have been convicted already, found guilty by the MTC, maybe sentenced to 2 years
imprisonment but you would like to appeal to the RTC. While your appeal is going on, can you still post bail?
A: YES. Whether it is before or after conviction by the MTC, bail is a matter of right.
Q: But suppose you are charged in the RTC, for example homicide punishable by reclusion temporal, are you
entitled to bail?
A: YES, it is also a matter of right. For as long as the prescribed penalty is not life imprisonment, perpetua
or death, it is a matter of right. So, up to reclusion temporal it is a matter of right.
So based on the provision of law, let us try to outline –
Q: When is bail a matter of right:

A: Bail is a matter of right –
1. Before conviction by the MTC, MTC, or MCTC (Section 4 [a]);
2. After conviction by the MTC (Section 4 [a]);
3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment (Section 4 [b])
4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when
evidence of guilt is not strong. (People vs. Donato, infra)
Under the law, when a person charged in court for example murder, non-bailable man yan ba. What is the
procedure under Section 8 if he wants to post bail? He must file an application or petition for bail. And that is
when the prosecution will have to present evidence immediately to prove that the evidence of guilt is strong.
Q: Suppose after hearing for the petition for bail, the court is convinced that the evidence of guilt is not
strong and the court said so, what happens now to bail?
A: Bail becomes a matter of right. (People vs. Donato, 198 SCRA 130)
PEOPLE vs. DONATO

198 SCRA 130
HELD: “If the offense charged is punishable by death, reclusion perpetua or life imprisonment,
bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's
discretion is limited to determining whether or not evidence of guilt is strong. But once it is
determined that the evidence of guilt is not strong, bail also becomes a matter of right.”
BAIL AS A MATTER OF DISCRETION
Q: When is bail discretionary? Meaning, the court may grant bail or may not grant bail.
A: Section 5:
SEC. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua, or life imprisonment, admission
to bail is discretionary. The application for bail may be filed and acted upon by the
trial court despite the filing of a notice of appeal, provided it has not transmitted the
original record to the appellate court. However, if the decision of the trial court
conviction the accused changed the nature of the offense from non-bailable to
bailable, the application for bail can only be filed with and resolved by the appellate
court.
xxxx
Q: Supposed you are charged with homicide. The maximum penalty there is temporal. You are convicted.
The court found you guilty of homicide. It sentenced you to 20 years imprisonment and you would like to
appeal. Can you ask for bail?
A: YES.
Q: What will the court do?

A: The court may or may not grant. Yan ang discretion.
Now, the second sentence is new:
The application for bail may be filed and acted upon by the trial court despite the
filing of a notice of appeal, provided it has not transmitted the original record to the
appellate court. (Section 5, first paragraph, second sentence)
This is a reversal of a ruling in the case of
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OMOSA vs. COURT OF APPEALS
266 SCRA 281, January 16, 1997
FACTS: The court convicted the accused for homicide. So temporal. The accused said: “Your
honor, we intend to appeal this case but may we be asked to post bail while the appeal is going on.
The court said, “Granted! [discretionary man!]. We will fix your bail at P50,000.” Two days before,
the accused filed a notice of appeal. After filing the notice of appeal, he applied for bail which was
approved by the court.
ISSUE: Can the court approve the bail?
HELD: NO, because when the accused filed his notice of appeal, from that very moment the
court has lost jurisdiction over the case. Dapat, inuna muna yung approval of bail bago mag-file ng
notice of appeal. When the court fixed the bail, he has must not yet filed his notice of appeal, so the
court has the power to fix the bail. The trouble is he immediately filed a notice of appeal bago niya
ging-post ang bail. So the court has no more jurisdiction to approve the bail. It should have been
approved by the Court of Appeals.
That is the ruling in the Omosa. Obviously, the SC wanted to change it. The application for bail may still be
filed and acted upon by the trial court despite the filing of a notice – that is a modification of the Omosa ruling –
Puwede, provided it has not transmitted the original record. Based on the Omosa ruling, once the notice of
appeal is filed, the trial court has no more jurisdiction to act on the application for bail.
But NOW under the NEW RULES, puwede pa even if there is already a notice of appeal on the condition that
the records are still with the RTC. If the records are already in the appellate court, you better apply for bail
before the Court of Appeals.
Now the next sentence
However, if the decision of the trial court conviction the accused changed the
nature of the offense from non-bailable to bailable, the application for bail can only
be filed with and resolved by the appellate court. (Section 5, first paragraph, last
sentence)
This is also a recognition and modification of the ruling of Omosa vs. CA, supra.
In the case of Omosa, the accused was charged with murder – non-bailable. But after the trial the court
convicted him only for homicide, a lesser offense. And homicide is bailable – discretionary in the court. If he
was convicted for murder, wala talagang pag-asa. But he was convicted for homicide. So he applied for bail.
And the court granted the bail. And the SC said the trial court should not grant bail because the accused is
appealing. For all you know on appeal, the appellate court may reinstate the original charge for murder
because when you appeal, the whole case is open for review. So, because of the possibility that the penalty of
murder would be imposed, then there should be no bail. That was the ruling of Omosa vs. CA.
Now, of course it is now modified in the sense that, bail could be granted in that situation because he was
charged with a non-bailable offense but found guilty of bailable offense. However, if there is any court which
should grant the bail, it should be the CA and not the trial court. So these are new provisions which were
somehow taken from the ruling in Omosa which is also now modified. That is the history of that provision.
Alright. Now let us go to the second paragraph:
Should the court grant the application, the accused may be allowed to continue
on provisional liberty during the pendency of the appeal under the same bail subject
to the consent of the bondsman. (Section 5)
That is more or less an exception to Section 2[a] that we already discussed. When you are charged in the
RTC and you post bail, the bail is good up to when? The bail is only valid in the RTC. If you want to appeal, and
the court grants bail on appeal, you have to post another bail.
But this provision grants the court the authority to say, “Alright, your bail which you posted here will
continue.” Nasa court yan kung gustong ipatuloy. Puwede rin yun. Ok. We will continue, subject to the consent
of the bondsman. That is now the condition. The bondsman may say, “Delikado na ito, baka ma-convict na ito.
Mamaya baka lumayas na ito at tumakbo, patay na ako. Ako ang magbabayad.”
Alright, let us go now to the next sentence:
If the penalty imposed by the trial court is imprisonment exceeding six (6) years,
the accused shall be denied bail, or his bail shall be cancelled upon a showing by the
prosecution, with notice to the accuse, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or
violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional
pardon;
(d) That the circumstances of his case indicate the probability of flight if released
on bail; or
(e) That there is undue risk that he may commit another crime during the
pendency of the appeal.
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The appellate court may, motu proprio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in either case.
(5a)
Alright. Let us go back to the basic:
What is the jurisdiction of the RTC? The penalty is 6 years and 1 day up to death.
If the penalty is prision mayor to reclusion temporal [6 yrs and 1 day to 20 years] yan, sa phrase na yan,
bail could be granted on appeal but it is discretionary. However, even if the bail is granted the prosecution tells
the court, “Judge, this guy was found guilty of homicide and you grant bail. Iba pala ito eh because he is a
recidivist, or etc or any of the conditions mentioned in [a] – [e],” the court will now cancel the bail.
So bail is discretionary provided it will not fall under [a], [b], [c], [d], or [e]. You are a recidivist; you are
habitual delinquent; you have previously escaped from a confinement; you have committed an offense while
under probation, parole or conditional pardon; or when the circumstances of the case indicates the probability
of flight (there is a risk ba!); or there is an undue risk that the you might commit another crime during the
pendency of the appeal, the court will not grant the bail. The discretion there will not be in your favor. If the
court has already granted, the bail will be cancelled. Take note of that.
Q: When is bail discretionary?

A: Based on that provision, after conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment, provided the case does not fall under Section 5, third paragraph [a]-[e] of the
same law because once the case falls under any of these, no bail even if it is a matter of discretion.
Take note of the second instance – bail as a matter of discretion. The first instance is when bail is a matter
of right – Section 4. When is bail discretion – Section 5. Yung Section 4, walang problema, that is absolute even
if you are a recidivist.
CASE: The accused was charged with homicide, there was no conviction yet. And then bail. He jumped bail
– lumayas! But he was arrested again. When arrested apply na naman for bail. Binigyan na naman ng bail.
After a few months, layas na naman. He escaped again. Nahuli na naman. And then he applied for bail for the
third time. This time, sabi ng judge, “Ayaw ko na. Because of your character, di na puwede for jumping bail
twice already. I will not grant you bail.” And he questioned it before the court. Is the denial of bail correct
because of the past record of the accused?
The SC said NO because the bail is a matter of right. He falls under Section 4 there. Wala pang conviction.
Even if he jumps bail 100 times you cannot deny him bail for as long as the crime is not punishable by perpetua
to death. (Sy Guan vs. Amparo, 79 Phil. 670; People vs. Alano, 81 Phil. 19)
Q: What is the remedy to this kind of accused? Remedy?

A: Taasan mo ang bail. So magkano bail mo dati? P30,000? Alright, ngayon P70,000 na! Tingnan natin kung
tatakbo pa yan. [putulin kaya ang paa?] Previous abscondence or escape is not a ground for the denial of the
bail; it merely gives the court discretion to increase the amount of the bond as will reasonably tend to assure
the presence of the accused. (Sy Guan vs. Amparo, 79 Phil. 670; People vs. Alano, 81 Phil. 19)
Now, I am amused by what happened in Section 5. Did you hear the promulgation of the Robillo case one
month ago? I don’t know how many were convicted. I think 3 or more were convicted. One of them is a
radioman. I know where he hangs around. One day before the promulgation, he is no longer hanging around.
He disappeared already, na-amoy na niya siguro. Some were military men.
They were convicted. At least one of them was acquitted. Many were convicted. The penalty was reclusion
perpetua. And after the trial everybody left, including the convicted accused. I was visiting the jail the following
day. The warden was telling me, “What happened to this case? Since yesterday we were expecting the
convicted person to be brought here. Convicted eh.”
So I asked the fiscal kung anong nangyari dyan because from what we know, if you are found guilty for
murder, for example, and sentenced to reclusion perpetua on the spot, you will be sent to jail. “Teka muna!
Hindi pa final yung conviction!” Never mind! You can appeal but you are now detained indefinitely. Wala nang
labas labas ‘yan. From the court room, diretso ka na sa jail. “But the judgment is not yet final?” But there’s
already the judgment of conviction. Even when there’s still no of conviction, when the evidence of guilt is
strong, your bail will be denied. Even in the middle or at the start of the case, if the evidence of guilt is strong,
bail will be denied lalo na kung capital punishment. How much more here when there is already a judgement of
conviction?! Logic! simple logic.
And the branch clerk of court, I think you know her – Atty. Morales. She called me up in the office. Sabi
niya, “Anong nangyari dito? di ba walang bail yan?”. Sabi ko “Yes”. I wonder bakit walang bail. Bakit hindi
ikinancel? Kailangan daw i-cancel pa ang bail. That was what the judge said. Sabi ko, NO! The bail is
automatically cancelled. That is what I said so.
Sabi niya (clerk of court), “I was pointing to the judge Section 5. Eh sabi niya (judge), ‘No. Bail is
discretionary because of this paragraph 3 – if the penalty imposed by the trial court is imprisonment exceeding
6 years the accused should be denied bail or bail should be cancelled upon showing by the prosecution with
notice of the accused of the following. Therefore, bail could be granted because the penalty is exceeding 6
years.’”
That implies that bail is discretionary because in Section 5, the heading is “Bail, when discretionary” so
hindi cancelled. I said, “Tingnan mo ang opening paragraph of Section 5 – upon conviction of the RTC of an
offense not punishable by death, perpetua or life imprisonment, admission to bail is discretionary. So itong
paragraph 3, upon 6 years but less than perpetua. So up to 20 years. We have to connect paragraph 3 with
the first paragraph. Sabi niya (clerk of court), “This is what I know eh. Since I am new in this job. I cannot
insist.” Dean I: “Sabihin mo sa judge na nagkamali sya. Ako ang nagsabi.” And after 2 days, pinacancel niya
(judge).
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I’ve talked that judge. He was my friend personally. When I see him sabi ko nagkamali ka man dun ba.
Dapat yun, on the spot. That’s why everybody is wondering bakit nakaganun yun. Well, that was his first
experience with a capital heinous crime. Dio siya naiiba eh. He’s not used to trying this kind.
Yung sasabihin mong bail may continue – that assumes that the penalty is above 6 years but not more than
20 years. Pag naging perpetua, wala na. Yung wala pang conviction bail could be denied, lalo na pag may
conviction na! The evidence of guilt is now strong! It’s simple logic. That is why this provision will be tricky if
we do not know how to interpret this rule.
WHEN BAIL IS DENIED
SEC. 6. Capital offense defined. – A capital offense is an offense which, under the
law existing at the time of its commission and of the application for admission to
bail, may be punished with death. (6a)
Take note that the crime is punishable by DEATH not only at the time of its commission but also at the time
of the application for bail. The law uses the conjunction “and.” C.f. RA 7659 gives us a list of capital offenses.
SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. – No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail
when evidence of guilt is strong, regardless of the state of the criminal prosecution.
(7a)
This means if the accused is charged with a crime which is punishable by death, reclusion perpetua, or life
imprisonment, there is NO BAIL even at the start of the trial or even before judgment of conviction, provided
that the two (2) conditions are present.
“xxx regardless of the state of the criminal prosecution.” Meaning, NO BAIL before conviction. Lalo na pag
after conviction!
That’s why I told (Atty.) Evalyn Morales na ipakita mo [sa judge] yung Section 7 – “xxx regardless of the
state of criminal prosecution.” You already found him guilty beyond reasonable doubt and sentenced him to
perpetua, huwag mo sabihing ‘the evidence of guilt is not strong’! How come you convict him?! Yaan!
Now, this is where lalabas yung application for bail – Section 8:
SEC. 8. Burden of proof in bail application.– At the hearing of an application for bail
filed by a person who is in custody for the commission of an offense punishable by
death, reclusion perpetua, or life imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong. The evidence presented during the bail
hearing shall be considered automatically reproduced at the trial but, upon motion of
either party, the court may recall any witness for additional examination unless the
latter is dead, outside the Philippines, or otherwise unable to testify. (8a)
Arestado ka, nakulong ka. Under the law, what is the procedure? You file an application for bail. And once an
application for bail is filed, it is now MANDATORY for the court to conduct a hearing for the prosecution to
present evidence to prove that the guilt is strong, not guilt beyond reasonable doubt because the latter is
conviction na yan!
Ang ibig sabihin niyan, mag-sample ka lang. You present some of the witnesses but not all. Sample-an mo
lang ba. Parang preliminary injunction ba! You present some of your evidence. after that, the court will now
consider whether the evidence of guilt is strong or not strong.
Either way the court will grant bail or deny bail – tuloy pa rin ang trial! Yaan!
Q: What happens now to those witnesses? Balik na naman sila sa trial?

A: NO. Under Section 8, the evidence received during the bail hearing is automatically reproduced at the
trial. Di na kailangang ulitin pa. But you can add more witnesses and more evidence.
After that, we will now determine if the accused is guilty or not guilty. Yan na ang guilt beyond reasonable
doubt.
Now, [Atty.] Ceniza had a problem in Davao Oriental. He told me about it. An offense is, I think punishable
by perpetua or higher. Then pag-hingi ng bail, sabi ng prosecutor, “No objection!” Siguro sabi ng court, “No
objection? O sige, grant bail!” The prosecutor did not present evidence. Meaning, the prosecutor admits that
the evidence of guilt is not strong – wala ng hearing!
Puwede ba yan? NO! The SC said that there must be a hearing. Even if the prosecution will not want to
present evidence, the court must require a hearing. And the court cannot dispense with the hearing.
Let’s go to some decided cases.
TUCAY vs. JUDGE DOMAGAS

[Adm. Matter No. RTJ-95-1286] March 2, 1995
HELD: “Although the Provincial Prosecutor had interposed no objection to the grant of bail to
the accused, respondent judge should nevertheless have set the petition for bail for hearing and
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diligently ascertained from the prosecution whether the latter was not really contesting the bail
application.”
“He should have called a hearing for the additional reason of taking into account the guidelines
in Rule 114 in fixing the amount of the bail. Only after satisfying himself that the prosecution did not
wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into
account the factors enumerated in Rule 114, sec. 6 for fixing bail should respondent judge have
granted the petition for bail and ordered the release of the accused.”
Assuming na sabi ng prosecution, “for tactical reason, we will not object.” The court will still have to
conduct a hearing – kung pila ang bail. Yaan! You still have to conduct a hearing. You look at Section 9 – Amount
of bail; guidelines. In determining how much is the bail, may mga guidelines eh! So if we will grant bail, at least
we will have to find out how much. These guidelines must be met. So you still have to conduct a hearing.
GUILLERMO vs. JUDGE REYES, JR.

January 18, 1995
HELD: “A hearing, in the nature of a summary proceeding entailing judicial determination is

required where the grant of bail is addressed to the discretion of the court. The prosecution should
be given the opportunity to adduce evidence thereat after which the court should then spell out at
least a summary or resume of the evidence on which the order, whether it be affirmative or
negative, is based. Otherwise, the order is defective or voidable.”
Meaning, if you grant or deny bail, may court order yan. Kailangang i-summarize mo ang evidence. then
you state why you believe it is strong or it is weak. Otherwise the judge is administratively liable for not
complying with the requirement.
AURILLO vs. FRANCISCO

235 SCRA 283
HELD: In a hearing for petition for bail, affidavits will not suffice. Witnesses must be
present to testify. Affidavits will suffice only when it determines probable case for the purpose of
whether or not to issue search warrant. The judge has the personal duty of calling the witnesses
one by one to hear them for or review the evidence, i.e. affidavits presented at the fiscal’s
office.
“Verily, it was patent error for him to base his order granting bail merely on the supporting
affidavits attached to the information since those were merely intended to establish probable
cause as basis for the issuance of an arrest warrant, and not to control his discretion to deny or
grant bail in all situations”
AGUIRRE vs. JUDGE BELMONTE

October 27, 1994
HELD: “Even if the prosecution fails to adduce evidence in opposition to an application for bail
of an accused, the court may still require that it answer questions in order to ascertain not only the
strength of the state's evidence but also the adequacy of the amount of bail.”
So kahit na sabihin pa ng prosecution that it is not opposing in the application of the bail, sabi ng SC: Ah,
hindi puwedee! The court will have to ask the prosecution, why are you not opposing? Yaan! Whether to grant
or deny bail, a hearing is a 100% requisite. Otherwise the order granting or denying bail is defective, and the
judge may lose his job.
Let’s go to this important question:
Q: For bail to be denied, what are the requirements?

A: Under the law:
1. the evidence of guilt is strong;
2. the crime is punishable by death, reclusion perpetua or life imprisonment;
3. [based on jurisprudence] if the accused is convicted in all probability the penalty will also be death,
reclusion perpetua or life imprisonment.
So you have to look at the probable penalty. This principle has been illustrated in the case of
BRAVO, JR. vs. BORJA

134 SCRA 466
FACTS: The accused was charged with murder – perpetua to death – talagang non-bailable yan.
The accused filed a petition for bail where the case is pending on the argument that when he
committed a crime, he was only 16 years old. He attached his birth certificate in the application for
bail. Sabi niya, if found guilty, the penalty is automatic one (1) degree lower – so, temporal. The
worst that will happen to him is temporal. Therefore, bail now becomes a matter of right.
ISSUE #1: In the hearing for bail, should the court allow the presentation of evidence of
mitigating or aggravating circumstances?
HELD: NO. Bravo, Jr. is wrong. In the hearing for a petition for bail, the presentation of
aggravating and mitigating circumstances is NOT covered because if the court will required the
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presentation of said circumstances, then there would be a need for a trial on the merits of the case.
All the court has to do after the bail hearing would be to render a decision. That would defeat the
purpose of the hearing for bail.
ISSUE: #2: Whether or not Bravo, Jr. is entitled to bail.
HELD: YES. Although the presentation of aggravating and mitigating circumstances is NOT
allowed, the SC said, However, we cannot close our eyes to the fact that when Bravo, Jr. committed
the crime he was only 16 years old. Normally, we close our eyes, but in this case, we cannot close it
because he alleged it. As a matter of fact, his birth certificate was attached to this petition and the
prosecution DID NOT challenge his minority. Since the plea of minority is already before us and the
accused did not challenge it, we cannot close our eyes to the fact that even if we fin him guilty, the
penalty to be imposed would not be reclusion perpetua or death but lower. Since the probable
penalty is not death or perpetua, then he is entitled to bail as a matter of right.
Q: So what are the principle points to remember in the case of Bravo, Jr?
A: The following:
1. that in a petition for bail there should be no evidence of any aggravating or mitigating
circumstances. It should not be presented in a petition for bail. This should be presented during the
trial;
2. however, despite the fact that it should not be presented, if it is alleged and presented there and
the prosecution did not dispute it, the court should consider it just the same; and
3. even if the accused is charged with a crime punishable by death, perpetua or life imprisonment and
the evidence of guilt is strong, if the probable imposable penalty is less than perpetua, bail
becomes a matter of right.
PEOPLE vs. CALO

186 SCRA 620 [1990]
FACTS: Three (3) people were accused of murder for the death of the victim. The prosecution
recommended no bail. After a hearing to determine whether the evidence of guilt is strong, the trial
court issued the order granting bail. The son of the victim went to the SC questioning the order
granting the bail of the accused.
ISSUE: Whether or not the son of the victim has sufficient legal personality to question the
order granting bail? (Normally, if there is anyone who should question it, it should be the Solicitor
General representing the people of the Philippines)
HELD: While the rule is, only the Solicitor General may represent the People or the State in
criminal proceedings pending in this Court and the Court of Appeals, the ends of substantial justice
would be better served, and the issues in this action could be determined in a more just, speedy
and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal
case, private petitioner has sufficient personality and a valid grievance against the judge's order
granting bail to the alleged murderers of his (private petitioner's) father.
So, the case of Calo was considered an exception because he is also an aggrieved party – the aggrieved
parties are the People and the family of the victim. So in this case, the son is also an aggrieved party.
So based on what we have gone so far, let us now try to summarize the instances under Rule 114 where
bail is a matter of right, discretion, or is denied.
Q: When is bail a MATTER OF RIGHT:

A: Bail is a matter of right –
1. Before conviction by the MTC, MTC, or MCTC;
2. After conviction by the MTC;
3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment; and
4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when
evidence of guilt is not strong. This is because once the court finds that the evidence of guilt is
strong, bail becomes a matter of right.
Q: When is bail DISCRETIONARY?

A: Bail is discretionary after conviction by the RTC of an offense not punishable by death, reclusion
perpetua, or life imprisonment provided, the case does not fall under the 3rd paragraph of Section 5 [a] – [e].
Q: When shall bail be DENIED?

A: The bail shall be denied under the following instances:
1. before conviction by the RTC of an offense punishable by death, reclusion perpetua or life
imprisonment when the evidence of guilt is strong;
2. after conviction by the RTC and the penalty imposed is death, reclusion perpetua or life
imprisonment. He can appeal but in the meantime, there is no bail; and
3. after conviction by the RTC where the penalty imposed is imprisonment exceeding 6 years but no
more than 20 years, and the case falls under Section 5 [a] – [e].
So, recidivist, or you escaped from confinement, or there is undue risk, etc. ayan! Pagnahulog ka diyan, bail
shall not be granted. And this is where the question of Ms. Masepequeña will come in:
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Q: Mr. Peloton was charged with a crime (sorry kaayo Gay! ) punishable by temporal. He was convicted
but the penalty is 6 years or less (for instance, there are mitigating circumstances) and he wants to appeal to
the CA. Is it a matter of right or a matter of discretion?
A: My view is, it is a matter of discretion but even if these circumstances (recidivist, etc.) still bail can be
granted. That is the effect. Whereas, if the penalty is 6 years 1 day to 20 years and he is a recidivist, etc., bail
shall not be granted. But if it is only 6 years or less, it may be granted although it is not a matter of right.
SEC. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted
the application shall fix a reasonable amount of bail considering primarily, but not
limited to, the following factors:
(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required. (9a)
Q: When bail shall be granted, how much is the amount of it?

A: There are guidelines under Section 9 – marami eh! Of course one of the factors is paragraph [c] – penalty
for the offense charged. That’s why the DOJ has a guidelines eh na kapag ganito ang penalty, ganito a ng i-
recommend mo. But that is only one of the factors. The court can either follow the recommendation or raise it
or lower it because aside from that, marami pa eh like financial ability of the accused, character or reputation of
the accused, etc. And all these guidelines where taken from the ruling in the case of VILLASEÑOR VS. ABANO
(21 SCRA 312)
Q: What do you mean by corporate surety?

A: Section 10:
SEC. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a

surety in accordance with law and currently authorized to act as such, may provide
bail by a bond subscribed jointly by the accused and an officer of the corporation
duly authorized by its board of directors. (10a)
Q: What do you mean by a property bond?

A: Section 11:
SEC. 11. Property bond, how posted. – A property bond is an undertaking constituted
as lien on the real property given as security for the amount of the bail. Within ten
(10) days after the approval of the bond, the accused shall cause the annotation of
the lien on the certificate of title on file with the Registry of Deeds if the land is
registered, or if unregistered, in the Registration Book on the space provided
therefore, in the Registry of Deeds for the province or city where the land lies, and
on the corresponding tax declaration in the office of the provincial, city and
municipal assessor concerned.
Within the same period, the accused shall submit to the court his compliance and
his failure to do so shall be sufficient cause for the cancellation of the property bond
and his re-arrest and detention. (11a)
SEC 12. Qualifications of sureties in property bond. – The qualifications of sureties in a

property bond shall be as follows:
(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the
amount of undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that
expressed in the undertaking but the aggregate of the justified sums must be
equivalent to the whole amount of the bail demanded.
In all cases, every surety must be worth the amount specified in his own
undertaking over and above all just debts, obligations and properties exempt from
execution. (12a)
SEC. 13. Justification of sureties. – Every surety shall justify by affidavit taken before
the judge that he possesses the qualification prescribed in the preceding section. He
shall describe the property given as security, stating the nature of his title, its
encumbrances, the number and amount of other bails entered into by him and still
undischarged, and his other liabilities. The court may examine the sureties upon
oath concerning their sufficiency in such manner as it may deem proper. No bail shall
be approved unless the surety is qualified. (13a)
Q: What do you mean by cash deposit?

A: Section 14:
SEC. 14. Deposit of cash as bail. – The accused or any person acting in his behalf
may deposit in cash with the nearest collector of internal revenue or provincial, city,
or municipal treasurer the amount of bail fixed by the court, or recommended by the
prosecutor who investigated or filed the case. Upon submission of a proper
certificate of deposit and a written undertaking showing compliance with the
requirements of section 2 of this Rule, the accused shall be discharged from custody.
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The money deposited shall be considered as bail and applied to the payment of fine
and costs while the excess, if any, shall be returned to the accused or to whoever
made the deposit. (14a)
RECOGNIZANCE
Let’s go to the 4th type of bail – recognizance – which are not understood by many how it operates.
SEC. 15. Recognizance. – Whenever allowed by law or these Rules, the court may
release a person in custody on his own recognizance or that of a responsible person.
(15a)
So, no money – nothing is filed in court. “On my word of honor, I will appear when the court requires me to
appear. If I’m convicted, don’t be afraid. I will not runaway.” Court: “Word of honor ha? [promise ha] OK!” – Yan!
Yan ang recognizance.
Or, instead of going to jail, “Payag man ang mayor na doon na lang daw ako sa kanya. Siya daw ang bahala
sa akin.” Court: “OK. You will be in the custody of the mayor. Kung may problema, or anytime you are required
to appear, you appear!” And the mayor will promise, “Akong bahala dito. Hindi ito tatakbo [puputulan ko ng
paa!] Sagot ko ito.” – Yan ang recognizance – word of you word or word of a responsible person.
Para bang character loan – you borrow money, no collateral and I promise to pay you. Creditor: “Believe ako
sa iyo. Your word is as good as a security. OK!”
Q: Is recognizance possible in all criminal cases?

A: NO. Under the rules, recognizance is only allowed whenever allowed by law or these Rules. So, if it is not
allowed by law or the rules, hindi puwede.
Q: How do you define recognizance?

A: A recognizance is an obligation of record, entered into before some court or magistrate duly authorized
to take it, with the condition to do some particular act, the most usual condition in criminal cases being the
appearance of the accused for trial. (People vs. Abner, 87 Phil. 566, 569)
The next question is, what are the instances where recognizance is allowed by the law or this Rules? There
are four (4) instances originated and as mentioned by the SC in the 1997 case of ESPIRITU VS. JOVELLANOS
(280 SCRA 579). But even before JOVELLANOS came out, the 1985 Rules says that recognizance is possible if
allowed by law or the Rules. Ano man yang “by law or this Rules”? So as early as 1985, I was already gathering
the instances when the law or the rules allow it. And I gathered four (4). Meron pa man sigurong iba, pero di ko
pa siguro nakita. That is why when the case of Jovellanos came out, tiningnan ko – exactly the very four! – not
more, not less. [ehem! ehem!]
Q: What are the instances when recognizance is allowed by the law or this Rules?
A: In the case of ESPIRITU VS. JOVELLANOS (280 SCRA 579):
1. Under RA 6036 – when the offense charged is for violation of an ordinance, a light felony, or a
criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or
P2,000 fine, under the circumstances provided in R.A. No. 6036;
2. Rule 114, Section 16, last paragraph:
“A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged, without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released on
a reduced bail or on his own recognizance, at the discretion of the court.”
3. Rule 114, Section 24:
“No bail shall be allowed after a judgment of conviction has become final. If
before such finality, the accused applies for probation, he may be allowed
temporary liberty under his bail. When no bail was filed or the accused is
incapable of filing one, the court may allow his release on recognizance to the
custody of a responsible member of the community. In no case shall bail be
allowed after the accused has commenced to serve sentence.”
4. Under PD 603 (Child and Youth Welfare Act) – in case of a youthful offender held for physical and
mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances
envisaged in P.D. No. 603, as amended.
Those are the four instances where recognizance is allowed. So it is not possible in all cases.
This reminds of a former student of this law school who graduated way back in 1977. He is from Agusan. I
remember during the mid-80’s, I went to Cagayan. Wala pa itong Buda, so I have to travel via Butuan. On my
way back at around 4 P.M., we were riding in a private vehicle, we stopped at a town in Agusan. We took a break
kay kapoy eh. There were numerous big houses there. And then I saw this attorney so and so and I recognized
him because he was a graduate of this school. Anyway I’m not in a hurry, I went there. So I met this lawyer and
I gave my name. ATTY: “Uy! You! We did not see each other for a long time. Kumusta? [videoke ta!]” DEAN: “I
was just passing by. What are you doing now? [na kay fundador diha?]” ATTY: “I’m practicing law. Karamihan
criminal.” And I noticed marami siyang helpers sa bahay niya. So I asked him, “Ba’t karami mo namang
houseboys?” ATTY: “They are not houseboys, Sir. They are all accused!” DEAN: “Why are they with you?” ATTY:
“Recognizance.” DEAN: “Ano pala mga crimes nila?” ATTY: “Murder, Homicide.” Na-shock ako!! Paano nakakuha
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ng recognizance ito eh hindi man puwede yan because recognizance is only possible if allowed by law or the
rules. Pero nobody is complaining naman there.
SEC. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be
required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more than the
possible maximum imprisonment prescribed for the offense charged, he shall be
released immediately, without prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30) days of preventive
imprisonment.
A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged, without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released on a
reduced bail or on his own recognizance, at the discretion of the court. (16a)
Let’s go further. As a general rule, when the criminal case is filed, there will be warrant of arrest. If there is
warrant of arrest, there must be a bail either in cash or recognizance. But Section 16 provides that no bail shall
be required when the law or these Rules so provide. This is now the question:
Q: What are the instances where despite the pendency of the criminal case, the accused is not required to
post bail? Meaning, he is exempt from putting up a bail bond because the law or the rules says so.
1. Under RA 6036 – yung mga 6 months or less under the conditions mentioned therein;
2. When the crime is covered by the Summary Rules because of Section 16 of Rule 114. When a case
is filed under the Summary Rules, a mere notice is sufficient. No need of a warrant of arrest.
3. Section 9 [b] of Rule 112 (this is a new sentence):
“x x x x However, if the judge is satisfied that there is no necessity for

placing the accused under custody, he may issue summons instead of a
warrant of arrest.”
So, the court is satisfied that there is no need to issue a warrant of arrest maybe because the
court believes that you will not run away. In effect, no bail shall be required.
SEC. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court
where the case is pending, or in the absence or unavailability of the judge thereof,
with any regional trial judge, metropolitan trial judge, municipal trial judge, or
municipal circuit trial judge in the province, city or municipality. If the accused is
arrested in a province, city, or municipality other than where the case is pending,
bail may also be filed with any regional trial court of said place, of if no judge thereof
is available, with any metropolitan trial judge, municipal trial judge, or municipal
circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the accused seeks to be
released on recognizance, the application may only be filed in the court where the
case is pending, whether on preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may apply for bail with any
court in the province, city, or municipality where he is held. (17a).
Section 17 is another important provision on where to file the bail. Normally, you file the bail before the
same court where you case is pending. But if the judge is not around, under paragraph [a], puwede man any
RTC judge, MTC judge, etc.
Q: Suppose your case is in Davao and you are arrested in Manila, can you post bail in Manila?
A: YES because it would be very tedious if you will be arrested and brought back in Davao just to post bail.
And under paragraph [a], it may be filed with any RTC of such place. And of course, the judge there will accept
the bail and transmit everything to Davao.
Q: What are the instances where the accused is only allowed to post bail before the very same court where
the case is pending?
A: Under paragraph [b], the following are the instances:
1. if you seek to be released on recognizance, no other judge can grant it other the judge where you
case is pending;
2. when bail is a matter of discretion. For example: Ms. Tormon is accused of a capital offense and she
would like to file a petition for bail because the evidence of guilt is not strong, that should be
decided by the very court where her case is pending.
Q: Is the MTC entitled to entertain a petition for bail?

A: YES
Q: What are the instances when a MTC is entitled to entertain applications for bail?
1. Under paragraph [b], the application may be filed in the court where the case is pending, whether
on preliminary investigation, trial, or appeal. With this provision, it would seem puwede;
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2. MTC can entertain petitions for bail in cases not cognizable by it filed before it for purposes of
preliminary investigation. That is why in one case the SC held that inferior courts (MTC) can
entertain applications for bail in capital offenses as an incident to its power to conduct preliminary
investigation. (Manigbas vs. Luna, 98 Phil. 466); and
3. Section 35 of the Judiciary law (Special jurisdiction of the MTC) –the MTC may hear and decide
petitions for a writ of habeas corpus or applications for bail in the absence of ALL the RTC judges.
Let’s go now to the last paragraph of Section 17:
“Any person in custody who is not yet charged in court may apply for bail with
any court in the province, city, or municipality where he is held.”
This is one provision that has stunned so many: how can a person be in custody who is not yet charged in
court? He is already in custody pero wala pa mang kaso? What is contemplated under the last paragraph of
Section 17 is Rule 112 Section 7 on INQUEST preliminary investigation – when a person is lawfully arrested
without a warrant, he will be detained immediately without preliminary investigation. But if he demands a
preliminary investigation, he can get it but he must waive the effects of Article 125 of the RPC.
Section 7, Rule 112, last sentence of second paragraph provides: “Notwithstanding the waiver, he may
apply for bail and the investigation must be terminated within fifteen (15) days from its inception.” So he can
ask for bail even if he is not yet charged in court.
Q: If you apply for bail with any court in the province, city or municipality, ano ang title and number ng
petition mo? You cannot put there “People of the Philippines versus…” kay wala pa mang criminal case? What
will be your reference?
A: “IN RE: PETITION FOR BAIL.” So bahala na kayo diyan. Bahala na ang clerk of court how to docket it.
Basta that is my right under the law! So you think of your own caption.
SEC. 21. Forfeiture of bail. – When the presence of the accused is required by the
court or these Rules, his bondsmen shall be notified to produce him before the court
on a given date and time. If the accused fails to appear in person as required, his
bail shall be declared forfeited and the bondsmen given thirty (30) days within which
to produce their principal and to show why no judgment should be rendered against
them for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production;
and
(b) explain why the accused did not appear before the court when first required
to do so.
Failing in these two requisites, a judgment shall be rendered against the
bondsmen, jointly and severally, for the amount of the bail. The court shall not
reduce or otherwise mitigate the liability of the bondsmen, unless the accused has
been surrendered or is acquitted. (21a)
Another important provision is Section 21 – how bail is forfeited.
If you are required to appear in court for an arraignment, or for some other reason, and you did not appear,
the first step is, upon motion of the prosecution, the court will issue an order to confiscate the bond and the
court will also direct the bondsmen:
1. to produce the body of their principal within 30 days; AND
2. to explain why the accused did not appear before the court when first required to do so.
Dalawa yan – (1) produce him within 30 days, and (2) explain why you failed to produced him. If you satisfy
both conditions, no problem – the court will issue an order lifting the order of the forfeiture.
Q: Suppose you failed to comply both or one of the conditions, what will happen?
A: The court will render judgement on the bond. Meaning, the bonding company is now liable on its bond.
So ang una, order of confiscation or forfeiture of the bond. The second stage is, if the conditions are not
met, there will be judgment against the bond. So that is the step-by-step application of Section 21.
SEC. 23. Arrest of accused out on bail. – For the purpose of surrendering the
accused, the bondsmen may arrest him or, upon written authority endorsed on a
certified copy of the undertaking, cause him to be arrested by a police officer or any
other person of suitable age and discretion.
An accused released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without permission of the court
where the case is pending. (23a)
Section 23 is an instance of a valid warrantless arrest. This is a continuation of Section 5 Rule 113.
For the purpose of surrendering the accused, they can arrest him without a warrant. The bondsmen is his
jailer. The theory of bond, lalo na yung corporate bond, is that the sureties or bondmen becomes you jailer in
the eyes of the law, and you are their prisoner. They took over the government. In reality, they are not really
imprisoning you. You are a free man. And importante, you put up money for you release – you pay premium,
back up your commitment with property. Parang insurance din ito eh.
Now halimbawa, nainis sila sa iyo? – hindi ka nagabayad ng premium – puwede ka man nila arestuhin bah!
The bondsmen can have you arrested without a warrant. So diretso ka sa jail.
526
Let’s go to last paragraph of Section 23. If you are attempting to leave the Philippines, lalo na kung may
hold departure order, even if you are on bail, you can be arrested without a warrant. Now, we will go to this
question related to you constitutional right to travel:
Q: How do you reconcile Section 23 with the constitutional right to travel?

A: In the 1986 case of
MANOTOC vs. COURT OF APPEALS
142 SCRA 149
ISSUE: How come if you are out on bail, you cannot leave the country without the permission of
the court?
HELD: “A court has the power to prohibit a person admitted to bail from leaving the Philippines.
This is a necessary consequence of the nature and function of a bail bond. The condition imposed
upon petitioner to make himself available at all times whenever the court requires his presence
operates as a valid restriction on his right to travel.” (because this is one of the conditions of the
bail bond – you must be available whenever the court requires you to appear.)
“Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may
be placed beyond the reach of the courts. If the sureties have the right to prevent the principal from
leaving the state, more so then has the court from which the sureties merely derive such right, and
whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to
the latter.”
“The court cannot allow the accused to leave the country without the assent of the surety
because in accepting a bail bond or recognizance, the government impliedly agrees that it will not
take any proceedings with the principal that will increase the risks of the sureties or affect their
remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged
by a stipulation inconsistent with the conditions thereof, which is made without his assent.”
So, if your own bondsmen have the right to prevent you, with more reasons with the court who has the
complete jurisdiction over your person. But even if the court wants to grand you permission to leave, gusto
mong mag-tour, but sabi ng bondsmen, “Ayoko nga!”, then the court has no power to grant your request
because the bondsmen must also agree. (Manotoc vs. CA, supra)
SILVERIO vs. COURT OF APPEALS

April 8, 1991
FACTS: Silverio was charged criminally for violation of Revised Securities Act. For more than
two years, there were series of postponements of the arraignment scheduled therein. He could not
be arraigned because he had gone abroad several times without the necessary court approval. The
prosecution got fed up already. So upon motion of the prosecution, the trial court ordered the DFA to
cancel Silverio’s passport or to deny the application to re-new the passport. The Commission on
Immigration is also ordered to prevent Silverio from leaving the country.
Now, according to Silverio, the court’s orders are unconstitutional because under the
Constitution, courts can impair the right of a citizen to travel only on the ground of national
security, public safety or public health. Silverio: “Is there an issue of national security? Wala man!
Public safety? Wala man! Public health? Wala rin! Therefore, you cannot prevent me from
travelling.”
The SC here traced the history of that constitutional provision. How did that provision came out?
HELD: The phraseology in the 1987 Constitution was a reaction to the ban on international
travel imposed under the previous regime when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an interested party. (because during the
Marcos era, he created a travel processing agency headed by General Ver, where every Filipino who
wants to travel abroad must be cleared by that office.)
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the courts to use all means necessary to carry their orders into effect in criminal
cases pending before them.
In other words, the court has always the power to prevent an accused from leaving for abroad. And that
constitutional provision was never interpreted to limit the power of the court. Therefore, Silverio was citing the
wrong provision. The philosophy does not apply to Silverio. Yaan!

