Remedial Law Survey of Cases

ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.

SURVEY OF 2009 2010 SC Decisions in
Remedial Law
By: DEAN ED VINCENT S. ALBANO
JURISDICTION
Place of printing, venue in libel cases.
Once again, the SC in Vicente Foz, Jr., et al. v. People, G.R. No. 167764, October 9, 2009,
the SC had the occasion to rule that venue is a matter of jurisdiction in criminal cases. In this case,
the allegation in the information was that Panay News, a daily publication of considerable circulation
in Iloilo City and throughout the region, only showed that Iloilo was the place where Panay News
was in considerable circulation, but did not establish that the said publication was printed and first
published in Iloilo City.
Settled is the rule that jurisdiction of a court over a criminal case is determinate by the
allegations of the complaint or information, and the offense must have been committed or any one
of its essential ingredients took place within the territorial jurisdiction of the court. Considering that
the information failed to allege the venue requirements for a libel case under Article 360, RTC of
Iloilo City had no jurisdiction to hear this case. Thus, its decision convicting petitioners of the crime
of libel should be set aside for want of jurisdiction without prejudice to its filing with the court of
competent jurisdiction.
Effect if court has no jurisdiction.
In Tiu v. First Plywood Corp., G.R. No. 176123; Tiu v. Timber Exports, Inc., et. al., G.R. NO.
182655, March 10, 2010, Morales, J, the SC had again ruled thata judgment rendered by a court
without jurisdiction is null and void and may be attacked anytime. It creates no right and produces
no effect. It remains a basic fact in law that the choice of the proper forum is crucial, as the decision
of a court or tribunal without jurisdiction is a total nullity. A void judgment for want of jurisdiction is
no judgment at all. All acts performed pursuant to it an all claims emanating from it have no legal
effect. (Calanza v. Paper Industries Corporation of the Philippines, G.R. No. 146622, April 24, 2009).
Doctrine of Judicial stability.
The various branches of the RTC, having as they do have the same or equal authority and
exercising as they do concurrent and coordinate jurisdiction, should not cannot and are not
permitted to intervene with their respective cases, much less with their orders or judgments. A
contrary rule would lead to confusion and seriously hamper the administration of justice (Javier v.
CA, 467 Phil 404 (2004)).
In accion publiciana, assessed

value of property determines
jurisdiction.
Under BP 129, as amended, jurisdiction even in accion publiciana cases is determined by the
assessed value of the property. The Court recently explained in Spouses Alcantara v. Nido, G.R. No.
165133, April 19, 2010 that assessed value is worth or value of the property as fixed by the taxing
authorities for the purpose of determining the applicable tax rate. The assessed value does not
necessarily represent the true or market value of the property.
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In the present case, the complaint, which was filed after the enactment of RA 7691,
contained a statement that, based on the tax declaration filed in the Office of the Assessor, the lot
subject of the accion publiciana has an assessed value of P48,000. The subject lot, with an assessed
value below the jurisdictional limit of P50,000.00 for Metro Manila, comes within the exclusive
original jurisdiction of the MeTC under BP 129, as amended. Thus, the RTC erred in holding that the
MeTC had no jurisdiction in this case (BF Citiland Corp. v. Otake, G.R. No. 173351, July 29, 2010,
Carpio, J.).
Estoppel to question jurisdiction;