December 2, 1993
FACTS: Several criminal cases were filed against Miriam Santiago arising from her tenure as
Immigration Commissioner. Now, she was interviewed by the media and she said that she is leaving
in a few days for abroad because she was offered a fellowship grant by the Harvard University.
Nabasa ng Sandiganbayan ang interview sa newspaper, “Uy! Aalis! Alright, Hold-Departure Order!”
Santiago questioned the order.
ISSUE: May a court trying a criminal case issue a hold-departure order motu propio to prevent
the accused from leaving the country even if the prosecution did not file any motion to issue such
order?
HELD: YES. “The court has the power to issue motu propio a hold-departure order. The hold-
departure order is but an exercise of the court’s inherent power to preserve and to maintain the
effectiveness of its jurisdiction over the case and the person of the accused.”
MARCOS vs. SANDIGANBAYAN

247 SCRA (August 9, 1995)
527
FACTS: Criminal charges were filed against Imelda Marcos. In one of the cases, she was
convicted by the Sandiganbayan. After conviction, she filed a motion for reconsideration and while
her motion was p ending, she filed a motion for leave to travel abroad for treatment of hypertensive
heart disease, uncontrolled angina pectoris, and anterior myocardial infarction. The motion was
supported by medical reports prepared by her physician and cardiologist and other doctors in
Makati Medical Center.
Presiding Justice Garchitorena referred the issue to a committee of cardiologists from Health
Center of the Philippines for extra opinion on some questions among which was: “Is Marcos’
condition fatal? Or, Is she in danger of dying? The committee submitted a report which was heard in
the presence of the two lawyers of Marcos. Report ng committee: she was sick but the evidence not
confirm the allegation that Mrs. Marcos is in the high risk group of sudden cardiac death. In other
words, she is sick but she is not in danger of dyiing.
With that, the Sandiganbayan, “Ah hindi pala malala eh! So, wala! Motion denied!” Marcos went
to the SC attacking the Sandiganbayan order alleging that the court adopted an unusual and
unorthodox conduct by motu propio conducting a third party asking the latter to give an opinion.
Marcos: “Nobody is questioning. Bakit ba itong Sandiganbayan will not take the words of my
doctors? Parang walang kumpiyansa!”
HELD: “The Sandiganbayan acted properly. Respondent court had to seek expert opinion
because petitioner's motion was based on the advice of her physician. The court could not be
expected to just accept the opinion of petitioner's physician in resolving her request for permission
to travel. The subject lay beyond its competence and since the grant of the request depended on
the verification of the claim that petitioner was suffering from a medical condition that was alleged
to be serious and life threatening, the respondent court, we think, followed the only prudent course
available of seeking the opinion of other specialists in the field.”
“Indeed, when even in their own field of expertise (law) courts are allowed to invite amici curiae
to shed light on recondite points of law, there is no reason for denying them assistance on other
subjects.”
“Perhaps the best proof that she is not in the group is the fact that she ran in the last election
for a seat in the House of Representatives and won. It may be assumed that she waged an arduous
political campaign but apparently is none the worse for it.”
Meaning, even in law which is already your field of expertise, the court are even allowed to seek the help of
other lawyers, lalo na when it comes to the field of medicine. And finally after one year, she ran for
congresswoman in Leyte and she won. Of course when you campaign, you have to undergo a terrible schedule
of campaigns. Eh bakit buhay ka pa? So in other words, you are not really in danger of dying. And she is very
much alive now.
COJUANGCO vs. SANDIGANBAYAN

300 SCRA 367 [1998]
FACTS: Cojuangco has several pending cases before the Sandiganbayan. And there is a travel
ban everytime he travels abroad.
ISSUE: Is there a need of hold-departure orders everytime Cojuangco travels abroad

considering that many things happened to Cojuangco?
HELD: “We resolve in the negative. The travel band should be lifted, considering all the
circumstances now prevailing. It now becomes necessary that there be strong and compelling
reasons to justify the continued restriction on Cojuangco’s right to travel abroad. Admittedly, all of
Cojuangco’s previous requests to travel abroad has been granted and that Cojuangco has always
returned to the Philippines and complied with the restrictions imposed on him.”
“The necessity of further denying Cojuangco’s right to travel abroad, with attendant restrictions,
appears less than clear. The risk of flight is further diminished in view of Cojuangco’s recent
reinstatement as Chairman and Chief Executive of San Miguel Corporation, though he has now more
justification to travel so as to oversee the entire operations of that company. In this regard, it has to
be conceded that his assumption of such vital post has come at a time when the current economic
crisis has adversely affected by international operations of many companies, including San Miguel.”
“The need to travel abroad frequently on the party of Cojuangco, to formulate and implement
the necessary corporate strategies and decisions, could not be forestalled. These considerations
affecting Cojuangco’s duties to a publicly held company, militate against imposing further
restrictions on Cojuangco’s right to travel abroad.”
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. – An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefore, or
from assailing the regularity or questioning the absence of a preliminary investigation of
the charge against him, provided that he raises them before entering his plea. The court
shall resolve the matter as early as practicable but not later than the start of the trial of
the case. (n)
Section 26 is a new provision.
Q: If you post bail, are you under estoppel to question the validity of the arrest or the regularity or absence
of a preliminary investigation?
A: Under Section 26, NO. The pivotal point is for as long as you have not yet entered your plea. Once you
entered your plea, all the defects are considered waived. But the posting of bail alone is not considered as
waiver to raise those issue.
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Rule 115
RIGHTS OF ACCUSED
I know you are not anymore a stranger to many of these provisions because many of them are already
found under the Constitution.
Section 1 – Rights of accused at the trial – In all criminal prosecutions, the accused
shall be entitled to the following rights;
a.) To be presumed innocent until the contrary is proved beyond reasonable

doubt.
xxxxx
Paragraph [a] emphasizes the degree of proof in criminal cases.
Why is it in criminal case an accused enjoys this presumption? Why does the law give the accused the
presumption of innocence? The SC already answered that the reason is to make the fight at least equal. In
criminal cases, all the resources are directed against the accused. It is the accused versus the People of the
Philippines – so you are fighting the government, and the government has all the resources at its command –
the PNP, NBI, etc. Anong laban mo diyan? So at least para mag-tabla-tabla ng konti ang laban, the law will give
certain presumptions in your favor. In the case of
PEOPLE vs. SEQUERRA

October 12, 1987
HELD: “Confronted by the full panoply of state authority, the accused is accorded the
presumption of innocence to lighten and even reverse the heavy odds against him. Mere accusation
is not enough to convict him, and neither is the weakness of his defense. The evidence for the
prosecution must be strong per se, strong enough to establish the guilt of the accused beyond
reasonable doubt. Otherwise, he is entitled to be freed.”
“But as solicitous as the Bill of Rights is of the accused, the presumption of innocence is not an
automatic or blanket exoneration. It is at best only an initial protection. If the prosecution succeeds
in refuting the presumption, it then becomes the outlook of the accused to adduce evidence that
will at least raise that inkling of doubt that he is guilty. Once the armor of the presumption is
pierced, so to speak, it is for the accused to take the offense and ward off the attack.”
So the accused cannot rely forever in the presumption of innocence. This is a disputable presumption. The
prosecution can destroy that presumption by presenting evidence that you are guilty and once the prosecution
has presented that you cannot anymore rely on this presumption. It is now your duty to present evidence that
you are innocent.
b.) To be informed of the nature and cause of the accusation against him.
Yes, you should know why you are there. It is very awkward that you are charged without even knowing
what the charge is all about. That is why there is an arraignment to make everything formal.
Q: Can you waive the right to be informed of the nature and cause of the accusation against him?
A: NO. It is not waivable because public interest is involved in this right, the public having an interest in
seeing to it that no person is unlawfully deprived of his life or liberty. (U.S. vs. Palisoc, 4 Phil. 207)
There are certain rights of the accused that are waivable; there are certain rights that cannot be waived. For
example: to be presumed innocent until the contrary is proved – can you waive that? “Ah OK lang, you can
presume me guilty!” I don’t think the court will agree with that. That is not waivable.
And mind you, there was a bar examination in the past, where the examiner asked this question – “among
the rights of the accused outline those which can be waived and cannot be waived.” So practically you have to
know [a] – [i]. It’s not only a question of enumerate the rights of the accused but segregate those which can be
waived and those which cannot be waived. Medyo mahirap yan. But if you have a lot of common sense,
[meaning, ang common sense is common sa iyo!] malaman mo man ba! “To be presumed innocent – pwede
bang ma-waive ito? Mukang hindi man...” Yaan!
c.) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment. The accused may,
however, waive his presence at the trial pursuant to the stipulations set forth in his
bail, unless his presence is specifically ordered by the court for purposes of
identification. The absence of the accused without justifiable cause at the trial of
which he had notice shall be considered a waiver of his right to be present thereat.
When an accused under custody escapes, he shall be deemed to have waived his
right to be present on all subsequent trial dates until custody over him is regained.
Upon motion, the accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel.
Paragraph [c] is quite important.
This is a right to be present from arraignment to promulgation – right yan eh! – I want to be there.
Q: But technically, do you have the obligation to be there?
529
A: NO. This right is waivable because the law says the accused may however waive his presence during the
trial, unless the presence of the accused is specifically ordered by the court for purposes of identification.
This was taken from the case of NINOY AQUINO, JR vs. MILITARY COMMISSION where Ninoy was arrested and
tried in a military court and he refused to participate in the proceedings. And issue now is, can he be forced by
the court to appear? SC: YES, because how can he be identified if he will not appear? That is why it is now found
in the Rules.
CARREDO vs. PEOPLE

183 SCRA 273
ISSUE: After arraignment he can waive his presence during the trial, but can he be ordered
arrested by the court for an appearance, upon summons to appear for purposes of identification?
HELD: YES. “Waiver of appearance and trial in absentia does not mean that the prosecution is
thereby deprived of its right to require the presence of the accused for purposes of identification by
its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused
does not mean a release of the accused from his obligation under the bond to appear in court
whenever so required. The accused may waive his right but not his duty or obligation to the court.”
So, you can waive your right but not your duty. That is one of the conditions in the bond under Rule 114,
Section 2 [b] – “the accused shall appear before the proper court whenever so required by the court or these
Rules.”
Q: Now, what happens if during the trial, the accused did not show up but he was notified? Can the trial
proceed without him?
A: YES, 2nd sentence of paragraph [c] provides, “The absence of the accused without justifiable cause at
the trial of which he had notice shall be considered a waiver of his right to be present thereat.” This is taken
from Article II, Section 14 (2), - Trial in absentia.
But take note that in trial in absentia, it assumes that:

1. the court already acquired jurisdiction over your person;
2. you were arrested; and
3. you must first be arraigned. So arraignment is a prerequisite for trial in absentia to apply.
Q: What is the difference between these two sentences in [c]: “The absence of the accused without
justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present
thereat” and “when an accused under custody escapes, he shall be deemed to have waived his right to be
present on all subsequent trial dates until custody over him is regained”?
A: In the first sentence, the accused is absent without justifiable cause during the particular trial date, and
so the trial may continue. But he can still appear in the next trial. He only waived his right to be present on that
date but he has not waived his right to be present on subsequent trial dates. He has not waived his right to
present evidence.
In the second sentence, iba eh. You escaped or you jumped bail. You are not only waiving your right to be
present on this date but on all subsequent dates. And therefore, there can be a judgment against you when the
prosecution rests.
This trial in absentia was explained by the SC in the case of
PEOPLE vs. AGBULOS

222 SCRA 196 (1993)
HELD: The prisoner cannot by simply escaping thwart his continued prosecution and possibly
eventual conviction provided that:
1. he has been arraigned;
2. he has been duly notified of the trial; and
3. his failure to appear is unjustified.
(But how can the prosecution establish that the accused has been duly notified of the trial? How
can you notify a person who is hiding? And how can you say that his failure to appear is
unjustified?)
“The fugitive is deemed to have waived such notice precisely because he has escaped, and it is
also this escape that makes his failure to appear at his trial unjustified. Escape can never be a legal
justification. His escape will, legally speaking, operate to his disadvantage as he will be unable to
attend his trial, which will continue even in his absence and most likely result in his conviction.”
GIMENEZ vs. NAZARENO

160 SCRA 1 (1988)
FACTS: The accused is arraigned, then he escaped from jail. The prosecution moved for the trial
to proceed without him – trial in absentia. So the prosecution presented all its witnesses, and then it
rested and submitted the case for decision based on the prosecution’s evidence alone – parang ex-
parte ba. The judge said “NO, we will have to hear the accused. Trial in absentia means the
prosecution can present its evidence without him but the case will not be decided until we catch
him because we have to hear him.” The prosecution went to the SC.
ISSUE #1: Is the court’s interpretation of trial in absentia correct?
530
HELD: NO. Definitely, that is not the meaning of trial in absentia. Pagtapos na, eh di tapos na!
why wait for the accused? However, there are questions. Does an accused, who has been duly tried
in absentia retain his rights to present evidence on his behalf and to confront and cross-examine
witnesses who testified against him? The court said that, “Upon the termination of a trial in
absentia, the court has the duty to rule upon the evidence presented in court. The court need not
wait for the time until the accused who escape from custody finally decides to appear in court to
present his evidence and cross-examine the witnesses against him. To allow the delay of
proceedings for this purpose is to render ineffective the constitutional provision on trial in absentia.”
ISSUE #2: Why is it that an escapee who has been tried in absentia does not retain his right to
cross-examine witnesses and to present evidence? How come those rights are lost?
HELD: “By his failure to appear during the trial of which he had notice, he virtually waived
these rights. This Court has consistently held that the right of the accused to confrontation and
cross-examination of witnesses is a personal right and may be waived. In the same vein, his right to
present evidence on his behalf, a right given to him for his own benefit and protection, may be
waived by him.” So an escape can be considered a waiver.
ISSUE #3: If judgment is rendered as to the said accused and chances are you would be
convicted, would it not violate his right to be presumed innocent and right to due process?
HELD: NO, he is still presumed innocent. “A judgment of conviction must still be based upon the
evidence presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also,
there can be no violation of due process since the accused was given the opportunity to be heard.”
If the prosecution does not present anything, he would be acquitted.
Now, the last sentence of paragraph [c]:
“Upon motion, the accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel.”
Take note that under the first sentence of [c] he can be present and defend in person and by counsel. For
example, ayaw niya ng abogado? “I will defend myself!” Anong mangyari diyan? Is the right to counsel waivable
by the accused? YES. The right to counsel may be waived by the accused BUT the waiver must be clear,
intelligent and competent. (People vs. Ben, L-8320, Dec. 20, 1955)
But now, the guideline is clearer – the accused can be allowed to defend himself in person “when it
sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.”
Meaning, although he is not a lawyer, parang marunong and may common sense naman… the court will
say, “Magbasa ka ng Constitution, Criminal Law, Evidence?” Accused: “Oo! Basahin ko lahat yan! Pag-aralan
ko! I will defend myself!” Ah problema mo na yan. And of course, whether he succeed we do not know. That is
your risk. I think there is something wrong with that accused.
Even lawyers when they have cases, they hire another lawyer. He will not depend on his own skills. Eh kung
layman ka? I saw that happen. Ah talagang kawawa ka. Kahit na siguro yung prosecutor na pinaka-banga, yariin
ka talaga because he will invoke many rules, laws, jurisprudence… eh anong malay mo diyan?
According to one statesmen, “A lawyer who handles his own case has a FOOL for a client.” Did you
understand that? Meaning: Sino ang lawyer? Lawyer: “Ako!” Sino naman ang client? Lawyer: “Ako rin!” Ah
GAGO ka!
Q: Now, I will expand the question: Sabi ng offended party, “Alright, ayaw ng akusado na may abogado. Ako
rin! Ayoko ko rin ng abugado! I’ll be the one to prosecute him!” Eh meron mang private prosecutor? “Ah hindi
na kailangan ng private prosecutor! Siya personal, ako personal din!” Can he do that?
A: Let’s go back to Rule 110, Section 16 on whether the rights of the accused and the offended party are
same:
“Where the civil action for recovery of civil liability is instituted in the criminal
action pursuant to Rule 111, the offended party may intervene by counsel in the
prosecution of the offense.”
So their rights are different. The offended party cannot intervene personally. The law will not allow it. He
must have a counsel. Sabihin niya, “Wala man akong pera pang-hire ng private prosecutor?” Eh di yung fiscal!
The fiscal will be the one to come in. That is why we have public prosecutors precisely to handle criminal cases.
d) To testify as a witness in his own behalf but subject to cross-examination on

matters covered by direct examination. His silence shall not in any manner prejudice
him.
This is the right of the accused to testify on his own behalf. But he has no obligation to testify. If you
connect this to the next right – [e] to be exempt to be a witness against himself (that is why you cannot compel
him to testify) – once he testifies on his own behalf, he waives the privilege against self-incrimination and he
can be cross-examined like any other witness. He cannot say, “I will testify but I refuse to be cross-examined.”
That would be unfair no?
So, you are waiving your right against self-incrimination if you testify in your own behalf because the law is
clear – subject to cross-examination on matters covered by the direct examination. You can be cross-examined
on matters covered by direct examination. Let’s go back to Evidence.
Q: What is the rule on cross-examination?

A: Look at Rule 132, Section 6:
531
“Upon termination of the direct examination, the witness may be cross-examined
by the adverse party as to any matters stated in the direct examination, or
connected therewith, with sufficient fullness and freedom from interest or bias, or
the reverse, and to elicit all important facts bearing upon the issue.”
So, masyadong broad eh! – You can be cross-examined on matters or connected with matters in the direct
examination with sufficient fullness and freedom, etc. – very liberal! It is called the ENGLISH RULE on cross-
examination.
The AMERICAN RULE on cross-examination is different – the witness can be cross-examined ONLY on
matters stated in the direct examination.
In the Philippines, we followed the English Rule because of Rule 132, Section 6. However, it seems the
American Rule on cross-examination is applied, as an exception, when you are talking about cross-examining an
accused in a criminal case because of paragraph [d] – subject to cross-examination on matters covered by the
direct examination.
So we follow the American Rule on cross-examination of the accused in criminal cases. Mas limitado!
Sabihin mo sa mga judges yan! Maraming hindi alam yan eh, because I knew of a graduate here, ginamit niya
talaga ang rule. Pag-cross-examine ng prosecution sa kanyang cliente who is the accused, object siya,
“Objection!” Prosecution: “No! This is cross-examination! We are testing the credibility of the accused to
testify.” Sabi niya, “No! No! No! We are following the American Rule on cross-examination of the accused under
Rule 115 and you are citing the English Rule – the general rule – under Rule 132!” Sabi ng judge, “Ano ba yang
American Rule, English Rule?”
Naloko na! Sabi nung lawyer, “Ganito pala ito! What I learned in law school is different from what I see!”
Talagang ganyan yan. Kailangang masanay kayo diyan. Just like [Atty.] Ceniza. He was talking to me last week.
He was telling me of what happened in Davao Oriental in one MTC. Sabi niya, “Ganito! Ganito! Parang niluto
man ako?!” Talagang niluto ka! Ganyan gud yan diyan sa Davao Oriental – they knew each other! So you have
to get used to it. Kapag matapang ka, file ka ng kaso. File-an mo silang lahat! That is the beauty of law in the
classroom, and the tragedy of law outside! Yaan!
Q: Now, what is the effect if the accused does not want to testify on his own behalf?
A: No unfavorable deduction can be drawn from the neglect or refusal of an accused to testify. (U.S. vs.
Luzon, 4 Phil. 343) His silence is not in any manner prejudice him. (paragraph [d])
Meaning, if he refuses to testify, that should not be taken against him because of his right to remain silent.
He can testify if he wants to. Kung ayaw niya, puwede rin. Admission by silence is not generally applicable.
ALTHOUGH there are one or two decisions of the SC where it said that if the evidence presented by the
prosecution is overwhelming, the accused should testify. One of these cases is the 1998 case of
PEOPLE vs. DELMENDO

296 SCRA 371 [1998]
ISSUE: If the accused refuses to testify, can it be taken against him?

HELD: General Rule is NO. BUT the SC said in this case, “An adverse inference may also be
deduced from accused’s failure to take the witness stand. While his failure to testify cannot be
considered against him, it may however help in determining his guilt. The unexplained failure of the
accused to testify, under a circumstance where the crime imputed to him is so serious that places in
the balance his very life and that his testimony might at least help in advancing his defense, gives
rise to an inference that he did not want to testify because he does not want to betray himself.”
“An innocent person will at once naturally and emphatically repel an accusation of crime, as a
matter of self-preservation, and as precaution against prejudicing himself. A person’s silence,
therefore, particularly when it is persistent, may justify an inference that he is not innocent. Thus,
we have the general principle that when an accused is silent when he should speak, in
circumstances where an innocent person so situated would have spoken, on being accused of a
crime, his silence and omission are admissible in evidence against him. Accordingly, it has been
aptly said that silence may be assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a quasi-confession.”
And to my mind, that was the risk which Erap was taking during the impeachment trial because his lawyers
never agree that Erap will testify because lalong masisira si Erap kung mag-testify siya. Estrada is their greatest
nightmare. He is one person who cannot control his mouth and once he starts talking, he does not know what
his saying.
That is why his lawyers are already afraid that if the second envelope will be opened, the evidence of the
prosecution becomes overwhelming, and there is no other choice but to Estrada to testify. So hangga’t maaga
pa, patayin na! But they were not anticipating that by killing that evidence, it hastens Estrada’s downfall!
[e] To be exempt from being compelled to be a witness against himself.
This is the right against self-incrimination – Nemo tenetur seipsum accusare.
Take note that the right of the accused against self-incrimination is not limited to testimonial evidence.
According to the SC, it refers not only to testimonial compulsion but also to production by the accused of
incriminating documents and things. (Villaflor vs. Summers, 41 Phil. 62) So you cannot subpoena his personal
documents.
However, supposed you are asked to perform a mechanical act, for example footprint, “Ilagay mo nga yang
paa mo diyan beh! Let’s find out kung pareho kayo ng size nung footprint.” This is not covered. Mechanical lang
532
yan eh – physical act. However, to produce specimen signature requires concentration and intelligence. This is
covered by the protection. (People vs. Otadora, 86 Phil. 244; Bermudez vs. Castillo, 64 Phil. 433; Beltran vs.
Samson, 53 Phil. 570)
There was a tricky question in the Bar exam in the past:
PROBLEM: The accused is charged with falsification for writing a falsified letter. The prosecution present its
evidence that this letter was written by the accused. The accused said, “No, that is not my handwriting.” On
cross-examination, he was asked to write on a piece of paper as dictated. The defense object on the ground of
violation of the right to self-incrimination. Rule on the objection.
ANSWER: The objection should be overruled. The case is not covered by the right against self-incrimination.
He can be compelled because he testified that it is not his handwriting. From that moment he waived his right
against self-incrimination. It is unfair that you say it is not your signature and I have no way of telling you to
give me a specimen.
Q: How is the right against self-incrimination be waived?

A: The privilege is waivable by the accused taking the stand and testifying as a witness or by freely
answering the incriminating questions put to him. (U.S. vs. Grant, 18 Phil. 122; U.S. vs. Rota, 9 Phil. 426) Or by
not objecting.
Q: What is the reason for the right of an accused against self-incrimination?

A: The rule was established on the ground of public policy, because if the accused were required to testify,
he would be placed under the strongest temptation to commit perjury, and of humanity, because it would
prevent the extortion of confession by duress. (U.S. vs. Navarro, 3 Phil. 143) So, if you require him to testify,
chances are he will lie.
That is why according to former U.S. SC Justice Black, “The accused should not be fried by his own fat. [e di
cooking oil!] No sane man will burn his own shirt nor he will get a stone to hit his own head. [eh kung gusto ko
pala? Anong paki mo?] The privilege against self-incrimination is one of the great landmarks in man’s struggle
to make himself civilized. We do not make even the most hardened criminal sign his own death warrant or dig
his own grave.”
Our own SC also followed that kind of explanation through Justice Reynato Puno in the 1994 case of
MAPA vs. SANDIGANBAYAN

231 SCRA 783
HELD: “The days of inquisitions brought about the most despicable abuses against human
rights. Not the least of these abuses is the expert use of coerced confessions to send to the
guillotine even the guiltless. To guard against the recurrence of this totalitarian method, the right
against self-incrimination was ensconced in the fundamental laws of all civilized countries.”
(f) To confront and cross-examine the witnesses against him at the trial. Either
party may utilize as part of its evidence the testimony of a witness who is deceased,
out of or can not with due diligence be found in the Philippines, unavailable, or
otherwise unable to testify, given in another case or proceeding, judicial or
administrative, involving the same parties and subject matter, the adverse party
having the opportunity to cross-examine him.
Q: Is the right to confront and cross-examine the witnesses against him waivable?
A: YES as ruled by the SC in the case of GIMENEZ VS. NAZARENO, (160 SCRA 1), such right is waived if the
accused decides to run away, jumps bail, or disappears – he is automatically waiving the right to confront and
cross-examine the witnesses against him.
Q: Now what is the reason behind this right? Why is there such a right?
A: It is intended to prevent the conviction of an accused upon mere depositions and affidavits; to preserve
the right of the accused to test the recollection of witnesses against him; and to enable the court to observe the
demeanor of the witnesses who are testifying. (Dowdell vs. U.S., 221 U.S. 325; U.S. vs. Anastacio, 6 Phil. 413)
You have taken up Evidence. Those are the important factors for the court to gauge the credibility of
witnesses. Demeanor ba – their manner of testifying. How can the court exercise that option if he does not even
see the witnesses? So more or less, that is the reason behind it. To borrow the language of an American justice
commenting on this issue, “It ensures that convictions will not be based on the charges of unseen and
unknown, hence unchallengeable individuals".
Another Justice, Justice Scalla, he is still an incumbent of the Federal Supreme Court, describing this right,
he said, “It is always more difficult to tell a lie about a person to his face than behind his back, and even if the
lie is told, it will often be told less convincingly.” Meaning, it is easier to tell a lie ba against somebody if he is
not in front of you. Pero pagkaharap na, parang alanganin kang magsinungaling eh. And even if you still tell a
lie, it becomes not so convincing if you will lie about a person in front of you. But if he is not there, you become
very persuasive in your talk. These are the psychological reasons behind that.
Q: What are the EXCEPTIONS to the right of the accused to confront and examine witnesses against him?
A: The following:
1. Second portion of paragraph [f]:
Either party may utilize as part of its evidence the testimony of a witness
who is deceased, out of or can not with due diligence be found in the
533
Philippines, unavailable, or otherwise unable to testify, given in another case
or proceeding, judicial or administrative, involving the same parties and
subject matter, the adverse party having the opportunity to cross-examine
him.
Sometimes there is no choice. Now, one good example where the testimony of a witness is
admissible even if he does not appear in the trial is when the witness is about to die. Malapit ng
mamatay, so you need to take his testimony in advance. In civil cases we call it deposition. In the
criminal procedure, deposition is called conditional examination of a witness. That is governed by
Rule 119 Sections 12, 13, and 15.
2. when there is a separate civil action filed against the accused by the offended party and he made a
reservation
Normally, the prosecution witnesses in the criminal case are also the witnesses for the plaintiff
in the civil case. Assuming nauna ang trial ng civil case, these witnesses testified during the trial of
the civil case, they were cross-examined by the lawyer of the defendant who is also the accused in
the criminal case. Now, under the law, when the criminal case is tried, these witnesses have to
testify again in the criminal case, practically they will have to repeat their testimony. The trouble is,
in the meantime, some of these witnesses died.
Q: Can the testimony recorded in the civil case be now admissible in the criminal case when
there is no more confrontation there?
A: Yes. because that is the exception, “when the testimony of the witness who is now deceased,
given in another case or proceeding, judicial or administrative, involving the same parties and
subject matter, the adverse party having the opportunity to cross examine him.”
As a matter of fact, this is also considered as one of the exceptions to the Hearsay Rule. It is the
11th exception to the Hearsay Rule. Try to connect this with Rule 130 on Evidence. How many
exceptions are there to the Hearsay Rule? eleven (11) iyan eh – starting from dying declaration.
That is the last exception – testimony or deposition at a former trial or proceeding. Yaan! That is
considered as an exception to the right against confrontation.
3. The exceptions to the hearsay rule are likewise exceptions to this right of the accused. (U.S. vs. Gil,
13 Phil. 530)
If there are 11 exceptions to the hearsay rule, all of them are also exceptions to this. Like dying
declaration, how can you cross-examine iyung taong patay na. So there are 11 exceptions to the
right to confront and cross-examine the witnesses against him which are all found in the rules on
evidence.
Q: One last point, does the right to confront and cross-examine the witnesses against you, include your
right to know their names and addresses in advance?
A: NO, the accused has no such right because the case of the prosecution might be endangered if the
accused were to know the prosecution witnesses in advance, for known witnesses might be subjected to
pressure or cowered not to testify. (People vs. Palacio, L-13933, May 25, 1960) So, you confront them during
the trial, not now.
(g) To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.
I think that is self-explanatory, that is one of your rights as an accused. As a matter of fact, the question has
been asked in the bar.
Q: Suppose my witness is somewhere there in Cagayan de Oro, can I secure a subpoena to compel him
when under the rules on subpoena a witness is not bound if he resides more than 100 kilometers?
A: That has already been answered in the cases of PEOPLE VS. MONTEJO and MILLORCA VS. QUITAIN. The
SC said that the 100-km limitation (formerly 50 kms.) does not apply when you are talking of witnesses for the
defense in a criminal case because of the Constitutional right to have compulsory process issued to secure the
attendance of witnesses in his behalf. That right cannot be precluded by provisions in the Rules of Court.
(h) To have speedy, impartial and public trial.
There are actually three rights here:

1. the right to a speedy trial;
2. the right to an impartial trial; and
3. the right to a public trial.
Q: What do you mean by speedy trial? Meaning, no postponements? not even one postponement?
A: NO. That is not the interpretation. In the case of
ALVIZO vs. SANDIGANBAYAN

220 SCRA 55
HELD: It must not be lost sight of that the concept of speedy disposition of cases is a RELATIVE
term and must necessarily be a flexible concept. Delays per se are understandably attendant to all
prosecutions and are constitutionally permissible with the monition that the attendant delay must
NOT be OPPRESSIVE. [Hindi palagi. Pa-minsan-minsan okay lang man ba] Hence, the doctrinal rule
534
is that in the determination of whether or not that right has been violated, the factors that may be
considered and balanced are:
a.) the length of delay;
b.) the reasons for such delay;
c.) the assertion or failure to assert such right by the accused; and
d.) the prejudice caused by the delay.
Q: What are the remedies of an accused whose rights to a speedy trial is being violated because the
prosecution keeps on postponing the case? How do you invoke this right to speedy trial?
A: There are three (3) possible remedies:
1. The accused should OPPOSE the postponement and insist on trial. If the court denies the
postponement and directs the prosecution to proceed and cannot do so because he does not have
the evidence, the accused should move for dismissal of the case on the ground of failure to
prosecute or insufficiency of evidence. (Jaca vs. Blanco, 86 Phil. 452; Gandicela vs. Lutero, 88 Phil.
299; People vs. Diaz, 94 Phil. 714) The dismissal is equivalent to an acquittal and there is no way for
that case to be brought back because it will amount to double jeopardy. (People vs. Diaz, 94 Phil.
714)
2. If the court grants the postponement everytime the fiscal asks for it, over the protest of the
accused, the latter’s remedy is mandamus to compel dismissal of the case; (Mercado vs. Santos, 66
Phil. 215)
3. If the accused is restrained of his liberty, his remedy is habeas corpus to obtain his freedom.
(Mercado vs. Santos, 66 Phil. 215; Conde vs. Rivera, 45 Phil. 650)
Q: When is trial impartial?

A: There should be no bias otherwise, the trial will not be fair – you are not given due process. If the court or
the judge has already pre-ordained your guilt. “Every litigant is entitled to nothing less than the cold neutrality
of an impartial judge.” (Villapando vs. Quitain, January 20, 1977)
Q: Right to a public trial – this is one of the features of the accusatorial system. What is the reason for
public trial?
A: The requirement of public trial is for the benefit of the accused, that the public may see that he is fairly
dealt with and not unjustly condemned, and that the presence of spectators may keep his triers keenly alive to
a sense of responsibility and to the importance of their functions. (1 Cooley, Constitutional Limitations, p. 647)
Meaning, everybody is on their toes. You don't want to commit a mistake eh, mahihiya ka eh, maraming
nanonood. The judge, the prosecutor, the witnesses, the defense counsel, everybody is careful because they
are watched by the public. Look at what happened in the impeachment trial, everybody wants to be careful
there because, imagine how many millions of people are watching you there on T.V. So, pati ang mga senators
di makatulog, some are sleepy no, mapapahiya ka, you are ashamed na makita ka ng camera natutulog ka or
you are using your cellphone.
I was reading an interview with Davide, he was asked how he was able to cope with his hours – full
concentration iyan eh, because he has to listen to every question because you do not know when an objection
will come. Senators can just relax and pretend they are listening. Davide has to make the ruling. So he has 5 or
6 hours of full concentration. Katakot-takot daw na bitamina at kape. [bato?]
Please connect this provision on Speedy Trial with Rule 119 Section 9 which is a new provision taken from
the Speedy Trial Act. What is the heading of Section 9 Rule 119? Remedy where accused is not brought to trial
within time limits. So there is such a provision. When your case will not move, the accused may question the
delay why his case has not been set for trial. That is a new provision taken from the Speedy Trial Act.
[i] To appeal in all cases allowed and in the manner prescribed by law
There is something you will notice here – all the rights of the accused in this Rule, from [a] to [h], are also
found in the Constitution. These are all Constitutional rights except the last – [i]. The right to appeal is purely
statutory which may be granted or withheld at the pleasure of the State. (People vs. Ang Gioc, 73 Phil. 366)
RULE 116
ARRAIGNMENT AND PLEA
The accused must be arraigned before the court. That is the manifestation of the right of the accused to be
informed as to the nature and cause of the accusation against him. The procedure is there in [a].
SECTION 1. Arraignment and plea; how made. (a) The accused must be arraigned
before the court where the complaint or information was filed or assigned for trial.
The arraignment shall be made in open court by the judge or clerk by furnishing the
accused with a copy of the complaint or information, reading the same in the
language or dialect known to him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses other than those named in the
complaint or information.
xxxxx
535
You can even ask for a copy of the complaint and information there, although normally the lawyers ask for it
in advance, they do not merely ask during the arraignment, before the arraignment may kopya na sila. Take
note of the last sentence:
“The prosecution may call on the trial witnesses other than those named in the
complaint or information.”
Have you seen a criminal information? Normally, at the last potion – “Witnesses for the prosecution:
Aquiatan, Tormon, Salesa, Balite and others.” Mayroon man usually iyan “and others”. The prosecution will
sometimes not name all. So mayroong reservation.
Q: Now, can you question that reservation of the fiscal? If you are the accused, can you question that
procedure?
A: YES, puwede. Whether it is possible for the prosecution not to name everybody was the issue in the case
of
PEOPLE vs. DE ASIS

December 7, 1993
HELD: “There is nothing that could prevent the prosecution from presenting witnesses in court
not listed in the information, as it is well settled that the court has the undisputed right to call on a
witness whose name does not appear in the list of the fiscal, unless the omission of said witness is
intentional and tainted with bad faith. The established rule is that the prosecution may call unlisted
witnesses to testify.”
“Moreover, the purpose of the listing of the names of the witnesses in the complaint or
information is merely to avoid the presentation of surprise witnesses and to enable the defense to
examine their record, morality and character, but once placed on the witness stand, it can no longer
be disputed that the defense has already the opportunity to examine the character and credibility of
the unlisted witness.”
“Finally, it is beyond question, that it is the prosecution's privilege to present such number of
witnesses it deems sufficient. Their non-inclusion in the list of witnesses is of no moment. In fact the
omission of their names in the list of prosecution witnesses in the information is commonly
practiced for their own protection at least until the termination of the case.”
(b) The accused must be present at the arraignment and must personally enter
his plea. Both arraignment and plea shall be made of record, but failure to do so
shall not affect the validity of the proceedings.
Q: Now, what happens if a case is tried without arraignment?

A: The GENERAL RULE, that is irregular – the proceedings are tainted with irregularity because arraignment
is MANDATORY. (U.S. vs. Palisoc, 4 Phil. 207). HOWEVER, there was an instance where the SC considered the
proceedings as valid where the lawyer of the accused also did not object the absence of the arraignment. This
the case of
PEOPLE vs. CABALE

May 8, 1990
FACTS: Nag pre-trial, walang arraignment. But the parties presented evidence. And when the
case was about to end they noticed, “Teka muna, wala pang arraignment ito, ah? O sige, i-arraign!”
So, in other words, the accused was arraigned when the trial was about to end, or I think already
ended.
ISSUE: Is the trial valid?
HELD: What is the purpose of arraignment? – to inform the accused of the nature of the charge
against him. Now, if he does not know, how come he was able to participate in the trial? He was
able to cross-examine the witnesses against him, he was able to present witnesses. So, the defect
became a formal defect.
“We find that while the arraignment of the appellant was conducted after the cases had been
submitted for decision, the error is non-prejudicial and has been fully cured when counsel for the
appellant entered into trial without objecting that his client had not yet been arraigned. Said
counsel had also the full opportunity of cross-examining the witnesses for the prosecution. There
was, therefore, no violation of the appellant's constitutional right to be informed of the nature and
cause of the accusation against him.”
Now, accused are arraigned sa trial when the case is filed in court and about to be tried. Now, how about
preliminary investigation conducted by the MTC outside chartered cities, should the accused be arraigned by
the MTC judge?
Alam mo, I met that kind of situation years ago, in one of the MTCs in the North. There was a preliminary
investigation and then I noticed an arraignment. Actually the case was triable by the RTC. The purpose there
(MTC) was only to determine probable cause. So I asked, “Mayroon bang arraignment ang preliminary
investigation?” Sabi nung abogado doon, “Yes, mayroon.” DEAN: “Wala man sa Rules of Court?” LAWYER: “Iyan
man ang ginagawa ng mga judges dito.” In other words, MTC judges conduct arraignment in preliminary
investigation – matter of practice daw – you do not find a provision in the Rules saying yes or no. However, in
1993, I came across a case where the SC commented on that – the case of
ALISANGCO vs. TABILIRAN, JR.

224 SCRA 1
536
HELD: There is NO such thing as arraignment in a Preliminary Investigation. “There is no law or
rule requiring an arraignment during the preliminary investigation. Under Section 1, Rule 116 of the
Revised Rules of Court, the arraignment must be conducted by the court having jurisdiction to try
the case on its merits.”
Q: Now, is there such a thing as arraignment by proxy?

A: Wala. The accused must be personally present. He must enter his plea.
(c) When the accused refuses to plead or makes a conditional plea, a plea of not
guilty shall be entered for him. (1a)
Q: Halimbawa ayaw mag-enter ng plea? COURT: “What do you say—Guilty or Not guilty?” ACCUSED: “No
comment. I do not want to say anything.”
A: Under paragraph [c], a plea of "Not guilty" will be entered, or conditional plea, because a plea must be
absolute and unconditional.
I saw such situations before – Homicide, where the accused was arraigned. Siyempre, “on or about
something with the use of a knife stabbed so and so which caused his death.”:
COURT: “Kasabot ka?”
ACCUSED: “Yes.”
COURT: “What do you say? Guilty or Not guilty?”
ACCUSED: “Guilty – inunahan man niya ako ba.”
According to him, he is guilty. But actually, it is the deceased who tried to kill him first. It is self-defense! so,
within the “not guilty” plea din yan. Pag-guilty, guilty! Hindi puwede iyung guilty pero may condition – so not
guilty. Conditional pleas are not allowed. If you do that, we will enter a plea of not guilty for you.
Now, paragraph [d] of Section 1 is new:
(d) When the accused pleads guilty but presents exculpatory evidence, his plea
shall be deemed withdrawn and a plea of not guilty shall be entered for him. (n)
We will understand this more when we read the case of PEOPLE vs. MENDOZA (231 SCRA 264). For
example: You enter a plea of guilty. But sabi mo, (sometimes this happens eh) “may we be allowed to present
evidence to show mitigating circumstances?” And then the court will allow you. You will present evidence to
prove you are entitled to this or that mitigating circumstance para magbaba ang penalty.
Q: Halimbawa pag-present ng evidence, na prove na wala pala siyang kasalanan?

A: Then, under the rules, the plea of “guilty” is automatically withdrawn, and the court will order the
substitution of “not guilty” because, when you plead guilty, you are not supposed to present evidence to prove
your innocence, that is being inconsistent. But if you do it, then the court will change it immediately from guilty
to not guilty.
Paragraphs [e], [f], and [g] are new:
(e) When the accused is under preventive detention, his case shall be raffled and
its records transmitted to the judge to whom the case was raffled within three (3)
days from the filing of the information or complaint. The accused shall be arraigned
within ten (10) days from the date of the raffle. The pre-trial conference of his case
shall be held within ten (10) days after arraignment. (n)
(f) The private offended party shall be required to appear at the arraignment for
purposes of plea bargaining, determination of civil liability, and other matters
requiring his presence. In case of failure of the offended party to appear despite due
notice, the court may allow the accused to enter a plea of guilty to a lesser offense
which is necessarily included in the offense charged with the conformity of the trial
prosecutor alone. (cir. 1-89)
(g) Unless a shorter period is provided by special law or Supreme Court circular,
the arraignment shall be held within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused. The time of the pendency of a
motion to quash or for a bill or particulars or other causes justifying suspension of
the arraignment shall be excluded in computing the period. (sec. 2, cir. 38-98)
Let’s go to paragraph [f], this is one of the important amendments here.
The private offended party is supposed to appear at the arraignment for purposes of plea bargaining. Plea
bargaining is explained in Rule 118 and also here in Section 2. Now, what do you mean by this – Plea
Bargaining?
We will connect this right away to Section 2:
SEC. 2. Plea of guilty to a lesser offense – At arraignment, the accused, with the
consent of the offended party and prosecutor, may be allowed by the trial court to
plead guilty to a lesser offense which is necessarily included in the offense charged.
After arraignment but before trial, the accused may still be allowed to plead guilty to
said lesser offense after withdrawing his plea of not guilty. No amendment of the
complaint or information is necessary. (sec. 4, circ. 38-98)
537
Plea bargaining – mag-tawaran ba! You are charged with murder, “homicide na lang [pliiiiiss].” Kung
homicide, plead ako “guilty” para at least mababa ang sentensiya.
According to the law if the prosecutor agrees and the offended party or the family of the deceased agrees,
puwede. Both of them must give their consent.
So from Robbery, mahulog sa theft. Qualified theft, maging simple theft. At least mababa di ba? Or, from
attempted homicide to physical injuries na lang. Meaning, tawaran ba! That is allowed under the law provided
the condition is, with the consent of the offended party and the prosecutor.
That is why during the arraignment, according to the previous section paragraph [f], the private offended
party shall be required to appear for purpose of plea-bargaining.
Q: Now suppose the offended party will not appear during the arraignment?
A: According to paragraph [f], “in case of failure of the private offended party to appear despite due notice,
the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone”. So, the consent of the prosecutor would be
enough.
Sabi ngayon ng private offended party, “But I did not give my consent.” Aba, kasalanan mo yan! You should
have appeared during the arraignment. Wala ka man, so there is a valid plea-bargaining.
Now, I noticed that the 2000 Rules went back to the original provision of the 1964 Rules. Under the 1964
rules, you are allowed to plead guilty to a lesser offense provided the lesser offense is necessarily included in
the offenses charged. Murder to homicide; Theft is part of Robbery; Qualified theft, simple theft; from serious to
less serious physical injuries; that is the condition – the lesser offense will be included in the offense charged.
But when the Rules were amended in 1985, naiba – it became a very controversial provision because the
1985 Rules said that, “You are allowed to plead guilty to a lesser offense, even if not included in the offense
charged”. That’s why it created a lot of problems. Halimbawa, I am accusing you of serious physical injuries,
you will plead guilty to slander, there is no connection. But the language of the 1985 Rules as written, puwede.
Now, the SC went back to the original provision “which is necessarily included in the offense charged.”
After arraignment but before trial, the accused may still allowed to plead guilty to said lesser offense after
withdrawing his plea of not guilty. After you are arraigned you can still change your mind for as along as the
prosecution has not yet commenced the presentation of evidence. And there is no need of amending the
complaint or information, automatic na yan, less paperworks for the prosecutor.
Now, let’s look at some interesting cases decided by the Supreme Court. These cases were decided before
the amendment but we can see the philosophy is still there.
AMATAN vs. JUDGE AUJERO

[Adm. Matter No. RTJ-93-956] September 27, 1995
FACTS: The accused was charged with homicide. So obviously, he killed somebody. During the
plea bargaining, sabi ng accused, “We would like to plead guilty to the lesser offense of attempted
homicide (2 degrees lower).” The prosecutor and the widow agreed. So the court rendered a
decision on attempted. Nagalit ang pamilya ng namatay – ang brother, “anong klase ito?!” The
brother of the deceased brought a letter to Chief Justice Narvasa at that time, questioning the
judge, “Pwede ba yan?”
Of course, according to Judge Aujero, “Teka muna, under the new Rules (citing the 1985 Rules)
you can plead guilty to a lesser offense whether or not included in the offense charged, and even
you, you have to consider that attempted homicide is related to homicide kaya lang two degrees
lower. The law is very clear.”
Ano sabi ng Supreme Court? The Supreme Court gave a lecture.
HELD: The fact of death of the victim cannot by simple logic and plain common sense be
reconciled with the plea of guilty to the lower offense of attempted homicide. (imagine, namatay,
ngayon buhay na? how can you reconcile these two?) The crime of homicide as defined in Article
249 of the Revised Penal Code necessarily produces death; attempted homicide does not.
However, the law is not entirely bereft of solutions in such cases. In instances where a literal
application of a provision of law would lead to injustice or to a result so directly in opposition with
the dictates of logic and everyday common sense as to be unconscionable, the Civil Code,
particularly Article 10, admonishes judges to take principles of right and justice at heart. (Meaning,
when a judge decides, do not look only at the letter of the law, you look at the logic of your
decision, the sense of right and justice.) In case of doubt the intent is to promote right and justice.
Fiat justicia ruat coelum. Stated differently, when a provision of law is silent or ambiguous, judges
ought to invoke a solution responsive to the vehement urge of conscience.
These are fundamental tenets of law. In the case at bench, the fact of the victim's death, a clear
negation of frustrated or attempted homicide, ought to have alerted the judge not only to a possibly
inconsistent result but to an injustice. (In other words, the charge is he died, I will convict him for
attempted homicide which assumes he did not die, how can you reconcile? Dapat pag-isipan mo
yan, look at the effects of your decision.) The failure to recognize such principles so cardinal to our
body of laws amounts to ignorance of the law and reflects respondent judge's lack of prudence, if
not competence, in the performance of his duties. While it is true, as respondent judge contends,
that he merely applied the rule to the letter, the palpably incongruous result ought to have been a
“red flag” alerting him of the possibility of injustice. The death of an identified individual, the
gravamen of the charge against the defendant in the criminal case, cannot and should not be
ignored in favor of a more expedient plea of either attempted or frustrated homicide. We have held
before that if the law is so elementary, not to know it or to act as if one does not know it,
538
constitutes gross ignorance of the law. (Where the law is so basic and you do not know it or pretend
not to know it, that is gross ignorance of the law.)
What happens now to Judge Aujero? Sinabon siya ng SC, “Finally, every judge must be the
embodiment of competence, integrity and independence. A judge should not only be aware of the
bare outlines of the law but also its nuances and ramifications, otherwise, he would not be able to
come up with decisions which are intrinsically fair.” (Wala namang malice. Di naman sinadya or bad
faith that he was paid to do it, so the SC said,) “Nonetheless, the case at bench stands unique
because of the potently absurd result of respondent's application of the law.”
I think he was just censured or fined a minimal amount. Di naman sinadya, kaya lang pangit ba. Iyan ang
sinasabi ko, how do you get quality judges? That is the big problem – yung malawak ang pag-iisip. Yaan!
PEOPLE vs. VILLARAMA, JR.

210 SCRA 226
FACTS: The accused is charged with, let’s say, murder. Then the case was tried and the
prosecution rested. Afterwards, the accused argued, “You have not proved any qualifying
circumstance, so I will not present any evidence anymore. I will just plead to a lesser offense of
Homicide.”
ISSUE: Can plea bargaining still be entertained at that stage? Because normally plea-bargaining
is done before the trial. Is that allowed?
HELD: YES. There is nothing wrong with that, provided the prosecution does not have sufficient
evidence to establish the guilt of the accused for the crime charged. The only basis for allowing a
plea of guilty to a lesser offense is nothing more and nothing less than the evidence already in the
record. There is nothing wrong with that procedure.
Take note also that under Section 1 [f], the private offended party should be required to appear in the
arraignment precisely because of a possible plea of guilty to a lesser offense which requires his consent. That is
why under the new rule in Section 1 [f], if he does not appear, the plea-bargaining can proceed and only the
consent of the prosecutor is necessary. The consent of the offended party is no longer required according to the
present rules on criminal procedure, i.e. if he does not appear.
Q: What happens if an accused enters a plea of guilty?

A: The GENERAL RULE is that there would be no trial anymore. No more presentation of evidence because
the accused has already admitted the crime.
Q: What is the implication of a plea of guilty?

A: That the accused is admitting the essential elements of the crime as charged in the information, and
according to the SC, including the aggravating circumstances. Especially now, under the new Rules where the
prosecution is mandated to allege also the aggravating circumstances. So, as a general rule, judgment of
conviction can proceed immediately.
HOWEVER, according to the SC, even if there is a plea guilty, certain facts alleged in the information are not
deemed admitted. What are those facts that are deemed not admitted? These are:
1.) Facts not alleged in the complaint or information;
2.) Mere conclusions of facts;
3.) The jurisdiction of the court. So even if I plead guilty, I can still question later the jurisdiction of the
court;
4.) The sufficiency of the complaint or information is not considered even if there has been a plea of
guilty.
Q: So what happens if I plead guilty and it turns out there is no crime?

A: There can be no conviction because the sufficiency of the complaint or information is not admitted by a
plea of guilty.
On the other hand, when the accused pleads not guilty, then the issues are joined and the case is ready for
trial. That is the counterpart of an answer in civil procedure because there is no Answer in criminal cases. Your
plea is your answer.
As already emphasized in some cases, when you enter a plea of not guilty, you are considered to have
waived any previous defect, like lack of preliminary investigation or validity of arrest. Those things are deemed
cured by entering a plea of not guilty.
Now, going back to the GENERAL RULE, when a person pleads guilty, no more trial, he can be convicted,
EXCEPT when he is charged with a capital offense. Let’s read Section 3:
SEC. 3. Plea of guilty to capital offense; reception of evidence. – When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and shall
require the prosecution to prove his guilt and the precise degree of culpability. The
accused may present evidence in his behalf. (3a)
Q: So when a person pleads guilty to a capital offense, can the court sentence him to death based on his
plea of guilty?
A: NO. The correct procedure is:
539
1.) The court shall conduct a searching inquiry into the voluntariness and full consequences of his plea.
The court must determine whether he really understood it and its effects;
2.) Even if the accused pleads guilty, the court will still require the prosecution to prove the guilt of the
accused. Thus, the plea of guilty is not accepted anymore in capital offense. That is only
corroborative because the prosecution is still required to present evidence;
3.) The accused may still present evidence in his behalf.
“THE COURT SHALL CONDUCT A SEARCHING INQUIRY INTO THE VOLUNTARINESS AND FULL
COMPREHENSION OF THE CONSEQUENCE OF HIS PLEA”
What do you mean by “the court shall conduct a searching inquiry into the voluntariness and full
comprehension of the consequence of his plea”? Section 3 is actually taken from decided cases, even before
the 1987 Constitution. Prior to the 1987 Constitution, there were so many people sentenced to death based
only on a plea of guilty. The SC said, di pwede ito. Thus, all these jurisprudence are culled and embodied in
Section 3. Of course it became dormant for a while when the death penalty could not be imposed. But na
naman eh. It’s now back to life [alleluia!] because of the restoration of death penalty.
I remember before, there was even a time before the 1987 Constitution, where:
JUDGE: “Guilty or Not guilty?

ACCUSED: “Guilty.”
JUDGE: “Do you understand what you are doing by pleading guilty?”
ACCUSED: “Yes.”
JUDGE: “Do you understand by pleading guilty, you are admitting all the elements of the crime as
alleged in the complaint?”
ACCUSED: “Yes.”
JUDGE: “And still you are pleading guilty?”
ACCUSED: “Yes.”
Sabi ng SC: Kulang ang mga tanong mo! Why are you asking those questions? What does the layman know
about those elements of the crime? Use simple language para maintindihan niya!
Now, if we follow the jurisprudence after the 1987 Constituition, lalung mahirap! Ito yung mahirap – shall
conduct a searching inquiry into the voluntariness and full comprehension of the consequence of his plea.” That
is a very general term and we do not really know what is really the effect of that or its scope. If we will follow all
the guidelines of the SC, it would seem that all judges will not pass the test of conducting a searching inquiry.
There are some tests like the case of
PEOPLE vs. ALBERT

251 SCRA 136
HELD: “The controversy over improvident pleas of guilty dates back to the early years of the
American administration, developed into a furor over the succeeding years, subsided during the
martial law regime, and was sidelined but occasionally invoked when the 1987 Constitution
proscribed the imposition of capital punishment. With the return of the death penalty for heinous
crimes, it is high time for the trial courts to review and reflect upon the jurisprudential and statutory
rules which evolved over time in response to the injustice created by improvident pleas
acknowledging guilt, at times belatedly discovered under the judicial rug, if at all.”
“The rationale behind the rule is that courts must proceed with more care where the possible
punishment is in its severest form — death — for the reason that the execution of such a sentence
is irrevocable and experience has shown that innocent persons have at times pleaded guilty. The
primordial purpose then is to avoid improvident pleas of guilt on the part of an accused where grave
crimes are involved since he might be admitting his guilt before the court and thus forfeit his life
and liberty without having fully understood the meaning, significance, and consequences of his
plea. Moreover, the requirement of taking further evidence would aid the Supreme Court on
appellate review in determining the propriety or impropriety of the plea.”
PEOPLE vs. ALICANDO

251 SCRA 293
HELD: “To show the voluntariness of the plea of guilt of the accused and that the court’s
questions demonstrate the accused full comprehension of the consequences of his plea, the records
must reveal information about the personality profile of the accused which can serve as a
trustworthy index of his capacity to give a free and informed plea of guilt. The age, socio-economic
status and educational background of the accused must be plumbed by the trial court.”
So, you must get the personality profile of the accused – the age, socio-economic status as well as his
educational background. Now, are the judges doing that? I don’t think so.
PEOPLE vs. ESTOMACA

256 SCRA 421 (1996)
HELD: “Although there is no definite and concrete rule as to how a trial judge may go about the
matter of a proper "searching inquiry," it would be well for the court, for instance, to require the
accused to fully narrate the incident that spawned the charges against him, or by making him
reenact the manner in which he perpetrated the crime, or by causing him to furnish and explain to
the court missing details of significance.”
“The trial court should also be convinced that the accused has not been coerced or placed
under a state of duress either by actual threats of physical harm coming from malevolent or
540
avenging quarters and this it can do, such as by ascertaining from the accused himself the manner
in which he was subsequently brought into the custody of the law; or whether he had the assistance
of competent counsel during the custodial and preliminary investigations; and, ascertaining from
him the conditions under which he was detained and interrogated during the aforestated
investigations. Likewise, a series of questions directed at defense counsel as to whether or not said
counsel had conferred with, and completely explained to the accused the meaning of a plea and its
consequences, would be a well-taken step along those lines.”
So, the judge must be very, very patient in conducting a searching inquiry. Kung sundin mo ito, it may take
one or two days. Just take note that we are talking about capital offense.
According to one commentator: Before, the plea of guilty constituted the main evidence of guilt
and the evidence taken during the further inquiry was merely to aid the trial court in exercising its
discretion as to whether the lighter or graver penalty is to be imposed. That is the original principle.
But under the new procedure, a plea of guilt is only a secondary basis, the main proof being that
which the court requires the prosecution to establish the guilt of the accused. The plea of guilty by
the accused can only be used as supporting evidence for a finding of culpability. (So, baliktad ‘no?)
In short, once an accused, in a charge of capital offense enters a plea of guilty, a regular trial shall
have to be conducted. Just the same as if no such plea of guilty was not entered. The only effect of
a plea of guilty, if ever, is to serve as an additional mitigating circumstance in case the penalty
imposable is less that an indispensable penalty and if the guilty plea is entered before the
prosecution starts to present evidence.
So if we follow that guideline: MURDER, or other heinous crime; “Guilty!” Disregard it! Trial! So, bale wala
yung plead of guilty because you still have to conduct a trial just the same.
SEC. 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. – When

the accused pleads guilty to a non-capital offense, the court may receive evidence
from the parties to determine the penalty to be imposed. (4)
Q: Can there be reception of evidence if the accused enters a plea of guilty to a non-capital offense?
A: YES. There is no need for the presentation of evidence but if the court wants it, pwede rin, the court can
till require it. That is why reception of evidence is discretionary to determine the penalty to be imposed.
PEOPLE vs. MENDOZA

231 SCRA 264
FACTS: The accused was charged with Robbery before the RTC of Malaybalay, Bukidnon. During
the arraignment, the accused pleaded guilty. Instead of pronouncing judgment, the court conducted
trial. The prosecution failed to present evidence that the accused is guilty of the crime, so Judge
Mendoza acquitted the accused. The prosecution argued that the judge should not have acquitted
him because he already pleaded guilty.
ISSUE: Was the acquittal of the accused proper?
HELD: YES. Under the Rules, when the accused pleads guilty to a non-capital offense the court
may receive evidence from the parties to determine the penalty to be imposed. This rule is at most
directory.
Was the judge correct? “It will certainly be a clear abuse of discretion on the part of the judge to
persist in holding the accused bound to his admission of guilt and sentencing him accordingly when
the totality of the evidence points to his acquittal. There is no rule which provides that simply
because the accused pleaded guilty to the charge that his conviction automatically follows.”
However, there is something wrong here because the records will show that he pleaded guilty
and yet he was acquitted, so let us harmonize the record. The correct procedure, according to the
SC, is for the judge to order the withdrawal of the plea of guilty and substitute it with a plea of not
guilty.
This principle has been embodied in Section 1[d] – “When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (n)”
SEC. 5. Withdrawal of improvident plea of guilty. – At any time before the judgment of
conviction becomes final, the court may permit an improvident plea of guilty to be
withdrawn and be substituted by a plea of not guilty. (5)
Q: Can a plea of guilty be withdrawn?

A: YES.
Q: Suppose there is already a judgment of conviction, can he still withdraw?

A: YES, as long as the judgment of conviction is not yet final.
SEC. 6. Duty of court to inform accused of his right to counsel. – Before arraignment,
the court shall inform the accused of his right to counsel and ask him if he desires to
have one. Unless the accused is allowed to defend himself in person or has employed
counsel of his choice, the court must assign a counsel de officio to defend him. (6a)
Section 6 should be read with the ruling of the SC in the leading case of PEOPLE VS HOLGADO (85 Phil.
752). In the said case, SC enumerated the duties of the court when the accused appears before it without a
lawyer. The following are the duties of the court:
1.) The court must inform the accused that it is his right to have an attorney before being arraigned;
541
2.) After giving him such information, the court must ask him if he desires the aid of an attorney;
3.) If he desires but is unable to employ an attorney, the court must assign an attorney de oficio to
defend him; and
4.) If the accused desires to procure an attorney of his own, the court must grant him a reasonable
time therefor.
SEC. 7. Appointment of counsel de oficio. – The court, considering the gravity of the
offense and the difficulty of the questions that may arise, shall appoint as counsel de
officio such members of the bar in good standing who, by reason of their experience and
ability, can competently defend the accused. But in localities where such members of
the bar are not available, the court may appoint any person, resident of the province
and of good repute for probity and ability, to defend the accused. (7a)
SEC. 8. Time for counsel de oficio to prepare for arraignment. – Whenever a counsel de
oficio is appointed by the court to defend the accused at the arraignment, he shall be
given a reasonable time to consult with the accused as to his plea before proceeding
with the arraignment. (8)
SEC. 9. Bill of particulars. – The accused may, before arraignment, move for a bill of
particulars to enable him properly to plead and prepare for trial. The motion shall
specify the alleged defects of the complaint or information and the details desired. (10a)
Section 9 is similar to Rule 12 on bill of particulars. If the complaint is vague and ambiguous, the defendant
in a civil case can more for a bill of particulars. Counterpart, if the allegations in the information are also vague
and ambiguous, “I cannot understand it, so I cannot intelligently enter my plea.” The accused, before
arraignment, can move for a bill of particulars to enable him to prepare properly for the trial. Then he must
specify the defects. Civil case, pareho.
CINCO vs. SANDIGANBAYAN

202 SCRA 726
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscal’s
office when the case was under preliminary investigation. (In preliminary investigation, you are
given the affidavit of the complainant and his witnesses. And then you are given 10 days to submit
your counter-affidavits.) Here, the affidavit is vague according to the accused, so he is filing a bill of
particulars. He wanted to compel the complainant to make his affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s office for preliminary
investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot understand what the complainant is
saying in his affidavit?” The SC said, that is simple! If you cannot understand what the complainant
is saying in his affidavit, chances are, the fiscal also will not understand it. And consequently, he will
dismiss the case. Eh di mas maganda! Wag ka nalang mag-reklamo! [gago!]
SEC. 10. Production or inspection of material evidence in possession of prosecution. –

Upon motion of the accused showing good cause and with notice to the parties, the
court, in order to prevent surprise, suppression, or alteration, may order the
prosecution to produce and permit the inspection and copying or photographing of
any written statement given by the complainant and other witnesses in any
investigation of the offense conducted by the prosecution or other investigating
officers, as well as any designated documents, papers, books, accounts, letters,
photographs, object, or tangible things not otherwise privileged, which constitute or
contain evidence material to any matter involved in the case and which are in the
possession or under the control of the prosecution, police, or other law investigating
agencies. (11a)
Section 10 deals also with a mode of discovery – production and inspection of material evidence in the
possession of the prosecution. Not only that, the accused can have access to all evidence in the possession not
only of the prosecution but including those in the possession and control of the police and other law
investigating agencies. Take note, if we follow the case of LIM VS FELIX, JR, when the case is filed by the fiscal,
meron namang kaunting ebidensya na dun, so that, the judge can review and find out if there is probable
cause, but it is not really all.
Q: So if the accused wants to see other evidence and the fiscal refuses, can the accused file a motion to
compel the fiscal to reveal?
A: YES, because take note of Rule 112, Section 8 [b], the records of the preliminary investigation do not
form part of the records of the case when it reaches the court. That is why your remedy is to have them
inspected. Let us good back to Rule 112, Section 8:
Rule 112, Section 8[b] Record of preliminary investigation. – The record of the preliminary
investigation, whether conducted by a judge or a prosecutor, shall not form part of the
record of the case. However, the court, on its own initiative or on motion of any party,
may order the production of the record or any of its part when necessary in the
resolution of the case or any incident therein, or when it is to be introduced as an
evidence in the case by the requesting party.
Another interesting case here on Section 10 is the ruling in
WEBB vs. DE LEON

542
247 SCRA
FACTS: You know the story of Hubert Webb, the convict in that Vizconde rape-homicide case.
Somehow the defense discovered that there were two (2) affidavits of Jessica Alfaro (the State
witness) which were executed before the NBI. Of course what was presented by the NBI to the DOJ
was only one. So, the defense filed a motion to compel the NBI to produce the other affidavit. This
happened when the case was under preliminary investigation.
ISSUE: Can you apply Section 10 when the case is still in the fiscal’s office? Because if you read
Section 10, it applies when the case is already in court. The same with Section 9. Can the mode of
discovery under the Rules of Court in criminal cases apply during the preliminary investigation?
HELD: “The issue is novel in this jurisdiction as it urges an expansive reading of the right of
persons under preliminary investigation. It deserves serious consideration. So, the SC was intrigued:
can you invoke the rights of an accused during the trial when he is still under preliminary
investigation?”
“To start with, our rules in criminal procedure does not expressly provide for discovery
proceedings during a preliminary investigation stage of the criminal proceeding. But the SC noted,
“This failure to provide discovery procedure during preliminary investigation does not, however,
negate its use by a person under investigation when indispensable to protect his constitutional fight
to life, liberty and property. Preliminary investigation is not too early a stage to guard against any
significant erosion of the constitutional right to due process of a potential accused. that the finding
of a probable cause by itself subjects the suspects life, liberty and property to real risk of loss or
diminution. The fact that the law is silent does not mean that it does not apply. (Meaning, even if it
is under preliminary investigation, your liberty is already in danger.) The right to discovery is rooted
on the constitutional protection of due process which we rule to be operational even during the
preliminary investigation of potential accused.”
“In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. The rationale is well put by Justice Brennan in Brady – “society wins not only when the
guilty are convicted but when criminal trials are fair.” Indeed, prosecutors should not treat litigation
like a game of poker where surprises can be sprung and where gain by guile is not punished.”
So, the prosecutor should not hide anything because his job is not to convict but to see to it that justice is
done. I’ve been reading lately SC recent decisions along that line na naman, where the SC said that your job
Mr. Fiscal is not to convict, but seek that justice is done. When you have no evidence, do not file. When there is
no evidence in court, you move to dismiss the case – ikaw mismo! Do no insist in trying the case.
And there was one decision where the SC said, “What is the greatest achievement or moment of a
prosecutor?” Some may say when pagna-convict niya ang accused. That is an achievement but is it not the
greatest on your part. The greatest achievement on you part is when you ask the court to dismiss the case
because there is no evidence to convict the accused. That is the greatest achievement because that is your job
– to see to it that justice is done.
SEC. 11. Suspension of arraignment. – Upon motion by the proper party, the
arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental examination
and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either
the Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (12a)
What are the grounds for suspending an arraignment? There are three and let’s go over them one by one.
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental examination
and, if necessary, his confinement for such purpose;
When the accused is in an unstable condition, you cannot properly, intelligently inform him of the nature of
the charge. So example: Buang, unstable condition, Let us suspend the arraignment. Let us wait for his
recovery and as long as he is not yet recovered, the arraignment is suspended indefinitely. For as long as he has
not recovered, the arraignment remains suspended.
BAR QUESTION : What are the legal effects of insanity or unsound mental condition of the accused?
A: It DEPENDS as to when was he insane –
1. Suppose he was insane at the time he committed the crime but now he is OK, then that is not a
ground for the suspension of the arraignment, not even a ground for a motion to quash unless the
information admits that he is insane when he committed the crime in which case you can move to
quash under Rule 117, Section 3 [h] – that the information contains averments which in truth would
constitute a legal excuse or justification.
But there is no prosecutor crazy enough to file an information admitting that the accused was
insane when he committed the crime. That is tantamount to admitting that he is exempt from
liability. It is the defense who will prove insanity. So what is the effect? You enter your plea of not
guilty and let’s go to trial and I will prove insanity as my defense.
543
2. Suppose he became insane when the case is set for arraignment but he was normal when he
committed the crime? Then we apply Rule 116, Section 11 – you move for the suspension of the
arraignment.
3. Suppose he became insane after the arraignment? You move to postpone the trial because he
cannot adequately defend himself if he is crazy. The trial should be suspended.
4. Suppose he became insane when he is already convicted and serving sentence? Let us go back to
the Penal Code, Article 86 – it is a ground for a motion for the suspension of the execution of the
sentence.
Second ground:
(b) There exists a prejudicial question;
When there is a prejudicial question. Just connect this with Rule 111, Section 6 – what do you mean by a
prejudicial question, the elements, when do you raise them. When the case is in court, suspend the trial,
suspend the arraignment, lets wait for the civil case to be decided.
The third ground is new:
(c) A petition for review of the resolution of the prosecutor is pending at either
the Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office.
Based on existing jurisprudence, when the prosecutor says “File the case,” technically, the accused can
appeal that although generally that is not appealable because of the MOGUL doctrine. As a general rule, the
DOJ should no longer entertain an appeal from the resolution of the fiscal stating that the case should be filed
because the court may not follow the DOJ. That is what happened in the case of Mogul. Sabi ng DOJ , ”no
probable cause, Fiscal, you dismiss” Sabi ng court, “No, Fiscal, you continue!”
The problem is when the case reaches the court, in most cases, the lawyer of the accused will move for the
suspension of the arraignment because he will say, “I have a pending petition for review of the resolution in the
DOJ.” According to the circular of the DOJ, the petition for review can only be entertained if the accuse has not
been arraigned, kung na-arraign na, wala na. But normally courts will honor that. That court will say, “alright,
let us suspend and wait for the resolution of the DOJ.” That is why it is a ground for suspension.
The trouble is this: how long does it take for the DOJ to resolve it? If they can resolve it within 2 or 3 years,
you are lucky, the case cannot go on because the DOJ is not done yet. This has been the cause of delays. That’s
why the new rules says, “provided, the suspension will not exceed 60 days counted from the filing of the
petition with the reviewing office.” This is tantamount to the SC indirectly telling the DOJ or the reviewing office
(Provincial State Prosecutor) na “bilisan ninyo”. If the petition is not acted within that period, let’s proceed with
the arraignment, “bahala na kayo dyan!”
At least there is now a deadline. And that is good. I really like this amendment. It is the accused who filed
the petition for review who is under pressure – to pressure the DOJ to resolve because the suspension is only
good for 60 days. Unlike before where the pressure is in the offended party because the case cannot run while
the petition for review is pending. Now, I do not know whether the DOJ right now, can do in 60 days what they
have been failed to do for years.
Late one night, Jack took a short cut through a graveyard. Hearing a tapping sound, he felt a little
scared, but kept going. As the tapping grew louder, he became more frightened. Finally, he found a
man chiseling at a gravestone.
“Thank goodness,” Jack said to the man with relief. “You gave me quite a fright. What are you
doing?”
“They spelt my name wrong,” replied the man.
Source: Reader’s Digest, January 2001
“Man has not invented a reliable compass by which to steer a marriage in its journey over
troubled waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the
works of the unseen hand of Him who created all things.
“Who is to blame when a marriage fails?
“Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of
a partner in marriage is to say “I could not have cared less.” This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which
brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of
creation. It is a function which enlivens the hope of procreation and ensures the continuation of
family relations.”
– Justice Torres, Jr. on the issue of psychological incapacity
CHI MING TSOI vs. COURT OF APPEALS

G.R. No. 119190, January 16, 1997
544
Rule 117
MOTION TO QUASH
SECTION 1. Time to move to quash. – At any time before entering his plea, the accused
may move to quash the complaint or information. (1)
SEC. 2. Form and contents. – The motion to quash shall be in writing, signed by the
accused or his counsel and shall distinctly specify its factual and legal grounds. The
court shall consider no ground other than those stated in the motion, except lack of
jurisdiction over the offense charged. (2a)
In civil cases, within the time for but before filing the answer to the complaint, the defendant may move to
dismiss the case on certain specified grounds under Rule 16. In criminal procedure naman, at anytime before
entering the plea, the accused may move to quash the complaint or information.
Take note that under Section 2, the motion to quash partakes the nature of an omnibus motion because the
court will consider no ground other than those stated in the motion. The court will not quash a complaint or
information on a ground that you did not cite. This is because you can waive this right.
The only ground the court will consider moto propio, is lack of jurisdiction over the offense charged, even if
not raised in the motion to quash. The theory is that: “No amount of silence on the party of the accused will
grant the court jurisdiction over the subject matter of the case.” Jurisdiction over the subject matter is conferred
by law.
Q: What are the grounds for a motion to quash?

A: Section 3:
SEC. 3. Grounds. The accused may move to quash the complaint or information on
any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent. (3a)
1ST GROUND: (A) THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE;
The counter part of this in civil cases is, that the pleading asserting the claim states no cause of action.
Q: How do we know the complaint or information do not constitute an offense?

A: You look at the allegations in the complaint. If the facts alleged do not constitute any crime, then the
information should be quashed. This was emphasized in the case of
LOPEZ vs. SANDIGANBAYAN

October 13, 1995
HELD: “As a general proposition, a motion to quash on the ground that the allegations of the
information do not constitute the offense charged, or any offense for that matter should be resolved
on the basis alone of said allegations whose truth and veracity are hypothetically admitted.
However, additional facts not alleged in the information, admitted or not denied by the prosecution
may be invoked in support of the motion to quash.”
2ND GROUND: (B) THAT THE COURT TRYING THE CASE HAS NO JURISDICTION OVER THE OFFENSE
CHARGED;
3RD GROUND: (C) THAT THE COURT TRYING THE CASE HAS NO JURISDICTION OVER THE PERSON OF THE
ACCUSED;
Instances when the court has no jurisdiction:

1.) the court has no jurisdiction to try the case because of the penalty;
2.) the court has no jurisdiction to try the offense because it is committed in another place – territorial
jurisdiction; or
545
3.) the court has no jurisdiction over the person of the accused because the latter has never been
arrested and never surrendered himself.
4TH GROUND: (D) THAT THE OFFICER WHO FILED THE INFORMATION HAD NO AUTHORITY TO DO SO;
Q: Who has the authority to file the case?

A: Prosecutor.
So if it was the clerk who signed for the city prosecutor ( e.g. By: Kent Clark – clerk typist), the accused can
move to quash because the clerk is not authorized. Remember, if the fiscal filed an information without the
previous complaint signed by the victim or by the parents, the same can be quashed.
CUDIA vs. COURT OF APPEALS

January 16, 1998
HELD: “An infirmity in the information, such as lack of authority of the officer signing it, cannot
be cured by silence, acquiescence, or even by express consent.”
5TH GROUND: (E) THAT IT DOES NOT CONFORM SUBSTANTIALLY

TO THE PRESCRIBED FORM;
You know very well the form of complaint or information. You go back to Rule 110 – you state the time, the
place, etc. then in Rule 112 a certification is required. The fiscal will certify that I have conducted the
preliminary investigation, etc. that is the form. The fiscal will certify that the other party has given the chance
to be heard. If the same was not afforded the accused, he can move to dismiss the case.
Q: Now, what is your ground to quash?

A: You say, “It does not comply with the prescribed form” because the correct form requires certification. It
is a ground for a motion to quash.
6TH GROUND: (F) THAT MORE THAN ONE OFFENSE IS CHARGED EXCEPT WHEN A SINGLE PUNISHMENT
FOR VARIOUS OFFENSES IS PRESCRIBED BY LAW;
This refers to a duplicitous complaint or information – when it charges more than one offense under Rule
110, Section 13. It is not allowed. However under Rule 120, Section 3 it is waivable. If the accused fails to object
to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him
the penalty for each offense,
7TH GROUND: (G) THAT THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED
Q: How is criminal liability extinguished?

A: Under Article 89 of the RPC:
1.) by death of the convict;
2.) by service of sentence;
3.) by amnesty;
4.) by absolute pardon;
5.) by prescription of the crime;
6.) by prescription of the penalty;
EXAMPLE: The information should be filed only within 5 years but the charge was filed on the 7th year. So
you can move to quash because the liability has already been extinguished by prescription.
8TH GROUND: (H) THAT IT CONTAINS AVERMENTS WHICH, IF TRUE, WOULD

CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION
The complaint or information contains averments which if true would show that you are NOT liable.
SITUATION: The information says that there is a case of homicide because in such certain date Rose stabbed
Rucel because Rucel tried to stab Rose first. The information is admitting that Rose acted in self-defense.
Prosecutor himself admits that Rose acted in self-defense. Therefore, the information admits the existence of a
justifying circumstance.
SITUATION: You are charged for committing a crime and when you committed it, you are out of your mind.
Thus, it admits insanity. So you can move to quash on the ground that the information admits that you are
insane.
That is what is meant by a complaint or information which contains averments which if true, constitute a
legal excuse or justification. Of course this is very rare ‘noh? Why will the fiscal allege in the information
something that is favorable to you? This is very queer.
One of the most interesting case here is the 1994 case of
DANGUILAN-VITUG vs. COURT OF APPEALS

232 SCRA 460 [1994]
FACTS: Danguilan was a columnist in a newspaper and was charged for libel for writing in a
column something which is discriminating. According to her the information should be quashed
because it was a privileged communication.
546
HELD: NO, it cannot be quashed because of “paragraph [g] of Section 3 Rule 117 which states
that the accused may move to quash the complaint or information where it contains averments
which, if true, would constitute a legal excuse or justification. Hence, for the alleged privilege to be
a ground for quashing the information, the same should have been averred in the information
itself.” Meaning, the information should admit that it is privileged in nature. If it is not stated there,
then it is not admitted.
“The privilege should be absolute, not only qualified. Where, however, these circumstances
are not alleged in the information, quashal is not proper as they should be raised and proved as
defenses. With more reason is it true in the case of merely qualifiedly privileged communications
because such cases remain actionable since the defamatory communication is simply presumed to
be not malicious, thereby relieving the defendant of the burden of proving good intention and
justifiable motive. The burden is on the prosecution to prove malice. Thus, even if the qualifiedly
privileged nature of the communication is alleged in the information, it cannot be quashed
especially where prosecution opposes the same so as not to deprive the latter of its day in court,
but prosecution can only prove its case after trial on the merits.”
9TH GROUND: (I) THAT THE ACCUSED HAS BEEN PREVIOUSLY CONVICTED OR ACQUITTED OF THE
OFFENSE CHARGED, OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS
EXPRESS CONSENT.
This is known as the defense against double jeopardy. The double jeopardy as a ground for a motion to
quash is the most complicated ground. That is why it is thoroughly discussed in Section 7. We will go now to
Section 4.
SEC. 4. Amendment of complaint or information. – If the motion to quash is based on

an alleged defect of the complaint or information which can be cured by amendment,
the court shall order that an amendment be made. (4a)
If it is based on the ground that the facts charged do not constitute an offense,
the prosecution shall be given by the court an opportunity to correct the defect by
amendment. The motion shall be granted if the prosecution fails to make the
amendment, or the complaint or information still suffers from the same defect
despite the amendment. (n)
Actually, some of the grounds of a motion to quash are harmless, they are not fatal. They can be cured by
amendments.
The second paragraph of Section 4 is new. It was merely inserted to complement the first paragraph.
EXAMPLE: Motion to quash that the information does not comply with the prescribed form because taking of
oath was forgotten. I do not think the court will order for the dismissal of the criminal case because of that. It
will instead issue an order directing the fiscal to amend, “Take the oath, so it will be cured.” This is a ground for
quashal which is not a serious defect but only a formal defect. Thus, instead of quashing the information the
court may extend the right to the fiscal to amend the complaint or information since the name is curable.
However under the second paragraph, despite the lapse of so many days, the prosecutor did not file the
amended information or even if he filed the corrected information, pero ganun pa rin, the defect is still there, I
will rather move to quash the information.
We will take up Section 5 together with Section 6.
SEC. 5. Effect of sustaining the motion to quash. – If the motion to quash is sustained,
the court may order that another complaint or information be filed except as
provided in section 6 of this rule. If the order is made, the accused, if in custody,
shall not be discharged unless admitted to bail. If no order is made or if having been
made, no new information is filed within the time specified in the order or within
such further time as the court may allow for good cause, the accused, if in custody,
shall be discharged unless he is also in custody of another charge. (5a)
SEC. 6. Order sustaining the motion to quash not a bar to another prosecution; exception. –
An order sustaining the motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds specified in section 3 (g)
and (i) of this Rule. (6a)
SITUATION: An information is filed against you and it is not in the prescribed form.
Q: What would the court do?

A: Based on Section 4, the court will, instead of quashing , allow the fiscal to amend. And your motion is
already moot and academic. But suppose the court will quash the information because it was filed by
somebody who was not authorized to file and the motion to quash is sustained, it does not mean to say that the
case cannot be re-filed since the defects are incurable.
SITUATION: The case of homicide is filed in the MTC when actually it should be filed in the RTC. Since the
MTC has no jurisdiction, you file a motion to quash. And the judge shall quash it.
Q: What would the fiscal do?

A: Tomorrow he will re-file it. So when the case is dismissed on such a ground – lack of jurisdiction or it does
not conform with the prescribed form – the rule is it is not a bar to re-file the case. It can be filed again.
EXCEPT when the ground for dismissal is falling under paragraphs [g] and [i] of Section 3, Rule 117.
547
Q: What is paragraph [g]?
A: “That the criminal action or liability has been extinguished.” If the case is quashed on this ground, that
is the end since the same is extinguished already. You cannot re-file it anymore.
Q: What is paragraph [i]?

A: “that the accused has been previously convicted or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his express consent.” So you cannot re-file the information
because of double jeopardy.
As a general rule, all other grounds for motion to quash even if granted will not really be a total victory for
the accused. That is why some lawyers will never bother to file a motion to quash anymore. This is because
once you file it, the same case would be re-filed. As a matter of fact, there are cases when it is not advisable to
file a motion to quash unless there is a serious reason. It is a matter of judgment. If you think it will not benefit
you client, then do not file it. Like in preliminary investigation some lawyers will not submit to criminal
investigation most especially if they believe the fiscal will file because of probable cause. Better if I will not file
so that you will not know who are my witnesses or statements.
As a matter of fact that happened already. There was a case wherein the information stated that the
accused issued five (5) checks, with different dates, all are post-dated. All five checks bounced. So, a complaint
against the accused was filed before the fiscal. What the fiscal did was to file one case for estafa reciting there
that the accused issued five checks of five different dates with different maturities, and all bounced.
So it turned out that the information is duplicitous because every check should have been one case. You
know what the lawyer for the accused did? He file a motion to quash stating that the information charges more
than one case of estafa. The lawyer was correct, so the dismissed the information. The following day, the fiscal
filed 5 informations. One case for every check. In effect there are five warrants of arrest already. Then the
accused asked his lawyer, “Atty, what happened? Before I have only one case. Now, there are already five!”
Q: If you are the lawyer, how will you explain that?

A: Actually, legally you are correct. An information should charge only once crime. But since t charges five
crimes so you move to quash which is a valid ground. But look at the effect – the accused now has five
warrants. Can you say, it is because of a duplicitous information? He cannot understand that.
That is why there is difference in just knowing the law from knowing how to apply the law. You should know
the law and you should know how to use it. If it is not in you interest, do not use it. Why move to quash when by
doing so would worsen your situation. Of course, there are also instances where there is a need to object by
virtue of a duplicitous information.
Q: When do you apply it?

A: That is for the lawyer to judge. Will you use it or not? In other words, there is a need for you to have a
clear picture of the situation. You must not only know the Rules of Court but also when the law must be used.
An example is a motion to quash. How to apply it.
However, when a case is quashed on the ground that the criminal liability has been extinguished or the
accused is placed in double jeopardy, once it is quashed, that is the end. It cannot be re-filed.
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution
for an offense which necessarily includes the offense charged in the former
complaint or information under any of the following instances:
(a) the graver offense developed due to supervening facts arising from the same
act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered
only after a plea was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in
part the judgment, he shall be credited with the same in the event of conviction for
the graver offense. (7a)
One important ground for a motion to quash is Section 7 on double jeopardy which is also found in the
Constitution – Section 21, Article 3 on the Bill of Rights.
Q: Define jeopardy?
A: Jeopardy is the peril in which a person is put when he is regularly charged with a crime before a tribunal
properly organized and competent to try him. (Commonwealth vs. Fitzpatrick, 1 LRA 451)
Meaning, if a case is filed against you before a court which is competent to try you, then from that
moment, there is a risk, danger or peril. Everytime there is peril, there is jeopardy. And after what happened to
you, whether you are acquitted or convicted or the case was dismissed without your consent, later on ibalik ka
naman in the second time around, ah hindi puwede yan. It is inhuman to put you in jeopardy twice.
548
Let’s go to the Constitution. Under Article 3, Section 21, there are two (2) sentences:
1.) “No person shall be twice put in jeopardy of punishment for the same offense.” and
2.) “If an act is punished by a law or ordinance, conviction or acquittal in either shall constitute a bar to
another prosecution for the same act.”
The first sentence is what you call protection against double jeopardy of punishment for the same offense.
The second sentence is what you call the protection against double jeopardy for the punishment of the same
act. So there is double jeopardy for the same offense and double jeopardy for the same act. The second
sentence is not the same offense, but it is the same act.
The second sentence says that the act is punished by a law passed by Congress and it iis also punished for
example, by an ordinance passed by the City or Municipal Council. So it is a crime under the municipal or city
ordinance and also under the national law. It is not the same crime because it is punished by two laws, so
there must be two crimes.
However the sentence says, that if you are acquitted or prosecuted under the national law, you cannot
anymore be acquitted or convicted under the city or municipal ordinance all over again or vice-versa. You are
protected for the same act not for the same offense.
Now, the best illustrative case comparing the first and the second sentences is the 1987 case of PEOPLE vs.
RELOBA, infra where Justice Feliciano traced the history of double jeopardy staring from the 1935 Constitution.
PEOPLE vs. RELOVA

148 SCRA 292
FACTS: The accused installed an electrical connection without permit. He was charged with theft
under the RPC – theft of electricity. And it so happened that in that place, there was an ordinance
passed by the municipal council making it a crime for you to make an electrical connection without
permit.
So he was charged both for violation of the RPC and the municipal ordinance. The accused filed
a motion to quash the second information, stating that he has already been charged for theft of
electricity. The prosecution contended that the first charge was theft under the RPC and the
prosecution is charging him not for theft but for illegal electrical connection under the municipal
ordinance.
ISSUE #1: What is the reason why there are 2 rules in the provision on double jeopardy?
HELD: “If the second sentence of the double jeopardy provision had not been written into the
Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to
another prosecution for the same act under a national statute. An offense penalized by municipal
ordinance is, by definition, different from an offense under a statute. The two offenses would never
constitute the same offense having been promulgated by different rule-making authorities —
though one be subordinate to the other — and the plea of double jeopardy would never be. The
discussions during the 1934-1935 Constitutional Convention show that the second sentence was
inserted precisely for the purpose of extending the constitutional protection against double jeopardy
to a situation which would not otherwise be covered by the first sentence.”
ISSUE #2: Was there double jeopardy?

HELD: The purpose of installing illegal connection is to steal electricity, which is also theft. In
other words, it is the same act of installing which is punishable. Since you are acquitted or
convicted under the national law, you cannot be prosecuted under a municipal law. You are
protected by the second sentence of double jeopardy in the Constitution: “If an act is punished by a
law or ordinance, conviction or acquittal in either shall constitute a bar to another prosecution for
the same act.”
However, Section 7 is not concerned with the second sentence but with the first sentence – the protection
against double jeopardy from being punished for the same offense. This is similar to res adjudicata. The SC
explained the rational behind the double jeopardy rule in the case of
MALLARI vs. PEOPLE

168 SCRA 422
HELD: “The rule against double jeopardy protects the accused not against the peril of second
punishment but against being tried for the same offense. Without the safeguard this rule
establishes in favor of the accused, his fortune, safety and peace of mind would be entirely at the
mercy of the complaining witness who might repeat his accusation as often as it is dismissed by the
court and whenever he might see fit, subject to no other limitation or restriction than his will and
pleasure. The accused would never be free from the cruel and constant menace of a never ending
charge, which the malice of a complaining witness might hold indefinitely suspended over his
head.”
Let’s go to the double jeopardy rule.
Q: Bar Question: What are the requisites of double jeopardy?

A: The SC tried to compressed that 2 paragraphs (of Section 7) in only 3 sentences in the case of
PEOPLE vs. BOCAR (138 SCRA 166) reiterated in

PANGAN vs. PEOPLE (155 SCRA 45)
HELD: To raise the defense of double jeopardy, three (3) requisites must be present:
549
1.) The first jeopardy must have been attached prior to the second;
2.) The first jeopardy must be validly terminated; and
3.) The second jeopardy must be for the same offense as that of the first.
Well, this is my advice, for purposes of answering the question on double jeopardy and in order to
understand completely the double jeopardy rule, let us analyze Section 7 by dividing it into three (3) parts:
A.) WHAT ARE THE REQUISITES OF DOUBLE JEOPARDY IN ORDER TO ATTACH?
B.) IN WHAT INSTANCES MAY THE ACCUSED INVOKE THE PROTECTION OF DOUBLE JEOPARDY? and
C.) ASSUMING THAT ALL THE REQUISITES OF DOUBLE JEOPARDY, THE ACCUSED IS PROTECTED AGAINST
FROM WHAT OFFENSE?
In effect, Section 7 talks of those three. Let’s start with the first one:
A.) WHAT ARE THE REQUISITES OF DOUBLE JEOPARDY IN ORDER TO ATTACH?
Q: When does the first jeopardy attach?

A: It attaches when the following requisites are present:
1. The former complaint or information is valid;
2. It was filed in a court of competent jurisdiction;
3. The accused had been arraigned under said complaint or information; and
4. The accused had pleaded to the same.
THE FORMER COMPLAINT OR INFORMATION IS VALID
Q: When is a complaint or information valid within the meaning of the double jeopardy rule?
A: The requisites are:
1. if it charges an offense; (People vs. Austria, 94 Phil. 897)
2. if it is filed by a person or officer legally authorized to do so. (People vs. Kho, 97 Phil. 825)
CASE: An information was filed against Mr. Acelar for theft. Mr. Acelar moved to quash on the ground that
the information does not charge any offense. The court agreed and the information was quashed. So, the fiscal
corrected the information and re-filed it. Mr. Acelar moved to quash on the ground of double jeopardy. Is there
double jeopardy?
A: There is no double jeopardy for the following reasons:
1. The dismissal of the first information was on motion of the accused. Therefore, it was a dismissal
with his express consent. Diyan palang, tumba ka na!
2. The accused moved to quash the first information on the ground that it did not charge an offense.
Therefore, it was not a valid information. So, the accused was never in jeopardy. (People vs. Reyes,
98 Phil. 646)
IT IS FILED IN A COURT OF COMPETENT JURISDICTION
CASE: A case of homicide is filed in the MTC; that will be dismissed in MTC for lack of jurisdiction. But that
can be cured if the fiscal will file the information of homicide in the RTC. Is there double jeopardy?
A: None. The accused was never in jeopardy because the first information was filed before the wrong court.
There was no danger of being convicted based on the case filed. (People vs. Salico, 84 Phil. 722)
B.) ASSUMING THAT THE REQUISITES OF DOUBLE JEOPARDY ARE PRESENT, IN WHAT
INSTANCES MAY THE ACCUSED INVOKE THE PROTECTION OF DOUBLE JEOPARDY?
Q: In what instances may the accused invoke the protection of double jeopardy?
A: In the following:
1.) when the accused had been previously convicted;
2.) when the accused had been previously acquitted; and
3.) when the case against the accused had been dismissed or otherwise terminated without his express
consent.
Let’s go to a decided case: The fiscal filed a case against you for homicide alleging that on a certain day
you killed Juan dela Cruz. While the case is pending, the fiscal filed a second information for the same homicide
committed on the same day by the same accused. So you are now facing two charges for the same homicide.
Can you move to quash the second information on the ground of double jeopardy?
In so many cases, like in the case of Buscayno vs. Milatary Commission, the SC said NO, because you have
not been acquitted or convicted. The first case was not validly terminated kay pending pa man. In civil case,
that is litis pendencia. Now, if the case is already decided, convicted or acquitted, or dismissal without his
express consent, then there can now be double jeopardy. In civil case that is res adjudicata.
However in the case of People vs. City Court of Manila (121 SCRA 627), the SC made a pronouncement that
mere pendency of a criminal case against the accused can be invoke as a ground for double jeopardy.
So, which is which? The issue has been resolved in the 1993 case of
PEOPLE vs. PINEDA

219 SCRA 1
550
HELD: “The mere filing of two (2) informations charging the same offense is not an appropriate
basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous
conviction, acquittal or termination of the case without the consent of the accused.”
“The ambiguity stirred by the imprecise observation in People vs. City Court of Manila, a 1983
case, can now he considered modified in that a prior conviction, or acquittal, or termination of the
case without the express acquiescence of the accused is still required before the first jeopardy can
be pleaded to abate a second prosecution.”
Now, the law says that you have been convicted or acquitted, or a case against you have been dismissed
without you express consent. That is what you mean by “the first jeopardy has already been terminated.” But
take note that this is not a key for the prosecutors to file several the same cases against the accused. The law
only provides that you cannot raise the defense of double jeopardy in this situation. But you can question the
acts of the prosecution to his superior or you may file an injunction case citing the case of Brocka vs. Enrile. But
definitely you cannot use double jeopardy as defense.
Q: What is the difference between acquittal and dismissal of the case?

A: Generally, dismissal is not on the merits. But there are dismissals which are classified as acquittal, like
demurrer to evidence, or dismissal because of the violation of the right of the accused to speedy trial.
In the same manner, for double jeopardy to attach, the law says, the case must have been dismissed
without your express consent. So, as a general rule, when the accused himself files a motion to dismiss, he
cannot invoke double jeopardy because he himself intended the dismissal of his case; it is with his express
consent.
DISMISSAL WITHOUT THE EXPRESS CONSENT OF THE ACCUSED
We will explore the first issue: Whether or not the dismissal is with the express consent of the accused.
One of the interesting cases interpreting the meaning of the phrase is the 1993 case of
PEOPLE vs. VERGARA

221 SCRA 960
FACTS: Vergara was accused of frustrated murder for allegedly conspiring with some people.
While the case is pending, the accused asked the provincial prosecutor for a reinvestigation of the
case. The request was granted. After reinvestigation, the prosecutor made a finding that there was
no crime because the accused acted in self-defense. Therefore, the prosecutor moved for the
dismissal of the case in court. The trial court granted the motion for dismissal of the case for
frustrated murder.
However, when the fiscal made a finding that there was no probable cause, in the meantime
naman, the complainant appealed such finding to the Secretary of Justice. The recommendation of
the prosecutor was disapproved. Sabi ng DOJ, “No, there is a case here. Provincial prosecutor, i-re-
file mo.” So, there was another information for frustrated murder filed against the same accused.
This time, the accused pleaded Double Jeopardy. Bakit? According to the accused:
ACCUSED: “The cases were dismissed upon motion of the prosecutor; I was not the one
who filed the motion. So, when the case was dismissed, it was dismissed without my
express consent.”
COMPLAINANT: “No, why did you ask for reinvestigation? Di ba, the purpose is that it
will lead to the dismissal of the case? So, when you filed a motion for reinvestigation, in
effect, you are seeking a dismissal with your express consent.”
ACCUSED: “No! Express consent is different from intention. When I filed a motion for
reinvestigation, my intention was to let the case be dismissed, but I did not give my express
consent. While I may have intended to let the case be dismissed upon moving for
reinvestigation, I never give my express consent for the dismissal of the case. It was the
prosecutor himself who did it.”
ISSUE: Is there double jeopardy?
HELD: YES, there is double jeopardy. When you say express consent, the consent must be
categorical, clear. You cannot infer that by simply asking for reinvestigation. You cannot infer that
there is express consent; that is not within the concept.
“Express consent has been defined as that which is directly given either viva voce or in writing.
It is a positive, direct, unequivocal consent requiring no inference or implication to supply its
meaning. This is hardly what the accused gave. What they did was merely to move for
reinvestigation of the case before the prosecutor. To equate this with express consent of the
accused to the dismissal of the case in the lower court is to strain the meaning of ‘express consent’
too far. Simply, there was no express consent of the accused when the prosecutor moved for the
dismissal of the original Informations.”
There was a second issue in the case of VERGARA based on the rule on motion. In general, when you file a
motion, you must furnish a copy of the motion to the adverse party because, generally, motions cannot be filed
ex-parte unless the motion is non-controversial. Therefore, when the prosecution filed a motion to dismiss ex-
parte [without furnishing the parties a copy of the motion].
PEOPLE vs. VERGARA, supra
551
ISSUE: Is there a necessity to furnish the parties a copy of the motion to dismiss?
HELD: NO. It is not necessary. Is there a necessity to furnish the accused a copy of the motion
to dismiss? Do you think the accused will oppose the motion? Of course not because it is favorable
to him. Definitely, the accused will not question the filing of the motion to dismiss the criminal
case.
As to the complainant, is there a necessity for the prosecutor to furnish a copy of the motion to
dismiss the criminal case to the private offended party? Remember, every criminal case is under
the direction and control of the prosecutor. If we will allow the general rule, if the victim will
question the dismissal, he will be having control and no longer the prosecutor. The prosecutor
determines whether there is a case or none. Therefore, there is also no necessity of furnishing to
the private offended party a copy of the motion to dismiss.
What should be the remedy of the private offended party? Because the offended party is
aggrieved, imagine nawala ang kaso niya! The remedy, when the court ordered the dismissal of the
case, is to appeal the order of dismissal because it is also adverse to their claim for civil liability.
Instead, they allowed the order of dismissal to become final and, now, they are arguing that the
order of dismissal is void. They should have appealed it.
One last point. According to the law, if a case is dismissed without your express consent, that could be a
basis for double jeopardy. HOWEVER, jurisprudence says, an order dismissing a case will NOT constitute double
jeopardy if the order of dismissal is NULL and VOID. Meaning, an order of dismissal of a case will constitute
double jeopardy on the assumption that the order of dismissal was a valid order of dismissal.
Q: What is the usual reason why an order of dismissal is void?

A: The usual reason is when the prosecution was deprived of due process. That has been exemplified in
many cases. One of the cases is Senator Aquino et al. Na-acquit man yan sila ba. These people were already
acquitted by the Sandiganbayan. How come nabalik ang kaso? On the theory that everything was pre-arranged
including the acquittal. The SC said, the acquittal of the case is null and void because the prosecution was
deprived of due process in the sense that no matter what it does, the acquittal of the accused was already pre-
ordained. So there is no double jeopardy.
That has been applied in many cases like in the case of
PEOPLE vs. MOGOL

131 SCRA 296
FACTS: The accused was charged with physical injuries. After trial in the MTC, the court
discovered that it should not have been physical injuries, rather it should have been frustrated
murder because there was intent to kill eh. The MTC dismissed the case of physical injuries and told
the fiscal to file information for frustrated murder dahil mali ang fi-nile mo. The accused claimed
that he was charged for the same act. Thus, he moved for the dismissal of the frustrated murder
case.
HELD: NONE. There was no double jeopardy because the order of the trial court dismissing the
physical injury case is wrong. It was a void order because what the judge should have done is to
continue trying the case even if there was an error in the offense charged. So, if the accused would
be convicted, it is for physical injuries. In other words, you cannot order dismissal and then re-file
the case for frustrated murder. Because the order dismissal is void, there is no double jeopardy.
However, there was one dissenting justice in the case of Bogol – former Justice Makasiar. He said that “there
is double jeopardy as the case had already been tried and submitted for decision where the MTC judge ordered
the physical injury to be dismissed and ordered the filing of a new case for frustrated murder in the RTC.
Frustrated murder includes physical injuries. Therefore, dismissal of the latter resulted in double jeopardy.”
If you look at it, talagang tama siya (Makasiar, J.) eh – all the elements are there. But the trouble is, sabi ng
SC, the order of dismissal is void, there was no valid dismissal – ibalik! The charge for physical injury was
reinstated.
Another instance, the 1992 case of
GORREON vs. RTC OF CEBU

213 SCRA 138
FACTS: The case was set for pre-trial for 2 days (September 27 and 28). On the first day of the
trial, the offended party was there pero wala ang accused. The court said, “We will have to cancel
the hearing for today and tomorrow on the presumption that maybe they did not receive the
notice.” The trouble is the following day, paglabas ng court calendar, nandoon pa rin ang kaso – it
was supposed to be cancelled. This time, ang accused naman ang sumipot, ang offended party
wala. Of course, why would the offended party be there, eh, na-cancel na. Since the accused was
present for trial, but the prosecution was not ready because wala ang testigo niya, the court
dismissed the case for failure of the complainant to appear and to testify. [Well, the court and the
prosecution should have remembered that the hearing is already cancelled.] So, when the
complainant learned about it, nagreklamo, “I was not supposed to be there anymore, na-cancel
naman.” They looked at it, nagkamali talaga; everybody realized this error.
ISSUE: Is there double jeopardy if the action will be filed again?
552
HELD: NONE. “The erroneous dismissal order was issued capriciously and arbitrarily; it
unquestionably deprived the State of a fair opportunity to present and prove its case. Thus, its right
to due process was violated. The said order is null and void and hence, cannot be pleaded to bar a
re-opening of the case on the ground of double jeopardy. Consequently, the first jeopardy was not
terminated and no second jeopardy threatened the accused.”
“The Judge, Clerk of Court and the prosecution should shoulder the blame because unless
amnesia suddenly struck all of them simultaneously, it cannot be imagined that in a brief span of
about twenty-four (24) hours, they had all forgotten about the order dictated in open court
cancelling the hearing for September 27 and 28, 1990. [The order of cancellation was given the
day before, and the following day nobody remembered about it.] For the prosecutor who orally
moved for such cancellation and the Judge himself who dictated the said order, no plausible
explanation may be offered for such lapse.”
That is a demonstration of the rule that when the order of dismissal is null and void, you cannot plead
double jeopardy.
And the last part:
C.) ASSUMING THAT ALL THE REQUISITES OF DOUBLE JEOPARDY, ARE PRESENT, THE ACCUSED IS
PROTECTED AGAINST FROM WHAT OFFENSE?
Assuming the accused has already been convicted, acquitted or the case is dismissed without his express
consent, and all the requisites of double jeopardy are present, the accused cannot be convicted for:
1. for the same offense; or
2. for an attempt to commit the same offense. [If you are convicted or acquitted for a consummated
offense, you cannot be charged or convicted or acquitted for the lesser stage;] or
3. for frustration or attempt thereof; [The acquittal, conviction or dismissal of the consummated
crimes carries automatically the frustrated or attempted stage of the same crime.] or
4. for any other offense which necessarily includes or is necessarily included in the offense charged in
the former complaint.
BEING PROSECUTED FOR THE SAME OFFENSE
What is troublesome here is being prosecuted for the same offense. This has been the subject of so many
decided cases, whether it is the same offense or not.
Q: While in a public place, Maya fired a machine gun, thereby causing panic and physical injuries to certain
persons. She was charged with serious physical injuries through reckless imprudence for firing the gun in public.
Subsequently, she was charged with serious public disturbance in a public place. Is there double jeopardy?
A. NONE. While there was only a single act, two distinct offenses resulted therefrom namely: (1) physical
injuries which is a crime against persons, and (2) public disturbance which is a crime against public peace and
order. (People vs. Bacolod, 89 Phil. 621)
Q: Accused was caught fishing with explosives. He was first prosecuted for illegal fishing and subsequently,
for illegal possession of explosives. Is there DOUBLE JEOPARDY?
A: NONE. These are two (2) distinct offenses, the same being punished by two different laws. There is a
law for illegal fishing and another for illegal possession of explosives. (People vs. Tinamisan, L- 4081, January
29, 1952)
Q: A complaint for adultery was filed against Miriam and Cholo covering the period from the year 1946 to
March 14, 1947. Pleading guilty, the two were accordingly sentenced. On September 17, 1948, a second
complaint for adultery was filed against Miriam and Cholo covering the period of March 15, 1947 to the date of
the filing of the second complaint. The two moved to quash the second complaint on the ground of double
jeopardy. Is there double jeopardy?
A: NONE. Adultery is a crime of result and not of tendency; it is an instantaneous crime which is
consummated at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery, so
that there may be as many complaints for adultery as there are adulterous acts committed. It is only one
relationship but every carnal act is one crime. (People vs. Zapata, 88 Phil. 688)
Q: An accused stole a revolver, tinago niya. It turned out to be unlicensed. He was first prosecuted for theft
of firearm and he was convicted. He was subsequently prosecuted for illegal possession of firearm. Is there
double jeopardy?
A: NONE. The offenses are different. Theft is consummated upon the taking, while illegal possession
involves not only the taking but also the possession and intent to use the firearm. (People vs. Remerata, 98
Phil. 413)
Q: The accused, without a license, drove his jeep recklessly such that it turned turtle resulting into the
death of four of its passengers. Prosecuted for multiple homicide through reckless imprudence; he was
convicted. Subsequently, he was prosecuted for driving without a license under the Land Transportation Law. Is
there DOUBLE JEOPARDY?
A: NONE. The two offenses are distinct: one is punished by the Penal Code and the other by special law.
(People vs. Guanco, 83 Phil. 639)
Q: The accused married twice and lived with the second woman as husband and wife for quite some time.
Prosecuted for bigamy, he was convicted. Subsequently, he was prosecuted for concubinage. Is there DOUBLE
JEOPARDY?
A: NONE. The two offenses are distinct. In bigamy, marriage is an essential element. You can only commit
bigamy if you are married and you marry another. But in concubinage, marriage is not an essential element –
mere living together as husband and wife is sufficient. (People vs. Schneckenburger, 72 Phil. 413) If you are a
553
married man and you live as husband and wife with another woman, that is concubinage even if you will not
marry her.
PEREZ vs. COURT OF APPEALS

168 SCRA 236
FACTS: Accused was charged with consented abduction. He was acquitted. The court said that
it was qualified seduction pala, and not consented abduction. So, another complaint for seduction
was filed against the accused. The accused pleaded double jeopardy. Is there double jeopardy?
HELD: NONE. Although they may have arisen from the same set of facts, [and they are both
crimes against chastity] they are not identical offenses as would make applicable the rule on double
jeopardy.
There are similar elements between Consented Abduction and Qualified Seduction, namely: (1)
that the offended party is a virgin, and, (2) that she must be over twelve (12) and under eighteen
(18) years of age. However, two elements differentiate the two crimes. Consented Abduction, in
addition to the two common elements, requires that: (1) the taking away of the offended party must
be with her consent, after solicitation or cajolery from the offender, and, (2) the taking away of the
offended party must be with lewd designs. On the other hand, an information for Qualified
Seduction also requires that: (1) the crime be committed by abuse of authority, confidence or
relationship, and, (2) the offender has sexual intercourse with the woman [which is not required in
abduction].
NIERRA vs. DACUYCUY

181 SCRA 1
FACTS: A check bounced. Two cases were filed: (1) Estafa, under Article 315, RPC, and (2) BP
22. Is there DOUBLE JEOPARDY?
HELD: NONE. The two crimes are distinct. While, in filing of the two sets of information may
refer to identical acts, the prosecution cannot be limited to one offense because a single criminal
act may give rise to a multiplicity of offenses with different elements. Prosecution for the same act
is not prohibited. What is forbidden is prosecution for the same offense.
However under the Constitution, if the same act is punished by a national law and an ordinance,
iba na yan! Conviction or acquittal in either one will constitute double jeopardy – that is the
exception. But, if you are violating two national laws, e.g. BP 22 and Estafa, then there is no double
jeopardy.
Those are examples of NO double jeopardy.
HOWEVER, there are cases where the crimes are not identical but double jeopardy can be applied. The best
example is delito continuado because the SC said the protection against double jeopardy may be extended to a
case of a single criminal act impelled by a single criminal intent, resulting into two or more juridically identical
offenses.
Q: Give examples of the rule mentioned above.