reason behind the rule.
In Cudiamat, et.al. v. Batangas Savings and Loans Bank, Inc., et. al., G.R. No. 182403,
March 9, 2010, Carpio-Morales, J, the SC once again had the occasion to rule on the issue of
estoppel to question jurisdiction. The question arose when there was a complaint for quieting of tile
with damages against the bank due to a mortgage executed over a property without the consent of
the owners. The bank contended that since it filed a petition for assistance in the liquidation of the
bank, the jurisdiction to adjudicate a disputed claims against it is lodged with the liquidation court,
the RTC, Nasugbu, Batangas. The complaint for quieting of title was filed before the RTC of Balayan,
Batangas. It was contended that the RTC Balayan should have referred the case to the RTC-
Nasugbu, which the CA granted. Hence, a petition was filed with the SC questioning the ruling of
the CA, that the RTC-Balayan has jurisdiction. They contended that the complaint was filed earlier
than the petition for assistance in the liquidation and that the bank is now stopped from questioning
the jurisdiction of the Balayan RTC as it actively participated in the proceedings. Is the contention
correct? Why?
Answer: Yes, the bank is stopped from raising the issue of lack of jurisdiction of the Balayan RTC.
In Lozon v, NLRC, 310 Phil 1 (1995), the Court came up with a clear rule on when estoppel to
question jurisdiction applies and when it does not:
The operation of estoppel on the question of jurisdiction seemingly depends on

whether the lower court actually had jurisdiction or not. If it had no jurisdiction,
but the case was tried and decided upon the theory that it had jurisdiction, the parties
are not barred, on appeal, from assailing such jurisdiction, for the same must exist as
a matter of law, and may not be conferred by the consent of the parties or by
estoppel. However, if the lower court had jurisdiction, and the case was heard
and decided upon a given theory, such, for instance, as that the court had no
jurisdiction, the party who induced it to adopt such theory will not be
permitted, on appeal, to assume an inconsistent positionthat the lower court
had jurisdiction. (See also: Metromedia Times Corp. v. Pastorin, G.R. No. 154295,
July 25, 2005, 465 SCRA 320).
In the present case, the Balayan RTC, sitting as a court of general jurisdiction had jurisdiction
over the complaint for quieting of title filed by petitioners on August 9, 1999. The Nasugbu RTC, as
a liquidation court, assumed jurisdiction over the claims against the bank only on May 25,2000,
when the PDICs petition for assistance in the liquidation was raffled thereat and given due course.
While it is well-settled that lack of jurisdiction on the subject matter can be raised at any time
and is not lost by estoppel by laches, the present case is an exception. To compel petitioners to re-
file and relitigate their claims before the Nasugbu RTC when the parties had already been given the
opportunity to present their respective evidences in a full-blown trial before the Balayan RTC which
had, decided petitioners complaint (about two years before the appellate court rendered the
assailed decision) would be an exercise in futility and would unjustly burden petitioners.
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The Court, in Valenzuela v. Court of Appeals, held that as a general rule, if there is a judicial
liquidation of an insolvent bank, all claims against the bank should be filed in the liquidation
proceeding. The Court in Valenzuela, however, after considering the circumstances attendant to the
case, held that the general rule should not be applied if to order the aggrieved party to refile or
relitigate its case before the litigation court would be an exercise in futility. Among the
circumstances the Court considered in that case is the fact that the claimants were poor and the
disputed parcel of land was their only property, and the parties claims and defenses were properly
ventilated in and considered by the judicial court.
In the present case, the court found that analogous considerations exist to warrant an
application of Valenzuela. Petitioner Restituto was 78 years old at the time the petition was filed in
this Court, and his co-petitioner-wife Erlinda died during the pendency of the case. To compel him
to appear and relitigate the case in the liquidation court-Nasugbu RTC when the issued to be raise
before it are the same as those already exhaustively passed upon and decided by the Balayan RTC
would be superfluous.
Note: This must be distinguished from Frianela v. Banayad, where the RTC had no jurisdiction at all.
The issue of lack of jurisdiction was raised for the first time in the SC after almost 20 years of
litigation and the parties participated in the proceedings. The SC dismissed the case for lack of
jurisdiction over the subject matter.
Matters that determine the

jurisdiction over an issue in a
case.
In Lim v. BP Agricultural Dev. Bank, G.R. NO. 179230, March 9, 2010, Morales, J, the SC had
the occasion to rule that jurisdiction over an issue in a case is determined and conferred by the
pleadings filed by the parties, or by their agreement in a pre-trial order or stipulation or, at times by
their implied consent as by the failure of a party to object to evidence on an issue not covered by
the pleadings, as provided in Section 5, Rule 10 of the Rules of Court (De Joya v. Marquez, G.R. No.
162416, January 31, 2006).
Unlawful detainer and forcible entry