A: The following:
1. Mr. Cadungog stole two (2) fighting cocks in the same place. He was prosecuted for stealing one
cock. He cannot be prosecuted anymore for stealing the other cock. Although there are two acts of
taking but there is only one criminal intent – that is where double jeopardy will arise. (People vs. De
Leon);
2. A person was charged with illegal importation of blasting caps – a device for preparing explosives –
cannot be subsequently prosecuted for illegal possession of the same, for there can hardly be
importation without possession. (People vs. Elkanish, 90 Phil. 53);
3. A person charged with reckless driving under the LTO Law cannot be subsequently charged with
damage to property through reckless imprudence because reckless driving is the essential element
of both offenses. (People vs. Diaz, 94 Phil. 714; People vs. Belga, 100 Phil. 996);
4. A person convicted of illegal possession of opium cannot be subsequently prosecuted for illegal
possession of opium pipe found together with the opium. (U.S. vs. Pho Chi, 20 Phil. 104);
5. Possession of two or more unlicensed firearms in one place constitutes but one offense so that
conviction for illegal possession of one firearm is a bar to a subsequent prosecution for possession
of the other or others. (U.S. vs. Gustilo, 19 Phil. 208)
MALLARI vs. PEOPLE

168 SCRA 422
FACTS: The accused wanted to mortgage two (2) lots to the victims, let us say for P3,000, at
P1,500 each. Sabi ng victim, “Kulang man ang kwarta ko. I will only lend you P1,500, good for one
lot lang. You ask my mother-in-law baka may pera siya.” Meron man din. So hinati – the other lot
was mortgaged to the mother-in-law of the victim for P1,500. It turned out that all those deed of
mortgage were falsified. Two cases were filed against the accused because there were two victims.
554
HELD: YES. There is only one crime committed. There is only one intent to defraud. It is just
accidental that the intended victim only got one-half. There is a similar crime consisting of a series
of acts, but all arising from one criminal resolution.
ENRILE vs. AMIN

September 13, 1990
FACTS: Enrile was charged for rebellion during the coup d’ etat during the time of President
Aquino for conspiring with Honasan. During the highlight of the coup attempt, nandun si Honasan sa
birthday party ni Enrile. While the case for rebellion was pending, another case was file against him
under PD No. 1829 for harboring or concealing fugitives. The prosecution contended that harboring,
concealing a fugitive is punishable under a special law, while rebellion is punishable under the Penal
Code.
HELD: The prosecution is wrong. In the light of the absorption doctrine, the prosecution must
fail. All crimes which are mere components of rebellion or are committed in furtherance thereof are
absorbed in rebellion. “The theory of absorption in rebellion cases must not confine itself to
common crimes but also to offenses under special laws which are perpetrated in furtherance of the
political offense.” And yet, the two crimes are punishable by two different statutes. Technically,
they are not the same offense and yet one absorbs the other because when you are in conspiracy
with the rebels, necessarily you harbor each other. You cannot be expected to be a traitor to each
other. So, how can you separate one crime from the others?
Alright. And both of them were among the senators – Honasan and Enrile. Now, we will go to the third
senator – Miriam Santiago.

228 SCRA 214
FACTS: Miriam Santiago was charged criminally with violation of Anti-Graft and Corrupt
Practices Act allegedly committed by her by favoring unqualified aliens when she was still the
Immigration Commissioner. Later, the prosecution sought to change the charge by filing thirty-two
(32) amended information since 32 aliens were benefited. So, 32 cases were filed.
HELD: The prosecution is directed to consolidate the 32 informations into 1 information

charging only 1 offense. “The concept of delito continuado, although an outcrop of the Spanish
Penal Code, has been applied to crimes penalized under special laws citing Article 10 of the RPC.
The 32 Amended Informations aver that the offenses were committed on the same period of time,
i.e., on or about October 17, 1988. The strong probability even exists that the approval of the
application for the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as
when the approval was embodied in the same document.”
FOR ANY OTHER OFFENSE WHICH NECESSARILY INCLUDES OR IS NECESSARILY INCLUDED IN THE OFFENSE
CHARGED IN THE FORMER COMPLAINT
Thus, a charge of Murder, double jeopardy for Homicide; a charge for Homicide, double jeopardy for
murder. Either one eh, baliktaran! Basta one offense is included in the other. Robbery includes theft; serious
physical injuries includes less serious physical injuries and slight physical injuries. (People vs. Martinez, 55 Phil.
6; People vs. Belga, 100 Phil. 996) Sama-sama lahat ‘yan. That is covered by the protection against double
jeopardy.
Kaya nga in the plea-bargaining, when the accused pleads guilty to a lesser offense included in the crime
charged with consent of the prosecution and the offended party, there is double jeopardy already. You cannot
be charged anymore for a lighter offense. That is covered by double jeopardy rule.
PEOPLE vs. RELOVA, supra
HELD: “The law here seeks to prevent harassment of an accused person by multiple
prosecutions for offenses which though different from one another are nonetheless each constituted
by a common set or overlapping sets of technical elements. Otherwise, an unlawful act or omission
may give use to several prosecutions depending upon the ability of the prosecuting officer to
imagine or concoct as many offenses as can be justified by said act or omission by simply adding or
subtracting essential elements. Under the theory of appellant the crime of rape may be converted
into a crime of coercion, by merely alleging that by force and intimidation the accused prevented
the offended girl from remaining a virgin.”
EXCEPTIONS TO THE DOUBLE JEOPARDY RULE
Q: What are the exceptions to the double jeopardy rule?

A: There are three (3) exceptions, under Section 7:
555
1. the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge; (Section 7 [a])
2. the facts constituting the graver charge became known or were discovered only after a
plea was entered in the former complaint or information; (Section 7 [b]) or
3. the plea of guilty to the lesser offense was made without the consent of the prosecutor
and of the offended party except as provided in section 1(f) of Rule 116. (Section 7[c])
THE GRAVER OFFENSE DEVELOPED DUE TO SUPERVENING FACTS ARISING FROM THE SAME ACT OR
OMISSION CONSTITUTING THE FORMER CHARGE
This is also known as the supervening fact doctrine, also known as the Melo Doctrine because this rule was
laid down in the case of Melo vs. People, 45 Phil. 766.
EXAMPLE: Mortz stabbed Kim. Kim was confined in the hospital. Mortz was charged with frustrated
homicide. He pleaded guilty. After 2 days, Kim died. So the fiscal amended the information to consumated
homicide. Mortz pleaded guilty double jeopardy. Under the Melo doctrine, there is no double jeopardy because
of the supervening fact of death of the victim arising from the same act or omission constituting the former
charge – the graver offense developed due to the supervening fact.
The reasoning in Melo is that, when the accused was charged with frustrated homicide, the crime of
consummated homicide was not yet in existence because the victim is still alive. So the crime of consummated
homicide started to come out after the arraignment. Therefore, the information can be changed to
consummated homicide.
THE FACTS CONSTITUTING THE GRAVER CHARGE BECAME KNOWN OR WERE DISCOVERED ONLY AFTER A
PLEA WAS ENTERED IN THE FORMER COMPLAINT OR INFORMATION
Now, the Melo doctrine had one flaw which the SC observed in other cases. For example we will change the
facts:
Mortz shot Kim. Kim was confined in the hospital. Mortz was charged with frustrated homicide.
Let’s say Mortz will be arraigned tomorrow, but tonight Kim died. The following morning, nobody
knew about it. So the arraignment continued and Mortz pleaded guilty to frustrated homicide. After
Mortz was sentenced to frustrated homicide, that is the time the prosecutor learned that Kim died.
He now wants to change to consummated homicide.
Can he change the information? The SC said, no more. The Melo doctrine does not apply there because you
cannot say that the death of the victim supervenes after the arraignment – even before the arraignment, the
victim was already dead. The crime of consummated homicide was already in existence. Mortz could have been
charged already when he was arraigned. “Pero hindi man namin alam?” Ah pasensya, that is your risk. So that
is where the Melo doctrine cannot apply.
This creates unfairness eh. There were cases where that really happens. Like in one case where the
accused was charged with physical injuries in the arm of the victim. Less serious physical injuries, because the
doctor said it would heal in two weeks. He was charged, pleaded guilty, sentenced to less serious physical
injuries – arresto mayor. Then after one month, wala pa man naayo, the injury was still there. The victim went
to the doctor. Ini-x-ray, bali pala ang buto! Meaning, the crime all along was serious. The trouble is, the fracture
was not detected by the doctor. So they sought to change the charge to serous physical injuries. The SC said,
NO, the fracture did not supervene after the arraignment. It was there all along. Only, it was discovered after.
You cannot change the information because double jeopardy applies.
What is worse is the case of PEOPLE VS. CITY COURT OF MANILA, where the victim was charged with
physical injuries through reckless imprudence and then arraigned kaagad ang accused. Yon pala, patay na ang
victim. The fiscal move to postpone the arraignment to verify the status of the victim. HELD: Ah walang
postponement! Tuloy!
So it was really unfair. It is not covered by the Melo Doctrine. You cannot say tha the greater injury came
after. It was already there all along. Only it was discovered after the plea.
NGAYON, para wala ng gulo meron ng paragraph [b]:
“the facts constituting the graver charge became known or were discovered only
after a plea was entered in the former complaint or information;”
So even if the graver offense was already existing before the arraignment but it became known only after
the plea, there is no more double jeopardy. This amendment created another exception not covered by the Melo
doctrine.
THE PLEA OF GUILTY TO THE LESSER OFFENSE WAS MADE WITHOUT

THE CONSENT OF THE PROSECUTOR AND OF THE OFFENDED
PARTY EXCEPT AS PROVIDED IN SECTION 1(F) OF RULE 116.
You know this – plea-bargaining, plea of guilty to a lesser offense – it must be wit the consent of the
prosecutor and the offended party. And remember, once there is a plea-bargaining, you cannot be charged
anymore for the graver offense except as provided in Section 1 [f], Rule 116 – when during the plea-bargaining
the offended party will not show up, in which case, the consent of the prosecutor alone is required. This is a
provision which compels the offended party to appear in the plea-bargaining. Otherwise, the accused may offer
to plea guilty to a lesser offense and the prosecutor will say, “OK” – you are bound because you did not appear.
556
Q: But suppose Mortz has already started serving his sentence for frustrated homicide?
A: There is no problem because under the last paragraph of Section 7, “In any of the foregoing cases, where
the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event
of conviction for the graver offense.”
SEC. 8. Provisional dismissal. – A case shall not be provisionally dismissed except

with the express consent of the accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding
six (6) years or a fine of any amount, or both, shall become permanent one (1) year
after issuance of the order without the case having been revived. With respect to
offenses punishable by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of the order without
the case having been revived. (n)
Section 8 is an entirely new provision.
The concept of provisional dismissal means there is no double jeopardy – the case is temporarily dismissed.
So obviously the element of double jeopardy are not around. So, there is a way for the case to be revived in the
future. The 1985 rules has no direct provision governing provisional dismissal. The guidelines are not clear. You
can re-file because there is no double jeopardy. The problem is, can that be case be re-filed 5 years after?
Q: Under the new rules there is now a deadline. The case is provisionally dismissed, up to when?
A: MTC cases – within one (1) year to revive.
RTC cases – within two (2) years to revive.
After 1 or 2 years, as the case maybe, the provisional dismissal becomes permanent. So meron ng deadline
so that the prosecutor or the offended party will not buy his time, “ah provisional! Puwede yan anytime!” Before
kasi noon, ganun eh. So there must be a deadline.
SEC. 9. Failure to move to quash or to allege any ground therefore. – The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint
or information, either because he did not file a motion to quash or failed to allege
the same in said motion, shall be deemed a waiver of any objections except those
based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of
this Rule. (8a)
Q: What is the effect if the person does not file any motion to quash?
A: He is WAIVING the grounds for the motion to quash, EXCEPT:
1. lack of jurisdiction over the subject matter; (Section 3 [a])
2. the information does not charge any offense; (Section 3 [b])
3. the criminal liability has already been extinguished; (Section 3 [g])
4. double jeopardy. (Section 3 [i])
Meaning, even if you did not raised it in the beginning, you can still raised it during the trial. The rule is
similar to civil procedure – defenses and objections not raised in a motion to dismiss are deemed waived,
except 1.) lack of jurisdiction over the subject matter; 2.) res adjudicata; 3.) litis pendentia; 4.) statute of
limitations.
Rule 118
PRE-TRIAL
SECTION 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by

the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall,
after arraignment and within thirty (30) days from the date the court acquires
jurisdiction over the person of the accused, unless a shorter period is provided for in
special laws or circulars of the Supreme Court, order a pre-trial conference to
consider the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but
interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and
civil aspects of the case. (secs. 2 and 3, cir. 38-98)
One thing you have to remember, pre-trial in criminal cases is now MANDATORY as compared to the 1985
rules. In the prior rules, “if the accused and his lawyer will agree.” Ngayon parang civil case na rin – mandatory
in all cases cognizable by the Sandiganbayan, RTC, MTC, etc. after arraignment and within 30 days from the
date the court acquires jurisdiction over the person of the accused.
That is why there was a bar question before – how do you distinguish a pre-trial in a criminal case from a
pre-trial in a civil case? And one of the answers there is that pre-trial in a criminal cases is not mandatory, in
civil case it is mandatory. But now, wala na yan. Palitan mo na yan. That answer is obsolete because of this
amendment. You must always see to it that the answers are valid under the new law. Do not stick to answers
given by the UP Law Center – tama man yon at that time. But now they are changed.
[A] PLEA BARGAINING

557
Plea Bargaining. That is Section 2 of Rule 116 is all about – yung tawaran tayo, plea of a lesser offense
with the consent of the prosecutor and the offended party.
Now, there is only one EXCEPTION: plea bargaining seems to be prohibited under the Dangerous Drugs Act,
Section 20-A – when you are charged with the violation of the Dangerous Drugs Act and the imposable penalty
is reclusion perpetua to death – no plea bargaining! Bawal!
[B] STIPULATION OF FACTS – meaning, if we can agree on certain facts, so that during the trial we do not
have to prove them anymore.
[C] MARKING FOR IDENTIFICATION OF EVIDENCE OF THE PARTIES – showing of the evidence already so that
during the trial, they can easily be identified.
[D] WAIVER OF OBJECTIONS TO ADMISSIBILITY OF EVIDENCE – we will agree beforehand whether the
evidence is admissible or not.
[E] MODIFICATION OF THE ORDER OF TRIAL IF THE ACCUSED ADMITS THE CHARGE BUT INTERPOSES A
LAWFUL DEFENSE
Paragraph [e] is new – Modification of the order of trial if the accused admits the charge but
interposes a lawful defense. Meaning, “I am accused of homicide. I admit I killed him but I acted in self-
defense.” Ganun ba? Palitan natin, mauna ka. The prosecution will not present evidence ahead because
anyway you admitted ikaw ang pumatay. This is what we call trial in reverse.
This is because in relation to Section 11[e], Rule 119:
(e) When the accused admits the act or omission charged in the complaint
or information but interposes a lawful defense, the order of trial may be
modified.
[F] SUCH MATTERS AS WILL PROMOTE A FAIR AND EXPEDITIOUS TRIAL OF THE CRIMINAL AND CIVIL
ASPECTS OF THE CASE.
Q: Can we discuss in a pre-trial of a criminal case settlement or compromise?

A: Yes – sa civil aspect lang because we know the rule that compromise in the criminal aspect is not
allowed. But if we talk about how to promote a fair and expeditious trial of the criminal aspect, ah puwede yan.
Anyway it has nothing to do with areglo.
SEC. 2. Pre-trial agreement. – All agreements or admissions made or entered during

the pre-trial conference shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused. The agreements
covering the matters referred to in section 1 of this Rule shall be approved by the
court. (sec. 4 cir. 38-98)
Take note, pre-trial agreements or admissions made or entered into the pre-trial conference must be in
writing and signed by the accused and his counsel, otherwise, they cannot be used against the accused. There
is no such provision in civil procedure to that effect.
Q: Now, is this requirement mandatory?

A: YES.
FULE vs. COURT OF APPEALS

162 SCRA 446
FACTS: There were some stipulations made during the trial: Is this your check? “Yes, that is my
check.” Did you issue it to the complainant? “Ah yes – admitted!” You knew it was not funded? “Yes,
I know!” That the check bounced? “Yes – admitted!” Ganun? OK, convicted ka!
HELD: The conviction is not valid because the accused did not sign his admissions.
Do not confuse the case of Fule with the case of
PEOPLE vs. HERNANDEZ

260 SCRA 25, July 30, 1996
ISSUE: Are the agreements or stipulations made during the trial (not pre-trial) without being
signed by the party binding on the accused?
HELD: YES because iba ang rules sa trial compared sa pre-trial. If the lawyer makes an
admissions during the trial we follow the general rule – you are bound. The lawyer represents the
client. There is no need for the client to agree or sign anything.
“An attorney who is employed to manage a party's conduct of a lawsuit has prima facie
authority to make relevant admissions by pleadings, by oral or written stipulation, which unless
allowed to be withdrawn are conclusive. In fact, judicial admissions are frequently those of counsel
or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such
admissions are made for the purpose of dispensing with proof of some fact, they bind the client,
whether made during, or even after, the trial."
558
“The foregoing find basis in the general rule that a client bound by the acts of his counsel who
represents him. For all intents and purposes, the acts of a lawyer in the defense of a case are the
acts of his client.”
The last sentence is new: “The agreements covering the matters referred to in section 1 of this Rule shall
be approved by the court.”
SEC. 3. Non-appearance at pre-trial conference. – If the counsel for the accused or the
prosecutor does not appear at the pre-trial conference and does not offer an
acceptable excuse for his lack of cooperation, the court may impose proper sanctions
or penalties. (sec. 5, cir. 38-98)
Section 3, bago rin ito. Here, it is not the party who is penalized, but the lawyer – if the counsel of the
accused or the prosecutor does not appear in the pre-trial conference and there is no offer.
SEC. 4. Pre-trial order. – After the pre-trial conference, the court shall issue an
order reciting the actions taken, the facts stipulated, and evidence marked. Such
order shall bind the parties, limit the trial to matters not disposed of, and control the
course f the action during the trial, unless modified by the court to prevent manifest
injustice. (3)
So after the trial, the court will issue a pre-trial order where it will summarize what matter had been agreed
upon; what are the issues; the elements that had been established; facts stipulated; and exhibits that had been
marked.
Now, before we leave this rule, please review the provisions on Katarungang Pambarangay Law on the
provisions of conciliation in the barangay of criminal cases – penalty not more than one year. MANDATORY man
yan ba!
In other words, that is one way of saying indirectly, compromise in criminal cases is now allowed. That is an
instance where an offer of a compromise in a criminal case is not an implied admission of guilt.
[The following discussions on the Katarungang Pambaranggay are taken in 1996 Criminal Procedure
Transcription:]
In connection with Rule 118, you must be aware of another law which is closely related to the subject
matter of Pre-Trial. What we will discuss is the Katarungang Pambarangay Law which is applicable to both
criminal and civil cases. This law used to be PD 1508 which was already repealed. The new law on Katarungang
Pambaranggay is from Section 399 to Section 422 of the Local Government Code of 1991 [R.A. 7160] which
took effect last January 1, 1992.
Under this law, you cannot file the case directly in court or with the fiscal’s office without first trying to
settle things with the Lupong Tagapamayapa which is headed by the Barangay Captain. If thee case is not
settled at this level, that is the time the Barangay Captain would say, “We will bring this matter to court.”
The law applies only to the following instances:
1) When the case is between natural persons; (does not apply to corporations and the like)
2)
3) When the offended party and the accused reside in the same city or municipality; (not necessarily in the
same barangay)
Example: B is from Bunawan and he sued T who is from Toril. The barangays are from one
end to the other. Is there are need for B to comply with the Barangay Law? YES because they
are of the same city, and under the law, the venue is the residence of the respondent or
accused.
3) When the crime is punishable by imprisonment NOT EXCEEDING ONE YEAR or fine otrexceeding
P5,000. (case is cognizable by the MTC)
The Katarungang Pambarangay does not apply to the following cases:
1) Where there is no private offended party (e.g. illegal possession of firearms)

2) In criminal cases where the accused is under police custody or detention (This is the so-called inquest,
after a valid warrantless arrest.)
In these two latter instances, the case can be filed directly in court without going through the conciliation
process. Where these rules apply, there must be a certification that you have first tried to settle matters in the
barangay.
The Supreme Court has issued a circular on the applicability of the Barangay Law: Administrative Circular
No. 14-93 dated July 15, 1993 where the SC laid down all the guidelines for the implementation of the
Katarungang Pambarangay Law.
[End of the 1996 transcription. The following notes are taken from A Laymen’s Guide To Court Procedure, A
Handbook On Lawsuits by Neomi T. Olivares and Justice Jose Y. Feria, pp.63-65]:
KATARUNGANG PAMBARANGAY
Katarungang Pambarangay is the system which promotes and implements t he amicable settlement of
disputes at the barangay level before resorting to filing cases in court or in any other government office. It was
first established by Presidential Decree 1508 (signed into law on June 1978, now superseded by sections 399 to
422 of R.A. 7160, otherwise known as the Local Government Code of 1991.)
559
Only individuals actually residing in the same barangay, city or municipality can be parties to the
proceedings. Corporations, partnerships, and other juridical entities are not covered by R.A. 7160.
Each barangay constitutes a body know as LUPONG TAGAPAMAYAPA (hereinafter referred to as LUPON)
which administers the conciliation or arbitration process. A Lupon is composed of 10 to 20 members chosen
from the community and is headed by the Barangay Captain. Disputes brought before the Lupon are resolved
by a conciliation panel known as PANGKAT NG TAGAPAGKASUNDO (hereinafter referred to as PANGKAT),
consisting of 3 members chosen by agreement between the disputing parties from the list of the membership
of the LUPON.
In all proceedings, parties appear in person without the assistance of counsel or representative, with the
exception of minors and physically or mentally handicapped people who may be assisted by their nest of kin
(who are not lawyers). Refusal or willful failure to appear in compliance with the barangay summons may result
in barring:
 The complainant from seeking recourse in the courts for the same cause of action; or
 The respondent from filing any counterclaim connected therewith.
Proceedings are public and informal, except for those cases which require the exclusion of the public in the
interest of public decency or morals.
CASES NOT SUBJECT TO AMICABLE SETTLEMENT AT THE KATARUNGANG

PAMBARANGAY:
1) Where one party is the government or a subdivision or instrumentality thereof;

2) Where one party is a public officer or employee, and the dispute relates to the performance of his
official function;
3) Offenses punishable by imprisonment exceeding one year or a fine exceeding PhP 5,000;
4) Offenses where there is no private offended party.
DISPUTES NOT COVERED BY THE AUTHORITY OF THE LUPON
1) Those involving parties who reside in barangays of different cities or municipalities unless their
barangays are adjoining.
2) Those involving real property located in different cities or municipalities.
In both cases, the parties may agree to submit their differences for amicable settlement by an appropriate
Lupon.
Conciliation proceedings at the barangay level are a pre-condition to filing an action in court or a
government office. Non-compliance with this requisite may result in the dismissal of the complaint.
PARTIES MAY FOREGO THE BARANGAY CONCILIATION PROCESS AND GO

DIRECTLY TO THE COURT WHEN:
1) The accused is under detention.

2) Habeas corpus proceedings are called for.
3) Actions are accompanied by provisional remedies such as preliminary injunction, attachment,
delivery of personal property, etc.
4) Legal action is barred by the Statute of Limitations (the law that bars the institution of an action
after the lapse of a prescribed period.)
== end ==
July 15, 1993

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

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

Katarungang Pambarangay Law (formerly P.D. 1508, repealed and now replaced by
Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160,
otherwise known as the Local Government Code of 1991), and prior recourse
560
thereto is a pre-condition before filing a complaint in court or any government
offices, EXCEPT in the following disputes:
1. Where one party is the government, or any subdivision or instrumentality

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

cities or municipalities, except where such barangay units adjoin each
other and the parties thereto agree to submit their differences to
amicable settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one (1) year or a fine over five thousand pesos
(P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from
being committed or further continued, specifically the following:
NOTE: “Urgently.” A good example in civil action is where the action is coupled with
a provisional remedy such as preliminary injunction, attachment, replevin or support.
Or, actions which may be barred by the statute of limitations.
a) Criminal cases where accused is under police custody or detention (See

Sec. 412 (b)(1), Revised Katarungang Pambarangay Law);
b) Petitions for habeas corpus by a person illegally deprived of his rightful
custody over another or a person illegally deprived of his liberty or one
acting in his behalf;
c) Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the
pendency of the action; and
d) Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest
of justice or upon the recommendation of the Secretary of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law
(CARL) (Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee
relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code,
as amended, which grants original and exclusive jurisdiction over
conciliation and mediation of disputes, grievances or problems to certain
offices of the Department of Labor and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation
there is in the Department of Labor.
12. Actions to annul judgment upon a compromise, which may be filed

directly in court (See Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation,

as implemented by the Katarungang Pambarangay Rules and Regulations
promulgated by the Secretary of Justice, the certification for filing a complaint in
court or any government office shall be issued by Barangay authorities only upon
compliance with the following requirements: aisa dc
1) Issued by the Lupon Secretary and attested by the Lupon Chairman

(Punong Barangay), certifying that a confrontation of the parties has
taken place and that a conciliation or settlement has been reached, but
the same has been subsequently repudiated (Sec. 412, Revised
Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang
Pambarangay Rules);
2) Issued by the Pangkat Secretary and attested by the Pangkat Chairman,
certifying that:
a. a confrontation of the parties took place but no conciliation/settlement

has been reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules;
or
b. that no personal confrontation took place before the Pangkat through
no fault of the complainant (Sec. 4[f], Rule III, Katarungang
Pambarangay Rules).
3) Issued by the Punong Barangay, as requested by the proper party on the

ground of failure of settlement where the dispute involves members of
the same indigenous cultural community, which shall be settled in
accordance with the customs and traditions of that particular cultural
561
community, or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to submit their
dispute to the indigenous system of amicable settlement, and there has
been no settlement as certified by the datu or tribal leader or elder to
the Punong Barangay of the place of settlement (Secs. 1, 4, & 5, Rule IX,
Katarungang Pambarangay Rules); and
4) If mediation or conciliation efforts before the Punong Barangay proved
unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b],
Revised Rule Katarungang Pambarangay Lay; Sec. 1, c, (1), Rule III,
Katarungang Pambarangay Rules), or where the respondent fails to
appear at the mediation proceeding before the Punong Barangay (3rd
par. Sec. 8, a, Rule VI, Katarungang Pambarangay Rules), the Punong
Barangay shall not cause the issuance of this stage of a certification to
file action, because it is now mandatory for him to constitute the Pangkat
before whom mediation, conciliation, or arbitration proceedings shall be
held.
III. All complaints and/or informations filed or raffled to your sala/branch of the
Regional Trial Court, Metropolitan Trial Court or Municipal Trial Court shall be
carefully read and scrutinized to determine if there has been compliance with prior
Barangay conciliation procedure under the Revised Katarungang Pambarangay Law
and its Implementing Rules and Regulations, as a pre-condition to judicial action,
particularly whether the certification to file action attached to the records of the
case comply with the requirements hereinabove enumerated in par. II;
IV. A case filed in court without compliance with prior Barangay conciliation
which is a pre-condition for formal adjudication (Sec. 412[a] of the Revised
Katarungang Pambarangay Law)
1) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of

the court but for failure to state a cause of action or prematurity (Royales
vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA 289), or
2) the court may suspend proceedings upon petition of any party under Sec. 1,
Rule 21 of the Rules of Court; and refer the case motu propio to the
appropriate Barangay authority, applying by analogy Sec. 408[g], 2nd par.,
of the Revised Katarungang Pambarangay Law which reads as follows:
"The Court in which non-criminal cases not falling within the
authority of the Lupon under this Code are filed may at any time
before trial, motu proprio refer the case to the Lupon concerned for
Strict observance of these guidelines is enjoined. This Administrative Circular

shall be effective immediately.
Manila, Philippines. July 15, 1993.
(Sgd.) ANDRES R. NARVASA

Chief Justice
A friend and I were shopping for dresses for her three-year-old

girls to wear to a wedding. In the shop, another girl staring intently
at Sarah and Becky asked, “Are those girls twins?”
“Actually they’re triplets,” I explained. “They have a brother at
home.”
“Wow,” she replied. “They sure look like twins to me.”
Source: Reader’s Digest, November 2000
Rule 119
TRIAL
SECTION 1. Time to prepare for trial. – After a plea of not guilty is entered, the
accused shall have at least fifteen (15) days to prepare for trial. The trial shall
commence within thirty (30) days from receipt of the pre-trial order. (sec. 6, cir. 38-
98)
SEC. 2. Continuous trial until terminated; postponements. – Trial once commenced shall
continue from day to day as far as practicable until terminated. It may be postponed
for a reasonable period of time for good cause. (2a)
The court shall, after consultation with the prosecutor and defense counsel, set
the case for continuous trail on a weekly or other short-term trial calendar at the
earliest possible time so as to ensure speedy trial. In no case shall the entire trial
period exceed one hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Supreme Court. (sec. 8, cir. 38-98).
The time limitations provided under this section and the preceding section shall
not apply where special laws or circulars of the Supreme Court provide for a shorter
period of trial. (n)
562
After the accused is arraigned, there is a minimum of 15 days to prepared for the trial. And then continuous
trial until terminated. The trial period shall not exceed 180 days, taken from the Speedy Trial Act and SC
Circulars. They are now incorporated in the new rules.
There are many provisions here which are new in the sense that they are found in the rules for the first
time. However, even before the new rules took effect, they were considered as already existing provisions
because of the Speedy Trial Act and SC Circular 38-98. Ngayon, nandito na. So we will not go over them one by
one. I will just point them out.
The new provisions are Section 3 up to Section 10:
SEC. 3. Exclusions.- The following periods of delay shall be excluded in computing

the time within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the accused,
including but not limited to the following:
(1) Delay resulting from an examination of the physical and mental condition of
the accused;
(2) Delay resulting from proceedings with respect to other criminal charges
against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory orders;
(4) Delay resulting from pre-trial proceedings; provided, that the delay does not
exceed thirty (30) days;
(5) Delay resulting from orders of inhibition, or proceedings relating to change of
venue of cases or transfer from other courts;
(6) Delay resulting from a finding of existence of a prejudicial question; and
(7) Delay reasonably attributable to any period, not to exceed thirty (30) days,
during which any proceeding concerning the accused is actually under advisement.
(b) Any period of delay resulting from the absence or unavailability of an
essential witness.
For purposes of this subparagraph, an essential witness shall be considered
absent when his whereabouts are unknown or his whereabouts cannot be
determined by due diligence. He shall be considered unavailable whenever his
whereabouts are known but his presence for trial cannot be obtained by due
diligence.
(c) Any period of delay resulting from the mental incompetence or physical
inability of the accused to stand trial.
(d) If the information is dismissed upon motion of the prosecution and thereafter
a charge is filed against the accused for the same offense, any period of delay from
the date the charge was dismissed to the date the time limitation would commence
to run as to the subsequent charge had there been no previous charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-
accused over whom the court has not acquired jurisdiction, or, as to whom the time
for trial has not run and no motion for separate trial has been granted.
(f) Any period of delay resulting from a continuance granted by any court motu
proprio, or on motion of either the accused or his counsel, or the prosecution, if the
court granted the continuance on the basis of its findings set forth in the order that
the ends of justice served by taking such action outweigh the best interestof the
public and the accused in a speedy trial. (sec. 9, cir. 38-98)
SEC. 4. Factors for granting continuance. – The following factors, among others, shall
be considered by a court in determining whether to grant a continuance under
section 3(f) of this Rule.
(a) Whether or not the failure to grant a continuance in the proceeding would
likely make a continuation of such proceeding impossible or result in a miscarriage of
justice; and
(b) Whether or not the case taken as a whole is so novel, unusual and complex,
due to the number of accused or the nature of the prosecution, or that it is
unreasonable to expect adequate preparation within the periods of time established
therein.
In addition, no continuance under section 3(f) of this Rule shall be granted
because of congestion of the court’s calendar or lack of diligent preparation or
failure to obtain available witnesses on the part of the prosecutor. (sec. 10, cir. 38-
98)
SEC. 5. Time limit following an order for new trial. – If the accused is to be tried again
pursuant to an order for a new trial, the trial shall commence within thirty (30) days
from notice of the order, provided that if the period becomes impractical due to
unavailability of witnesses and other factors, the court may extend but not to exceed
one hundred eighty (180) days. For the second twelve-month period, the time limit
shall be one hundred eighty (180) days from notice of said order for new trial. (sec
11, cir. 38-98)
SEC. 6. Extended time limit.- Notwithstanding the provisions of section 1(g), Rule
116 and the preceding section 1, for the first twelve-calendar-month period following
its effectivity on September 15, 1998, the time limit with respect to the period from
arraignment to trial imposed by said provision shall be one hundred eighty (180)
days. For the second twelve-month period, the time limit shall be one hundred
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twenty (120) days, and for the third twelve-month period, the time limit shall be
eighty (80) days. (sec. 7, cir. 38-98)
SEC. 7. Public attorney’s duties where accused is imprisoned. – If the public attorney
assigned to defend a person charged with a crime knows that he latter is
preventively detained, either because he is charged with a bailable crime but has no
means to post bail, or, is charged with a non-bailable crime, or, is serving a term of
imprisonment in any penal institution, it shall be his duty to do the following:
(a) Shall promptly undertake to obtain the presence of the prisoner for trial or
cause a notice to be served on the person having custody of the prisoner requiring
such person to so advise the prisoner of his right and demand trial.
(b) Upon receipt of that notice, the custodian of the prisoner shall promptly
advise the prisoner of the charge and of his right to demand trial. If at anytime
thereafter the prisoner informs his custodian that he demands such trial, the latter
shall cause notice to that effect to be sent promptly to the public attorney.
(c) Upon receipt of such notice, the public attorney shall promptly seek to obtain
the presence of the prisoner for trial.
(d) When the custodian of the prisoner receives from the public attorney a
properly supported request for the availability of the prisoner for purpose of trial,
the prisoner shall be made available accordingly. (sec. 12, cir. 38-98)
SEC. 8. Sanctions. – In any case in which private counsel for the accused, the
public attorney, or the prosecutor:
(a) Knowingly allows the case to be set for trial without disclosing that a
necessary witness would be unavailable for trial;
(b) Files a motion solely for delay which he knows is totally frivolous and without
merit;
(c) Makes a statement for the purpose of obtaining continuance which he knows
to be false and which is material to the granting of a continuance; or
(d) Willfully fails to proceed to trial without justification consistent with the
provisions hereof, the court may punish such counsel, attorney, or prosecutor, as
follows:
(1) By imposing on a counsel privately retained in connection with the defense o
fan accused, a fine not exceeding twenty thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel de oficio, public attorney, or
prosecutor a fine not exceeding five thousand pesos (P5,000.00); and
(3) By denying any defense counsel or prosecutor the right to practice before the
court trying the case for a period not exceeding thirty (30) days. The punishment
provided for by this section shall be without prejudice to any appropriate criminal
action or other sanction authorized under these rules. (sec. 13, cir. 38-98)
There is something here in Section 8 that I want to bring out – mga kastigo, sanctions ba! Alam mo ang
kawawa dito, mga abogado eh – fiscals, defense counsels, even the PAO lawyers – if they are responsible for
delaying the trial of the criminal case.
Just imagine, P20,000 if it is the private defense lawyer. That is the maximum of course. Ang PAO naman,
P5,000 – 75% discount! Ma-suspend ka pa.
SEC. 9. Remedy where accused is not brought to trial within the time limit. – If the
accused is not brought to trial within the time limit required by Section 1(g), Rule
116 and Section 1, as extended by Section 6 of this rule, the information may be
dismissed on motion of the accused on the ground of denial of his right to speedy
trial. The accused shall have the burden of proving the motion but the prosecution
shall have the burden of going forward with the evidence to establish the exclusion
of time under section 3 of this rule. The dismissal shall be subject to the rules on
double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a waiver
of the right to dismiss under this section. (sec. 14, cir. 38-98)
SEC. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. – No
provision of law on speedy trial and no rule implementing the same shall be
interpreted as a bar to any charge of denial of the right to speedy trial guaranteed
by section 14(2), article III, of the 1987 Constitution. (sec. 15, cir. 38-98)
Take note of Section 9 and 10. Please correlate this on the rights of the accused to speedy trial as mention
in Section 1[h] of Rule 115 on the rights of the accused.
SEC. 11. Order of trial. – The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper
case, the civil liability.
(b) The accused may present evidence to prove his defense and damages, if any,
arising, from the issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal and sur-
rebuttal evidence unless the court, in furtherance of justice, permits them to present
additional evidence bearing upon the main issue.
(d) Upon admission of evidence of the parties, the case shall be deemed
submitted for decision unless the court directs them to argue orally or to submit
written memoranda.
(e) When the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be modified. (3a)
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The order of the trial in the criminal case is almost the same pattern as in civil cases.
Q: Who presents evidence first?

A: The prosecution. Under Section 11 [a], “The prosecution shall present evidence to prove the charge and,
in the proper case, the civil liability.” So you prove the charge and the civil liability.
Q: Ano yung “in the proper case”?

A: That is because if the civil liability has already been reserved, ah wala na – forget evidence of civil
liability where there is already reservation. Pero kung hindi, then it is deemed instituted with the criminal case.
Under paragraph [b], provisional remedies are allowed in criminal cases, like attachments, etc. in the same
way if the civil action is deem instituted, the offended party can ask a preliminary attachment of the property
under Rule 127.
Paragraph [e] refers to “trial in reverse.” The best example is when the accused raises self-defense. The
burden of proof is automatically shifted to the accused. But this should be included during the pre-trial as
provided under Rule 118, Section 1 [e]:
SECTION 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by

the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall,
after arraignment and within thirty (30) days from the date the court acquires
jurisdiction over the person of the accused, unless a shorter period is provided for in
special laws or circulars of the Supreme Court, order a pre-trial conference to
consider the following:
xxxxxxx
(e) modification of the order of trial if the accused admits the charge but
interposes a lawful defense;
xxxxxxx
Q: Is there such a thing as deposition-taking in criminal cases?

SEC. 12. Application for examination of witness for accused before trial. – When the
accused has been held to answer for an offense, he may, upon motion with notice to
the other parties, have witnesses conditionally examined in his behalf. The motion
shall state: (a) the name and residence of the witness; (b) the substance of his
testimony; and (c) that the witness is sick or infirm as to afford reasonable ground
for believing that the will not be able to attend the trial, or resides more than one
hundred (100) kilometers from the place of trial and has no means to attend the
same, or that other similar circumstances exist that would make him unavailable or
prevent him from attending the trial. The motion shall be supported by an affidavit
of the accused and such other evidence as the court may require. (4a)
Q: How is deposition in criminal cases being done?

A: Read Section 13:
SEC. 13. Examination of defense witness; how made. – If the court is satisfied that the
examination of a witness for the accused is necessary, an order shall be made
directing that the witness be examined at a specific date, time and place and that a
copy of the order be served on the prosecutor at least three (3) days before the
scheduled examination. The examination shall be taken before a judge, or, if not
practicable, a member of the Bar in good standing so designated by the judge in the
order, or if the order be made by a court of superior jurisdiction, before an inferior
court to be designated therein. The examination shall proceed notwithstanding the
absence of the prosecutor provided he was duly notified of the hearing. A written
record of the testimony shall be taken. (5a)
The grounds are almost identical. This is deposition actually. Only, it is called conditional examination. That
is the term used here.
Take note, connect this with Section 1[f], Rule 115 – rights of the accused. Section 12 is an exception to the
right to confront and cross-examine because you cannot insist during the trial to confront and cross-examine
the witness under Rule 115 Section 1[f] when we was already examined under Section 12.
Q: Is the remedy of deposition-taking also available to the prosecution?

SEC. 15. Examination of witness for the prosecution. – When it is satisfactorily appears
that a witness for the prosecution is too sick or infirm to appear at the trial as
directed by the court, of has to leave the Philippines with no definite date of
returning, he may forthwith be conditionally examined before the court where the
case is pending. Such examination, in the presence of the accused, or in his absence
after reasonable notice to attend the examination has been served on him, shall be
conducted in the same manner as an examination at the trial. Failure or refusal of
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the accused to attend the examination at the trial. Failure or refusal of the accused
to attend the examination after notice shall be considered a waiver. The statement
taken may be admitted in behalf of or against the accused. (7a)
Let us try to compare Section 13 (defense) and Section 15 (prosecution): Let’s go to the defense witness
under Section 13:
Q: Before whom will the examination of the witness be taken?

A: It DEPENDS – before the judge, or if not practicable, a member of the bar in good standing designated by
the judge in the order.
Now, you compare that with Section 15. In Section 15, you will notice: “he may forthwith be conditionally
examined before the court where the case is pending.” Unlike in Section 13 – before the judge, or if not
practicable, a member of the bar in good standing… it is more lenient no?
Q: What is the reason why the law is more generous to the defense witness?
A: According to one case through Justice Feria, this is because the government has the resources to get he
testimony of its witnesses. Pero ang defense may have a hard time lalo na kapag pobre.
SEC. 14. Bail to secure appearance of material witness. – When the court is satisfied,
upon proof of oath, that a material witness will not testify when required, it may,
upon motion of either party, order the witness to post bail in such sum as may be
deemed proper. Upon refusal to post bail, the court shall commit him to prison until
he complies or is legally discharged after his testimony has been taken. (6a)
It seems that the prosecution here is under the mercy of his witnesses. Meaning, kung ayaw ng testigo,
wala kang magawa. But under Section 14, you can ask the court to order the witness to post bail. And if he
refuses to post bail, he can be arrested. This is an instance where a witness can be jailed ahead of the
accused.
But actually the truth is in most cases, prosecution witnesses do not appear not because ayaw but because
takot! They are afraid of what will happen like the accused might harass them. And the law knows that. That is
why there is also another alternative – RA 6981, The Witness Protection Program which took effect last April of
1991. You read that so you will have an idea.
SEC. 16. Trial of several accused. – When two or more accused are jointly charged
with an offense, they shall be tried jointly unless the court, in its discretion and upon
motion of the prosecutor or any accused, orders separate trial for one or more
accused. (8a)
Remember that there can be a joint trial of two or more criminal cases if they arose of the same incident
like Judee fired her AK-47 and killed two or more people one after the other. But you cannot file one information
because that will be duplicitous. There must be one information for every one homicide and then you move for
a joint trial.
Q: Now, how do you compare this rule with civil cases?

A: In civil cases, when there is a common question of fact or law involving two or more parties, there is such
a thing as filing only one complaint – joinder of causes of action or parties. But in criminal cases, that is not
allowed. Consolidation in criminal cases in only for the purpose of joint trial lang and you cannot have one
information charging more than one offense.
DISCHARGE OF AN ACCUSED TO BE STATE WITNESS
SEC. 17. Discharge of accused to be state witness. – When two or more persons are
jointly charged with the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the accused to be
discharged with their consent so that they may be witnesses for the state when,
after requiring the prosecution to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge, the court is satisfied
that:
(a) There is absolute necessity for the testimony of the accused whose discharge
is requested;
(b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its
material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving
moral turpitude.
Evidence adduced in support of the discharge shall automatically form part of the
trial. If the court denies the motion for discharge of the accused as state witness, his
sworn statement shall be inadmissible in evidence. (9a)
566
SEC. 18. Discharge of accused operates as acquittal. – The order indicated in the
preceding section shall amount to an acquittal of the discharged accused and shall
be a bar to future prosecution for the same offense, unless the accused fails or
refuses to testify against his co-accused in accordance with his sworn statement
constituting the basis for his discharge. (10a)
Let’s take Section 17 and Section 18 together. Discharge of an accused to be state witness means that you
will convert an accused to become “Hudas,” save his neck but hang them all!
Under Section 18, once the witness is discharged under Section 17, he is now CONSIDERED ACQUITTED and
there is no way for him to be brought back in the case EXCEPT when he changes his mind and ayaw na niyang
mag-testify. That is the only exception.
Q: What are the requirements before a witness can be discharged?

A: Section 17 enumerates the requirements.
“SAID ACCUSED DOES NOT APPEAR TO BE THE MOST GUILTY.”
Let’s comment on some of the requirements. One of the most important requirements for the discharge of
an accused is the fourth one – “Said accused does not appear to be the most guilty.” Based from what I read
from time to time, even lawyers have been commenting on this. It seems they are misquoting this eh, like 2
days ago, a lawyer said that we must discharge the accused because he is the least guilty.
That is not what the law says! What the law says is, HE DOES NOT APPEAR TO BE THE MOST GUILTY. And it
is not the same with HE IS THE LEAST GUILTY.
EXAMPLE: Mortz, Pao and Jet. Mortz – principal; Pao – accomplice; Jet – accessory. Pag-sinabi mong “the
least guilty,” hindi mo puwedeng gamitin si Pao. Si Jet dapat ang gamitin mo because he is the least guilty. [Tsk!
tsk! Ginamit si Jet. Ginamit!] PERO, pag-sinabi mong “he does not appear to be the most guilty”, you can use
Pao, although there is somebody to be less guilty. Basta ang importante, hindi si Mortz. So, there is a difference
between the two phrases.
Q: What do you mean by the phrase “does not appear to be the most guilty’”?
A: There are cases:
PEOPLE vs. OCIMAR

August 17, 1992
FACTS: This case involved a hold-upping incident, committed in a bus in Manila while traveling
in the North Express Way. There were four (4) hold-uppers who rode in the bus. When they reach a
certain point, they stood up and pulled to their guns and robbed the passengers. And they placed
themselves strategically: One of them stood behind the driver, “o, wag kang kikilos, drive ka lang.”
Yung iba namang dito. Kanya-kanyang silang role eh. The others were the ones who divested the
passengers, “mga pitaka ninyo, relo… lahat!”
Now, there was one passenger there who was a military man wearing civilian clothes and may
baril siya. So he wanted to fight back but one of them saw him. Pag-bunot niya, inunahan siya! So
accused A shot that passenger. Accused D naman saw A shoot the victim. And of course all of them
were charged with Robbery with Homicide in conspiracy - the act of one is the act of all.
The prosecution wants to utilize D – the one who is behind the driver – as state witness. The
other accused objected claiming conspiracy – “we are all co-principal – the act of one is the act of
all. So why do you say you are not the most guilty? Pare-pareho lang tayo. Same penalty.”
ISSUE: Will accused D be qualified under the phrase “does not appear to be the most guilty”?
HELD: YES. When you say “he does not appear to be the most guilty”, you do not apply the rule
on conspiracy. But you apply the rule on individual acts. In reality, who is more guilty? The one who
really shot the victim or the one who is just behind the driver? The reality is, the most guilty is the
one who shot, although for purposes of the RPC both of you are co-principal. So, you look at it that
way. Do not apply the principle of the act-of-the-one-is-the-act-of-all. You consider the most guilty in
terms of the participation.
“By ‘most guilty’ means the highest degree of culpability in terms of participation in the
commission of the offense and not the severity of the penalty imposed. While all the accused
maybe given the same penalty but by reason of culpability one may be least guilty if we take into
account his degree of participation in the perpetuation of the offense.”
Q: Generally, when the fiscal, after criminal investigation, believes that one of them can be a state witness,
therefore he will not include his name in the information. Is it allowed?
A: NO, you have to include him first before he can be a state witness. Let the court decide whether he will
be a state witness or not. You cannot discharge on your own. Remember under the Rules, the prosecutor is
bound to file the information against ALL those who appear to be responsible including this guy who you want
to use as state witness. But when you reach the court, you file a motion to discharge and let the court who will
do it.
And under the New Rules, there must be a HEARING to determine whether there should be discharge or not.
That’s why the rule said, “the trial court must require the prosecution to present evidence and the sworn
statement of each proposed state witness at a hearing in support of the discharge.” So, there must be an
affidavit and there must be a hearing.
In the 1985 Rules, there was no need of a hearing. No need for the prosecution to present evidence.
Normally the fiscal will just file a motion that we would like to use this witness and the court will discharge. Now,
567
hindi na pwede yan because in most cases in the past, a person is discharge and it turns out that he is the most
guilty. To avoid that possibility, there is now need to present affidavit, etc. and there must be a hearing. The
court will require presentation of evidence and it will decide whether or not to discharge.
Now, sabi ng court in the hearing for the discharge of the accused, “There is no need to discharge him.
Motion to discharge, denied!” So sabi ng accused, “Kawawa na ako nito because I already admitted the crime in
my affidavit! Tapos, hindi pala ako qualified! [‘nak ng pating naman o!].” What will happened to you now? You
Look at the last paragraph of Section 17:
“Evidence adduced in support of the discharge shall automatically form part of

the trial. If the court denies the motion for discharge of the accused as state
witness, his sworn statement shall be inadmissible in evidence.”
So that is fair enough because the affidavit which is practically an admission of his participation, then if he
is not discharged, do not use it against him. It is inadmissible as evidence against him. The leading case in this
issue is the 1993 case of
PEOPLE vs. CA AND INSPECTOR JOE PRING

223 SCRA 475
FACTS: Pring was involved in kidnapping and one policeman testified against him – Nonilo Arile.
There was a motion to discharge Arile to testify against Pring. Then the prosecution gave the
defense the affidavit of Arile. Based on that, the court ordered the discharge of Arile. Pring
questioned the procedure. This is the first case where the SC applied this rule on hearing on the
discharge of an accused. Sabi ni Pring, “Where is the hearing?” Prosecution: “Yon palang motion to
discharge na binigay namin sa inyo?” Pring: “Ah, hindi naman hearing yun! Hearing means, ilagay
mo si Arile sa witness stand subject to cross-examination because even under Section 17, evidence
adduced to support the discharge shall automatically form part of the trial. Meaning, the state
witness will not testify again. So what is contemplated here is personal testimony and not the
affidavit.”
ISSUE: Is the argument of Pring correct?
HELD: NO. Hearing means, you have the opportunity to read what he will say and the
opportunity to object. Yan ang ibig sabihin ng hearing. Hindi kailangan na he will be questioned
personally in court. That satisfies the requirement of hearing.
“Hence, in resolving the issue in this petition, the proper question we should address is: Was
there a failure to observe the spirit and intent of Section 17, Rule 119 in the case at bar? We rule in
the NEGATIVE. The prosecution has submitted the sworn statement of accused Nonilo Arile and its
evidence showing that the conditions for discharge have been met. Neither can it be denied that
the defense was able to oppose the motion to discharge Nonilo Arile. With both litigants able to
present their side, the lack of actual hearing was not fatal enough to undermine the court's ability
to determine whether the conditions prescribed under Section 17, Rule 119 were satisfied.”
So there is already substantial compliance with the hearing. And that was the first case interpreting this
new provision after the 1985 Rules. But for the merits, later na-acquit man si Pring ba which is a different issue.
Yung dito, discharge lang ang issue eh. On the merits, he was acquitted. But after one year from his acquittal,
pinatay naman siya ng ABB. Sabi nila (ABB), kung nakaligtas ka sa court, sa amin hindi ka makaligtas. That’s
what happened there.
Q: Normally, when is an accused discharged?

A: He is discharged before he testifies. You will use him. That’s why he is going to be discharged. However,
in the 1992 case of
ROSALES vs. COURT OF APPEALS

215 SCRA 102
FACTS: The prosecution wants to use an accused as a witness and he was willing. Sabi ng
prosecution, “We will file a motion to discharge you to be state witness.” The accused said, “Hwag!
Hwag!.. if you will do that patay ako! Patayin talaga nila ako. They will not allow me to testify.” But
still the prosecution used him. He took a stand and he pointed to all his companions. So he testified
first bago nag-file ng motion to discharge ang prosecution.
ISSUE: Is that correct? Can the testimony come ahead before the discharge?
HELD: YES because of the peculiar fact – his life is in danger eh. Anyway according to the law,
should the discharge be made, is should be made by the prosecution before resting its case
(Section 17). In the case at bar, at that moment, the prosecution has not rested its case. So
puwede.
“While it is the usual practice of the prosecution to present the accused who turns state witness
only after his discharge, the trial court may nevertheless sanction his discharge after his testimony
if circumstances so warrant. In the case before Us, the imminent risk to his life justified the
deviation from the normal course of procedure as a measure to protect him while at the same time
ensuring his undaunted cooperation with the prosecution. Indeed, as is explicit from the Rule, as
long as the motion for discharge of an accused to be utilized as a state witness is filed before the
prosecution rests, the trial court should, if warranted, grant it.”
Q: What happens if an accused who is the most guilty is erroneously discharged – ang mga naiwan, yung
mga pipitsugin? Is the erroneous discharge valid? Is he deemed acquitted?
568
A: The SC said YES. Even if there is a mistake, he is now acquitted once he is discharged. His testimony is
admissible. In the case of
BOGO-MEDELLIN CO. vs. JUDGE PEDRO SON

209 SCRA 329 (May 27, 1992)
HELD: “Any witting or unwitting error of the prosecution in asking for the discharge of an
accused and of the trial court in granting the petition for discharge, so long as no question of
jurisdiction is involved, would not deprive the discharged accused of the acquittal that is specified
in Section 10 of Rule 119 and of the constitutional guarantee against double jeopardy. It is also
relevant to note that the improper or mistaken discharge of an accused would not affect his
competency as a witness or render inadmissible his testimony.”
Q: Let’s go back to Evidence. He is the most guilty. His discharge was wrong. Is his testimony admissible?
A: YES, because he can perceive and perceiving and he can make known his perception to others. That is
the only qualification. There is no violation of marital disqualification or attorney-client confidentiality, etc. Wala
man! So you go back to Evidence. The testimony of the witness is qualified although it might be polluted and he
did it to save his game – that is not enough to make his testimony inadmissible.
Q: One thing more, who can discharge the witness?

A: The court where the very case is pending. That’s the rule – the court where the case is pending.
BAR QUESTION: What happens when an accused is discharged, and after he is discharged, sabi ng
prosecution, “Teka muna nagkamali ako, di pala kita kailangan. Balik ka!” Can it be done?
A: Sabi ng SC, NO, acquitted na yan! The only reason for him to come back is, he is asked to testify pero
ayaw niya. Prosecution: “But I don’t need him.” SC: that is your fault because first, why did you ask for his
discharge? So once he is discharged, he is deemed acquitted whether you use him or do not use him. The only
way for him to come back is, you want to use him but he does not want to testify because he is double-crossing
the Government.
Lets go further. There is another law, about this witness. You try to compare this principle with the provision
of RA 6981 – The Witness Protection Act. Under RA 6981, the fiscal would not even include you in the charge
anymore, for as long as the DOJ will say that he is qualified, he is covered by the Witness Protection Program.
Under the law, the fiscal should not include him anymore.
Unlike in criminal procedure kailangan isali ka muna bago ka i-discharge. Sa RA 6981 naman, hindi ka na
kasali. That is why the constitutionality of the law was challenged in the case of
WEBB vs. DE LEON

August 23, 1995
FACTS: State witness Alfaro admitted that she was with them. She admitted kasama siyang
nagpunta sa bahay ng mga Vizconde. And then she was placed in the Witness Protection Program
and was used against Hubert Webb. And according to Webb, the provision of the Witness Protection
Act – which authorizes the DOJ to place somebody in the Witness Protection Program, and once he
certifies that she is covered, the fiscal is no longer allowed to file a case against her (state witness)
– is violative of the judicial prerogative to discharge a witness because you jumping the gun on the
court.
According to Webb, it should be the court that will discharge and not the DOJ. The law is not
valid because it is an encroachment of a judicial prerogative. It is an intrusion for it is only the court
which has the power under the rules on criminal procedure to discharge an accused as state
witness.
ISSUE #1: Is Webb’s argument valid?

HELD: “Webb’s argument lacks appeal for it lies on the faulty assumption that the decision
whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and
legislative interference. In truth, the prosecution of crimes appertains to the executive department
of government whose principal power and responsibility is to see that our laws are faithfully
executed. A necessary component of this power to execute our laws is the right to prosecute their
violators. The right to prosecute vests the prosecutor with a wide range of discretion — the
discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord
of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to
determine who can qualify as a witness in the program and who shall be granted immunity from
prosecution.”
ISSUE #2: How do you reconcile this ruling with the rule that only the court has the power to
discharge?
HELD: Simple! In the Witness Protection Program, the accused is NOT even accused in any case
yet. Wala pa! But once he is accused, you need the consent of the court to discharge, that is kapag
kasali na! Pero kung hindi pa kasali, there is no need for the court’s consent to decide because that
is an executive function.
ISSUE #3: And why is the court’s consent necessary once the accused is charged in court?
HELD: This is because the court has already acquired jurisdiction over the person of the
accused. So the SC said, “Section 17 of Rule 119 does not support the proposition that the power to
choose who shall be a state witness is an inherent judicial prerogative. Under this provision the
court is given the power to discharge as state witness only because it has already acquired
jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent judicial function.”
ISSUE #4: Is it wise for Congress to enact this law? Why will Congress enact this kind of law
that will determine that the witness will not be included in the information?
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HELD: YES. It is a wise legislation. “Moreover, the Rules of Court have never been interpreted to
be beyond change by legislation designed to improve the administration of our justice system. The
Witness Protection Act is one of the much sought penal reform laws to help government in its uphill
fight against crime, one certain cause of which is the reticence of witnesses to testify.”
SEC. 19. When mistake has been made in charging the proper offense. – When it
becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not be
discharged if there appears good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and dismiss the original case
upon the filing of the proper information. (11a)
You co-relate Section 19 with the last paragraph of Section 14, Rule 110:

the trial.
So the same ‘no? The accused shall be discharge because of a wrong information upon filing of the correct
one. So Section 14 of Rule 110 and Section 19 of Rule 119 talk of the same thing.
QUESTION: how will you distinguish the two provisions? Kung tingnan mo mukang pareho eh. But for
academic purposes, there are differences made by Justice Regalado in the 1994 case of GALVEZ VS. CA (237
SCRA 685) Alam mo itong si Regalado, siya din ang nag-distinguish ng amendment and substitution of
information under Rule 110 which was asked in the bar and thoroughly discussed in the case of TEEHANKEE VS.
MADAYAG. In the case of Galvez naman, gi-distinguish naman niya ang Section 14 Rule 110 and Section 19 Rule
119.
Q: Distinguish Section 14 of Rule 110 and Section 19 of Rule 119.

A: For academic purposes, the following are the distinctions:
1. Rule 119 is the rule specifically governing the trial stage; whereas
Rule 110 provides the procedural governance for the prosecution of offenses;
2. Rule 119 is more directly and principally directed to the trial court to invest it with the requisite
authority to direct by itself the dismissal and re-filing of the informations therein contemplated;
whereas
Rule 110 is directed to the prosecutor who can and should institute remedial measures for the
dismissal of the original information and the re-filing of the correct one, otherwise he would be
recreant to his duties;
3. In Rule 119, evidence is necessarily being presented, hence the trial court is now in a better
position to conclude that manifestly the accused cannot be convicted of the offense charged or
of one that it necessarily includes; whereas
In Rule 110, since no evidence has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary investigation; and
4. In Rule 119, the permissible stage for effecting that substitution is “at any time before
judgment”; whereas
In Rule 110, it is sufficient that “it appears…that a mistake has been made in charging the proper
offense…” which situation contemplates a longer time span, inclusive of the period from the
filing of the information up to and before trial.
So after I read the case of Galvez, I said Regalado has a very sharp mind. Masyadong matalas and utak ba!
A very small distinction, makita niya eh. And it takes pain to analyze. That is the product of a sharp mind. But
no wonder because pag-kuha niya ng bar, 96.70% gud ang average niyan! He is the highest for the record.
Sabi nila si Marcos. Yes, but that is not official. Istorya lang yun. Si Marcos nag oral examination before the SC
pero binabaan ang average. But on record, it is Regalado who is the highest in the bar. Nobody has beaten that.
Makita ninyo man ba sa decisions niya. Masyadong matalas, very sharp!
SEC. 20. Appointment of acting prosecutor. – When a prosecutor, his assistant or

deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137
or for any other reason, the judge or the prosecutor shall communicate with the
Secretary of Justice in order that the latter may appoint an acting prosecutor. (12a)
SEC. 21. Exclusion of the public. – The judge may, motu proprio, exclude the public
from the courtroom if the evidence to be produced during the trial is offensive to
decency or public morals. He may also, on motion of the accused, exclude the public
from the trial except court personnel and the counsel of the parties. (13a)
Section 21 is an exception to the rule found in Rule 115 about the right of the accused to a public trial.
There are some exceptions to that right. And under Section 21:
1. the court may, moto propio, exclude the public from the courtroom if the evidence to be produced
during the trial is offensive to decency or public morals. Normally this applies in trial for the crime of
rape or in crimes against chastity, where the nature of the evidence is such that the public may want to
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go there because they only want to listen to these sadiscious details of the testimony. The public can
be excluded. Only the lawyers, the parties are allowed inside. Yaan!
2. on motion of the accused, the court may exclude the public. That is his right to speedy trial. Kung
ayaw niya, e di okey lang!
Aside from the two exceptions, the other grounds where the public can be excluded, based on American
Jurisprudence are:
1. To prevent disorder;
2. To prevent embarrassment to a witness;
3. To limit attendance to seating capacity.
This is the very issue now. I’ve been reading current newspaper reports that everybody is anticipating that
the case against Erap will be filed in the Sandiganbayan. The DOJ wants everything to be televised all over
again. They are filing a petition before the Supreme Court. There is a standing order of the Supreme Court
prohibiting it. It should not be televised because of what happened in the Aquino libel case [Aquino vs. Beltran].
Because of that, ayaw na ng SC na i-televised. It becomes a sarswela – show ba! – rather than an a public trial.
Now, they want to justify it on the ground that this involves public interest so the SC should relax the rules.
I cannot anticipate how the SC will resolve the matter because everybody has gotten used to the impeachment
trial so everybody wants to hear what is happening, especially if the person involved is Erap. Such a standing
memorandum was not applied to the impeachment trial because it was not a judicial trial but a political trial. It
is the Senate which controls the rules, not the courts. This is the difference. But this case is before the
Sandiganbayan which is a different story.
Because definitely many people would like to go there but how do you get a seat them all in the
Sandiganbayan? You will have to exclude hundreds, if not thousands and allow only the entry of a few. But if it
is televised, then everybody can watch again.
SEC. 22. Consolidation of trials of related offenses. – Charges for offenses founded on
the same facts or forming part of a series of offenses of similar character may be
tried jointly at the discretion of the court. (14a)
Do not confuse this consolidation here in Rule 119 with the consolidation in Rule 111.
In Rule 111, you are consolidating the criminal case and the civil case – the civil case which is brought
separately will be consolidated with the criminal case. Here in Rule 119, you are consolidating two or more
criminal cases which are identical, founded on the same facts or forming part of the same series of offense of
similar character. This is similar to consolidation in Rule 31 on civil cases.
But in civil cases, we can allow related cases to be filed together eh – joinder of parties, which is not allowed
in criminal cases. The only practice allowed in criminal cases is consolidation. But there could be no such thing
as joinder of accused in one information.
Let’s go to Section 23 on Demurrer – one of the most important provisions in Rule 119.
SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of evidence (1) on its own initiative
after giving the prosecution the opportunity to be heard or (2) upon demurrer to
evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused
may adduce evidence in his defense. When the demurrer to evidence is filed without
leave of court, the accused waives the right to present evidence and submits the
case for judgment on the basis of the evidence for the prosecution. (15a)
judgment. (n)
Demurrer is a motion to dismiss. After the prosecution has rested its case, based on the order of trial, the
accused now presents his case. But sabi ng accused, “Well, I will present evidence on the assumption that the
prosecution has proven prima facie the crime and my guilt. [meaning the presumption of innocence has already
been disputively rebutted ba!].” But suppose the prosecution has not proven the facts or not proven the crime
or my guilt, “why will I present evidence? Why will I prove my innocence when I’m still presumed innocent?”
Yaan! Yan ang demurrer. The same thing in civil cases – why will you prove your defense when the plaintiff failed
to prove his cause of action? So instead of presenting evidence, he will file a demurrer. Actually it’s a motion to
dismiss.
Now of course, it is now emphasized in paragraph 1 that a demurrer may be filed with or without leave of
court. Leave of court means before your demurrer, you file muna a motion for permission to file the demurrer.
The court grants permission, you file the demurrer. You can still file the demurrer even without the permission
of the court. If you file demurrer with or without leave and it is granted, then you have no problem because the
accused will be acquitted.
571
The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence to prove
at least the guilt of the accused. If the demurrer was filed with prior leave of court and it is subsequently
denied, the accused is allowed to present evidence to prove his defense.
But if you filed the demurrer without prior leave of court and the demurrer is denied, then you are already
convicted because the accused has forfeited his right to present evidence. It is practically equivalent to a
waiver of his right to present evidence. So conviction automatically follows. This is what the rules say.
What is the rationale behind this? The 1997 case of
PEOPLE vs. TURINGAN

282 SCRA 424
HELD: “The rationale for the rule is that when the accused moves for dismissal on the
ground of insufficiency of the prosecution evidence, he does so in the belief that said evidence
is insufficient to convict and, therefore, any need for him to present any evidence is negated. It
is said that an accused cannot be allowed to wager on the outcome of judicial proceedings by
espousing inconsistent viewpoints whenever dictated by convenience. The purpose behind the
rule is also to avoid the dilatory practice of filing motions for dismissal as a demurrer to the
evidence of the prosecution and, after denial thereof, the defense would then claim the right to
present its evidence.”
So, there is an inconsistency in saying that the prosecution’s evidence is not sufficient, and yet when it is
denied, “OK, I will present evidence.” Ahh di puwede yan! And many defense counsels in the past have filed
demurrer just to delay the presentation of evidence when there is no chance for said demurrer to be granted.
BERNARDO vs. COURT OF APPEALS

278 SCRA 782
HELD: “The power to grant leave to the accused to file a demurrer is addressed to the sound
discretion of the trial court. The purpose is to determine whether the accused in filing his demurrer
is merely stalling the proceedings. [Is he really serious or is only delaying the proceedings?] Judicial
action to grant prior leave to file demurrer to evidence is discretionary upon the trial court. But to
allow the accused to present evidence after he was denied prior leave to file demurrer is not
discretionary.”[Meaning, when you file a demurrer without prior leave, you assume the risk eh
because once your demurrer is denied, you no longer have a chance to present evidence.]
“Once prior leave is denied and the accused still files his demurrer to evidence or motion to
dismiss, the court no longer has discretion to allow the accused to present evidence. The only
recourse left for the court is to decide the case on the basis of the evidence presented by the
prosecution. And, unless there is grave abuse thereof amounting to lack or excess of jurisdiction,
the trial court's denial of prior leave to file demurrer to evidence or motion to dismiss may not be
disturbed. However, any judgment of conviction by a trial court may still be elevated by the
accused to the appellate court.” [You cannot question the order of denial of prior leave, this is
discretionary but you can appeal the judgment of conviction itself.]
BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases with the rule of
demurrer in criminal cases?
4. In civil cases when the demurrer is denied, the defendant will now present his evidence to prove
his defense because the defendant does not waive his right to present in the event the
demurrer is denied; whereas
In criminal cases, if the demurrer of the accused is denied the accused is no longer allowed to
present evidence if he had no prior leave;
5. In civil cases, if the defendant’s demurrer is granted and the case is dismissed and the plaintiff
appeals to the appellate court and on appeal the court reverses the order of dismissal, the
appellate court renders judgment immediately against the defendant. Goodbye! – talo na ang
defendant. There is no more remanding; whereas
In criminal cases, if the demurrer is granted, there is no more appeal by the prosecution because
the accused has already been acquitted. Otherwise, there will be a case of double jeopardy;
6. In civil cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests
without any demurrer by the defendant. There is no such thing as motu propio demurrer;
whereas
In criminal cases, the court may dismiss the action on its own initiative after giving the prosecution
the chance to present its evidence.
Demurrer used to composed only of two paragraphs. Under the new rules, there are three (3) new
additional paragraphs. The additional provisions are:
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judgment. (n)
These deadlines were not found before. If you want to file leave, pag-rest, 5 days lang, you file a motion for
leave. The prosecution may oppose the leave of within 5 days. After the court grants leave, you file the
demurrer within 10 days lang. The obvious purpose here is not to delay the trial.
When the court denies the motion for leave or the demurrer itself, as a rule, it is not reviewable. You cannot
review it. The remedy is to go to trial and if you are convicted, appeal on the judgment of conviction. But as a
general rule, when a demurrer is denied, you cannot go on certiorari. I’m not saying that this is 100% but there
are some instances when the court, based on equity, allows it.
Take note that when you file a leave of court to file a demurrer, the accused must specifically state the
grounds.
The 1985 Rules just says you get prior leave. This is what I noticed here among trial courts: after the
prosecution rests, sometimes the defense counsel will say, “Your honor, we will file a demurrer. May we ask for
leave of court to file the demurrer?” And I noticed that the courts will say “Alright, leave granted, file your
demurrer.” Parang naging automatic ba! Pag-hingi mo ng leave, bigay kaagad!
I was watching that and I do not seem to agree with that kind of set-up and I had the opportunity once in a
criminal case where I was the private prosecutor where after we rested, the defense, in open court said, “Your
honor, we would like to ask permission for demurrer.” And the court said, “Granted!”. I said “Your honor, this is
not the correct procedure because he doesn’t even say what are his grounds for demurrer. The court should not
grant the permission immediately without those grounds.” To my mind, when you file a motion for leave, you
must state the grounds to give the court a synopsis or an idea of what you are going to raise so that the court
will be attracted to grant. The reason behind this leave is to put a stop to the old practice. The old practice was
of granting demurrer immediately and in most cases the demurrer is really without merit. This is why this was
placed in the Rules of Court so that the court will weigh whether “ano ba? Pagbigyan ko ba ito o hindi?”
Otherwise, we would be going back to the old system.
And the judge told me, “Your arguments are sound, but the trouble is there is nothing in the rules which
support you so, we’ll just grant leave.” Wala din. Of course, there was a leave, there was a demurrer, and I
opposed and it was denied. But ang issue ko, I’ve been harping on that point for so long. You cannot just say
leave, you must tell the court what you will raise. Give us an idea so that the court will be convinced to grant
leave. If the court will deny the leave, you file it at your own risk.
Now, the 2000 Rules states, “The motion for leave of court to file demurrer to evidence shall specifically
state its grounds.” Hindi na puwede yung “we intend to file a demurrer, may we ask for leave” without stating
the grounds. At least, sabi ko, I have been correct all along in advocating this. So when I read this in the new
rules, I said, “Ay salamat! Tama pala ako all along!” Once you know the philosophy of the law, hindi ka man
mawala ba! You can always argue from that point.
SEC. 24. Reopening. – At any time before finality of the judgment of conviction, the
judge may, motu proprio or upon motion, with hearing in either case, reopen the
proceedings to avoid a miscarriage of justice. The proceedings shall be terminated
within thirty (30) days from the order granting it. (n)
Section 24 is a new provision. The judge may motu propio or upon motion reopen the proceedings.
Actually, reopening of trial is a remedy which is recognized but not found in the rules. Even the rules on
civil procedure, there are motions for new trials but you cannot find a rule for the re-opening of trial. But the SC
has always recognized that there is such a remedy.
EXAMPLE: I will rest my case, the trial is finished and the next step is the decision. But after you rest, you
have additional evidence discovered for the first time and therefore could not have been presented beforehand.
Q: What will you do? Will you file a motion for new trial based on the newly discovered evidence?
A: NO, you cannot – wala pang decision! Motion for new trial based on new evidence is proper only after a
decision has been made and the same is not yet final and executory.
Q: In the example, wala pang decision eh. What is the proper remedy?
A: The correct remedy is motion to reopen the trial because there is no judgment yet.
Q: On what grounds?
A: Justice and equity. This is the only ground for re-opening because there is no specific ground.
Q: Now can the court on its own, re-open a trial, civil or criminal?
A: YES. This has happened several times. The case has already been submitted for trial, this happened to
me several years ago. The court said “before the court renders a decision, the court would like to conduct an
ocular inspection and re-enactment of the alleged crime in the place where the crime was committed.” Motu
propio, the court ordered the re-enactment. This is an instance of re-opening the trial. This is allowed because
this is an inherent power of the court, if it really wants to find out the truth. You cannot find any provision in the
rules regulating that kind of remedy. This is allowed without any specific rule except justice and equity.
For the first time, reopening of trial in a criminal case is now found in Section 24 of the 2000 Rules. But
there is something wrong here. In reopening of trial, you do it before the case is decided. Dito naman, you do
it “at any time before the finality of the judgment of conviction.” Anong klase ito?! How can this be? There is
already a judgment of conviction and then, you reopen?? I think the correct motion is a new trial.
573
I remember when Galvez was here to lecture on the Rules on Criminal Procedure. He said that somebody in
the Supreme Court nakialam dito eh. The original draft was “anytime before judgment there can be re-opening
upon motu propio or motion.” But when the new rules came out, it said “at any time before finality of the
judgment of conviction.” – dinagdagan ba! The person who changed it must have thought the committee had
erred but the change made it even worse. That’s why the committee wrote a letter to the SC to amend this
mistake.
Now, there are some special laws that are related to the subject of trial and they are considered as part and
parcel of the criminal procedure. I am referring to RA 4908, RA 6033, RA 6034 and RA 6035. RA’s 6033, 6034
and 6035 are also known as the Laurel Laws because the author of these laws is Senator Laurel in the 70’s.
RA 4908 – AN ACT REQUIRING JUDGES OF COURTS TO SPEEDILY TRY CRIMINAL CASES WHEREIN THE
OFFENDED PARTY IS A PERSON ABOUT TO DEPART FROM THE PHILIPPINES WITH NO DEFINITE
DATE OF RETURN
RA 6033 – AN ACT REQUIRING COURTS TO GIVE PREFERENCE TO CRIMINAL CASES WHERE THE PARTY OR
PARTIES INVOLVE ARE INDIGENTS
RA 6034 – AN ACT PROVIDING TRANSPORTATION AND OTHER ALLOWANCES FOR INDIGENT LITIGANTS.
RA 6035 – AN ACT REQUIRING STENOGRAPHERS TO GIVE FREE TRANSCRIPT OF NOTES TO INDIGENT AND
LOW INCOME LITIGANTS AND PROVIDING A PENALTY FOR THE VIOLATION THEREOF
So that takes care of Rule 119.
Rule 120
JUDGMENT
Q: What is the definition of judgment in criminal cases?

A: Section 1:
SECTION 1. Judgment; definition and form. – Judgment is the adjudication by the

court that the accused is guilty or not guilty of the offense charged and the
imposition on him of the proper penalty and civil liability, if any. It must be written in
the official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts and the law upon
which it is based. (1a)
Q: What does it contain?

A: Section 2:
SEC. 2. Contents of the judgment. – If the judgment is of conviction, it shall state (1)
the legal qualification of the offense constituted by the acts committed by the
accused and the aggravating or mitigating circumstances which attended its
commission; (2) the participation of the accused in the offense, whether as principal,
accomplice, or accessory after the fact; (3) the penalty imposed upon the accused;
and (4) the civil liability or damages caused by his wrongful act or omission to be
recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate civil action has been reserved or
waived.
In case the judgment is of acquittal, it shall state whether the evidence of the
prosecution absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise did not
exist. (2a)
There is something wrong in convicting somebody without even a clear statement of why he is guilty.
According to the SC, why is it that the law requires, especially in criminal cases, the judge should be careful in
rendering a judgment? Why must it be clearly stated why you are guilty under Section 1 & 2. Why is it that
under Sections 1 and 2, the judgment must clearly state why you are guilty? In the following cases of
PEOPLE vs. CAYAGO

312 SCRA 623 [1999]
HELD: “A strict compliance with the mandate of the said provision is imperative in the writing of
every decision. Otherwise, the rule would simply a tool for speculations, which this Court will not
countenance specifically in criminal cases involving the possible deprivation of human life.”
PEOPLE vs. BUGARIN

273 SCRA 384 [1997] J. Mendoza
HELD: “The requirement that the decisions of courts must be in writing and that they must set
forth clearly and distinctly the facts and the law on which they are based serves many functions. It
is intended, among other things, to inform the parties of the reason or reasons for the decision so
that if any of them appeals, he can point out to the appellate court the findings of facts or the
rulings on points of law with which he disagrees. More than that, the requirement is an assurance to
the parties that, in reaching judgment, the judge did so through the processes of legal reasoning. It
is, thus, a safeguard against the impetuosity of the judge, preventing him from deciding by ipse
dixit [by instinct]. Vouchsafed neither the sword nor the purse by the Constitution but nonetheless
vested with the sovereign prerogative of passing judgment on the life, liberty or property of his
fellowmen, the judge must ultimately depend on the power of reason for sustained public
574
confidence in the justness of his decision. The decision of the trial court in this case disrespects the
judicial function.”
In other words, among the three branches of government, the judiciary is the weakest. It has no power of
the purse or the sword. Purse – congress holds the budget. Sword – the judiciary has no army to enforce
decisions unlike the executive where the executive is already the commander-in-chief of the AFP. So how can
the judiciary command the respect of the people? There is only one way – the force of its decisions – that its
decisions are well argued and logical. This is the only way to have the people believe in the judiciary. If it
cannot cope with this, it is an insult, an attack to judges who do not know how to write decisions, because this
is how the judiciary earns the respect of the people. Otherwise, baka wala ng maniwala sa korte. That is how
the SC explained that idea in the case of Bugarin.
One interesting case in relation to Section 2 which dealt with the double jeopardy rule was the case of
ABAY, SR. vs. GARCIA
162 SCRA 665
FACTS: On the day of trial, the accused was there with his lawyer. The offended party was not
in court. The judge asked the fiscal what action he wanted to proceed with. The fiscal said, “We
will look at the records, whether the offended party were properly informed.” Finding that the
offended party was properly informed, the fiscal said [oral motion], “In that case your honor, we
are moving for the dismissal of the criminal case for lack of evidence now upon us – wala ang
offended party eh.” The judge dictated in open court, “Alright, the case is dismissed for failure to
prosecute.” With that, the accused went home happy.
After the accused left and shortly thereafter, the offended party arrived with his lawyer. After
they learned of the dismissal they explained that they had to travel far, had a flat tire and got
caught in traffic. The judge found their earlier non-appearance as justified and ordered the
revocation or reconsidered the earlier decision of dismissal, consequently resetting the trial.
The accused learned of the succeeding events and protested that this was a case of double
jeopardy. He contends that all the necessary elements of double jeopardy are present: valid
complaint, valid information filed in a competent court; had an arraignment; and the case was
dismissed without his express consent.
HELD: The order of dismissal was equivalent to an acquittal but a judgment of acquittal under
Rule 120 must be in writing. The order dismissing the case was not in writing but was dictated in
open court. It was never reduced into writing. What was reduced to writing was the second order
which revoked the first order. Since it was never in writing, there was no judgment of acquittal.
Therefore, there is no double jeopardy.
“However, this order of dismissal must be written in the official language, personally and
directly prepared by the judge and signed by him conformably with the provisions of Rule 120,
section 2 of the Rules of Court. In the instant case, it is very clear that the order was merely
dictated in open court by the trial judge. There is now showing that this verbal order of dismissal
was ever reduced to writing and duly signed by him. Thus, it did not yet attain the effect of a
judgment of acquittal, so that it was still within the powers of the judge to set it aside and enter
another order, now in writing and duly signed by him, reinstating the case.”
This is how the Supreme Court skirted the double jeopardy rule by applying Rule 120, Sections 1 and 2.
The 2nd paragraph of Section 2 is new and it radically changed the language of the previous rule. Section 2,
second paragraph:
In case the judgment is of acquittal, it shall state whether the evidence of the
prosecution absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise did not
exist. (2a)
This is just a repetition of Rule 111, Section 2 [last paragraph] when the judgment acquits the accused, the
judgment should state whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise does not exist. Because generally if
you are acquitted on reasonable doubt, it will not bar the filing of a separate civil action. But if the fact from
which the civil liability might arise does not exist, then the acquittal is already a bar to a future civil liability.
Compare this with the language of the 1985 Rules, Rule 120, Section 2, last paragraph:
In case of acquittal, unless there is a clear showing that the act from which the
civil liability might arise did not exist, the judgment shall make a finding on the civil
liability of the accused in favor of the offended party.
According to the 1985 Rules, if the accused is acquitted based on reasonable doubt, the court may order
the accused to satisfy civil liability because the cause of action in the civil case is already proven although the
accused is acquitted. It is possible for the accused to be acquitted and yet is found to be civilly liable based on
the 85 Rules.
The rule under the 1985 Rules was taken from decided cases such as the case of METROBANK VS. CA (188
SCRA 259). In this case, the accused was charged with estafa. After trial, the court said that there was no
estafa. It is only a simple loan – so there is no crime. Normally, the next step is to let the offended party file a
civil case to demand payment of the loan. But in the case of Metrobank, the SC said that it is a double effort.
The Supreme Court said, “While it is true that petitioner Metrobank can no longer collect private respondent's
civil liability on the basis of the criminal case filed, it could nonetheless collect the said civil liability prayed for
on the basis of the non-payment of the loan contracted by respondent spouses from the bank. There appear to
be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in
575
the civil case have already been established in the criminal proceedings where the accused was acquitted. To
require a separate civil action simply because the accused was acquitted would mean needless clogging of
court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on
the part of all concerned.” This was the 1985 Rules.
Q: Now, is that rule still valid under the 2000 Rules?

A: The new rule is silent. There is nothing here that says that the accused may be acquitted but found
civilly liable unlike the 1985 Rules. It only says that in case of acquittal, the judgment should state whether the
acquittal is based merely on reasonable doubt or the prosecution absolutely failed to prove the guilt of the
accused. In either case, the judgment shall determine if the act or omission from which the civil liability might
arise does not exist. But as it is worded now, it would seem, you should file a separate civil case. And the
practice of holding the accused liable civilly in a criminal case where he is acquitted, seems to be no longer
possible.
Under the new rules, just acquit – let him file a separate civil case. The old rule is simplier: No need! Dun na
mismo sa criminal case – acquit him but make him civilly liable. But now, the language is different. It is a radical
departure from the 1985 rules.
SEC. 3. Judgment for two or more offenses. – When two or more offenses are charged
in a single complaint or information but the accused fails to object to it before trial,
the court may convict him of as many offenses as are charged and proved, and
impose on him the penalty for each offense, setting out separately the findings of
fact and law in each offense. (3a)
Let’s go back to Rule 110 on duplicitous complaint or information. Under Section 3 of Rule 110, this is
defined as a complaint or information which charges more than one offense. This is not allowed. And the
remedy here is you file a Motion to Quash under Section 3 [f], Rule 117.
But the defect is waivable because if you do not file a Motion to Quash, the trial can proceed and if you are
found guilty for committing 2 or more crimes, then there will be 2 or more penalties. Under Section 3, the court
may convict the accused of as many offenses as are charged and proved and impose on him the penalty for
each offense if the accused fails to object the duplicitous complaint before the trial.
SEC. 4. Judgment in case of variance between allegation and proof. – When there is
variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included in the offense proved.
(4a)
We will go to this basic principle:
Mr. Calizo is charged in an information of committing one crime. However, during the trial, what was proven
is another crime. What will happen now? Well, we will have to ask this question –
Q: Is the offense proven included in the offense charged or does the offense proven includes the offense
charged?
A: If YES, then apply Section 4. You convict the accused of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.
Q: What if kung malayong-malayo? The crime proved is different from the crime charged like for example:
The crime charged is homicide and what is proved is robbery. What will happen? Will you apply Section 14 of
Rule 110 on substitution of information?
A: No, you will not apply Rule 110 Section 14 because we are already through with that stage. We are now in
the trial stage where the crime proved is different from the crime charged. Therefore, the proper remedy here is
Section 19 of Rule 119, last paragraph:
RULE 119, SEC. 19. When mistake has been made in charging the proper offense. –
When it becomes manifest at any time before judgment that a mistake has been
made in charging the proper offense and the accused cannot be convicted of the
offense charged or any other offense necessarily included therein, the accused shall
not be discharged if there appears good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information. (11a)
[Editor: Try to correlate this with Section 14, Rule 110. They are similar. But for clearer understanding, please
go back to Section 19, Rule 119 in the case of GALVEZ on the distinctions between these two provisions.
Thanks!]
SEC. 5. When an offense includes or is included in another. – An offense charged

necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense proved, when
the essential ingredients of the former constitute or form part of those constituting
the latter. (5a)
Q: When does an offense include another, or when is it included in the other?

A: Section 5, Rule 120.
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For example, Mr. Tiamzon is charged with MURDER and what is established is HOMICIDE. Homicide is
included in the crime of murder. The elements are identical. The only difference is that there are no qualifying
circumstances in homicide. Or, THEFT is included in ROBBERY. The only missing element in theft is violence or
intimidation. Or, LESS PHYSICAL INJURY is included in SERIOUS PHYSICAL INJURY.
In that case, the case will not be dismissed. Just convict the accused of the crime proven which is included in
the crime charged. Such that if you are charged with murder, you can be convicted for homicide.
Q: Suppose the accused is charged with homicide and what was proven is murder. So it is the other way
around. What is the correct procedure?
A: Convict him for the crime charged. Do not dismiss the case. Although the crime proved (murder) includes
that which is charged (homicide), a person cannot be convicted of a more serious offense than that charged.
The accused can only be convicted for homicide and the qualifying circumstances of murder should be treated
only as an ordinary aggravating circumstances. The same is true with theft and robbery. [c.f. discussions on
Section 8, Rule 110]
We will now go to some important cases.
VINO vs. PEOPLE OF THE PHILIPPINES

178 SCRA 626
FACTS: Mr. Acelar is accused of murder as principal by direct participation. After trial, it was
established that Mr. Acelar is only an accessory.
ISSUE: Can a person accused of murder as a principal may be convicted as an accessory?
HELD: YES, a person charged with an offense as principal maybe convicted as an accessory
because the greater responsibility includes the lesser responsibility. Accessory is a lesser degree of
participation.
This is not a case of a variance between the offense charged and the offense proved. Here, the
accused was charged with murder and what was established by evidence was also murder. There is
here no mistake in charging the proper offense. The variance is in the participation of the accused
in the commission of the crime which is not covered by any specific provision. What is covered by
the rules is when there is a mistake in charging the proper offense, or when there is a total mistake
because the crime was never committed.
Q: What is the difference between malversation and technical malversation?

A: Although both crimes are committed by public officers, malversation is punishable under Article 217 of the
RPC, whereas, technical malversation is not referred as such in the RPC. Technical malversation is denominated
as Illegal Use of Public Funds under Article 220 of the RPC.
EXAMPLE: Technical malversation/Illegal Use of Public Fund is when a public officer uses funds appropriated
for a certain public purpose (let’s say, for the construction of a school building) for another public purpose (like
widening or cementing of roads.)
PARUNGAO vs. SANDIGANBAYAN

197 SCRA 173
FACTS: A public officer was charged with technical malversation of public funds or property. The
trial court found that the crime committed is not technical malversation. It is more of malversation.
ISSUE: May a person, charged with technical malversation under Article 220 of the RPC, be
found guilty of malversation under Article 217?
HELD: NO. He cannot be convicted of malversation because there is no similarity between these
two crimes. “In malversation of public funds, the offender misappropriates public funds for his own
personal use or allows any other person to take such public funds for the latter's personal use. In
technical malversation, the public officer applies public funds under his administration not for his or
another’s personal use, but to a public use other than that for which the fund was appropriated by
law or ordinance.”
“Technical malversation is, therefore, not included in nor does it necessarily include the crime of
malversation of public funds charged in the information.”
“The Sandiganbayan therefore erred in not ordering the filing of the proper information against
the petitioner, and in convicting him of technical malversation in the original case for malversation
of public funds. Ordinarily, the court’s recourse would be to acquit the petitioner of the crime of
illegal use of public funds without prejudice, but subject to the laws on prescription, to the filing of a
new information for such offense.”
“Considering however that all the evidence given during the trial in the malversation case is the
same evidence that will be presented and evaluated to determine his guilt or innocence in the
technical malversation case in the event that one is filed and in order to spare the petitioner from
the rigors and harshness compounded by another trial, not to mention the unnecessary burden on
our overloaded judicial system, the Court is acquitted the accused of the crime of illegal use of
public funds.”
But Justice Feliciano dissented, “Why question the procedure used for violation the law?” Anong klaseng
decision ito? Even before filing the correct information, the SC already ruled that you are innocent? According to
him, the correct procedure is not to dismiss both cases but to acquit the accused of the original complaint of
technical malversation and require the filing of a new information charging the proper offense (malversation).
So this is one of the rare cases where the SC decided not to be very technical and went straight to the decision.
Siguro the SC would like to save time.
577
Q: If a person is charged with rape, can he be convicted of qualified seduction? Is qualified seduction
included in rape?
A: It seems that the elements are different. In rape, there is no consent in the sexual intercourse. But in
seduction, there is consent although there is abuse of authority, relationship or there is deceit. But in the 1993
case of
PEOPLE vs. SUBING-SUBING
228 SCRA 168
HELD: “A person charged with rape can be convicted of qualified seduction if the latter though
not alleged in the complaint, appears in the victim’s affidavit.”
It seems that there is something wrong here; the complaint says rape, but the victim’s affidavit says
qualified seduction. However the SC says it is fine. It is tantamount to the same thing: not found in the
complaint but found in the victim’s affidavit. This is another queer decision of the SC.
PECHO vs. SANDIGANBAYAN

238 SCRA 116
FACTS: There was somebody who imported highly taxable items. Obviously, he had some
connections with the Bureau of Customs. He declared his items different form which he brought, so
the taxes are less. The obvious intention it to cheat the government of the correct amount of taxes.
He prepared the import entry declaring false information or entries. However, the Collector of
Customs ordered a spot inspection. So the attempt did not succeed.
The importer, together with the Customs people were charged with attempted violation of the
Anti-Graft Act. So, there was an attempt to cause undue injury to the government by depriving it of
its proper taxes.
ISSUE: Can a person charged with a crime punishable under a special law be found guilty
instead of a felony in the RPC? Can a crime under the RPC be considered as included in the crime
under a special law?
HELD: There is no such thing as attempted violation of the Anti-Graft Act. The attempted,
frustrated and consummated stages only apply to felonies in the RPC. Under crimes punishable by a
special law, you only punish the consummated stage. You do not punish the attempted and
frustrated stages unless the special law says so. Since there was no injury caused to the
government due to the time discovery, there was no violation of the Anti-Graft Act.
However, they made false entries, thereby committing falsification. Therefore, they can be
convicted of falsification of public or commercial documents.
So in this case, it started as attempted violation of the Anti-Graft Act (special law) and ended up as a
conviction for falsification under the RPC. A crime under the RPC was considered as included in the crime
malum prohibitum
PEOPLE vs. VERZOSA

294 SCRA 466 [1998]
FACTS: Appellants were charged for violating PD 532 – Anti-Piracy And Anti-Highway Robbery
Law Of 1974.
ISSUE: Can a person charged for violating a special law be found guilty for a crime of robbery
with homicide under the RPC?
HELD: YES. What appellants committed is the crime of robbery with homicide, which is distinct
from the offense covered by P.D. 532 which punishes, among others, indiscriminate highway
robbery.
“Nonetheless, the designation of the crime in the information as “highway robbery with homicide
(Violation of PD 532)” does not preclude conviction of the appellants of the crime of robbery with
homicide (Article 294 [1] of the RPC). In the interpretation of an information, what controls is not the
designation but the description of the offense charged. The crime of robbery with homicide is
clearly alleged in the information notwithstanding its erroneous caption. It is an offense necessarily
included in that with which they were charged.”
SEC. 6. Promulgation of judgment.– The judgment is promulgated by reading it in the

presence of the accused and any judge of the court in which it was rendered.
However, if the conviction is for a light offense, the judgment may be pronounced in
the presence of his counsel or representative. When the judge is absent or outside
the province or city, the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment
may be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the court
which rendered the judgment. The court promulgating the judgment shall have
authority to accept the notice of appeal and to approve the bail bond pending
appeal; provided, that if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the application for
bail can only be filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or through
his bondsman or warden and counsel, requiring him to be present at the
promulgation of the decision. If the accused was tried in absentia because he jumped
bail or escaped from prison, the notice to him shall be served at his last known
address.
578
In case the accused fails to appear at the scheduled date of promulgation of
judgment despite notice, the promulgation shall be made by recording the judgment
in the criminal docket and serving him a copy thereof at his last known address or
thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available in these rules against
the judgment and the court shall order his arrest. Within fifteen (15) days from
promulgation of judgment, however, the accused may surrender and file a motion for
leave of court to avail of these remedies. He shall state the reasons for his absence
at the scheduled promulgation and if he proves that his absence was for a justifiable
cause, he shall be allowed to avail of said remedies within fifteen (15) days from
notice. (6a)
Alright. Promulgation is where the accused is parusahan na or acquitted. It consists of the reading of the
decision in the presence of the accused. This is one stage of the criminal proceeding where the presence of the
accused is generally required. The other instance is during the arraignment.
It is not necessary that the promulgation be made before the very same judge who rendered the decision.
Example: The RTC of Davao has many branches. Suppose the promulgation will be made in the RTC Branch 8,
but on the date of promulgation, the judge thereof got sick.
Q: Can the decision of RTC Branch 8 be promulgated before the judge of RTC Branch 9?
A: YES, a decision rendered by one branch of a court may be promulgated before another branch of the
same court precisely because it is the same court although of different branches. Section 6, reads: “ The
judgment is promulgated xxx in the presence of xxx ANY JUDGE of the court in which it was rendered.”
Do not confuse this on what happened in the 1993 case of
PEOPLE vs. CFI OF QUEZON BRANCH 10

227 SCRA 457
FACTS: Accused was charged criminally in the RTC Branch 10 presided by Judge A who tried the
case but retired without deciding the case. Meanwhile, Judge B, presiding judge of Branch 3 was
designated temporarily to take over Branch 10 and among the cases submitted to him for decision
was the undecided case of the accused. So, he read the records and he wrote the decision on May
22. On June 9, Judge C was appointed presiding judge of Branch 10. He took his oath of office the
following day, June 10, terminating automatically the designation of Judge B. With the appointment
of Judge C, Judge B was only left with his original sala – Branch 3. On June 20, the deputy clerk of
court promulgated the decision of Judge B made on May 22.
ISSUE: Was the judgment penned by Judge B, detailed to the vacant branch of the court, but
promulgated after the permanent judge has been duly appointed to the vacancy, valid?
HELD: YES. It is valid. Judge B did not retire. He is still in the SAME court although in another
branch.
“It is not necessary that Judge B be the presiding judge of Branch 10 at the time his decision was
promulgated since even after the expiration of his temporary designation at Branch 10 he continued
to be an incumbent of Branch 3. After all, the RTC is divided into several branches, each of the
branches is not a court distinct and separate from the others. Jurisdiction is vested in the court, not
in the judges, so that when a complaint or information is filed before one branch or judge,
jurisdiction does not attach to said branch of the judge alone, to the exclusion of the others.”
“Indeed, it would have been different altogether if the judge whose decision was promulgated
had, prior to its promulgation, died, resigned, retired, been dismissed, promoted to a higher court,
or appointed to another office with inconsistent functions. Then, he would no longer be an
incumbent member of a court of equal jurisdiction, and his decisions written thereafter would be
invalid.”
Q: In places where there is only one branch of the RTC, no other sala, who promulgates the decision in case
of the absence of the judge?
A: The clerk of court. Under Section 6, “When the judge is absent or outside the province or city, the
judgment may be promulgated by the CLERK OF COURT.”
Q: Suppose the accused has several cases in different places. Like for example he has a case in Davao and
another in Cebu. After the trial in Davao, he was sent to Cebu for another trial. In the meantime, tapos na yung
sa Davao, promulgation na lang, but the accused is in Cebu. What will happen if there will be a promulgation in
the Davao case?
A: Under Section 6, the Davao court will send the decision to the RTC Executive Judge of Cebu and let it be
promulgated there in the presence of the accused.
Now, a new clause is inserted in Section 6 which provides that “if the decision of the trial court convicting
the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be
filed and resolved by the appellate court.” So in the previous example, if the accused is charged (in Davao) of
murder but later convicted for homicide, the RTC Executive Judge of Cebu has no power to entertain any
application for bail if the accused wanted to appeal the conviction. Such application can only be filed and
resolved by the appellate court. This is similar to Section 5 of Rule 114 on Bail –
x x x x However, if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can
only be filed with and resolved by the appellate court.
The above provision was taken and modified in the case of OMOSA vs. CA (266 SCRA 281 [1997])
579
Q: Is there such a thing as promulgation by proxy?
A: YES. A decision may be promulgated even without the presence of the accused but ONLY if the conviction
is for a light offense. Generally, promulgation is by personal appearance. However under the Section 6, “if the
conviction is for a light offense, the judgment may be pronounced in the presence of his COUNSEL or
REPRESENTATIVE.”
PEOPLE vs. PRADES

July 30, 1998
HELD: “In the Supreme Court and the Court of Appeals, the judgment is promulgated by merely
filing the signed copy thereof with the Clerk of Court who causes true copies of the same to be
served upon the parties, hence the appearance of the accused is not even required there as his
presence is necessary only in the promulgation of the judgments of trial courts.”
Q: Is the presence of the complainant required during the promulgation?