cases fall within the jurisdiction of the
MTC, etc.
Designed to provide an expeditious means of protecting actual possession or the right to

possession of the property involved, there can be no gainsaying the fact that ejectment cases fall
within the original and exclusive jurisdiction of first level court by express provision of Section 33 of
Batas Pambansa blg. 120, in relation to Sec. 1, Rule 70 of the 1997 Rules of Civil Procedure. In
addition to being conferred by law, however, a courts jurisdiction over the subject matter is
determined by the allegations of the complaint and the character of the relief sought, irrespective of
whether or not the plaintiff is entitled to recover all or some of the claims asserted therein. In much
the same way that it cannot be made to depend on the exclusive characterization of the case by one
of the parties, jurisdiction cannot be made to depend upon the defenses set up in the answer, in a
motion to dismiss or in a motion for reconsideration (Tamado v. Ortiz, 353 Phil 775 (1998)).
Required allegations in Forcible Entry cases.
The rule is no different in actions for forcible entry where the following requisites are
essential for the MeTCs acquisition of jurisdiction over the case, viz.: (a) the plaintiffs must allege
their prior physical possession of the property; (b) they must assert that they were deprived of
possession by either force, intimidation, threat, strategy or stealth; and (c) the action must be filed
within one (1) year from the time the owners or legal possessors learned of their deprivation of the
physical possession of the property. As it is not essential that the complaint should expressly
employ the language of the law, it is considered sufficient compliance of the requirement where the
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facts are set up showing that dispossession took place under said conditions. The one-year period
within which to bring an action for forcible entry is generally counted from the date of actual entry
on the land, except that when the entry is through stealth, the one-year period is counted from the
time the plaintiff learned thereof (Ong v. Parel, 407 Phil 1045 (2001)); Nunez v. SL Teas Phoenix
Solutions, Inc., G.R. No. 180542, April 12, 2010, Perez, J.).
Forfeiture proceedings are within the

exclusive jurisdiction of the Collector
of Customs.
Once again, the SC ruled in SBMA v. Rodriguez, et. al., G.R. No. 160270, April 23, 2010, that
the Collector of Customs has exclusive jurisdiction over seizure and forfeiture proceedings, and
regular courts cannot interfere with his exercise thereof or stifle or put it at naught (Mison v.
Natividad, 213 SCRA 734 (1992)). The Collector of Customs sitting in seizure and forfeiture
proceedings has exclusive jurisdiction to hear Regional Trial Courts are devoid of any competence to
pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the BOC and
to enjoin or otherwise interfere with these proceedings (Jao v. CA, 319 Phil 105 (1995)). Regional
Trial courts are precluded from assuming cognizance over such matters even through petitions for
certiorari, prohibition or mandamus.
Verily, the rule is that from the moment imported goods are actually in the possession or
control of the Customs authorities, even if no warrant for seizure or detention had previously been
issued by the Collector of Customs in connection with the seizure and forfeiture proceedings, the
BOC acquires jurisdiction over such imported goods for the purpose of enforcing he customs laws,
subject to appeal to the Court of Tax Appeals whose decisions are appealable to this Court. As we
have clarified in Commissioner of Customs v. Makasiar, 257 Phil 864 (1989)), the rule that RTCs
have no review powers over such proceedings is anchored upon the policy of placing no unnecessary
hindrance on the governments drive, not only to prevent smuggling and other frauds upon Customs,
but more importantly, to render effective and efficient the collection of import and export duties due
the State, which enables the government to carry out the functions it has been instituted to perform.
Recovery of damages due to malicious