A: NO. There is no rule requiring a judge to notify the complainant of the date of promulgation of judgment
in criminal cases. What the Rules of Court particularly Section 6, Rule 120 requires is that the promulgation be
made in the presence of the accused. (Ramirez vs. Macandog, 144 SCRA 462)
Q: Is the presence of the counsel of the accused required during the promulgation?
A: NO. The Rules of Court does not require the presence of counsel for the validity of the promulgation. The
accused is not required to be present at the promulgation if the conviction is for light offense, in which case,
his counsel or representative may appear in his behalf. But definitely, in any case, the promulgation is valid
even the counsel does not appear thereat. (Pangilano vs. Nuevas, 152 SCRA 158)
Q: What happens if the accused was tried in absentia? Or before the promulgation he escaped or jumped
bail?
A: Under Section 6, the proper clerk of court shall give notice to the accused personally or through his
bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the
accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served
at his last known address.
In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the
promulgation shall be made by recording the judgment in the criminal docket and s erving him a copy thereof at
his last known address or through his counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he
shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for
leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice.
So there are six (6) types of promulgation of judgment under Section 6:
1.) Ordinary judgment - promulgated by reading it in the presence of the accused and any judge of the
court in which it was rendered. This applies only to trial courts (People vs. Prades, supra);
2.) Promulgation by the Clerk of Court - when the judge is absent or outside the province or city;
3.) Promulgation by the Executive Judge - If the accused is confined or detained in another province or
city, the judgment may be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the court which rendered
the judgment;
4.) Promulgation in absentia - If the accused was tried in absentia because he jumped bail or escaped
from prison, the notice to him shall be served at his last known address;
5.) Promulgation by recording the judgment – in case the accused fails to appear at the scheduled date
of promulgation of judgment despite notice.
SEC. 7. Modification of judgment. – A judgment of conviction may, upon motion of

the accused, be modified or set aside before it becomes final or before appeal is
perfected. Except where the death penalty is imposed, a judgment becomes final
after the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing his
right to appeal, or has applied for probation. (7a)
Q: May judgement of conviction be modified or set aside?

A: YES, for as long as:
a. the judgement has not yet become final, or
b. appeal has not been perfected
Take note that only a judgment of conviction can be modified. A judgment of acquittal cannot be modified. It
is only upon motion of the accused.
Q: How about upon motion of the prosecution?

A: It would seem under the rules, that it is only the accused who is given that privilege of moving to modify
the judgement and set it aside.
There is an identical provision here that we have already taken up before – about the judgment of
conviction which may be set aside before it becomes final. Read Section 5, Rule 116 on Arraignment and Plea:
580
Withdrawal of improvident plea of guilty. – At any time before the judgment of
conviction becomes final, the court may permit an improvident plea of guilty to be
withdrawn and be substituted by a plea of not guilty. (5)
So even if you plead guilty, and it is not a capital offense and there is now a judgment sentencing you
because of your plea, you can still change your mind by changing your plea from guilty to not guilty. But you
have to file a motion to set aside before the judgment of conviction becomes final.
Q: When does the judgement in a criminal case become final?

A: It DEPENDS:
a. If it is a judgement of ACQUITTAL – immediately executory after promulgation of judgment because

it cannot be changed anymore.
b. If it is a judgment for CONVICTION:
1. After the lapse of the period for perfecting an appeal (2nd part of Section 7). So 15 days
generally. EXCEPT when the DEATH penalty is imposed. That is now inserted in the new Rules
because even if the accused will not appeal, there is an automatic review. So the rule that when
the period to appeal has expired, the judgment will become final, will NOT apply in death
penalty cases. However, the lapse of the period to appeal and no appeal is perfected, is not the
only instance where the judgment of conviction becomes final;
2. Even within the period to appeal, that is when the sentence has been partially or totally
satisfied or served. For example Charles has been sentenced to 10 days of Arresto Menor and
he has already served it. Or Charles has been sentenced to pay a fine of P100 and he pays it.
Wala na! Final na iyan! Because he has decided to serve his sentence, it has become final. We
do not have to wait for 15 days;
3. When the accused has waived in writing his right to appeal;
4. When after conviction, the accused applies for probation (this is based on the probation law).
When Charles applies for probation, he is waiving his right to appeal and he is accepting the
judgement of conviction.
Take note, however, that in these instances, when the judgment of conviction becomes final, even before
the lapse of 15 days, what the law means is that what has become final is the criminal aspect. The civil aspect
of the case does NOT become final after the lapse of 15 days. And these instances do not apply when the
penalty imposed is death because of the automatic review of the Supreme Court.
I met this problem before where the judgment convicted the accused and the trouble is that judgment
forgot to impose civil liability. Nalimutan talaga! And there was no reservation or waiver so that the court should
have imposed the civil aspect. The trouble is, after the promulgation, the accused started to serve his sentence
the following day.
But within the period of 15 days, we filed a motion for reconsideration to complete the judgment because
under Section 1 of this Rule, the imposition of the proper civil liability must be included. And Section 2 also
provides that the civil liability should be enforced unless the enforcement of civil liability in a separate civil
action has been reserved or waived.
The judge acknowledged and admitted that he overlooked the civil liability. He said that he is ready to
modify the judgment to include the civil liability which he forgot. But the judge said, the trouble is that he can
no longer do it because the accused has already started serving his sentence after promulgation, and from that
moment, the judgment has become final. So he said, “how can I amend my judgment kung final na?”
I told him, what became final was the criminal aspect, the civil aspect cannot become final until after the
lapse of 15 days. Sabi ng judge, “Are you sure? Can you sight a case which says so? Because my researcher
said na hindi pwede.”
Yes, according to the SC in one case, “…as long as the period for appeal has not yet expired, even if the
judgment has become final by service of sentence or waiver of appeal, the trial court may still modify its
judgment as to its civil aspect.” So what is final is the criminal aspect and NOT the civil aspect. Because if the
offended party cannot claim civil liability kasi inunahan ng accused ng pag-serve ng sentence, there is
something unfair there no.
SEC. 8. Entry of judgment. – After a judgment has become final, it shall be entered
in accordance with Rule 36. (8)
Rule 36 is entitled, “Judgments, Final Orders and Entry Thereof.” While Rule 36 falls under the subject of
Civil Procedure, some of its provisions may be applied in criminal procedure.
SEC. 9. Existing provisions governing suspension of sentence, probation and parole not
affected by this Rule. – Nothing in this rule shall affect any existing provisions in the
laws governing suspension of sentence, probation or parole. (9a)
The suspension of sentence, probation or parole are governed by substantive law such as the
Indeterminate Sentence Law and the Probation law. These laws have never been modified or affected by the
Rules of Court.
Jesus, Moses and an old bearded man were playing golf. On the first tee,
Moses shanked his ball into a lake. He parted the water and hit his ball onto the
green.
Jesus teed off next, hitting his ball into another water hazard. But he walked
on the water and stroked his ball just short of the cup.
581
The old bearded man stepped up and hit the ball with tremendous force, but
hooked it badly. The ball bounced off the clubhouse roof, rolled down a hill into a
pond and came to rest on a lily pad.
A frog hopped over to the ball and picked it up. Then an eagle swooped down,
snatched the frog and flew over the green. The frog dropped the ball and it rolled
into the cup for a hole-in-one.
Moses turned to Jesus and said, “I hate playing golf with your dad!”
Rule 121
NEW TRIAL OR RECONSIDERATION
SECTION 1. New trial or reconsideration. – At any time before a judgment of

conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or reconsideration.
(1a)
NEW TRIAL
Q: What is the effect of the filing of a motion for new trial on the double jeopardy rule?
A: An accused who files a motion for new trial WAIVES the protection of double jeopardy, so that if the
motion is granted, he can be tried and convicted of the graver offense charged in the complaint or information.
(Trono vs. U.S. 11 Phil. 726; Santos vs. People, 64 Phil. 10)
Actually, it is like an appeal eh – when an accused appeals the judgment against him, he is waiving his right
against double jeopardy. And it has happened several times in the past where the accused was charged with
murder and convicted of homicide. He was not contented. When he filed an appeal, he was convicted of murder.
Sometimes, appeal can give you a worse situation.
It happened here in Davao where a lawyer was charged as a principal for falsification of documents that he
notarized. The judge convicted him of falsification but merely as an accomplice. Binabaan ba! But I think the
intention of the judge was to allow the lawyer to ask for probation. Pero hindi nakuntento ang lawyer. He
appealed to the CA. Naloko na! Nasamot gyud! The CA convicted him as principal. And what was worse, the CA
said that since the accused was a lawyer, let a copy of the decision be brought to the SC for disbarment
proceedings. Na disbarred pa! That’s what happens for appealing!
Alright, and take note, at any time before a judgment of conviction become final. Now this is one provision
which you have to compare with Rule 120, Section 7 on Modification of Judgment.
Q: Compare and Distinguish New Trial from Modification of Judgment.

A: Similarity: Both may be resorted to before the judgment of conviction becomes final.
Distinctions:
1. In new trial, by the very nature of its purpose and what is to be done, both parties intervene;
whereas, in modification of judgment, the court moto propio may act provided the consent of the
accused is required;
2. In new trial, if the motion is granted, the original judgment is vacated and a new judgement shall be
rendered; whereas, in modification of judgment, the integrity of the decision already rendered is
unaffected, except for the proposed changes, although the entire decision may have to be
rewritten. (People vs. Tamayo, 86 Phil. 209)
Now, there is a new section in the New Rules which created confusion – Rule 119 Section 24.
SEC. 24. Reopening.– At any time before finality of the judgment of conviction, the
judge may, motu proprio or upon motion, with hearing in either case, reopen the
proceedings to avoid a miscarriage of justice. The proceedings shall be terminated
within thirty (30) days from the order granting it. (n)
When do you make the motion for reopening? At anytime before the judgment of conviction becomes final?
Pareho di ba! The language of the 3 provisions are identical, motion for: (1) reopening of trial; (2) modification
of judgment of conviction; and (3) new trial or reconsideration
That is a new provision. So that when I looked at the new Rules, talagang nalito ako. Ano ba itong
reopening of trial. How is this different from the others?
582
That is why, during the seminar in Men Seng last November 30 on the New Rules, I brought this out, eh.
Would somebody be kind enough to tell the difference between the three? Everything kasi is done before the
judgment of conviction becomes final! Of course, nobody stood up there to tell me the difference.
Kaya nalito ako. Former Solicitor General Galvez, when he was here, told me that “typographical error man
yung Rule 119 ba, hindi man ganyan ang aming recommendation.” Why nga naman will you reopen after
judgment of conviction? Reopenning is done before judgment is rendered. Ito naman, paglabas! Naloko na! It
created a lot of confusion. So if we believe Galvez, the confusion is caused by a typographical error, which
according to him is not the language of the Rules submitted to the SC and somebody tinkered with that
provision.
There is also a rule on New Trial in civil cases under Rule 37, you know the grounds: FAME, NDE, etc. And
there are some rules there to follow such as the motion for new trial must be supported by affidavits of merits,
or the motion for reconsideration must point out specifically the error committed by the trial court, and the
portion of the decision not supported by the evidence. Otherwise, if you do not comply with these requisites,
what is the name of your motion? PRO FORMA. Pro Forma, meaning the filing of your motion for new trial or
reconsideration will NOT interrupt the period to appeal. That is the effect.
This is now the question:
Q: Is there such a thing as pro forma motion for new trial or reconsideration in criminal cases? Where your
motion is obviously dilatory? Your grounds are too general, too vague, too ambiguous? No affidavit of merits?
And therefore if it is denied, there is no more right to appeal by the accused applying the pro forma rule?
A: The SC ruled in the past that the pro forma rule in civil cases DOES NOT apply to criminal cases. In
criminal cases, a general statement of the grounds for new trial is sufficient. (People vs. Colmenares, 57 O.G.
3714) Even if you do not go into details because you expect your motion to be denied, but the filing will still
interrupt the period. It is too harsh if the remedy of appeal will be removed from the accused simply because of
a motion for new trial which is not prepared properly. So the pro forma rule will not apply in criminal cases. The
filing of a motion for new trial or reconsideration will always interrupt the running of the period to appeal.
Q: Alright, what are the grounds for new trial?
A: Section 2:
SEC. 2. Grounds for a new trial. – The court shall grant a new trial on any of the
following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused could
not with reasonable diligence have discovered and produced at the trial and which if
introduced and admitted would probably change the judgment.
583
Q: What are the grounds for a new trial?
A: Under Section, the following are the grounds:
1. Errors of law;
Example: In one case, during the trial, the trial court excluded a defense witness from testifying
based on an erroneous interpretation of the rules of evidence. The judge disqualified him. But it turned
out that the witness was not disqualified. That is an error of law. For all you know, if his testimony will
be given, the accused will be acquitted. Therefore, a new trial should be granted where he should be
allowed to testify. (People vs. Estefa, 86 Phil. 104)
2. irregularities prejudicial to the substantial rights of the accused;
Example: In one case, the trial court compelled the accused, over his objection, to submit to trial
without the assistance of his counsel. (People vs. Enriquez, L-4934, November 28, 1951) If the accused
is convicted because of such irregularity, this is a valid ground for new trial. Besides, why should the
judge punish the accused? He should punish the lawyer.
3. Newly discovered evidence; this is similar to civil cases, newly discovered evidence. The requisites are
the same:
a.) discovered after trial;
b.) it could not have been discovered before trial even with the use of reasonable diligence
c.) and if introduced and admitted would probably change the decision
Q: May a new trial be granted on the ground of loss of stenographic notes?

A: NO. The loss of stenographic notes after trial is NOT such an irregularity as would justify a new trial. The
remedy of the accused is to have the missing evidence reconstituted. (People vs. Castelo, L-10774, February
16, 1961)
There is a case, the trial is concluded, and the accused is convicted. Within the period of 15 days from
promulgation, here comes the accused filing a motion for new trial on the ground that the prosecution witness
has executed an affidavit recanting his testimony. The prosecution witness, in effect, is saying that what he said
during the trial is not true.
Q: May a new trial be granted on the ground of loss of recantation of prosecution witnesses?
A: As a GENERAL RULE, recantation is NOT a ground for new trial, otherwise there would never be an end to
criminal litigation. “The Court has looked with disfavor upon retraction of testimonies previously given in court.
Thus, the Court has ruled against the grant of a new trial on the basis of a retraction by a witness. The rationale
for the rule is obvious: Affidavits of retraction can easily be secured from poor and ignorant witnesses usually
for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the probability that
it may later be repudiated. So courts are wary or reluctant to allow a new trial based on retracted testimony.”
(People vs. Clamor, July 1, 1991; People vs. Soria, October 4, 1996)
Q: Is there an EXCEPTION?
A: YES, when it is made to appear that there is no evidence sustaining the judgment of conviction other
than the testimony of the recanting witness. (U.S. vs. Dacir, 26 Phil. 503) When aside from the testimonies of
the retracting witness or witnesses there is no other evidence to support a judgment of conviction, a new trial
may be granted. (People vs. Clamor, July 1, 1991)
GOMEZ vs. IAC

April 9, 1985
HELD: “It is conceded that the State has the sovereign right to prosecute criminal offenses
under the full control of the fiscal and that the dismissal of criminal cases by the execution of an
affidavit of desistance by the complainant is not looked upon with favor. However, it is also true that
an affidavit of desistance may create serious doubts as to the liability of the accused. At the very
least, it calls for a second hard look at the records of the case and the basis for the judgment of
conviction. Jurisprudence on the effect of desistance notwithstanding, the affidavit should not be
peremptorily dismissed as a useless scrap of paper.”
Sometimes I have seen affidavits of recantation made by the complainant, alam mo kung anong nakalagay?
– “I have lost interest in continuing the case.” Pero tapos na, naka-testify na siya. And on the basis of that, a
new trial was granted. Mali man iyan ba. Para mag-new trial, dapat na sabihin niya , “Mali ang mga sinabi ko!” If
you say that you are not interested, you are not really repudiating what you said. That is what the SC
emphasized in the 1998 case of
PEOPLE vs. GARCIA

288 SCRA 382 [1998]
HELD: “To warrant a new trial, the affidavit of desistance must constitute a recantation and not
a mere withdrawal from the prosecution of the case. The complainant's affidavit of desistance did
not constitute a recantation, because she did not deny the truth of her complaint but merely sought
to be allowed to withdraw and discontinue the case because she wished to start life anew and live
normally again. She never absolved or exculpated the accused. In other words, a recantation of a
prior statement or testimony must necessarily renounce the said statement or testimony and
withdraw it formally and publicly.”
584
Parang ganito ba: “Yung sabi ko noon na ni-rape niya ako, di man na tinood ba, pumayag man ako ba!” Yan,
baliktarin mo lahat ang sinabi mo. Hindi yung: “I am not interested, kapoy na, ayoko na.” Hindi pwede yan, that
is not recantation because you are not disowning what you said earlier.
Now we will go to one last point.
PROBLEM: Let us assume that Sheriff was convicted purely because of the testimony of the complainant,
Thaddeus. Now, Thaddeus makes an affidavit stating that everything he said is not true. Meaning he is really
recanting – binabawi niya lahat ng sinabi niya.
Q: Is this a ground for new trial?

A: Following jurisprudence, YES. It becomes now an exceptional case. There will be a new trial.
Q: What do you mean new trial?

A: We will now restart the case.
Q: Who will testify?

A: Eh di si Thaddeus! – yung complainant, who will be asked: “During the trial this is what you said, what
are you saying now?” As he answers, Thaddeus must say under oath that he lied before and this is the truth…
[amen!]
Q: After that, can the court say that the accused is now acquitted because now Thaddeus is telling the
truth when before Thaddeus was not telling the truth? Is this what will happen?
A: The SC said NO. The only thing that will happen is that a new trial will be granted. But this does not
mean that the accused shall be acquitted. When we say new trial, this means that the court should hear the
testimony of the complainant again. BUT after testifying, the court may say, “You say you were lying before and
you are telling the truth now, but the court does not believe you because as far as the court is concerned, you
were telling the truth before and you are lying now.” Therefore the conviction stands. That is possible.
Because some lawyers believe that if a new trial is granted, sigurado na acquitted na ang accused. NO, the
SC never guaranteed that. It will only be a ground for new trial without a guarantee whether the decision will be
reversed or not. But in practice, lutong Macau lahat iyan. Usapan nalang iyan between the lawyer and the fiscal
tapos kasali pa ang judge. That is what is happening, I know that.
But if you follow the rules, there is no guarantee that if new trial is granted, the accused will be acquitted.
There is no rule that says that when a witness testifies twice, the court will always believe the latest testimony.
And the SC has emphasized that in many cases, one of them is the case of
PEOPLE vs. CLAMOR

July 01, 1991
HELD: “Where a witness testifies for the prosecution and retracts his or her testimony and
subsequently testifies for the defense, the test in determining which testimony to believe is one of
comparison coupled with the application of the general rules in evidence.” So you apply what you
know about evidence, about credibility, appreciation of evidence.
“The rule should be that a testimony solemnly given in court should not be lightly set aside and
that before this can be done, both the previous testimony and the subsequent one be carefully
compared, the circumstances under which each given carefully scrutinized, the reasons or motives
for the change carefully scrutinized — in other words, all the expedients devised by man to
determine the credibility of witnesses should be utilized to determine which of the contradictory
testimonies represents the truth.”
Of course, if the court believes that the second testimony is accurate and the witness lied during the first,
then acquit! But if the court believes that the witness was telling the truth in the first testimony, the conviction
stands.
So take note of that because these are misunderstood concepts eh.
RECONSIDERATION
Now, ano naman ang Reconsideration? The same as in civil cases.
SEC. 3. Ground for reconsideration.– The court shall grant reconsideration on the
ground of errors of law or fact in the judgment, which requires no further
proceedings. (3a)
SEC. 4. Form of motion and notice to the prosecutor. – The motion for new trial or
reconsideration shall be in writing and shall state the grounds on which it is based. If
based on a newly-discovered evidence, the motion must be supported by affidavits of
witnesses by whom such evidence is expected to be given or by duly authenticated
copies of documents which are proposed to be introduced in evidence. Notice of the
motion for new trial or reconsideration shall be given to the prosecutor. (4a)
SEC. 5. Hearing on motion. – Where a motion for new trial calls for resolution of
any question of fact, the court may hear evidence thereon by affidavits or otherwise.
(5a)
Q: Is there an instance when a MOTION for reconsideration or new trial is PROHIBITED?

585
A: YES – when the case is tried in the MTC under the Summary Rules. Bawal man iyan ba! That’s a
prohibited motion. Now you just take note of that. Under Section 19[c] of the Revised Summary Rules, a motion
for reconsideration or new trial of a final judgment is prohibited.
Q: Of course, what are the effects of granting the motion for new trial or reconsideration.
A: You have Section 6:
SEC. 6. Effects of granting a new trial or reconsideration. – The effects of granting a

new trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or irregularities
committed during the trial, all the proceedings and evidence affected thereby shall
be set aside and taken anew. The court may, in the interest of justice, allow the
introduction of additional evidence.
(b) When a new trial is granted on the ground of newly-discovered evidence, the
evidence already adduced shall stand and the newly-discovered and such other
evidence as the court may, in the interest of justice, allow to be introduced shall be
taken and considered together with the evidence already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the original
judgment shall be set aside or vacated and a new judgment rendered accordingly.
(6a)
Q: Will there be really a trial de novo or will there just be a reopening of the trial to introduce the newly
discovered evidence?
A: Under paragraph [c] which we already discussed: “In all cases, when the court grants new trial or
reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly.”
Q: Suppose after new trial, the court still finds the accused guilty?
A: There will be another judgment but definitely the original judgment is already set aside. When the court
grants the motion, wala na iyon! Regardless of whether the new judgment will be the same or not.
So with that, we are now through with Rule 121.
A friend and I were shopping for dresses for her three-year-

old girls to wear to a wedding. In the shop, another girl staring
intently at Sarah and Becky asked, “Are those girls twins?”
“Actually they’re triplets,” I explained. “They have a brother
at home.”
“Wow,” she replied. “They sure look like twins to me.”
Rule 122
APPEAL
SECTION 1. Who may appeal. – Any party may appeal from a judgment or final
order, unless the accused will be placed in double jeopardy. (2a)
Q: What is appeal?
A: Appeal means a review of a decision of a lower court by a higher court. The higher court will determine
whether the decision of the lower court is correct, just, etc.
Q: May an accused appeal from a judgement of acquittal?

A: Normally, NO, because a judgement of acquittal becomes final immediately upon promulgation, so why
will you appeal? And why are you appealing if you are acquitted? You mean to tell me, you are praying to be
convicted? [sira!] However in the old case of
PEOPLE vs. MENDOZA

74 Phil. 119
FACTS: The accused was acquitted but the decision contained some harsh remarks against the
accused which the accused feels are irrelevant. So he decided to appeal from the judgement of
acquittal, not for the purpose of reversing it, but for the purpose of removing all those harsh,
irrelevant remarks against him in the decision.
HELD: The accused may appeal from a judgement of acquittal if it contains statements that are
irrelevant and should be expunged from the record, for the purpose of striking out those
statements.
Q: Can the People of the Philippines or the prosecution appeal in a criminal case?
A: It depends. If you read Section 1, it would seem so, for as long as the accused will not be placed in
double jeopardy. BUT if the appeal of the prosecution will place the accused in double jeopardy, then he cannot
appeal.
Q: Suppose the accused filed a Motion to Quash the information on this or that ground and the court
quashed the information but the quashing is wrong. Can the prosecution appeal from the judgement of the
court quashing the information?
A: YES, because the elements of double jeopardy would not be present. First, the dismissal is with his
express consent. And normally, a dismissal on a technicality is not considered as an acquittal. It is just a
dismissal where there is no trial. So puwede.
586
However, according to the Supreme Court, if the Motion to Quash is based on the grounds of extinction of
criminal liability, or double jeopardy, then the prosecution cannot appeal because that would place the accused
under double jeopardy. (Bandoy vs. CFI, 13 Phil. 157)
Q: How about an appeal by the prosecution because the penalty is wrong? The accused is convicted but
the penalty is very low. The penalty should be higher. So the prosecution is appealing for the purpose of
correcting the penalty. It should be higher. Can the prosecution do that?
A: NO, because that will place the accused in double jeopardy. (People vs. Cabarles, 54 O.G. 7051; People
vs. Pomeroy, 97 Phil. 927; People vs. Flores, April 28, 1958) In other words, the error will remain as it is.
HOWEVER, based on jurisprudence, which you already knew, even if the accused is acquitted, but the
judgement of acquittal is NULL and VOID, then the prosecution is allowed to appeal because a void judgement
does not give rise to double jeopardy. (People vs. Balisacan, August 31, 1966)
Q: Now give an example of a case where the prosecution was allowed to appeal from a judgement of
acquittal, because the SC said the acquittal is null and void.
A: A good example is what happened in the old case of People vs. Balisacan. This was already asked in the
BAR.
PEOPLE vs. BALISACAN

August 31, 1966
FACTS: The accused was charged with a certain crime which is not a capital offense. Maybe
the penalty is only reclusion temporal or prision mayor. And then during the arraignment, the
accused pleaded guilty. And sabi ng accused: “Your Honor, may we be allowed to present evidence
to prove mitigating circumstance?” You are guilty but you may still present evidence to prove
mitigating circumstances for purposes of reducing the penalty. Do you know during the
presentation of the evidence for the accused to prove mitigating, he attempted to prove self-
defense? And the court, after trial, said: self defense? After the hearing, self defense pala. Okay,
the accused is hereby acquitted. Nagreklamo ang prosecution, “Why will you acquit him when he
already pled guilty?”
ISSUE: Can the prosecution appeal the judgment of acquittal in the case at bar?
HELD: YES, the prosecution can appeal because the judgement of acquittal is NULL and VOID.
In the first place, the hearing is not for the purpose of proving his innocence. The hearing is for the
purpose only of proving mitigating circumstance so why will you give him the benefit of justifying
circumstance? Now what should be the correct procedure? You just say mitigating and tapos you
are proving self defense? Pag ganyan, the court will say: “Okay, self defense ba? The plea of guilty
is hereby erased. Let’s go to trial.” Ayan. And then the prosecution will present evidence.
But here, he pled guilty, mitigating, he proved self defense, ako (prosecution) hindi. What
happens now to the prosecution’s right to prove the crime? Well at least the prosecution should be
given the right to prove the crime before acquitting him immediately. So the SC said, the
judgement of acquittal is null and void. Therefore, the prosecution can appeal under Section 1 of
Rule 122. It will not place the accused in double jeopardy because of the void judgement.
Q: Aside from the accused, People of the Philippines unless there is double jeopardy, who can appeal?
A: The offended party may appeal from any judgement, order or ruling which is adverse to his civil rights or
to the civil liability, or on pure questions of law (e.g. whether or not the information charges no offense).
Provided, he has not waived or reserved the right to file a separate civil action and the civil action is deemed
instituted, because the civil aspect is different from the criminal aspect. So the offended party can appeal from
that portion of judgement adverse to his civil liability.
Q: Who else can appeal?

A: The bondsmen can appeal in case of judgement against the bond in a forfeiture case. In bail, what
happens when the accused failed to appear? The court may order the confiscation or forfeiture of the bond.
And if the bondsman cannot satisfactorily explain why he failed to present the accused, then judgement may be
rendered, holding the bondsman/bonding company liable. Can he appeal? Ah yes. He can appeal from the
judgement making him liable for his bond.
Q: Who else can appeal?

A: The employer of the accused can also appeal from any order of the court making him subsidiarily liable
for the civil liability of the accused under Article 103 of the Revised Penal Code.
So these are the people who can appeal in criminal cases. Alright.
SEC. 2. Where to appeal. – The appeal may be taken as follows:

(a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court;
(b) To the Court of Appeals or to the Supreme Court in the proper cases provided
by law, in cases decided by the Regional Trial Court; and
(c) To the Supreme Court, in cases decided by the Court of Appeals. (1a)
SEC. 3. How appeal taken.– (a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
original jurisdiction, shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and by serving a copy thereof
upon the adverse party.
587
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction shall be by petition for review under
Rule 42.
(c) The appeal to the Supreme Court in cases where the penalty imposed by the
Regional Trial Court is death, reclusion perpetua, or life imprisonment, or where a
lesser penalty is imposed but for offenses committed on the same occasion or which
arose out of the same occurrence that gave rise to the more serious offense for
which the penalty of death, reclusion perpetua, or life imprisonment is imposed,
shall be by filing a notice of appeal in accordance with paragraph (a) of this section.
(d) No notice of appeal is necessary in cases where the death penalty is imposed
by the Regional Trial Court. The same shall be automatically reviewed by the
Supreme Court as provided in section 10 of this Rule.
Except as provided in the last paragraph of section 13, Rule 124, all other
appeals to the Supreme Court shall be by petition for review on certiorari under Rule
45. (3a)
Now the next question is where to appeal and how to appeal. We have Section 2. You have Section 3.
Alright, let us try to outline. Actually it’s the same in civil cases.
Q: From the MTC , where will you appeal? What is the mode of appeal?
A: RTC, the mode of appeal is Ordinary appeal by a notice of appeal (Rule 40).
Q: How about MTC to RTC and then you are still convicted? Where will you appeal?
A: Court of Appeals by Petition for review (Rule 42).
Q: Now how about a case tried by the RTC (pursuant to its original jurisdiction)? The accused is convicted,
he wants to appeal to the CA? What is the correct mode of appeal?
A: Ordinary appeal by notice of appeal to the Court of Appeals (Rule 41)
NOTE: If it is RTC to CA, pursuant to the appellate jurisdiction of the RTC, the mode of appeal is petition for
review (Rule 42). If the case was tried by the RTC pursuant to its original jurisdiction, it is ordinary appeal by
notice of appeal to the CA (Rule 41).
Q: However, suppose the penalty imposed by the RTC is death, what is the mode of appeal and where?
A: To the Supreme Court, no need to appeal, automatic review. Well, if you want to appeal, okay lang. But
even if you do not appeal, there is automatic review.
Q: Suppose the RTC convicted the accused and sentenced him to reclusion perpetua or life imprisonment
(not Death), where will you appeal?
A: You appeal directly to the Supreme Court (Ordinary Appeal, Rule 41) because under the Constitution,
Supreme Court yan e.
Q: In such case, is there an automatic review?

A: NO! You must appeal.
That is the common error ‘no? Many lawyers believe there is automatic review. No! Automatic review is
only for death penalty. You are confused, sabi ko sa kanila noon. “Hindi ba, Death sa SC yan, reclusion
perpeuta sa SC din?” Under the Constitution, yes. “O, di automatic review!” No! The automatic review is for
the death penalty only. Kapag perpetua, you must file your notice of appeal. Otherwise, madisgrasya ka niyan.
The only similarity is the appeal is to the Supreme Court. But there is no automatic review for reclusion
perpetua. You must file a notice of appeal, that is what I said. Because na-confuse, eh. Kay alam nila sa
Constitution, Supreme Court, akala nila na automatic na rin.
GARCIA vs. PEOPLE

318 SCRA 434 [1999]
FACTS: The accused were sentenced to reclusion perpetua. Their lawyer believed that there is
automatic review of the case so he did not do anything. The prosecution now moves to enforce the
judgment. The accused contended that there can be execution yet because of the automatic review.
ISSUE: Must the SC automatically review a trial court’s decision convicting an accused of a
capital offense and sentencing him to reclusion perpetua? In other words, is the accused not
required to interpose an appeal from a trial court’s decision sentencing him to reclusion perpetua to
SC because the latter’s review of the sentence is automatic?
HELD: The issue is not new. We have consistently ruled that it is only in cases where the penlty
actually imposed is death that the trial court must forward the records of the case to the SC for
automatic review of the conviction.
As the petitioners did not file a notice of appeal or otherwise indicate their desire to appeal
from the decision convicting them of murder and sentencing each of them to reclusion perpetua,
the decision became final and unappealable.
Q: Now, how about CA to SC?

A: That is appeal by certiorari. That is paragraph [e] – Except as provided in the last paragraph, Section 13,
Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45 . “All
other appeals,” Ano yang “all other appeals?” All other appeals, not mentioned in a, b, c, d. Ano yon? That is
CA to SC. Or, RTC direct to the Supreme Court on questions of law only, because normally pag RTC, dapat CA
yan eh. But pure questions of law, diretso na iyan. Or, from Sandiganbayan to the Supreme Court. In case the
Sandiganbayan convicts an accused, the appeal is direct to the Supreme Court by petition for review.
588
Now let’s go to some interesting cases on appeal. Take note, when an accused is sentenced by the RTC to
death, he can appeal to the SC. But even if he will not appeal, there will be an automatic review. Now if he is
sentenced to perpetua, he must appeal to the SC. Otherwise, the judgement will become final. However, there
was an interesting EXCEPTION which happened in the case of
PEOPLE vs. PANGANIBAN

125 SCRA 595
FACTS: The accused was charged in three (3) informations for murder and the three cases were
tried together. And there were three (3) decisions. He was convicted in all the three murders. In
the three cases for murder, he was sentenced to reclusion perpetua in one and death for the other
two. He did not appeal. Now of course, the cases where he was sentenced to death, akyat yan sa
SC.
ISSUE: How about the other case where he was he was sentenced to reclusion perpetua?
Should the SC also review the other one?
HELD: YES. Normally, hindi dapat eh, because he did not appeal. However, since these 3 cases
were tried together, he committed murder allegedly on the same occasion, We might as well review
also the other one. So that is one instance where nakalusot ‘no?
“Where a criminal case for murder where accused was sentenced to perpetua, arose out of the
same occasion as two other criminal cases for murder where the same accused was sentenced to
death in a joint decision. The former shall be deemed appealed automatically jointly with the latter
two cases, even if the accused did not appeal from the court sentence of reclusion perpetua in the
first case. It would be absurd to require accused, under the peculiar circumstances, to file a
separate appeal because the three criminal cases of which he was convicted by the trial court in a
single decision are so intertwined with each other, the three cases having arisen on the same
occasion.
Although there was a justice who dissented, “Hindi pwede yan.” He did not agree with the majority ruling.
“We stick to the rule: kapag perpetua, you appeal. If you will not, hindi pwede.” So dissenting justice Aquino
says, “We cannot set aside that portion of the judgment imposing reclusion perpetua because it is not under
review. It has long become final and executory because there was no appeal from that portion of the judgment.
It should have been appealed in order to be reviewed by this Court.”
That is the general rule. You cannot expect an automatic review in a penalty of reclusion perpetua. Now
another interesting case on death penalty was the case of PEOPLE VS. ENCISO, infra, which was also
controversial decision. The Supreme Court was not unanimous, no. Alright, what happened here?
PEOPLE vs. ENCISO

160 SCRA 728
FACTS: Two accused were charged with the crime of robbery with homicide which is punishable
by death. They pleaded guilty. Considering the gravity of the crime, the trial court ordered a
mandatory presentation of evidence by the prosecutor.
After hearing, the court found them guilty beyond reasonable doubt and imposed the death
penalty. They did not appeal but the case was elevated to the Supreme Court on automatic review.
However, on appeal, the SC found the evidence insufficient.
HELD: “Despite accused’s pleas of guilty, We believe the pleas must not be taken against them,
for as clearly borne out by the evidence presented, said guilt has not actually been proved beyond
reasonable doubt. The fact that they did not appeal is of no consequence, for after all, this case is
before Us on automatic review (that is whether appeal was made or not), for after all, this case is
before Us on automatic review, accused are acquitted on reasonable doubt.”
Again, there were four (4) justices who refused to concur. Ang kanila, of course there is presentation of
evidence, they argued, guilty. Tapos ni-review natin but diskumpiyado tayo, then just impose perpetua, huwag
mong i-acquit! Because they pled guilty na. But the majority, “We will acquit.” [palag?] Another interesting
case on appeal is the 1996 case of
MANUEL vs. ALFECHE, JR.

259 SCRA 475
FACTS: The petitioner here, Delia Manuel, filed a criminal case for libel against the editor-in-
chief, associate editor and asst. editor of a regional newspaper in the Western Visayas, known as
Panay News, which has considerable circulation in Panay Island and throughout Western Visayas.
After trial, Judge Alfeche found the accused guilty, so all the accused were convicted, but Manuel’s
claim for damages was dismissed.
Of course, both parties were aggrieved! The accused were aggrieved because they were
convicted. The offended party, Manuel, was also aggrieved because her claim for civil liability was
dismissed. So, the accused appealed the conviction to the CA because that is where the appeal
should go. Si Manuel naman raised the correctness of the judgement depriving her of civil liability,
on pure question of law, to the SC by way of appeal by certiorari.
ISSUE: Is that procedure correct? Because nahati eh – the offended party going to the SC and
the other party to the CA. Magkagulo na yan eh because that would practically be splitting the
appeal in two parts, ‘no?
HELD: While normally on questions of law, from the RTC to the SC should be by petition for
review. Now, because of this situation, everybody should go to CA. That is the ruling in this case.
589
“In view of the factual environment of this case, particularly that private respondents herein
had already taken an appeal to the Court of Appeals to question the trial court's judgment of
conviction, the proper remedy for petitioner is simply ordinary appeal to the said tribunal.
This is so because the award of moral and exemplary damages by the trial court is inextricably
linked to and necessarily dependent upon the factual finding of basis therefor, namely, the
existence of the crime of libel. Inasmuch as the very same Decision herein assailed is already
pending review by the Court of Appeals, there is a distinct possibility that said court may, if the
facts and the law warrant, reverse the trial court and acquit the accused. In such event, the
appellate court's action could collide with a ruling finding merit in petitioner's contentions before
this Court. Such a situation would lead to absurdity and confusion in the ultimate disposition of the
case. Obviously, this possibility must be avoided at all cost. This is at least the reason for the rule
against forum-shopping. Clearly, then, petitioner ought to have brought her challenge in the Court
of Appeals” although she is appealing on pure questions of law. Nandoon na yong accused, eh.
Sumama ka na lang doon. Let one court decide the whole thing.
APPEAL FROM THE SANDIGANBAYAN
Q: If you are tried in the Sandiganbayan for, let’s say, graft, you are a grade 27 employee of the
government or higher. If you are convicted, where will you appeal?
A: You appeal to the Supreme Court by way of appeal by certiorari under Rule 45.
Now, the constitutionality or validity of that procedure was attacked in the case of :
NUÑEZ vs. SANDIGANBAYAN

111 SCRA 433
FACTS: The challenge in this case is that the Sandiganbayan law, at least on that portion
on appeal, is unconstitutional because what is violated is equal protection of the law.
Because for example: An employee who is below Grade 27 is tried for Anti-Graft, where
will case be filed? It should be filed in RTC. In case he is convicted, where will he appeal?
He will appeal in the Sandiganbayan. And then from Sandiganbayan to SC.
Or, in case he is a civilian, or the case is not Anti-Graft, that would be from the RTC to CA, and
CA to SC. If you notice in both examples, there are two levels of appeals, eh. Now, if you are tried
in the Sandiganbayan and you are Grade 27 or higher and you are convicted, you appeal will be to
the SC – so, isang level lang. Bakit siya dalawa, ako isa lang? So, the law is unconstitutional. It
violates the equal protection of the law. It is discriminatory – that was the challenge.
HELD: The majority still sustained the validity. But there were three senior members of the
Supreme Court at that time who dissented. They believe that the law is unconstitutional - bakit all
the rest dalawa ang appeal, ako isa lang? Among those who dissented were Justice Teehankee,
Makasiar and Fernandez. These were very influential in the Supreme Court and they were the ones
who voted to declare the law unconstitutional. But the majority said it is valid.
Starting with that, the SC adopted the policy that if you are convicted by the Sandiganbayan and you go to
the Supreme Court on appeal by certiorari, we will carefully review the petition for review because precisely,
you are placed at a disadvantage. You have only one level, one appeal lang eh. And therefore, it is our
obligation to really review everything to see to it that you were correctly convicted. I think that is what
happened to Imelda Marcos, no? So the court said in the case of
CESAR vs. SANDIGANBAYAN

134 SCRA 105
HELD: “Considering further that no less than three senior members of this Court, Justices
Teehankee, Makasiar, and Fernandez dissented from the Court's opinion in Nuñez vs.
Sandiganbayan partly because of the absence of an intermediate appeal from Sandiganbayan
decisions, where questions of fact could be fully threshed out, this Court has been most consistent
in carefully examining all petitions seeking the review of the special court's decisions to ascertain
that the fundamental right to be presumed innocent is not disregarded. This task has added a
heavy burden to the workload of this Court but it is a task we steadfastly discharge.”
In other words, it has become cumbersome, no? Because we have to be very careful. We have to be very
meticulous. Kaya it has become an added burden. We have no choice because the accused is deprived of a
second chance. This is his last chance, so we have to be very sure that he is really guilty.
SEC. 4. Service of notice of appeal. – If personal service of the copy of the notice of
appeal can not be made upon the adverse party or his counsel, service may be done
by registered mail or by substituted service pursuant to sections 7 and 8 of Rule 13.
(4a)
SEC. 5. Waiver of notice. – The appellee may waive his right to a notice that an
appeal has been taken. The appellate court may, in its discretion, entertain an
appeal notwithstanding failure to give such notice if the interests of justice so
require. (5a)
Q: Who is the appellant?

A: If you are convicted in the lower court and you appealed, you are the appellant.
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Q: Who is the appellee?
A: People of the Philippines.
SEC. 6. When appeal to be taken. – An appeal must be taken within fifteen (15) days
from promulgation of the judgment or from notice of the final order appealed from.
This period for perfecting an appeal shall be suspended from the time a motion for
new trial or reconsideration is filed until notice of the order overruling the motion
has been served upon the accused or his counsel at which time the balance of the
period begins to run. (6a)
Q: When do you appeal?

A: Under Section 6, fifteen (15) days from promulgation of the judgement or from notice of the order
appealed from.
Q: What happens if you filed a motion for new trial or reconsideration within the 15-day period?
A: The same as in civil cases – the filing of the motion for reconsideration will suspend the running of the
15-day period to appeal until notice of the order overruling the motion has been served upon the accused or his
counsel, at which time, the balance of the period begins to run. That phrase was added in the new rules – “At
which time, the balance of the period begins to run.” That is only emphasizing what the rule should be.
So, the 15-day period does not start to run all over again. But you can still apply the balance if the motion
for reconsideration is denied. Now, itong tanong ko:
Q: Suppose the motion for new trial is granted. After new trial, convicted ka pa rin. So there will be a
second judgement. What is your period to appeal? Is it 15 days all over again? Or we count the 15-day period
from the first judgement, deducting the period during which the motion for new trial was pending?
A: The SC said, the counting of the 15-day period starts all over again from the time you received the
second decision. (Obugan vs. People, May 22, 1995)
Q: Now how do you reconcile that principle with Section 6?