prosecution; total amount of damages
determines the jurisdiction of the
court.
In Sante v. Hon. Claravall, et. al., G.R. No. 173915, February 22, 2010, Villarama, J., there
was a complaint for damages due to malicious prosecution. It sought an award of moral and
exemplary damages in the amount of P420,000.00 suffered by reason of the utterances while they
were at a police station.
In holding that the RTC has jurisdiction, the SC held:
It is settled that jurisdiction is conferred by law based on the facts alleged in the complaint
since the latter comprises a concise statement of the ultimate facts constituting the plaintiffs causes
of action. It is clear, based on the allegations of the complaint, that respondents main action is for
damages. Hence, the other forms of damages being claimed by respondent, e.g., exemplary
damages, attorneys fees and litigation expenses, are not merely incidental to or consequences of
the main action but constitute the primary relief prayed for in the complaint.
In Mendoza v. Soriano, G.R. No. 145022, September 23, 2005, 470 SCRA 639 it was held
that in cases where the claim for damages is the main cause of action, or one of the causes of
action, the amount of such claim shall be considered in determining the jurisdiction of the court. In
the said case, the respondents claim of P929,000.06 in damages and P25,000 attorneys fees plus
P500 per court appearance was held to represent the monetary equivalent for compensation of the
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alleged injury. The Court therein held that the total amount of monetary claims including the claims
for damages was the basis to determine the jurisdictional amount.
Also, in Iniego v. Purganan, G.R. No. 166876, March 24, 2006, 485 SCRA 394, the Court
held:
The amount of damages claimed is within the jurisdiction of the RTC, since it is
the claim for all kinds of damages that is the basis of determining the jurisdiction of
courts, whether the claims for damages arise from the same or from different causes
of action.
xxx
RULE 3
PARTIES
Capacity of co-owner to sue for ejectment.
In Soriente v. Estate of Arsenio Concepcion, G.R. No. 160239, November 25, 2009, after the
death of Concepcion, the wife sued defendant for ejectment. The latter questioned her capacity since
no letters of administration has been issued to her. The SC held:
She has the capacity to sue as co-owner. She is entitled to prosecute the
ejectment case not only in a representative capacity, but as a real party-in-
interest. Article 487 of the Civil Code states, Any one of the co-owners may bring
an action in ejectment. Hence, assuming that she failed to submit the proper
documents showing her capacity to sue in a representative capacity for the estate
of her deceased husband, the Court, in the interest of speedy disposition of cases,
may deem her capacitated to prosecute the ejectment case as a real party-in-
interest being a co-owner of the subject property considering that the trial court
has jurisdiction over the subject matter and has also acquired jurisdiction over the
parties, including the plaintiff as representative of the estate.
Under Section 7 of the 1991 Revised Rules on Summary Procedure, if a sole defendant shall
fail to appear in the preliminary conference, the plaintiff shall be entitled to judgment in accordance
with Section 6 of the Rule, that is, the court shall render judgment as may be warranted by the facts
alleged in the Complaint and limited to what is prayed for therein. However, [t]his Rule (Sec. 7)
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. Her claim that the
preceding provision applies to her as a defendant, since the ejectment cases were consolidated by
the trial court, and she and the other defendant filed the same Answer to the Complaint; hence, the
trial court should not have rendered judgment against her when she failed to appear in the
preliminary conference is not correct.
Sole proprietorship, no personality to sue.
In Excellent Quality Apparel, Inc. v. Win Multi Rich Builders, Inc., G.R. No. 175048, February
10, 2009, the SC had once again the occasion to rule that a suit may only be instituted by the real
party in interest. Section 2, Rule 3 of the Rules of Court defines parties in interest in this manner:
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.
A sole proprietorship is the oldest, simplest, and most prevalent form of business enterprise. It is an
unorganized business owned by one person. The sole proprietor is personally liable for all the debts
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and obligations of the business. In the case of Mangila v. Court of Appeals, 435 Phil. 870 (2002) it
was held:
x x x In fact, there is no law authorizing sole proprietorships to file a suit in

court.
A sole proprietorship does not possess a juridical personality separate and

distinct from the personality of the owner of the enterprise. The law merely
recognizes the existence of a sole proprietorship as a form of business organization
conducted for profit by a single individual and requires its proprietor or owner to
secure licenses and permits, register its business name, and pay taxes to the
national government. The law does not vest a separate legal personality on the sole
proprietorship or empower it to file or defend an action in court.
In Navarro v. Hon. Jose Escobido, et al., G.R. No. 153788, November 27, 2009, it was once
again said that a sole proprietorship, like Kargo Enterprises is not a juridical person hence, pursuant
to Rule 3 Sec. 1, it cannot be a party to a civil action. In Juasing Hardware v. Mendoza, 201 Phil.
369 (1982), it was said that there is no law authorizing sole proprietorships like petitioner to bring
suit in court. The law merely recognizes the existence of a sole proprietorship as a form of business
organization conducted for profit by a single individual, and requires the proprietor or owner thereof
to secure licenses and permit, register the business name, and pay taxes to the national
government. It does not vest juridical or legal personality upon the sole proprietorship nor empower
it to file or defend an action in court.
Thus, the complaint should have been filed in the name of the owner of Juasing
Hardware. The allegation in the body of the complaint would show that the suit is brought by
such person as proprietor or owner of the business conducted under the name and style
Juasing Hardware. The descriptive words doing business as Juasing Hardware may be added to
the title of the case, as is customarily done.
This conclusion should be read in relation with Section 2, Rule 3 of the Rules, which states:
SEC. 2. Parties in Interest.- A real party in interest is the party who stands to
be benefited or injured by the judgment of the suit, or the party entitled to the
avails of the suit. Unless otherwise by law or these Rules, every action must be
prosecuted or defended by the real party in interest.
As the registered owner of Kargo Enterprises, Karen Go is the party who will directly benefit
from or be injured by the judgment in the case, Karen Go is the real party-in-interest.
Real party interest to prosecute

original action and appeal
In Alonso, et al. v. Cebu Country Club, Inc., G.R. No. 188471, April 20, 2010, Bersamin, J.,
the SC once again had the occasion to say that every action must be prosecuted and defended in the
name of the real party in interest, unless otherwise provided by law or the rules. A real party in
interest is one who stands to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. Interest within the meaning of the rules means material interest,
an interest in issue and to be affected by the decree, as distinguished from mere interest in the
question involved, mere incidental interest. The rule refers to a real or present substantial interest,
as distinguished from a mere expectancy; from a future, contingent, subordinate, or consequential
interest. One having no right or interest to protect cannot invoke the jurisdiction of the court as a
party-plaintiff in an action.
Thus, an appeal is an action to be prosecuted by a party in interest before a higher court. In