A: Section 6 is different because here, the motion for new trial is denied but in the above example, the
motion for new trial was granted. But after new trial, convicted ka pa rin. So you start counting the period to
appeal all over again from the time you received the second judgement. And the SC cited Section 6[c] of Rule
121.
Rule 121, SEC. 6. Effects of granting a new trial or reconsideration. – The effects of
granting a new trial or reconsideration are the following:
xxxxx
(c) In all cases, when the court grants new trial or reconsideration, the original
judgment shall be set aside or vacated and a new judgment rendered accordingly.
(6a)
Q: What is the effect of a motion for new trial if it is granted?

A: Under Rule 121, the judgement is vacated. Meaning, it doesn’t exist anymore. After new trial, convicted –
all over, start na naman tayo. That was the ruling in the case of:
OBUGAN vs. PEOPLE

May 22, 1995
HELD: If a motion for new trial is granted, and after new trial, the accused is still convicted, he
has 15 days all over again to file an appeal because under Rule 121, the previous judgement of
conviction was already vacated. It does not exist anymore.
“Thus the rule provides for the interruption of the appeal period in the event the motion for new
trial or reconsideration is overruled. The implication is that if the motion for new trial is granted, as
in the case at bar, and a new judgment is rendered after the new trial was conducted, the period
within which to perfect an appeal is fifteen days from receipt of the new judgment.”
Alright, let’s go to another issue. You have two choices if you are convicted – 1) File a motion for
reconsideration. 2) If denied, you appeal. Now, I will file a motion for reconsideration. And then while it is still
pending, there is still no order, I changed my mind, “Appeal na lang ako diretso. I will not anymore insist. Wala
nang mangyayari diyan.”
Q: Can I say, “I’m withdrawing my motion for reconsideration and I am instead substituting it with a notice
of appeal?”
A: YES, because that is your choice. You can abandon your motion for reconsideration, withdraw it and then
file a notice of appeal. No problem about that.
Q: But I will now reverse the situation: Within 15 days after promulgation, I will file an appeal. And then
after 1 or 2 or 3 days, “Teka muna. I will file muna pala a motion for reconsideration. Huwag muna yang appeal,
baka sakali pala.” So I say, “I’m withdrawing my notice of appeal, and instead file a motion for
reconsideration.” Can I still do that?
A: In the case of PEOPLE VS. DE LA CRUZ (201 SCRA 632), The SC said, NO, you cannot because the
moment you file your notice of appeal, the appeal is already perfected and the court has lost jurisdiction
already over the case and can no longer change its own decision.
So baliktad ‘no? – motion for reconsideration-withdraw-appeal, pwede. Appeal, and then withdraw – motion
for reconsideration, hindi pwede! because the court has no more jurisdiction over the case.
Now let’s go to Section 11, one of the most important provisions. Let us go to Section 11, no. Effect of
appeal by several accused.
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SEC. 11. Effect of appeal by any of several accused. – (a) An appeal taken by one or
more of several accused shall not affect those who did not appeal, except insofar as
the judgment of the appellate court is favorable and applicable to the latter.
(b) The appeal of the offended party from the civil aspect shall not affect the
criminal aspect of the judgment or order appealed from.
(c) Upon perfection of the appeal, the execution of the judgment or final order
appealed from shall be stayed as to the appealing party. (11a)
paragraph [a]: An appeal taken by one or more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.
Q: There are 2 accused. Both of them are convicted. One will appeal, the other will not appeal. Suppose,
the one who appealed, nanalo. Will it favor then other accused who did not appeal?
A: The GENERAL RULE is NO because if you do not appeal, the judgement of conviction will become final as
far as you are concerned.
However, there is an EXCEPTION – if the ruling in the appeal also applies to you, you will be favored.
For example: Two accused were convicted. One appealed, the other one did not appeal. On the appeal sabi
ng court, “No. The victim was not killed. He committed suicide.” Naloko na! Acquitted yun! “Paano na ako?
Nakulong ako!” It will also benefit you because the judgement of the appellate court is also favorable and
applicable to you. BUT if the ruling is only applicable to the appealing accused, pasensya ka.
Like for example, both of you are convicted. You will not appeal, he will appeal. He will appeal tapos sabi
niya, “Minor man ako! Minor!” Tapos sabi ng appellate court , “Ah, minor! He did not act with discernment. Ok!
Acquitted!” So, paano ka? Maiwan ka, hindi ka man minor! The defense of minority is not applicable to you.
Now, this provision has been applied already several times. Among the first cases where this was applied
was the case of:
PEOPLE vs. FERNANDEZ

186 SCRA 830
FACTS: There were two accused charged for selling marijuana, under the Dangerous Drugs Act.
Both of them were convicted. Accused No. 1 appealed, but Accused No. 2 jumped bail and
remained at large. On appeal, the Supreme Court acquitted Accused No. 1 because of material
discrepancies in the testimony of the star prosecution witness.
ISSUE: What happens now to the conviction of Accused No. 2, who escaped and did not appeal
his conviction?
HELD: It applies to the Accused No. 2. “While, in effect, he committed an act of defiance of the
law by escaping, we are not without other prior incidents where such undesirable conduct, which
should not be condoned, has sometimes been ascribed to a sense of desperation of those who
believe they are guiltless but fear that they cannot prove their innocence. While we castigate and
reprove his jumping bail and remaining at large up to now, we have to concede, however, that our
disquisition in this case is applicable and favorable to him, hence he is affected by and shall benefit
from the acquittal that we hand down in this appeal.”
So acquitted kahit na nag-jump bail, because of this provision…So with that, he can come out openly. And
the ruling happened again. The same thing happened in the 1996 case of PEOPLE VS. PEREZ (263 SCRA 206).
And one of the latest where this happened again is the 1998 case of
PEOPLE vs. RUGAY

291 SCRA 692
HELD: “Finally, the Court notes that the conviction of appellant's co-accused, Arvil Villalon, rests
on the same evidence used to convict appellant. The Court finds that such evidence does not prove
beyond reasonable doubt either of the accused's guilt. The acquittal of Ricolito Rugay should also
benefit Arvil Villalon, the withdrawal of the latter's appeal notwithstanding.”
Now let’s go to [b]:
(b) The appeal of the offended party from the civil aspect shall not affect the
criminal aspect of the judgment or order appealed from.
This is what I told you earlier that the civil aspect is different from the criminal aspect. It is possible that the
accused is acquitted but the offended party may appeal insofar as the civil aspect of the case is concerned. It
shall not affect the criminal aspect of the judgement or order appealed from.
Q: Normally, who will handle the appeal in criminal cases?

A: Solicitor-General. The Solicitor-General handles the appeal.
BUT the SC said that if the appeal is only about the offended party, walang pakialam ang gobyerno diyan!
Let the offended party handle his own appeal and let him get his own lawyer to handle the appeal. So the Court
said in the case of
BERNARDO vs. COURT OF APPEALS

190 SCRA 63
592
HELD: “The Court has clearly settled the matter by ruling that despite a judgment of acquittal,
the offended party, private respondent in the case at bar, may appeal, only insofar as the civil
aspect of the case is concerned.”
“Such an appeal dispenses with the authority and representation of both the fiscal and the
Solicitor General, considering that the subject matter of the action involves solely the interests of
the offended party and hence, no longer concerns the State.”
Let’s go to paragraph [c]:
(c) Upon perfection of the appeal, the execution of the judgment or final order
appealed from shall be stayed as to the appealing party. (11a)
Q: What are the effects of a perfected appeal?

A: The following are the effects: parang sa civil procedure din
1. The execution of the sentence is stayed;

2. The trial court loses jurisdiction over the case because it is now transferred to the higher court, the
Court of Appeals.
3. Once you appeal, the entire case is open for review and you are waiving your right to double
jeopardy.
That’s what I told you. After appeal, baka mapasama ka pa. Ah, it happened several times. I already
mentioned what happened before, Falsification? The lawyer was sentenced to Falsification as an accomplice.
Appeal-appeal pa, so naloko na. Because it was originally charged to the principal. Na-disbar pa! And there
was a case where the accused was charged with murder, after trial, he was convicted of homicide, hindi pa
nakuntento. Nag-appeal pa. Ah! nabalik sa murder! Because there is no more double jeopardy. You are now
waiving everything and the whole case is now open for review.
Q: Now finally, can you withdraw an appeal?

A: YES. The procedure for withdrawing an appeal is found in Section 12:
SEC. 12. Withdrawal of appeal- Notwithstanding perfection of the appeal, the

Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court, as the case may be, may allow
the appellant to withdraw his appeal before the record has been forwarded by the
clerk of court to the proper appellate court as provided in section 8, in which case
the judgment shall become final. The Regional Trial Court may also, in its discretion,
allw the appellant from the judgment of a Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court to withdraw his
appeal, provided a motion to that effect is filed before rendition of the judgment in
the case on appeal, in which case the judgment of the court of origin shall become
final and the case shall be remanded to the latter court for execution of the
judgment. (12a)
Now there is one interesting case about withdrawing an appeal. Definitely, withdrawal of appeal is your
prerogative, eh. If you are convicted and you appeal and then later on you withdraw, that is your prerogative.
You are now accepting the judgement of conviction. Now let’s see what happened in the 1996 case of
TEODORO vs. COURT OF APPEALS

258 SCRA 643
FACTS: Amado Teodoro was charged with the crime of grave slander by deed before the MTC of
Mandaluyong. He was convicted of the lesser offense of simple slander by deed and sentenced to
pay a fine of P110. So mababa. Hindi pa siya kuntento, Teodoro appealed to the RTC. Of course,
what is the procedure pag nasa RTC na? – both parties will prepare a memorandum.
After Teodoro’s lawyer had received a copy of the appeal memorandum of the prosecution
where the prosecution urged that Teodoro be held guilty of grave slander by deed, not just simple
slander as the MTC, pagbasa niya ng memorandum ng prosecution, “Naku, delikado pala ako dito!
Basig masamot ba! So, okay na lang yong simple slander. Bayad na lang ako ng fine of P110”.
So he filed a motion to withdraw his appeal. Kay nakita niya, delikado pala e! Baka mabalik sa
dati, sa original ba. So he is now accepting the decision. He is now withdrawing his appeal.
Apparently, he realized that his appeal was likely to result in the imposition of a higher penalty and
he wanted to avoid that possibility.
HELD: Under Section 12 of Rule 122, the withdrawal of appeal is not a matter of right, but a
matter which lies in the sound discretion of the court and the appellate court. After the parties in
this case had been required to file their memoranda and the memorandum of the prosecution had
been filed and a copy served on appellant, it was too late for Teodoro to move for the withdrawal of
the appeal. It was apparent that petitioner's motion was intended to frustrate a possible adverse
decision on his appeal. That is what exactly happened in this case. Withdrawal of the appeal at that
stage would allow an apparent error and possibly an injustice to go uncorrected. Justice is due as
much to the State — the People of the Philippines — as to the accused.
So even if he is accepting already the lower penalty, sabi ng Court, hindi na. Nag-file na yung kabila ng
memorandum, eh. So, tuloy na. I do not know what happened after that but definitely, he was not allowed
anymore to withdraw the appeal anymore. Yaan! That is the risk nga of appealing, sometimes.
SEC. 13. Appointment of counsel de oficio for accused on appeal - It shall be the duty of
the clerk of court of the trial court, upon filing of a notice of appeal to ascertain from
the appellant, if confined in prison, whether he desies the Regional Trial Court, Court
of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to
transmit with the record on a form to be prepared by the clerk of court of the
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appellate court, a certificate of compliance with this duty and of the response of the
appellate to his inquiry. (13a)
Now, itong Section 13, it just says about appointment of counsel de oficio for accused on appeal.
Let’s say you are convicted here. Appeal ka sa SC, bigyan ka man ng abogado ba by the SC if you have no
counsel. One of the practitioners in Manila will be appointed. I’ve seen appeal briefs filed by counsel de oficio
on appeal. And sometimes, the SC gets big lawyers as counsel the oficio. Yes, I have seen their briefs .
Although, I believe that these big lawyers in Manila who are appointed as counsel, mga death penalty cases.
They are the ones who prepare the brief, they are the ones who sign. But I think an associate in their law office
will help them especially when they are not handling criminal cases. But you can see, sometimes they are more
effective than a counsel de parte in the provinces. I’ve seen it, beautifully worded, ha. Ganda na pagkagawa ng
mga brief.
Now one interesting case about appointment of counsel de oficio, is what happened in the 1991 case of
PEOPLE vs. RIO

201 SCRA 702
FACTS: The accused was sentenced to reclusion perpetua. He was detained at the National
Penitentiary. He appealed. And then later, he wrote a letter to the SC, “I am withdrawing my
appeal. I am no longer continuing my appeal because I cannot afford it. Poverty prevents me from
pursuing the appeal.” The SC got intrigued, ‘no? The SC issued an order directing the clerk of Court
to go to the National Penitentiary and look for this accused to confirm if he did really send this letter
to the Supreme Court.
So hinanap siya. Nakita. You wrote this letter? “Yes.” You affirm what you say? “Yes. Hindi ko
kaya. Pobre ako, eh. I cannot afford the appeal.” So, siya talaga. He is withdrawing his appeal
because of poverty. And the SC came up with this decision:
HELD: “The right to a counsel de oficio does not cease upon the conviction of an accused by a
trial court. It continues, even during appeal, such that the duty of the court to assign a counsel de
oficio persists where an accused interposes an intent to appeal. Even in a case, such as the one at
bar, where the accused had signified his intent to withdraw his appeal, the court is required to
inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be
poverty, as in this case, the court must assign a counsel de oficio, for despite such withdrawal, the
duty to protect the rights of the accused subsists and perhaps, with greater reason. After all, “those
who have less in life must have more in law.” Justice should never be limited to those who have the
means. It is for everyone, whether rich or poor. Its scales should always be balanced and should
never equivocate or cogitate in order to favor one party over another.”
So, sabi ng SC, your desire to withdraw because of poverty, denied! We will continue. We will appoint a
lawyer for you. We will get the best. So, tuloy ang kaso. And then, after reviewing the evidence, sabi ng Court:
“You are guilty!” [ha!ha!ha!] Guilty pa rin! But definitely, you will not be allowed to withdraw. Yes, he was still
found guilty in the case of Rio. Akala niya siguro, paboran siya ng SC because he is poor. Ah, hinde. You are
still guilty.
Rule 123
PROCEDURE IN THE
MUNICIPAL TRIAL COURTS
SECTION 1. Uniform Procedure. – The procedure to be observed in the Metropolitan

Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall be the
same as in the Regional Trial Courts, except where a particular provision applies only
to either of said courts and in criminal cases governed by the Revised Rule on
Summary Procedure. (1a)
Rule 123 simply says that the procedure to be observed in the MTC, MTCC and MCTC shall be the same as in
the RTC. So, all the rules that we took up applies to both courts EXCEPT:
1.) where a particular provision applies only to either of said courts; and
2.) in criminal cases governed by the Revised Rules on Summary Procedure.
In the first exception, there are certain provisions that are applicable only to the RTC. Example is the
provision on bail – how to apply for bail. If you are denied bail, and you are charged with a capital offense, there
will be a hearing to determine whether the evidence of guilt is strong or not. Hindi man yan mag-apply sa MTC
ba because the crime carries the penalty of death which is exclusive only for the RTC.
The second exception is, you do not apply the regular rules if the case is governed by the Revised Rules on
Summary Procedure. And that is what we are going to review now.
Q: What criminal cases should be tried based on the Revised Rules on Summary Rules?
A: The following:
1.) Violations of traffic laws, rules and regulations;
2.) Violations of the rental law;
3.) Violations of municipal or city ordinances; and
4.) All other criminal cases where the penalty prescribed by law for the offense charged does not
exceed six (6) months imprisonment or a fine of one thousand pesos (P1,000.00) or both,
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irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising
therefrom;
5.) however, that in offenses involving damage to property through criminal negligence, said Rule shall
govern where the imposable fine does not exceed ten thousand pesos (P10,000.00). So, if it is
above P10,000 it is still MTC but you follow the regular rules.
Q: What happens if there are 2 cases which are interrelated or the charges are interrelated for they arose
from the same incident? Like for example: One case is penalized by fine and another is penalized by 4 years
imprisonment. Once crime is covered by Summary Rules, the other is covered by the regular rule. Can they be
mixed?
A: Where there is a joint trial of two criminal cases, one under the summary rules and the other one is
under the regular rules, we follow the regular rules. Under the last paragraph of Section of the Summary Rules,
“These rules shall not apply to a criminal case where the offense charged is necessarily related to another
criminal case subject to another procedure.”
One of the important principles to remember here is the case of Zaldivia and Reodica on when is the
running of period of prescription for a crime deemed interrupted. The ruling in ZALDIVIA vs. REYES (211 SCRA
277) created the impression that as a general rule, the filing of the case in the prosecutor’s office is sufficient to
interrupt the running of the prescriptive period except when the case is covered by the Rules on Summary
Procedure. If it is any crime, you file it in the fiscal’s office, the running of the prescriptive period is interrupted.
But if it is covered by the Summary Rules, the period continues. It must be the filing of the case in court which
will interrupt. That is the ruling in Zaldivia.
That impression in Zaldivia was clarified in the 1998 case of REODICA vs. CA (292 SCRA 87) where the SC
said that even if the case is covered by the Summary Rules for as long as it is a felony under the RPC, the filing
in the fiscal’s office is sufficient to interrupt the running of the prescriptive period.
But according to Zaldivia, if it is covered by the Summary rules, the filing in the fiscal’s office will not
interrupt. But according to the SC in the case of Reodica, NO! because Zaldivia involves a violation of municipal
or city ordinance. Therefore, if it is a violation of an ordinance, the filing in the fiscal’s office does not interrupt
the running of the prescriptive period because the law on prescription for crimes punishable by a special law is
governed not by the RPC, but by Act 3326 which is very clear that it is the filing in court which will interrupt the
prescriptive period for crimes punishable by special laws. Pero kapag felony, we will still apply the general rule
that the filing in the fiscal’s office is sufficient to interrupt even if such felony is covered by the Summary Rules.
Now, let’s go to the provisions of the Summary Rules concerning criminal cases.
SEC. 11. How commenced. – The filing of criminal cases falling within the scope of
this Rule shall be either by complaint or information. Provided, however, that in
Metropolitan Manila and in chartered cities, such cases shall be commenced only by
information, except when the offense cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the affidavits of the
complainant and of his witnesses in such number of copies as there are accused plus
two (2) copies for the court’s files. If this requirement is not complied with within
five (5) days from date of filing, the cases may be dismissed.
Q: How is a case covered by the Summary Rules commenced?

A: Affidavit is included, affidavit of complainant, his witnesses shall be included and then the court may
dismiss the case outright under Section 12 [a] and [b], otherwise if there is a case, the accused will be sent a
copy of the affidavit and then he is given 10 days to submit also his own affidavit.
Then there will be an arraignment under Section 13; Preliminary conference under Section 14. And Section
15 is important – during the trial, there is NO DIRECT EXAMINATION. The affidavit already serves as your direct
testimony. So puro cross-examination na lang. Diretso! So, it is shortened ‘no? Rather than asking the witness
one by one to tell the story in the affidavit, yang affidavit na mismo. That will serve as the direct testimony.
Iko-cross-examine na lang.
But there is an important rule here – a witness who has not submitted any affidavit cannot testify. So in
order to qualify as a witness, you must have submitted an affidavit beforehand. The EXCEPTION is the 2nd
paragraph of Section 15 – except when the witness is a rebuttal witness or a surrebuttal witness. This is
because how can you submit a rebuttal affidavit ahead? You do not even know what to rebut. ANOTHER
EXCEPTION is cited by the SC in the case of
BALAYON, JR. vs. OCAMPO

218 SCRA 13
NOTE: Normally, in physical injuries cases, the medical doctor is required to testify.
FACTS: In this case, the doctor was subpoenaed to testify and the defense objected because
they said that the doctor has no affidavit and under the rules, no person may testify without
submitting an affidavit.
HELD: When the doctor is called upon to testify based on the medical certificate, the rule as to
the prior submission of affidavit does not apply. This also applies to the Register of Deeds or the
Provincial Assessors in connection with official documents issued by their office.
Now, if you have a surprise witness and you want to introduce him because his testimony is very important,
the remedy is to file a motion to present additional evidence. The last paragraph of Section 15 gives you the
authority to manifest during the preliminary conference that you are presenting other witnesses, and you are
now submitting their affidavits in order that you will not be barred from presenting them.
595
SEC. 16. Arrest of accused. The court shall not order the arrest of the accused except
for failure to appear whenever required. Release of the person arrested shall either be
on bail or on recognizance by responsible citizen acceptable to the court.
Section 16 is also important. As a rule, there is no warrant of arrest if you are tried under the Summary
Rules. You are just notified about the case. However, if you are notified about the case and you will not appear,
that is the time when you will be arrested because of “except for failure to appear whenever required” in which
case you must post bail if you are under arrest or on recognizance by a responsible citizen acceptable to the
court. This is one of the cases where recognizance is allowed. But for as long as you appear in court, there is no
warrant to be issued.
Q: Now, what are the PROHIBITED documents, motions, or pleadings under the Summary Rules?
A: The following (Under Section 19):
1.) Motion to quash except when your ground is

a.) lack of jurisdiction over the subject matter; or
b.) failure to comply with the Barangay Conciliation;
2.) Motion for bill of particulars;
3.) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; your remedy
here is appeal;
4.) Petition for relief from judgement;
5.) Motion for extension of time to file an affidavit;
6.) Memoranda;
7.) Petition for certiorari, mandamus, or prohibition against any interlocutory orders issued by the
court;
8.) Motion to declare the defendant in default;
9.) Dilatory motions postponements;
10.)Reply;
11.)Third-party complaints;
12.)Interventions;
So that will be all on Summary Procedure.
Rule 124
PROCEDURE IN THE
COURT OF APPEALS
SECTION 1. Title of the case. – In all criminal cases appealed to the Court of
Appeals, the party appealing the case shall be called the "appellant" and the adverse
party the "appellee," but the title of the case shall remain as it was in the court of
origin. (1a)
SEC. 2. Appointment of counsel de oficio for the accused. – If it appears from the record
of the case as transmitted that (a) the accused is confined in prison, (b) is without
counsel de parte on appeal, or (c) has signed the notice of appeal himself, ask the
clerk of court of the Court of Appeals shall designate a counsel de oficio.
An appellant who is not confined in prison may, upon request, be assigned a
counsel de oficio within ten (10) days from receipt of the notice to file brief and he
establishes his right thereto. (2a)
SEC. 3. When brief for appellant to be filed. – Within thirty (30) days from receipt by
the appellant or his counsel of the notice from the clerk of court of the Court of
Appeals that the evidence, oral and documentary, is already attached to the record,
the appellant shall file seven (7) copies of his brief with the clerk of court which shall
be accompanied by proof of service of two (2) copies thereof upon the appellee.(3a)
SEC. 4. When brief for appellee to be filed; reply brief of the appellant.– Within thirty
(30) days from receipt of the brief of the appellant, the appellee shall file seven (7)
copies of the brief of the appellee with the clerk of court which shall be accompanied
by proof of service of two (2) copies thereof upon the appellant.
Within twenty (20) days from receipt of the brief of the appellee, the appellant
may file a reply brief traversing matters raised in the former but not covered in the
brief of the appellant. (4a)
SEC. 5. Extension of time for filing briefs.– Extension of time for the filing of briefs will
not be allowed except for good and sufficient cause and only if the motion for
extension is filed before the expiration of the time sought to be extended. (5a)
SEC. 6. Form of briefs.– Briefs shall either be printed, encoded or typewritten in

double space on legal size good quality unglazed paper, 330 mm. in length by 216
mm. in width. (6a)
SEC. 7. Contents of brief. – The briefs in criminal cases shall have the same
contents as provided in sections 13 and 14 of Rule 44. A certified true copy of the
decision or final order appealed from shall be appended to the brief of the appellant.
(7a)
The appellant is the tem applied to the party making the appeal. Appellee is the term applied to the party in
whose favor the decision is rendered.
596
Procedure in the CA. Halos pareho man din. It is almost similar in civil cases. The accused will be required to
file his brief (appellant’s brief), to be followed by the appellee’s brief with the government, and if possible
appellant’s reply brief.
Q: Now, who prepares the appellee’s brief?

A: The Solicitor General. This is their mastery.
Normally, the Solicitor General files the brief, maiksi lang masyado. I’ve seen a lot of briefs for the People of
the Philippines. If I can see a brief which does not exceed 15 pages, you are very lucky. Everything is there.
Everything is condensed. Yet I wonder it takes them several extensions to file. I don’t think nahirapan silang
mag-file nun. Tamad lang siguro ba. Kaya galit man ang SC. There are so many SC resolutions berating the
Solicitor General for asking for a lot of extensions for a very simple matter. They always claim pressure of work.
That’s why the SC wants also to control the number of extensions of time.
I have seen a brief prepared by the Solicitor General in a criminal case. From 45 days, extension, extension,
extension… umabot na siguro ng 150 days – mga 5 months! Finally, na-file. When I look at it, 8 pages lang. I
was looking at the brief and then for eevry assignment of error by the appellant, sinagot niya ng mga dalawang
(2) paragraphs lang. And when I look at the appellant’s brief, ka-kapal masyado! There are so many things
discussed – why the court is wrong, why the court made an error. Sinagot ng Solicitor General, tag 2 or 3
paragraphs lang!
So the appellant’s brief, mga 30 pages or more. Sinagot ng Solicitor General in 8 pages only. And then after
several years I asked the defense counsel kung tapos na ba ang kaso mo. O ano man? “Affirmed.” Meaning, the
conviction was affirmed. That is where you will see that in order to win a case on appeal, IT IS NOT THE LENGTH
OF THE BRIEF WHICH MATTERS. IT IS THE SUBSTANCE. Substance is more important than length. The CA is not
impressed on haba. Mainis pa sila niyan because they have no time to read. This is a very good lesson: THE
LONGER IS YOUR PLEADING, THE LESS CHANCES YOU HAVE. That’s how I looked at it. Even the SC, that’s how
they behave.
And there was somebody two weeks ago, who was asked to prepare a COMMENT. The CA required that
lawyer to comment. “COMMENT… Pwede na ba ito?” Ano ba yang comment mo? Gaano kahaba? “Mga 15
pages.” Eh mahaba eh! Bawat comment niya may citations of authorities. Sige, paiiksiin natin ha? Tinanggal
ko… kadami kong tinanggal. Umabot ng 3 pages na lang. “Paano yung iba?” Look, when the CA says, “The
petition is hereby given due course. You are now required to file MEMORANDA…” that is now your time.
Bombahan mo na! Huwag kang mag-memorandum-memorandum sa comment. Pag comment, sabihin mo lang
na hindi ito puwede. “Puwede ko pala tapusin ito in one day?” Of course! Sabi ko, in the CA or SC, it is not the
length of your pleadings which matters but the substance. Yan! Alright, let’s go to Section 8.
SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. – The Court of

Appeals may, upon motion of the appellee or motu proprio and with notice to the
appellant in either case, dismiss the appeal if the appellant fails to file his brief
within the time prescribed by this Rule, except where the appellant is represented
by a counsel de oficio.
xxxxx
If the appellant will not file his appellant’s brief, the case is dismissed – same in civil cases – except where
the appellant is represented by counsel de oficio because the counsel de oficio is really a court-appointed
lawyer. So why will the accused suffer if the court-designated lawyer is negligent? But if it is a lawyer of your
own choice who failed to file the brief, then you suffer the consequence.
Although we are talking of criminal cases, if you based it on the guidelines, it would seem that when the CA
dismisses the appeal, it should give a warning to the accused. This is what the SC said in the case of
FAROLAN vs. COURT OF APPEALS
February 07, 1995
HELD: “Under Sec. 8 of Rule 124, the failure to file the appellant's brief on time may cause the
dismissal of the appeal, upon either the motion of the appellee or on the own motion of the
appellate court, provided that notice must be furnished to the appellant to show cause why his
appeal should not be dismissed.” At least give him a warning.
“But the exception to this rule has been clearly stated — i.e. when the appellant is represented
by a counsel de oficio.”
The second paragraph of Section 8 is more important:
The Court of Appeals may also, upon motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or
flees to a foreign country during the pendency of the appeal. (8a)
There is an appeal pending in the CA, the appellant escaped from prison or jumped bail, or flees to a foreign
country, under the 2nd paragraph of Section 8, his appeal will be dismissed. Abandoned na! By his act of
running away, the judgment of conviction will become final.
This provision prompted the SC to also apply doon sa promulgation. Under Rule 120, if during the
promulgation the accused disappears, the promulgation will proceed in absentia and then the law says the
accused forfeits all his remedies. Why? Kung nag-appeal siya, and then nag-layas siya, the appeal will be
dismissed, lalo na kung di siya nag-appeal! You will also lose your right to appeal. The reason according to the
SC, once the accused escaped from prison or confinement or jumped bail, he loses his standing in court and
unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek
relief from the court. (Gimenez vs. Nazareno, 160 SCRA 1)
597
We will now answer the question of Mr. Benito:
Q: When a person who is sentenced to death escaped, can the automatic review still proceed? Or assuming
there is already an automatic review and while he is in jail, naglayas, and the SC learns of his escape, what will
happen to the automatic review? Tuloy or dismissed?
A: This is the question which bugged the SC in the 1996 case of PEOPLE vs. ESPARAS (260 SCRA 539) which
was asked in the 1998 bar in remedial law. The SC here is not unanimous. Six (6) justices dissented from the
majority. There are two sections compared here – Section 8 of Rule 124 and Section 10 of Rule 122.
PEOPLE vs. ESPARAS

260 SCRA 539 [1996]
ISSUE: Will the SC proceed to automatically review the death sentence of an accused who was
tried in absentia and remained at large up to the present time? Or even if he appealed, and while
the appeal is pending, he escaped?
HELD: The majority said YES. You cannot apply Rule 124 because of the nature of the death
penalty. There are 6 justices who disagreed.
“Section 8 of Rule 124 of the Rules of Court which, inter alia, authorizes the dismissal of an
appeal when the appellant jumps bail, has no application to cases where the death penalty has
been imposed. In death penalty cases, automatic review is mandatory. This is the text and tone of
Section 10, Rule 122, which is the more applicable rule.”
Ayun! So there is an applicable rule and not the general rule in Rule 124. Let’s go to the
philosophy of the ruling:
“There is more wisdom in our existing jurisprudence mandating our review of all death penalty
cases, regardless of the wish of the convict and regardless of the will of the court. Nothing less than
life is at stake and any court decision authorizing the State to take life must be as error-free as
possible. We must strive to realize this objective, however, elusive it may be, and our efforts must
not depend on whether appellant has withdrawn his appeal or has escaped. Nor should the Court be
influenced by the seeming repudiation of its jurisdiction when a convict escapes. Ours is not only
the power but the duty to review all death penalty cases. No litigant can repudiate this power which
is bestowed by the Constitution. The power is more of a sacred duty which we have to discharge to
assure the People that the innocence of a citizen is our concern not only in crimes that slight but
even more, in crimes that shock the conscience. This concern cannot be diluted.”
(Of course, the SC anticipated criticisms – bakit ba masyado kayong (SC) protective of the rights
of the accused? That is the reason why criminality is rampant! But the SC answered that: )
“The Court is not espousing a “soft, bended, approach” to heinous crimes for we have always
reviewed the imposition of the death penalty regardless of the will of the convict. Our unyielding
stance is dictated by the policy that the State should not be given the license to kill without the final
determination of this Highest Tribunal whose collective wisdom is the last; effective hedge against
an erroneous judgment of a one-judge trial court. This enlightened policy ought to continue as our
beacon light for the taking of life ends all rights, a matter of societal concern that transcends the
personal interest of a convict. The importance of this societal value should not be blurred by the
escape of a convict which is a problem of law enforcement. Neither should this Court be moved
alone by the outrage of the public in the multiplication of heinous crimes for our decisions should
not be directed by the changing winds of the social weather.”
Meaning, our decision shall not be influenced by the thinking of the people – social weather. And I think that
is a very nice explanation why you should not apply Rule 124.
And the last important portion here to master is the second paragraph of Section 13:
SEC. 13. Quorum of the court; certification or appeal of cases to Supreme Court.
Xxxxx
Whenever the Court of Appeals find that the penalty of death, reclusion
perpetua, or life imprisonment should be imposed in a case, the court, after
discussion of the evidence and the law involved, shall render judgment imposing the
penalty of death, reclusion perpetua, or life imprisonment as the circumstance
warrant. However, it shall refrain from entering the judgment and forthwith certify
the case and elevate the entire record thereof to the Supreme Court for review. (13a)
How can this happen that the CA finds the penalty of death, reclusion perpetua or life imprisonment should
be imposed? This happens normally in a situation like this: Mr. Concon is charged with murder and the court
convicted him only for homicide – so temporal yan. Where will he appeal? Sa CA because the penalty imposed
is not death or perpetua. The trouble is when the CA reviews the case and finds that the crime should be
murder pala!
Q: What should the CA do?

A: The CA should still decide and lay down the facts and the law as if it is the SC. And then the CA should
really impose the death penalty or reclusion perpetua. But it should not enter judgment. After imposing death
or perpetua, itapon sa SC, “Please review our work and find out whether we are correct.” Yaan!
Automatically, the CA will not enter judgement but should elevate the case. So the SC should have the final
say on whether or not to adopt the findings and conclusions of the CA. But definitely, the CA should not shirk
from its responsibility of deciding the case on its merits imposing the correct penalty of death or perpetua. That
is that correct procedure under the new rules.
Rule 125
PROCEDURE IN THE
598
SUPREME COURT
SECTION 1. Uniform Procedure. – Unless otherwise provided by the Constitution or

by law, the procedure in the Supreme Court in original and in appealed cases shall be
the same as in the Court of Appeals. (1a)
SEC. 2. Review of decisions of the Court of Appeals. – The procedure for the review by
the Supreme Court of decisions in criminal cases rendered by the Court of Appeals
shall be the same as in civil cases. (2a)
SEC. 3. Decision if opinion is equally divided. – When the Supreme Court en banc is
equally divided in opinion or the necessary majority cannot be had on whether to
acquit the appellant, the case shall again be deliberated upon and if no decision is
reached after re-deliberation, the judgment of conviction of lower court shall be
reversed and the accused acquitted. (3a)
Q: When the penalty imposed by the RTC is perpetua for example, and since the appeal is direct to the
Supreme Court, then what procedure will the SC follow? Or when the case was decided by the CA and you
appeal to the SC, what procedure will the SC follow?
A: Under Section 1, “Unless otherwise provided by the Constitution or by law, the procedure in the Supreme
Court in original and in appealed cases shall be the same as in the Court of Appeals.” So there is no problem,
you can apply the previous rule – filing of brief, how many copies – the same.
Now, let’s go to one interesting ISSUE: Can you file a motion for new trial of a criminal case before the SC
on the ground of newly discovered evidence?
In the past, there seems to be conflicting rulings on that issue. Like for example, if you go to the 1965 case
of GODUCO VS. CA (14 SCRA 282), the SC ruled that the SC is not authorized to entertain a motion for
reconsideration and/or new trial on the ground of newly discovered evidence because of the doctrine that the
SC is not a trier of facts – only questions of law are supposed to be raised before the SC.
However, the Goduco ruling seems to be relaxed in other cases subsequently to the case of Goduco. In the
case of HELMUTH, JR. VS. PEOPLE (112 SCRA 573 [1982]), and in PEOPLE VS. AMPARADO (156 SCRA 712
[1987]), the SC allowed the motion for new trial based on newly discovered evidence.
In 1995, that issue came out again in the case of
CUENCA vs. COURT OF APPEALS

250 SCRA 485
HELD: Although in “Goduco vs. CA” (14 SCRA 282 [1965]), this Court ruled that it is not
authorized to entertain a motion for reconsideration and/or new trial predicated on allegedly newly
discovered evidence, the rule now appears to have been relaxed, if not abandoned, in subsequent
cases like “Helmuth, Jr. vs. People” and “People vs. Amparado.”
“In both cases, the Court, opting to brush aside technicalities and despite the opposition of the
Solicitor General, granted new trial to the convicted accused concerned on the basis of proposed
testimonies or affidavits of persons which the Court considered as newly discovered and probably
sufficient evidence to reverse the judgment of conviction.”
So we follow the later ruling – relaxed. And I think that is fair enough for the accused. All the doubts should
be resolved in favor of the accused.
Rule 126
SEARCH AND SEIZURE
We will now go to Rule 126 – Search and Seizure. This is one of the most controversial rules. This is as
confusing sometimes as the jurisprudence on warrantless arrests in Rule 113 – when may an arrest be made. Ito
naman, Rule 126 – when may there be a valid search and seizure.
Generally, peace officers are not allowed to conduct search and seizures if they have no search warrants. So
this is again a review of Constitutional Law.
Q: How do you define a search warrant?

A: You have Section 1:
SECTION 1. Search warrant defined. – A search warrant is an order in writing issued

in the name of the People of the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal property described therein and
bring it before the court. (1)
Now let’s go to Section 2 which is an entirely new provision:
SEC. 2. Court where application for search warrant shall be filed.– An application for
search warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.
(b) For compelling reasons stated in the application, any court within the judicial
region where the crime was committed if the place of the commission of the crime is
known, or any court within the judicial region where the warrant shall be enforced.
599
However, if the criminal action has already been filed, the application shall only
be made in the court where the criminal action is pending. (n)
This provision was taken from the ruling of the SC in the leading case of MALALOAN vs. CA (232 SCRA 249
[1994]) which was reiterated in the case of PEOPLE vs. CA (291 SCRA 400).
MALALOAN vs. COURT OF APPEALS

232 SCRA 249
Q: Can a search warrant issued by let’s say, a Davao City court be enforced in any other place
outside of Davao City?
A: YES, because a search warrant is merely a court process. It should not be confused with the
correct venue for the filing of the case. But here, there is no case. We are only talking about search
and seizure which is a mere court process. It has nothing to do with the filing of a criminal case. So
you cannot limit the power of the search warrant only within the place where the crime was
committed.
Furthermore, search warrants are usually applied by law enforcement officers and it is too much
to require peace officers to know in advance where is the probable venue of the criminal case. And
based on the interim rules, there is a statement there that “xxx writs of certiorari, prohibition,
habeas corpus, etc… of the RTC are enforceable only within the region. All other writs or processes
are enforceable throughout the country.” And a search warrant fall under the general provision “all
other writs xxx”.
Of course, under the last paragraph, when there is already a case filed in court, then all search warrants in
connection with a pending case can only be issued by the court where the case is pending. This was also taken
in Malaloan. So that is the history of that provision.
SEC. 3. Personal property to be seized. – A search warrant may be issued for the
search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (2a)
Take note that only personal property may be seized pursuant to a search warrant. lets us connect this with
Section 4:
SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue
except upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witness he may produce, and particularly describing the place
to be searched and the things to be seized which may be anywhere in the
Philippines. (3a)
SEC. 5. Examination of complainant; record. – The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements, together
with the affidavits submitted. (4a)
Q: What are the requisites for the issuance of a search warrant?

A: There are five (5) requisites for the issuance of a search warrant:
1. There must be an application which must be under oath;
2. There must be an affidavit in support of the application. The affidavit must be based on the personal
knowledge of the affiant.
That is why under Section 5, the judge must, before issuing the warrant, personally examine in
the form of searching questions and answers, in writing and under oath, the complainant and his
witnesses to find out what the affiant really know what he is talking about. And everything must be
reduced in writing.
Now, you cannot apply here in Rule 126 the ruling in Lim vs. Felix that a judge can just look at
the affidavits and determine whether to issue or not to issue a warrant of arrest. The ruling in Lim is
based on the issuance of warrant of arrest after preliminary investigation. But we are talking here
(Rule 126) of a search warrant. Here, it must be literal – there must really be a personal
examination.
3. The search warrant must particularly describe the place or the person to be searched and the things to
be seized;
4. There is probable cause for its issuance;
Q: What do you mean by probable cause for the purpose of issuing a search warrant?
A: Probable cause refers to such facts and circumstances which could lead a reasonably discreet
and prudent man to believe that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure and destruction by law is in
the place to be searched. (People vs. Encinada, October 2, 1997).
In one case, the SC said that probable cause does not mean actual and positive cause, nor does
it import absolute certainty. The requirement is less than certainty or proof, but more than suspicion
or possibility. (Columbia Pictures vs. CA, August 26, 1996)
600
5. The search warrant shall be issued in connection with but one offense.
So for example, I suspect that in your building, there are many objects there. There are
unlicensed firearms. Meron din diyan shabu. And there are also smuggled goods. So three laws are
violated – illegal possession of firearms, prohibited drugs, and customs law.
So gawa tayo ng isang search warrant lang to seize those objects – shabu, firearms, smuggled
goods – ah hindi puwede yan! because “one search warrant, one offense.” So there must be three
different search warrants. Otherwise the search warrant is a general warrant which is prohibited
under the Constitution.
And one of the leading case regarding on that issue is the case of STONEHIILL vs. DIOKNO (20 SCRA 383)
where a search warrant was issued against an American businessman who had a violation daw ng NIRC, RPC,
etc. – gi-one time ba! And it was declared as null and void by the SC because there were so many items which
were allegedly seized in connection with violation of different laws like NIRC, RPC, Central Bank Act. That is a
general warrant.
However, if we go by jurisprudence on general warrants, it is not really necessary that in order to be

classified as a general warrant, it was issued for several offenses under different laws. For example in the case
of
BURGOS, SR. vs. CHIEF OF STAFF

December 26, 1984 (134 SCRA)
FACTS: A search warrant was issued to raid the editorial offices of Metropolitan Mail and We
Forum (predecessor of Malaya) somewhere in Quezon City. What were going to be confiscated were
materials, pamphlets, printing machines to stop the paper from publishing on the alleged violation
of Anti-Subversion Act (PD 885) during the time of Marcos. Burgos challenged the validity of the
search warrant before the SC.
ISSUE #1: According to Burgos, “You cannot seize those things because I am not the owner of
those. I am just leasing them.” Can you only seize from somebody objects which he owned?
HELD: NO, because there is no provision in the law to that effect. And under Section 3, you can
seize “stolen or embezzled and other proceeds, or fruits of the offense.” For example, you can issue
a warrant to seize stolen property from a thief or robber. Is the thief or robber the owner the owner
of those stolen property? Of course not! So, there is no requirement that you can only seize it from
its owner. Talo si Burgos sa issue na yan.
ISSUE #2: According to Burgos, you cannot seize the printing equipments because under the
law you can only seize personal property. These printing machines are all attached to the building
and under the law on Property, when a machinery is attached to the immovable, it becomes
immovable or real property also. And you cannot seize a real property.
HELD: You are correct BUT there is an EXCEPTION – if the machine is attached by somebody
who is not the owner of the building, then the machine is still a movable property. So, tinamaan na
naman siya dun.
ISSUE #3: Was the search warrant a general warrant?

HELD: YES. What were seized were paraphernalia, pamphlets, printing machines, etc. which,
according to the search warrant, were used in committing the crime of subversion under PD 885. So
there is only one law violated unlike in the case of Stonehill na marami.
But sabi ng SC, the search warrant is a general warrant. It is true that there is only one law
violated but there are many sections in the Decree. You must allege the section violated, otherwise
it becomes a general warrant.
So if you just say that the search warrant is for violation of a law, then that is a general warrant. You must
point out the section which was allegedly violated. So in the case of Burgos, the search warrant was declared as
a general warrant inspite of the fact that only one law was violated.
As a matter of fact, the concurring opinion of former Justice Abad Santos was clearer eh. He said, “In the
case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were
being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885,
as amended. There is no mention of any specific provision of the decree. It would be legal heresy, of the highest
order, to convict anybody of violating the decree without reference to any determinate provision thereof.
“The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did
they contain to make them subversive? There is nothing in the applications nor in the warrants which answers
the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the
Constitution.”
Let’s distinguish Burgos in the case of

OLAES vs. PEOPLE
155 SCRA 486 [1987]
FACTS: The caption of the search warrant states that it is in connection with “Violation of RA
6425, otherwise known as the Dangerous Drugs Acts of 1972.” The text of the warrant however
says, “There is probable cause to believe that Olaes has in his possession and control and custody
of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt
narcotics preparations which is the subject of the offense stated above.” Olaes argued that the
warrant is a general warrant because it does not specifically point to certain provisions in the
Dangerous Drugs Act.
HELD: Olaes is correct BUT there is only once section in marijuana. So what are we talking? So,
even if it is not mentioned, it is understood that it points to marijuana.
601
PEOPLE vs. DICHOSO
223 SCRA 174
FACTS: A search warrant was issued for the seizure at Dichoso residence of shabu, marijuana,
paraphernalia, etc. Dichoso argued that his illegal possession of shabu, marijuana and
paraphernalia are covered by different articles and sections of the Dangerous Drugs Act. Hence, the
warrant is a general warrant.
HELD: Teka muna! Marijuana is regulated, shabu is also prohibited. But they both of them
belong to one family – dangerous drugs. So magkapatid man yan! Pareho na rin iyan!
“The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs
which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories
of offenses which are closely related or which belong to the same class of species. Accordingly, one
(1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act.”
PRUDENTE vs. DAYRIT

180 SCRA 69 (1989)
FACTS: The application for search warrant was captioned: “For Violation of PD No. 1866 (Illegal
Possession of Firearms, ETC.)” And what were taken were firearms and explosives. The validity of
the search warrant was questioned on the ground that there are two different violations – firearms
and explosives.
HELD: “Such illegal possession of items destructive of life and property are related offenses or
belong to the same species, as to be subsumed within the category of illegal possession of firearms,
etc. under P.D. No. 1866.”
So the word “etcetera” covers them all.
Another interesting case is the 1988 case of Twentieth Century Fox vs. CA (164 SCRA 655), reiterated in
Columbia Pictures vs. Flores (June 29, 1993). It refers to a violation of PD 49 (otherwise known as the Decree on
the Protection of Intellectual Property) on anti-film piracy during the height of betamax tapes.
TWENTIETH CENTURY FOX vs. COURT OF APPEALS

164 SCRA 655
FACTS: A search warrant was issued for alleged violation of Anti-Piracy Law. The things to be
seized were video tapes, television sets, video cassette recorders, rewinders, tape cleaners, and
almost everything.
HELD: The warrant is general. It is void. Why? Of course, if you seize the tapes, puwede pa yan.
But why will you seize television sets, video cassette recorders, rewinders, etc? Are they illegal
objects?
“Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be
found in a video tape store engaged in the legitimate business of lending or renting out betamax
tapes. In short, these articles and appliances are generally connected with, or related to a
legitimate business not necessarily involving piracy of intellectual property or infringement of
copyright laws. Hence, including these articles without specification and/or particularity that they
were really instruments in violating an Anti-Piracy law makes the search warrant too general which
could result in the confiscation of all items found in any video store.”
PEOPLE vs. COURT OF APPEALS

216 SCRA 101
FACTS: The body of the search warrant stated was that the items were “Stolen or Embezzled
and proceeds or fruits of the offense, used or intended to be used as the means of committing the
offense.” So, practically, the policeman copied the whole of Section 3.
HELD: The warrant is void. “The warrant was a scatter-shot warrant that could refer "to robbery,
theft, qualified theft or estafa." On this score alone, the search warrant was totally null and void.”
SEC. 6. Issuance and form of search warrant. – If the judge is satisfied of the
existence of facts upon which the application is based or that there is probable
cause to believe that they exist, he shall issue the warrant, which must be
substantially in the form prescribed by these Rules. (5a)
SEC. 7. Right to break door or window to effect search. – The officer, if refused
admittance to the place of directed search after giving notice of his purpose and
authority, may break open any outer or inner door or window of a house or any part
of a house or anything therein to execute the warrant to liberate himself or any
person lawfully aiding him when unlawfully detained therein.
SEC. 8. Search of house, room, or premises to be made in presence of two witnesses. – No

search of a house, room, or any other premises shall be made except in the presence
of the lawful occupant thereof or any member of his family or in the absence of the
latter, two witnesses of sufficient age and discretion residing in the same locality.
(7a)
Remember there is a similar provision in the RPC (violation of domicile). Even if there is a search warrant,
you cannot search the house without the presence of the owner or the occupant of the house. Or if nobody is
602
around, the searching officer must secure 2 witnesses, 2 members of the neighborhood. They cannot search on
their own without any witnesses.
Q: What is the reason?

A: In order that the searching party will not just get anything which is not the subject of the warrant. This
usually happens. You supposed to search for marijuana, but you brought along the refrigerator. One reason also
is to prevent the planting of evidence.
One interesting case here is
QUINTERO vs. NBI

162 SCRA 467
FACTS: NBI raiders went to search a house by virtue of a search warrant. What the NBI did,
because there were so many rooms, was they conducted the search simultaneously. One NBI
searching the room and the other in another room.
HELD: That type or procedure is wrong because how can the witnesses be present everytime
the search is made when one is in the other room and the others in another room. “Such a
procedure, wherein members of a raiding party can roam around the raided premises
unaccompanied by any witness, as the only witnesses available as prescribed by law are made to
witness a search conducted by the other members of the raiding party in another part of the house,
is held to be violative of both the spirit and the letter of the law, which provides that no search of a
house, room, or any other premises shall be made except in the presence of at least one competent
witness, resident of the neighborhood.”
SEC. 9. Time of making search. – The warrant must direct that it be served in the
day time, unless the affidavit asserts that the property is on the person or in the
place ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. (8)
Now, let’s go to a very important provision – Section 10:
SEC. 10. Validity of search warrant. – A search warrant shall be valid for ten (10)
days from its date. Thereafter, it shall be void. (9a)
A search warrant has a lifetime only of ten (10) days. Compare that with the lifetime of a warrant of arrest
under Section 4 of Rule 113. Under Rule 113, the 10-day period does not mean to say that the warrant of arrest
is only good for 10 days. It is only a directive that you will enforce it within 10 days. If you cannot arrest, di
bayaan mo! Keep it and try to arrest the accused in the future.
But a search warrant, iba – talagang 10 days lang. Thereafter, it shall be void. Does this mean to say that
you can use a search warrant everyday for 10 days? NO. You can use it once for 10 days. But it does not mean
you can use it everyday or for the next 10 days.
One interesting case on the issue of the 10-day period on search warrants is the 1996 case of
MUSTANG LUMBER, INC. vs. COURT OF APPEALS

257 SCRA 430 [1996]
FACTS: A search warrant was secured on a certain date and enforced the same on the same
day. But the raiding team could not finish the search in one day. So they postponed, “bukas naman
ituloy.”
ISSUE: Can you still continue tomorrow? Or must you finish everything today?
HELD: Under the Rules of Court, a search warrant has a lifetime of ten days. Hence, it could be
served at any time within the said period, and if its object or purpose cannot be accomplished in
one day, the same may be continued the following day or days until completed. Thus, when the
search under a warrant on one day was interrupted, it may be continued under the same warrant
the following day, provided it is still within the ten-day period.
Yaan! So that is the correct interpretation of the 10-day period. Hindi naman kailangan na you have to finish
everything on the same day. You may still continue tomorrow but be sure that tomorrow is still within the 10-day
period. Suppose you cannot finish naman tomorrow? Continue on the next day? Puydi! – tuloy! basta within the
10-day period.
SEC. 11. Receipt for the property seized.– The officer seizing the property under the
warrant must give a detailed receipt for the same to the lawful occupant of the
premises in whose presence the search and seizure were made, or in the absence of
such occupant, must, in the presence of at least two witnesses of sufficient age and
discretion residing in the same locality, leave a receipt in the place in which he found
the seized property. (10a)
SEC. 12. Delivery of property and inventory thereof to court; return and proceedings
thereon. – (a) The officer must forthwith deliver the property seized to the judge who
issued the warrant, together with a true inventory thereof duly verified under oath.
603
(b) Ten (10) days after issuance of the search warrant, the issuing judge shall
ascertain if the return has been made, and if none, shall summon the person to
whom the warrant was issued and require him to explain why no return was made. If
the return has been made, the judge shall ascertain whether section 11 of this Rule
has been complied with and shall require that the property seized be delivered to
him. The judge shall see to it that subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be filed and kept by the custodian of
the log book on search warrants who shall enter therein the date of the return, the
result, and other actions of the judge.
A violation of this section shall constitute contempt of court. (11a)
Q: After the search warrant has been implemented, what happens next?
A: Under Section 11, the officer must give a receipt to the owner or person from whom he took it or to the
witness. And under Section 12 [a], the officer must forthwith deliver the properties seized to the judge who
issued the warrant together with a true inventory thereof duly verified under oath. So, receipt and then deliver.
Now, there are two new paragraphs, inserted in Section 12—paragraphs [b] and [c] – that there is a
deadline for the officer to submit this report and to make a return of the warrant. There is a deadline for him to
do that. And the last portion of Section 12 says:
“A violation of this section shall constitute contempt of court.”
I do not know the reason behind this amendment. I presume it was inserted by the SC maybe because in
other places after the search warrant has been implemented, the court never knew what happened to the
warrant, all the things were appropriated by the officer, they were not turned over to the court. Maybe because
of such experience, the SC decided to give a deadline for the turnover of all the properties seized and for the
report. That’s only my conjecture, ‘noh?
Let’s go to some interesting cases regarding these personal properties subject of a search warrant.
WASHINGTON DISTILLERS INC. vs. COURT OF APPEALS

260 SCRA 821 [1996]
FACTS: This involves a controversy between Washington Distillers and La Tondeña Distillers.
Obviously, their products are spirits and wine. According to La Tondeña Distillers, the bottles that
Washington Distillers uses for their products are actually La Tondeña bottles. They buy empty
bottles, lilinisin nila, and they use them to serve their products. Nagreklamo ang La Tondeña
because those are their bottles, of course.
One of the issues here is whether you can still claim the bottles, binayaran na yan eh. When the
buyer bought the product, he already paid for the bottle, so why are you complaining? So that was
the issue ‘noh?
So La Tondeña decided to apply for a search warrant to raid the premises of Washington
Distillers to recover all these bottles. And there was really a raid and so many bottles where taken
from the premises of Washington Distillers. All those bottles were turned over to La Tondeña.
Now, Washington Distillers questioned the act of turning over the bottles to La Tondeña. Of
course, the issue is ownership. Admittedly, these are your bottles but when the customers bought
those bottles and the contents you can no longer claim ownership over those bottles. More or less
that is the issue. So they were quarreling over the issue of ownership.
Now, Washington Distillers secured the services of Estelito Mendoza on this issue. Medoza
questioned the action of La Tondeña in trying to get the bottles.
HELD: Estelito Mendoza was sustained in the SC. Why? Because if we are quarreling about the
issue of ownership of the bottles, then there should be another case for replevin. Or, the bottles are
in the possession of the government, the La Tondeña should file action for interpleader to determine
who really owns the bottles. But you cannot use a mere search warrant to resolve the issue of
ownership. A search warrant is only to get the property, but it does not have the same effect as a
writ of replevin.
“A search warrant proceeding is not a criminal action, much less a civil action. It is a special
criminal process, the order of issuance of which cannot and does not adjudicate the permanent
status or character of the seized property. It cannot therefore be resorted to, as was done here by
La Tondeña Distillers, as a means of acquiring property or of settling a dispute over the same. The
proper remedy is for private respondent or for the Government itself, assuming the role of a
stakeholder, to bring the appropriate action.”
So that is a very nice case, ‘noh? There is also another interesting issue in the case of Washington Distillers
which was also raised by Mendoza:
WASHINGTON DISTILLERS INC. vs. CA (supra)
FACTS: According to Mendoza, the application for search warrant is void or it should have been
rejected because when the peace officer applied for the search warrant, there was no certification
on non-forum shopping. Kaya sabi ni Mendoza, “How do we know? You might have also applied for
search warrant in another court. So, you must certify that you have not filed any other application
for search warrant before any other court.” That is a very unique argument.
Sabi ng other party, “No, hindi yan applicable. Hindi man kaso ito. I’m not filing a complaint or
a petition where I will include a certification on non-forum shopping. This is just an application for a
search warrant.”
604
ISSUE: Does the rule on non-forum shopping certification also apply to search warrant?
HELD: YES, because does the law requires parties to certify under oath that they have not
“theretofore commenced any other action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency” and that to the best of their knowledge
“no such action or proceeding is pending” in said courts or agencies. Di ba that’s the language of
forum shopping?
“Indeed, the policy against multiple court proceedings clearly applies to applications for search
warrants. If an application for search warrant can be filed even where there are other applications
pending or denied in other courts, the situation would become intolerable.” And what is the
certification – ‘that I have not filed any other action or proceeding’. YOOON! ‘PROCEEDING’! An
application for a search warrant is a court proceeding which is covered by the rule on forum
shopping.
So that was the ruling of the SC in this case. That’s why you will see how analytical and brilliant Estelito
Mendoza is. Makita niya ang mga ito. In other words, he can really detect these points which normally other
lawyers will not be able to detect. Magaling man talaga yan siya ba. Nasira lang yan siya sa impeachment trial.
He’s unpopular…pero he’s really very good. Compared to the prosecution panel, na outclass talaga yun. Walang
laban yun. When I read it, grabeh talaga itong argument niya kung saan niya pinulot ito. And he has been
sustained in the SC. Alright.
Did I tell you about somebody from Davao who wanted to get the services of Mendoza? Wala, ayaw
tanggapin. If not for the recommendation of one of his closest friends in Davao. Sabi niya, we do not accept for
the moment because of the impeachment trial, we’re all busy. He’s busy. “I’m paying!” How much? “Two
million? Three Million? I’ll pay na!” No, wala, ayaw tumanggap ni Mendoza. That’s very small to him. Alright.
Let’s go now to the most controversial provision – Section 13 – The issue on Warrantless Search and
Seizure.
SEC. 13. Search incident to lawful arrest. – A person lawfully arrested may be
searched for dangerous weapons or anything which may have been used or
constitute proof in the commission of an offense without a search warrant. (12a)
Q: When may a search and seizure be effected without a search warrant?

A: Section 13 - when it is merely incidental to a lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may be used or constitute proof in the commission of an offense
without a search warrant.
This is because it’s absurd, ‘noh? if I’m arresting a criminal by virtue of a warrant, or the arrest is valid with
no warrant (because that would be valid arrest without a warrant) he might be holding a gun or a knife. And if
you do not search him, he might stab the arresting officer. And it would be absurd to say, “ok, you can arrest
me because of your warrant of arrest, but you cannot search me because you have no search warrant.” So you
ask the policeman to go back to court to get the search warrant. There’s something wrong there. Yung search,
dala na yun! When the arrest is valid or lawful, automatically the search becomes also lawful.
That is why in most cases involving search and seizures, the target of the person against whom something
is taken is the validity of the arrest. Because once he can prove that the arrest is not valid, then automatically
the accompanying search is not also valid. Because, no valid arrest means no valid search and seizure. That is
the pattern.
There are so many cases here. I’m just choosing the interesting ones.
UY KHEY TENG vs. VILLAREAL

42 PHIL 886
FACTS: This is a very old case, already asked in the bar. There was a search warrant issued by
the court to search a building somewhere in chinatown in Binondo, Manila on the ground that there
was opium or other drugs in that house. So the raiding party went to the house and announced to
the owner that they have a search warrant. So the owner had no choice but to allow the search.
They searched the premises, they did not find any opium. Wala! But, instead, what they found were
firearms – unlicensed firearms. And because they discovered the presence of these firearms, they
arrested the accused for illegal possession of firearms and seized all his firearms.
There were two questions which were asked in the bar—
ISSUE #1: Can the peace officers seized the firearms by virtue of the search warrant?
HELD: NO, Because a search warrant can only issue for one offense. The offense was
possession of opium or drugs. It cannot be used to seize firearms. So the firearms cannot be seized
by virtue of the warrant.
ISSUE #2: Would you say therefore that the seizure of these firearms is illegal?
605
HELD: NO. It is valid because in the course of their search for opium, they discovered another
crime – illegal possession of firearms. And since they discovered the commission of another crime,
they have the authority THEN AND THERE to arrest the owner because the crime is being
committed in their presence. So there is a valid warrantless arrest. And since there is a valid
warrantless arrest, automatically there is also a valid warrantless seizure. So, dun nahuli. What
gives the peace officers the authority is not the search warrant, but the fact that it becomes merely
incidental to the arrest of the accused.
Let’s go now to other cases. We are concentrating on the question of whether there is a valid seizure.
Whether you can say that the seizure is incidental to an arrest.
PEOPLE vs. CENDAÑA

October 17, 1990
FACTS: Somebody was killed and the accused was arrested the following day. He was arrested
on the basis of information obtained by police officers from unnamed sources. Of course, when they
arrested him inside his house nakita nila yung baril talaga doon. There was really a gun which they
believed to be the very gun used to kill the victim. So they seized it.
ISSUE: Was there a valid seizure? Walang warrant, eh. We go back, we have to determine
whether there was also a valid arrest. Remember wala din silang warrant eh, when they arrested
him. You go back to Rule 113. Is there a valid warrantless arrest?
HELD: No valid arrest. “Accused-appellant was arrested one day after the killing of the victim
and only on the basis of information obtained by the police officers from unnamed sources. These
abovementioned circumstances clearly belie a lawful warrantless arrest.” It is not sanctioned by
Rule 113. So kapag bagsak ang arrest, bagsak din automatically ang seizure.
“Considering that the arrest of accused-appellant herein was unlawful, any search conducted on
his person or place of arrest which is an incident thereof, was also unlawful. Perforce, any evidence
recovered during the unlawful search, being made without a warrant, becomes inadmissible in
evidence against accused-appellant and the shotgun which was allegedly the fatal weapon cannot
be presented against him.”
PEOPLE vs. CATAN

205 SCRA 235
FACTS: Rogelio Catan was entrapped by two NARCOM poseur-buyers in a buy-bust operation
right inside Catan’ s house. The NARCOM agents pretended to be addicts. Pagbigay, HULI! After the
arrest, the NARCOM agents searched the premises and recovered more marijuana. Catan asserted
that the search of his premises was illegal.
If you look at the law, what can you search? The search is valid, di ba? He may be search for
dangerous weapons or anything which may constitute proof. What was search was the premises.
Dun nakita yung maraming marijuana, eh. What was taken from him, maliit lang. Dun siya tinamaan
ng illegal possession, because of the quantity.
So Catan was questioning the search because you did not search my body! You searched my
premises.
HELD: VALID! When you say search of the person, it INCLUDES the immediate premises
because for all you know, walang baril, pero yung baril pala nasa drawer niya at gagamitin sa iyo.
So it includes the surrounding premises. That is covered by the incidental search.
Catan is wrong. “Appellant was arrested in flagrante delicto in the act of selling and delivering
marijuana to the poseur-buyers. His case therefore falls under the category of a valid warrantless
arrest. The subsequent search of his house which immediately followed yielding other incriminating
evidence was a search contemporaneously made and as an incident to a valid warrantless arrest in
the immediate vicinity where the arrest was made. That is a recognized exception to the general
rule that any search and seizure must be supported by a valid warrant.” That is the general rule.
When you say incidental search, it does not only refer to kapkapan mo yung tao. Pati immediate vicinity is
included because remember, he may have dangerous weapons in his body which he can use against you. But
the dangerous weapon may not be in his body but within the immediate premises. That is what the SC said. The
same rule or pattern emerged in the case of:
PEOPLE vs. LI WAY CHUNG

214 SCRA 431 [1992]
FACTS: Search without warrant of the appellant’s dwelling. Appellant’s dwelling is just a single-
room unit, which is around 9 square meters. Maliit lang yung kwarto ng accused. They searched the
room and found out evidence.
HELD: “The search without a warrant of appellant’s dwelling, a single room unit with a total
area of 9 sq. m. was a valid as an incident of a lawful warrantless arrest. The search was conducted
in a confined place within appellant’s immediate control, an area where he might gain possession of
a weapon.”
PEOPLE vs. GERENTE

219 SCRA 756
606
FACTS: A witness testified that at 7 o’clock in the morning, she saw three persons started
drinking liquor and smoking marijuana and overheard them killing Clarito Blace. Narinig lang niya.
Nine hours after, or at 4 P.M., the police received a report of a mauling incident. So a police
investigator went to the hospital where the victim was brought and was told that the victim died on
arrival. Patay na! Police investigator and his companions proceeded to the scene of the mauling and
there they were informed by the witness that she saw the killing and pointed to Gabriel Gerente, as
one of the three men who killed Blace.
The policemen went to the house of Gerente who was then sleeping, asked the latter to come
out, and when he did, he was placed under arrest. He was frisked, the police finding in his pocket a
coin purse containing dried leaves wrapped in a foil. The dried leaves turned out to be marijuana
after laboratory examination.
So he was arrested for the killing, ang nakuha sa kanya is a coin purse containing marijuana. So
dalawa na kaso niya.
ISSUE #1: Was the warrantless arrest of Gerente lawful?

HELD: YES! The eye witness Edna Edwina Reyes reported the happening to the policemen and
pin-pointed her neighbor Gerente as one of the killers. Since the policemen have personal
knowledge (YUN!) of the violent death of Blace, and of facts indicating that Gerente and two others
are guilty. We’re going back to Rule 113 – what do you mean by personal knowledge or probable
cause…they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until
they could obtain a warrant, he would have fled like his companions na nakasibat na.
ISSUE #2: May the marijuana be validly used as evidence in a prosecution for illegal
possession of dangerous drugs? Was the marijuana validly seized?
HELD: YES. The search conducted on Gerente’s person was likewise lawful because it was
made as an incident to a valid arrest. It was in accordance with Section 12, Rule 126, citing the case
of Adams vs. Williams, an American case: “It was ruled that the individual being arrested may be
frisked for concealed weapons, that may be used against the arresting officer, and all unlawful
articles found in his person or within his immediate control may be seized.”
PEOPLE vs. QUIZON

256 SCRA 325 [1996]
NOTE: The guideline in order not to be lost is placed here nicely. The guideline given by the SC
is this—it is wise to remember this, because as we said, ang premise natin only the arrest eh.
HELD: “It is beyond cavil that a lawful arrest must precede the search of a person and his
belongings. Where a search first undertaken, then an arrest effected based on evidence produced
by the search, both such search and arrest would be unlawful, for being contrary to law.”
You get that? Unahin muna ang arrest—lawful—and then search. If you will search, and in the process of
searching you discover something and you will arrest him… aba, hindi puwede because how can you say that
the search was incidental to a lawful arrest eh nauna yung search kaysa arrest? So, unlawful pareho. The arrest
must precede the search, not the search preceding the arrest. Do not search him in the hope that you will
discover something unlawful.
INSTANCES OF VALID WARRANTLESS SEARCH
Q: Suppose you will be asked this question: What are the instances under the law when there could be a
valid seizure without a search warrant? What are the instances when there could be a valid warrantless search
and seizure?
1. When the search is merely incidental to a valid arrest (Section 13);

2. Stop And Frisk Rule;
3. Search of moving vehicles;
4. Evidence in plain view;
5. Customs searches;
6. Consented search;
7. Exigent searches or searches during emergency circumstances
STOP AND FRISK RULE
The Stop and Frisk Rule was taken by the SC from a leading American case, TERRY VS. STATE OF OHIO (392
US 1, 20 L Ed 2d 889, 88 S Ct 1868) cited in the case of PEOPLE VS. MALMSTEDT (198 SCRA 401) and POSADAS
VS. CA (180 SCRA 283)
In the 1995 or 1996 bar, the very first question in Remedial Law was: Explain what is meant by the Terry
Search.
Ay, maraming tinamaan dun. Ano ba ito? How do you explain the process of Stop and Frisk which is one of
the instances where the warrantless search may be allowed? If you do not know your constitutional law, patay
ka!
Now, ano ba itong Terry Search? Alam natin yung Stop and Frisk. There are many factors there to consider.
First, that is normally applied to peace officers. When they see someone acting suspiciously at the wrong time
and at the wrong place. For example, you are patrolling in the middle of the night then you see somebody in the
607
dark. That will invite your attention. And then, the Terry Search says you must ask questions first – What is your
name? Why are you here in the middle of the night? Hindi ka puwedeng mag-kapkap kaagad. Magtanong ka
muna. Find out whether you are satisfied with his answers. Now, if somehow you doubt his answer—like if he is
wearing a big jacket and trying to hide something—ayan na! You can say “I will frisk you”.
The guideline here is the appearance of the person, the time, the occasion of the search. And you have to
limit first your observation on the outer garments. But you have to consider also, according to the SC, the
experience of the peace officer. Because peace officer, somehow, they have sixth sense eh when it comes to
shady characters. These are the factors which should be taken into consideration, then stop and frisk. Kapkapan
mo. Now suppose in doing that, firearm is taken, or anything, pwede. He cannot say inadmissible. Under the
second exception ito (Stop and Frisk).
Now we’ll illustrate some cases to demonstrate how this has been applied. Let us start with a case which
originated in Davao.
POSADAS vs. COURT OF APPEALS

180 SCRA 283
NOTE: The search was conducted in Magallanes Street, sa may RMC.

FACTS: At about 10 o’clock in the morning, two policemen were conducting a surveillance.
Obviously, they were expecting something to happen, or they were asked to look for somebody.
They spotted Posadas carrying a buri bag. They notice him to be acting suspiciously. (What do you
mean by acting suspiciously? Let us leave that to the judgment of the peace officer.) Both
policemen approached Posadas and identified themselves. But when they introduced themselves,
Posadas attempted to flee. “There is something wrong here. Nagpakilala tayong pulis, tumakbo
siya. Why is he running?”
So, they caught him. A check of the buri bag yielded one caliber .38 Smith & Wesson revolver, 2
teargas grenades and live ammunitions of .32 caliber gun. Posadas was not able to show the
necessary license or authority to possess firearms and ammunitions. So he was prosecuted for
illegal possession of firearms and ammunitions.
ISSUE: Was there a valid search and seizure to make a confiscated items admissible evidence?
HELD: YES. “There was a valid search and seizure. At the time the peace officers identified
themselves and apprehended Posadas as he attempted to flee, they did not know what he had
committed, or was actually committing illegal possession of firearms. They did not know that! They
just went there and introduced themselves. They just suspected that he was hiding something in
the buri bag. They did not know what its contents were. The said circumstances did not justify the
arrest without the warrant.” – klaro yan – because is there a crime if you walk around with a buri
bag? I don’t think there is a crime, ‘noh?)
“HOWEVER—[yaaan!]—the search, in the case at bar, is reasonable considering that it was
effected on the basis of probable cause.” [So, balik na naman tayo sa probable cause.] The
probable cause is that when Posadas acted suspiciously and attempted to flee with the buri bag,
there was a probable cause that he was concealing something illegal in the bag. It was the right and
duty of the police officers to inspect the same, “Why are you running? We’re just introducing
ourselves, ba’t tumakbo ka?” Ayan. It will arouse suspicion.
“It is too much indeed to require the police officers to search the bag in the possession of
Posadas only after they shall have obtained a search warrant for the purpose. Such an exercise may
prove to be useless, futile and much too late.”
So you can see the pattern. Alam niyo ang mga kasong ganito—warrantless searches, warrantless arrests
under Rule 113—ang pag-asa mo lang dito read as many cases as possible. Because if you will be questioned
by the examiner, definitely it will be patterned after one case. If you are familiar with the cases, madaling
makilala. It would be easy. As what happened last year, there was a question in Constitutional Law on stop and
frisk. Sabi nila, “Uy! [si Judee na sad!] Nabasa ko man ang kasong ito.” And it was really the same case. The
same facts, eh. Sa sementeryo, inaresto, mapula ang mata, parang hubog maglakad…meaning, he was
suspected to be an addict. The same! We’ll touch the case later. I think that’s the case of Manalili vs Court of
Appeals. Alright.
We’ll compare this case of Posadas with a similar case – the case of
PEOPLE vs. MENGOTE

210 SCRA 174
FACTS: Rogelio Mengote was arrested by policemen because he was acting suspiciously. Ayan
na naman, pareho sa Posadas eh. He was looking from side to side while holding his abdomen.
When searched, he was found with a .38 revolver with six live bullets. The incident occurred before
noon time – so tanghali! – at the corner of Juan Luna and North Bay Boulevard, Tondo, Manila.
Almost the same with Posadas—ten o’clock in the morning, before noon. But how come there is a
difference in the ruling?
NOTE: Take note ha, in the case of Posadas, tumakbo. In Mengote, hindi man tumakbo. Basta
linapitan siya, nakapkapan ng baril. Mengote was convicted of illegal possession of firearms.
He was convicted. Mengote contends that the weapon was not admissible evidence because it
was illegally seized, and therefore, the fruit of a poisonous tree. Yun man talaga depensa mo, wala
mang iba.
The prosecution insists that the revolver was validly received in evidence because its seizure
was incidental to an arrest that was doubtless lawful, even admittedly without warrant.
ISSUE: Is the evidence inadmissible?
HELD: YES. “The evidence is inadmissible. When Mengote was arrested, he was not committing
any offense.”
608
The question is, What offense? “What offense could possibly have been suggested by a person
‘looking from side to side’ and ‘holding his abdomen’ and in a place not exactly forsaken? These are
certainly not sinister acts. And the setting of the arrest made them less so, if at all.” Eto! Kaya
nasabi ko, in determining stop and frisk, you have to look at the time, the place.
“It might have been different if Mengote had been apprehended at an ungodly hour and in a
place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was
arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger
jeep with his companion. He was not skulking in the shadows but walking in the clear light of day.
There was nothing clandestine about his being on that street at that busy hour in the blaze of the
noonday sun.”
“It would be a sad day, indeed, if any person could be summarily arrested and searched just
because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace
officer-could clamp handcuffs on any person with a shifty look on suspicion that he may have
committed a criminal act or is actually committing or attempting it. This simply cannot be done in a
free society. This is not a police state where order is exalted over liberty or, worse, personal malice
on the part of the arresting officer may be justified in the name of security.”
So even the SC gave a guideline. Kung alas tres ng umaga, madilim…ahh, puydi!
PEOPLE vs. EVARISTO

December 11, 1992
FACTS: There was somebody who fired a pistol. So, there were 2 policemen who started
chasing him. And when they chased, they found 2 people in the corner and they started asking
these 2 people. Now, one of the 2 policemen saw that the guy’s side is bulging. When they
searched him, they found a gun. So he was arrested.
ISSUE: Whether there was a valid warrantless search was valid.
HELD: When the police officers chased after somebody who fired a pistol and they came upon
Evaristo, the visual observation that his side is bulging along with the earlier report of gunfire, as
well as the peace officer's professional instincts, are more than sufficient to pass the test of the
Rules. Consequently, under the facts, the firearms taken from Evaristo can be said to have been
seized incidental to a lawful and valid arrest.
So, that is the doctrine of Stop and Frisk.
MALACAT vs. COURT OF APPEALS, December 12, 1997

vis-à-vis MANALILI vs. COURT OF APPEALS, October 9, 1997
HELD: “Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The
police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . .
[in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs.
The situation verily called for a stop-and-frisk.”
MALACAT vs. COURT OF APPEALS

G.R. No. 123595; December 12, 1997
ISSUE: Distinguish stop and frisk from search incidental to a lawful arrest.
HELD: “We note that the trial court confused the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite
quantum of proof before they may be validly effected and in their allowable scope.
“In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. In this instance, the law
requires that there first be a lawful arrest before a search can be made — the process cannot be
reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for evidence to destroy,
and seize any money or property found which was used in the commission of the crime, or the fruit
of the crime, or that which may be used as evidence, or which might furnish the arrestee with the
means of escaping or committing violence.
“While probable cause is not required to conduct a "stop and frisk," it nevertheless holds that
mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light
of the police officer's experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1)
the general interest of effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an appropriate manner, approach
a person for purposes of investigating possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with a deadly weapon that
could unexpectedly and fatally be used against the police officer.”
SEARCH OF MOVING VEHICLES
Another instance of a valid warrantless search is the search of moving vehicles. Because if the vehicle is
moving or mobile, and it contains illegal/prohibited objects that is being transported and nandiyan na ang
vehicle, it would be absurd if you apply first for a search warrant because makakalayo na yung vehicle.
609
Now, do you remember the most controversial case of VALMONTE vs. DE VILLA? This is where the SC
sustained the constitutionality of checkpoints. But the guidelines here is that the checkpoints has authority to
stop the car and see anything without opening any compartments of it. So, the inspection is limited to a visual
or ocular inspection only. But if the checkpoints received a tip that there is a passenger, then it is allowed.
PEOPLE vs. MALMSTEDT

198 SCRA 401
FACTS: This happened in the Mountain Province involving a Caucasian. The NARCOM agents
received a tip that a bus will pass from Mt. Province and that there is a Caucasian passenger
bringing with him prohibited drugs. So, they stopped the bus and found a Caucasian inside. So they
approached him and asked him: “What is your name? Can we see your passport?” The Caucasian
refused. Then during the inspection, the NARCOM agents opened his bag and found hashish. The
same was found in the teddy bear. So, he was charged with illegal possession of prohibited drugs.
Malmstedt questioned the validity of the search.
HELD: The warrantless search was valid. “The receipt of information by NARCOM that a
Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of
Malmstedt to produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that he was trying to hide something illegal from the authorities. From these
circumstances arose a probable cause which justified the warrantless search that was made on the
personal effects of Malmstedt. In other words, the acts of the NARCOM officers in requiring him to
open his pouch bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears
with hashish stuffed inside them, were prompted by Malmstedt’s own attempt to hide his identity by
refusing to present his passport, and by the information received by the NARCOM that a Caucasian
coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the
ability and facility to act accordingly, including, to search even without warrant, in the light of such
circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the
detriment of society.”
The case of MALMSTEDT was repeated in the case of
PEOPLE vs. BAGISTA

214 SCRA 53
FACTS: This also happened in Mt. Province. The NARCOM received a tip that a woman riding in
a bus from Baguio City has marijuana. She was described as having curly hair and short. So, when
the bus passed through the checkpoint, they saw the woman which fit the description. The agent
searched her and in her bag was found marijuana. The bag and its contents were seized.
ISSUE: Was there a valid search?
HELD: The search was valid in accordance with the case of Malmstedt. “With regard to the
search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles
makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which
the warrant must be sought.”
“This in no way, however, gives the police officers unlimited discretion to conduct warrantless
searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected
to an extensive search, such a warrantless search has been held to be valid only as long as the
officers conducting the search have reasonable or probable cause to believe before the search that
they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.”
“The NARCOM officers in the case at bar had probable cause to stop and search all vehicles
coming from the north at Acop, Tublay, Benguet in view of the confidential information they
received from their regular informant that a woman having the same appearance as that of
accused-appellant would be bringing marijuana from up north. They likewise have probable cause
to search accused-appellant's belongings since she fits the description given by the NARCOM
informant.”
Let’s try to compare the case of Bagista with the earlier case of AMINUDIN. It has a similar set of facts but
this time, it involves marine vessel.
PEOPLE vs. AMINUDIN

163 SCRA 402
FACTS: The NARCOM agenst in Iloilo City received a report that a vessel coming from Mindanao
has Mr. Aminudin carrying with him marijuana. So, the NARCOM agents waited at the port for the
vessel to arrive. So they were looking for the passenger and then they saw a man which fit the
description of the suspect. They frisked him and when the maleta was opened, it contained
prohibited drugs. Subsequently, the man was arrested.
HELD: There was no valid search because the NARCOM has enough time to secure a search
warrant. There are still 2 days before the vessel will arrive. They have all the time. In the Malmstedt
and Bagista, it was in the bus and may pass by within 30 minutes or 1 hour.
Another difference is this: if you are the suspect riding in a bus and you knew that there is a checkpoint
ahead, you can always ask the bus to stop and then baba ka. But in the case of ship, you cannot do that!
Pagnaka-hearing ka na may checkpoint sa pier, will you ask the vessel to stop and then talon ka dagat? That is
absurd ‘no! So when it comes to buses or other by-land vehicles, mas madaling makataas ang suspect. Unlike
sa marine vessel.
610
Another case where the SC laid down the rule reiterating the case of Valmonte is the 1993 case of:
PEOPLE vs. EXALA

221 SCRA 494
HELD: But visual situation only and if there is an information to excite that something is wrong,
then you can effect a search without warrant. This is the exception: if the vehicle is stopped and
extensively searched, it is because of some probable cause which justifies a reasonable belief that
either a motorist of the content of the vehicle is an instrument in the commission of an offense. The
presumption stands that they are regularly performing their duties.
EVIDENCE IN PLAIN VIEW
Another instance of a warrantless search is the search of evidence in plain view know as the plain view
doctrine – when you stumble by accident across an object which is prohibited or illegal. It would be absurd that
you still have to require a search warrant, when it is actually there in front of you. This doctrine complements
the other. And one of the cases where the SC explained the plain view doctrine is the case of
PEOPLE vs. MUSA

217 SCRA 597 [1995]
FACTS: The NARCOM team conducted a buy-bust operation at the appellant’s house who was
alleged to be selling marijuana. After the transaction took placed, the team went inside the house
and arrested the appellant but unable to find the marked money.
Thereafter, 2 agents went to the kitchen and noticed a cellophane colored white and stripe
hanging at the corner of the kitchen. They asked the appellant about its contents, but failing to get
a response, they opened it and found dried marijuana leaves.
At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it
contains but the trial court ruled that they are admissible.
HELD: Search was not valid, objects seized inadmissible in evidence. The SC explained and
clarified the meaning of plain view. Let us say that the plastic bag is apparent and you cannot see
what is inside, then you will go there to see it, that is not plain view.
“The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend
beyond the person of the one arrested to include the premises or surroundings under his immediate
control. Objects in the "plain view" of an officer who has the right to be in the position to have that
view are subject to seizure and may be presented as evidence.”
“The "plain view" doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of
defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching
for evidence against the accused, but nonetheless inadvertently comes across an incriminating
object.”
“It has also been suggested that even if an object is observed in "plain view," the "plain view"
doctrine will not justify the seizure of the object where the incriminating nature of the object is not
apparent from the "plain view" of the object. 47 Stated differently, it must be immediately apparent
to the police that the items that they observe may be evidence of a crime, contraband, or otherwise
subject to seizure.”
“In the instant case, the appellant was arrested and his person searched in the living room.
Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the
whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within
their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had
to move from one portion of the house to another before they sighted the plastic bag.”
“Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen,
they had no clue as to its contents. They had to ask the appellant what the bag contained. When
the appellant refused to respond, they opened it and found the marijuana. Even assuming then,
that the NARCOM agents inadvertently came across the plastic bag because it was within their
"plain view," what may be said to be the object in their "plain view" was just the plastic bag and not
the marijuana. The incriminating nature of the contents of the plastic bag was not immediately
apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly
betrayed its contents, whether by its distinctive configuration, its transparency, or otherwise, that
its contents are obvious to an observer.”
CUSTOMS SEARCHES
Another instance of a valid warrantless search is a search conducted under the customs and tariff code.
When a vessel arrives from abroad, the customs agents board the vessel to look for smuggled items. Then can
conduct warrantless searches for the enforcement of customs laws.
CONSENTED SEARCH
Another instance of a valid warrantless search is a consented search because here, there is a waiver. For
example: I will go to your house and I will tell you that we heard that there are illegal firearms inside your house
and I have no warrant. But you let me in, “Okay lang, sige pasok ka and you search.” That is consented search.
One of the interesting cases in consented search is the case of:
PEOPLE vs. BURGOS

144 SCRA 1
611
NOTE: Do not confuse this case with the one we discussed in Rule 113.
FACTS: There was a suspected NPA, got arrested and there was an interrogation, “Who are you
companions?” “Mr. so and so.” So they went to this house and said that, “Hoy! NPA ka man daw. We
would like to search your house, pwede?” The wife did not object. They found firearms. When the
constitutionality of the search was challenged, the contention was, it was a consented search.
HELD: It was not a consented search. When a person remains silent, that is not consent. This is
a constitutional right which cannot be lightly waived. There is no presumption that there is a waiver
or that the consent was given by the accused simply because he failed to object. You apply the rule
that courts indulge every reasonable presumption against waiver of constitutional rights. You cannot
presume acquiescence in the loss of fundamental constitutional right.
One last case on consented search also happened in Davao City. The case of
VEROY vs. LAYAGUE

210 SCRA 97
FACTS: Atty. Paul Veroy was formerly regional director of the SSS. He has a house in Skyline. At
that time, they were at Manila. The military received a report that his house is being used by the
rebels; that is where they meet. So they called up Veroy through long distance. Mr. Veroy said,
“Sige, bahala na kayo diyan.” The searching team started opening drawers and they found guns. So
Veroy was charged for illegal possession of firearms.
Veroy challenged the validity of the search. The defense was consented search.
HELD: The search was not valid although there was consent from Veroy. The permission was to
look for rebels and not for firearms. If you are looking for rebels, why are you opening the drawers?
There are no rebels inside the drawers! Where the permission to enter a residence was given to
search for rebels, it is illegal to search the rooms therein for firearms without a search warrant.
SEARCHES UNDER EXIGENT/EXTRAORDINARY CIRCUMSTANCES
The last exception to the warrant exception would be searches during exigent or extraordinary
circumstances provided probable cause exists. Just like what happened during the 1987 and 1989 coup where
the military made some searches in suspected places. In that case, there is no need to obtain search warrants
considering that during that time all the courts there in Manila were closed because of the coup de etat. Such
period is considered as extraordinary circumstances.
NOTE: This exception is a catch-all category that encompasses a number of diverse situations. What they
have in common is some kind of emergency that makes obtaining a search warrant impractical, useless,
dangerous, or unnecessary. Among these situations are danger of physical harm to the officer or destruction of
evidence, danger to a third person, driving while intoxicated, and searches in hot pursuit. Del Carmen, Rolando
V., Criminal Procedure for Law Enforcement Personnel, 1987 Edition p. 150 (Footnote, People vs. Fernandez, 238
SCRA 174, 182)
NOTE: Search based on probable cause under extraordinary circumstances, were upheld in People vs.
Posadas, 188 SCRA 288 [1990]; Valmonte vs. Villa, 178 SCRA 211 [1989]; People vs. Maspil, G.R. No. 85177,
August 20, 1990, citing Valmonte vs. Villa; People vs. Malmstedt, G.R. No. 91107, June 19, 1991; People vs.
Sucro, G.R. No. 93239, March 18, 1991; People vs. Montilla, G.R. No. 123872, January, 30, 1998.
SEC. 14. Motion to quash a search warrant or to suppress evidence; where to file. - A
motion to quash a search warrant and/or to suppress evidence obtained thereby may
be filed in and acted upon only by the court where the action has been instituted. If
no criminal action has been instituted, the motion may be filed in and resolved by
the court that issued search warrant. However, if such court failed to resolve the
motion and a criminal case is subsequently filed in another court, the motion shall be
resolved by the latter court. (n)
Now, Section 14 is a new provision. It was taken from the case of Malaloan and Bans. (People v. Bans, G.R.
No. 104147)
Q: The judge will issue a search warrant. Suppose the search warrant is improper, where will you question
the admissibility of the evidence… in the court which issued the warrant? or in the court where the case is
pending?
A: In the case of Malaloan, in either court. But in the case of Bans, if there is already a case, all should be
resolved in the court where the case is pending, otherwise there will be interference among the courts.
When do you question the validity of the search? In illegal arrest, all defects surrounding the arrest should
be raised before the arraignment, otherwise the defects are deemed cured because there was a waiver.
But in illegal search, such rule does not apply. You may raise such issue even after arraignment. The waiver
only applies on the illegality of arrest, and does not extend to searches. (People vs. Aruta)
How To Kill An Eel
Little Johnny was 10 years old and like other boys in his age, he was rather curious about everything. He
had been hearing quite a bit about 'courting' from the older boys at school, and he wondered what it was, and
how it was done.
612
One day he took his question to his mother, who became rather flustered. Instead of explaining things to
Johnny, she told him to hide behind the curtains one night, and watch his older sister and her boyfriend, who
she explained were "courting."
This he did. The following morning, Johnny described everything to his mother, in great detail.
"Well, Sis and her boyfriend sat and talk for a while, then he turned off most of the lights. Then he started
kissing and hugging her. I figured Sis must be getting sick, because her face started looking funny. He must
have thought so too, because he put his hand inside her blouse to feel her heart, just the way the doctor would.
Except he's not as smart as the doctor because he seemed to have trouble finding her heart and really had to
search for it. I guess he was getting sick too, because pretty soon both of them started panting and getting all
out of breath. His other hand must have been cold, because he put it under her skirt to get it warmed up.
“About this time, Sis got worse, and began to moan and sigh and squirm around and slide down toward the
end of the couch. This was when her fever started. I knew it was a fever, because Sis told him she really felt
hot. Finally, I found out what was making them so sick -- a big eel, about nine inches long, had gotten inside his
pants somehow. It just jumped out of his pants, and it stood up, and he had to keep one hand on it to keep it
from getting away. When Sis saw it, she got really scared and her eyes got big, and her mouth fell open, and
she started calling out to God and stuff like that. She said it was the biggest one she's ever seen; I should tell
her about the ones down the lake.
“Anyway, Sis got brave and tried to kill the eel by biting its head off. All of a sudden she grabbed it with
both hands, and held it tight while he took a muzzle out of his pocket and slipped it over the eel's head to keep
it from biting again.
“Sis lay back and spread her legs, so she could get a scissor –- lock on it and he helped by lying on top of
the eel. The eel put up a hell of a fight. Sis started groaning and squealing and her boyfriend almost upset the
couch. I guess they wanted to kill the eel by squashing it between them.
“After a while they both quit moving and gave a great sigh. Her boyfriend got up, and sure enough, they
killed the eel. I knew it because it just hung there, limp, and some of its sides hanging out.
"Sis and her boyfriend were a little tired from the battle, but they went back to courting anyway. He started
hugging and kissing her again. By golly, the eel wasn't dead! It jumped straight up and started to fight again.
I guess eels are like cats –- they have nine lives or something.
“This time, Sis jumped up and tried to kill it by sitting on it. After about a 35-minute struggle, they finally
killed the eel. I knew it was dead now for sure, because I saw Sis's boyfriend peel it's skin off and flush it down
the toilet."
(Probably this Mom answered her son's questions herself after this)
Rule 127
PROVISIONAL REMEDIES
IN CRIMINAL CASES
The most extensive discussion in provisional remedies is when we discuss provisional remedies and special
civil actions in civil procedure. The main rules are from Rule 57 to 61. The concept is, if there are provisional
remedies in civil cases, there must also be provisional remedies in criminal cases.
EXAMPLE: Let’s go first to civil cases: Suppose you borrowed money from me and you refused to pay. So, I’ll
file a case against you.
Q: Can I immediately run against your properties?

A: Not yet because the case is still pending. But if there is still sufficient property of the debtor, there is no
problem.
But suppose you start selling your properties everyday. By the time I win the case, you may be as poor as a
rat. So I must do something. Under Rule 57, I can ask the court to issue preliminary attachment. That is
provisional remedy. Some of your properties will be attached to prevent you from disposing. It is now my
security.
Q: Is that applicable in criminal cases?

A: Of course. Just remember the rule, when you file a criminal case, there is a civil action which is deemed
instituted to recover civil liability. The victim is interested for the civil liability and so, he has to wait for the
criminal case to end. But now even if the case is going on, the accused is hiding his property one by one. He is
trying to dispose. So, I will ask for the remedy of preliminary attachment in criminal cases.
But in order that Rule 127 will apply, the condition is, the offended party has not waived the civil liability or
has not reserved.
SECTION 1. Availability of provisional remedies. – The provisional remedies in civil

actions, insofar as they are applicable, may be availed of in connection with the civil
action deemed instituted with the criminal action. (1a)
The provisional remedies in civil actions are also available in criminal actions. You can find them in Rule 57
to 61. The most famous of them is the remedy of preliminary attachment. So, if there is attachment in civil
cases, there is also in criminal cases.
SEC. 2. Attachment.– When the civil action is properly instituted in the criminal
action as provided in Rule 111, the offended party may have the property of the
accused attached as security for the satisfaction of any judgment that may be
recovered from the accused in the following cases:
(a) When the accused is about to abscond from the Philippines;
613
(b) When the criminal action is based on a claim for money or property embezzled
or fraudulently misapplied or converted to the use of the accused who is a public
officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course
of his employment as such, or by any other person in a fiduciary capacity, or for a
willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property, or is
about to do so; and
(d) When the accused resides outside the Philippines. (2a)
So, you can avail of attachment upon filing of the case or it is pending in court provided there is no waiver
or reservation of the civil action and there should be the presence of any of the four (4) grounds.
Now, you try to compare the grounds in attachment in civil cases with the grounds in criminal cases. If you
read Rule 57, the grounds are almost the same.
In civil cases, the defendant can ask for damages in case of an improper attachment made by the plaintiff,
kaya nga may attachment bond eh to answer for damages.
Q: Now in criminal cases, can the accused claim for damages for illegal or improper attachment under Rule
127?
A: YES, the same in civil cases. And that is confirmed in Rule 119, Section 11 [b]:
RULE 119, SEC. 11. Order of trial. – The trial shall proceed in the following order:
xxxxx
(b) The accused may present evidence to prove his defense and damages, if any,
arising, from the issuance of a provisional remedy in the case.
xxxxx
That is the end of review on criminal procedure.
614

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CIVIL PROCEDURE

Q: Why ‘portion’ only?

Q: Distinguish court from judge.

Q: Classify courts in general.

SUPERIOR COURTS vs. FIRST-LEVEL COURTS

Q: Distinguish superior courts from inferior courts.

Q: What courts are superior or inferior?

ORIGINAL COURT vs. APPELLATE COURT

Q: Distinguish original court from appellate court.

Q: Is the SC an original or appellate court?

Q: Is the CA an original or appellate court?

Q: How about the RTC? Is the RTC an original or appellate court?

Q: How about the MTC? Is the MTC an original or appellate court?

CIVIL COURTS vs. CRIMINAL COURTS

Q: Distinguish civil courts from criminal courts.

COURTS OF LAW vs. COURTS OF EQUITY

Q: Distinguish Courts of Law from Courts of Equity.

ALONZO vs. INTERMEDIATE APPELLATE COURT

CONSTITUTIONAL COURTS vs. STATUTORY COURTS

Q: Distinguish Constitutional Courts from Statutory Courts.

INHERENT POWERS OF THE COURT

SEC 6. Means to carry jurisdiction into effect – When by law jurisdiction is

ENFORCEABILITY OF COURT WRITS AND PROCESSES

Under Section 3, Interim Rules:

Sec. 3. Writs and Processes. -

Q: What is the area of enforceability of writs and processes of the courts?

a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction,

Q: What is the effect if the court has no jurisdiction?

JURISDICTION vs. EXERCISE OF JURISDICTION

Q: Distinguish jurisdiction from exercise of jurisdiction.

Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction?

ERROR OF JURISDICTION vs. ERROR OF JUDGMENT

BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.

2.) ERRORS OF JURISDICTION are reviewable by certiorari; whereas,

Q: What is the use of distinguishing error of jurisdiction from error of judgment?

Q: In whom is jurisdiction is vested?

1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION

3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION

ELEMENTS OF JURISDICTION IN CIVIL CASES

Q: What are the elements of jurisdiction in civil cases?

Q: Now, what happens if in a particular case one of these is missing?

A. JURISDICTION OVER THE SUBJECT MATTER

Q: Define jurisdiction over the subject matter.

Q: How is jurisdiction over the subject matter acquired or conferred?

Q: How is jurisdiction over the subject matter determined?

B. JURISDICTION OVER THE PERSON

Q: Define jurisdiction over the person.

Q: How does the court acquire jurisdiction over the plaintiff?

Q: How does the court acquire jurisdiction over the defendant?

First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS

Q: In criminal cases, how can the warrant of arrest be effected?

Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE

C. JURISDICTION OVER THE RES

RES is the Latin word for “thing.”

Q: Define jurisdiction over the res.

Q: Why is jurisdiction over the res important?

D. JURISDICTION OVER THE ISSUES

Q: Define jurisdiction over the issues.

Q: What are pleadings?

Q: Now what is the issue?

HIERARCHY OF THE COURTS

REGIONAL TRIAL COURTS

MetTC MTCC MTC MCTC

b.) Special courts