order for the appeal to prosper, the litigant must of necessity continue to hold a real or present
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substantial interest that entitles him to the avails of the suit on appeal. If he does not, the appeal,
as to him, is an exercise in futility. So it is with the petitioners!
Effect of misjoinder/non-joinder of party.
Rule 3, Section 11 of the Rules of Court provides that neither misjoinder nor non-joinder of
parties is a ground for the dismissal of an action.
In Domingo v. Scheer, G.R. No. 154745, January 29, 2004, 421 SCRA 468, it was held that
the proper remedy when a party is left out is to implead the indispensable party at any stage of the
action. The court, either motu proprio or upon the motion of a party, may order the inclusion of the
indispensable party or give the plaintiff opportunity to amend his complaint in order to include
indispensable parties. If the plaintiff to whom the order to include the indispensable party is
directed refuses to comply with the order of the court, the complaint may be dismissed upon motion
of the defendant or upon the court's own motion. (Rule 17, Sec. 3). Only upon unjustified failure or
refusal to obey the order to include or to amend is the action dismissed. (Cortez v. Avila, 101 Phil.
205 (1957); Macababbad, Jr. v. Masirag, G.R. No. 161237, January 14, 2009; Nocom v. Camerino,
et al., G.R. No. 182987, February 10, 2009).
When there is or there is no class suit
In Atty. Sylvia Banda, et al. v. Ermita, G.R. No. 166620, April 29, 2010, the SC ruled that
courts must exercise utmost caution before allowing a class suit, which is the exception to the
requirement of joinder of all indispensable parties. For while no difficulty may arise if the decision
secured is favorable to the plaintiffs, a quandary would result if the decision were otherwise as those
who were deemed impleaded by their self-appointed representative would certainly claim denial of
due process. (Board of Optometry v. Colet, 328 Phil. 1187 (1996).
From the definition of class suit under Rule 3, Sec. 12, the requisites of a class suit are: 1)
the subject matter of controversy is one of common or general interest to many persons; 2) the
parties affected are so numerous that it is impracticable to bring them all to court; and 3) the
parties bringing the class suit are sufficiently numerous or representative of the class and can fully
protect the interest of all concerned.
In Mathay v. The Consolidated Bank and Trust Company, 157 Phil. 551 (1974), the Court
held that:
An action does not become a class suit merely because it is designated as such in the
pleadings. Whether the suit is or is not a class suit depends upon the attending facts,
and the complaint, or other pleading initiating the class action should allege
the existence of the necessary facts, to wit, the existence of a subject matter of
common interest, and the existence of a class and the number of persons in the
alleged class, in order that the court might be enabled to determine whether
the members of the class are so numerous as to make it impracticable to
bring them all before the court, to contrast the number appearing in the
record with the number in the class and to determine whether claimants on
record adequately represent the class and the subject matter of general or
common interest.
Here, the petition failed to state the number of NPO employees who would be affected by the
assailed Executive Order and who were allegedly represented by petitioners. It was the Solicitor
General, as counsel for respondents, who pointed out that there were about 549 employees in the
NPO. The 67 petitioners undeniably comprised a small fraction of the NPO employees whom they
claimed to represent. Subsequently, 32 of the original petitioners executed an Affidavit of
Desistance, while one signed a letter denying ever signing the petition, ostensibly reducing the
number of petitioners to 34.
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Indeed, in MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, Inc., 444 Phil.
230 (2003), it was observed that an element of a class suit or representative suit is the adequacy of
representation. In determining the question of fair and adequate representation of members of a
class, the court must consider (a) whether the interest of the named party is coextensive with the
interest of the other members of the class; (b) the proportion of those made a party, as it so bears,
to the total membership of the class; and (c) any other factor bearing on the ability of the named
party to speak for the rest of the class.
In Ibaez v. Roman Catholic Church, 12 Phil 227, it said where the interests of the plaintiffs
and the other members of the class they seek to represent are diametrically opposed, the class suit
will not prosper.
RULE 6
Pleadings
When counterclaim is compulsory

or permissive; tests.
In Bungcayao, etc. v. Fort Ilocandia Property Holding and Dev. Corp., G.R. No. 170483, April
19, 2010, Carpio, J., there was an action to declare as void the Deed of Assignment, Release, Waiver
and Quitclaim, signed by petitioners son alleging that he was not authorized to sign the same.
Petitioner is one of the members of the DSierto Beach Resort Owners Association (DSierto), the
defendant filed an answer with counterclaim for the refund of the amount paid to petitioner, thru his
son and to vacate the portion occupied by him as the defendant is the owner of the property. The
RTC of Laoag City confirmed the Deed of Assignment and the return of the amount paid, but the
petitioner manifested that he was maintaining his claim for damages. Then, the case for summary
judgment, but later on petitioner manifested in open court that he was withdrawing the earlier
manifestation submitting the case for summary judgment. May summary judgment be rendered?
Why?
Answer: Yes, considering that the issue has been limited to damages but without prejudice to
the right of the defendant to file an action to recover the property from the plaintiff. This is so
because the counterclaim for recovery of the property occupied by the plaintiff is a permissive
counterclaim, contrary to the ruling of the lower courts that it is compulsory. While the counterclaim
is an offshoot of the same basic controversy between the parties, it is very clear that it will not be
barred if not set up in the answer to the complaint in the same case. Respondents second
counterclaim, contrary to the findings of the trial court and the Court of Appeals, is only a permissive
counterclaim. It is not compulsory counterclaim. It is capable of proceeding independently of the
main case.
The rule in permissive counterclaim is that for the trial court to acquire jurisdiction, the
counterclaim is bound to pay the prescribed docket fees. Any decision rendered without jurisdiction
is a total nullity and may be struck down at any time, even on appeal before this Court. In this case,
respondent did not dispute the non-payment of docket fees. Respondent only insisted that its claims
were all compulsory counterclaims. As such, the judgment by the trial court in relation to the second
counterclaim is considered null and void without prejudice to a separate action which respondent
may file against petitioner.
Nature of compulsory counterclaim
A compulsory counterclaim is any claim for money or any relief, which a defending party may
have against an opposing party, which at the time of suit arises out of, or is necessarily connected
with, the same transaction or occurrence that is the subject matter of the plaintiffs complaint. It is
compulsory in the sense that it is within the jurisdiction of the court, does not require for its
adjudication the presence of third parties over whom the court cannot acquire jurisdiction, and will
8


be barred in the future if not set up in the answer to the complaint in the same case. Any other
counterclaim is permissive.
The Court has ruled that the compelling text of compulsiveness characterizes a counterclaim
as compulsory if there should exist a logical relationship between the main claim and the
counterclaim. The Court further ruled that there exists such a relationship when conducting separate
trials of the respective claims of the parties would entail substantial duplication of time and effort by
the parties and the court; when the multiple claims involve the same factual and legal issues; or
when the claims are offshoots of the same basic controversy between the parties.
Criteria to determine nature of

compulsory counterclaim or
permissive counterclaim
The criteria to determine whether the counterclaim is compulsory or permissive are as

follows:
(a) Are issues of fact and law raised by the claim and by the counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on defendants claim, absent the compulsory
rule?
(c) Will substantially the same evidence support or refute plaintiffs claim as well as
defendants counterclaim?
(d) Is there any logical relation between the claim and the counterclaim?
A positive answer to all four questions would indicate that the counterclaim is compulsory.
(Namarco v. Federation of United Mamarco Distributors, 151 Phil. 338 (1973)
RULE 7
Verification and Non-Forum Shopping Certificate
Purposes of requirement of
verification of pleadings
In NHA v. Basa, et al., G.R. No. 149126, April 20, 2010, Leonardo-De Castro, J., the SC once
more had the occasion to rule on the importance of verification of a pleading.
The reason for requiring in the petition is to secure an assurance that the allegations of a
pleading are true and correct, are not speculative or merely imagined; and have been made in good
faith. (Valmonte v. Alcala, G.R. No. 168667, July 23, 2008, 559 SCRA 536).
No need to state that a case was filed

and dismissed in the certificate of non-
forum shopping if the dismissal is
without prejudice.
In Roberto Benedicto, et al. v. Manuel Lacson, et al., G.R. No. 141508, May 5, 2010, Peralta,
J., a case was originally filed before the RTC of Pasig City. It was however dismissed without
prejudice to the filing of another case. When the other case was filed, there was no statement to
that effect that a previous case was filed in the certificate of non-forum shopping. Can it be
dismissed on the ground of forum shopping for failure to state the filing of a previous action?
Held: No. As early as Roxas v. Court of Appeals, 415 Phil. 430 (2001), it has been ruled that
when a complaint has been dismissed without prejudice at the instance of the plaintiff, pursuant to
Section 1, Rule 17 of the 1997 Rules of Civil Procedure, there is no need to state in the certificate of
non-forum shopping in a subsequent re-filed complaint the fact of the prior filing and dismissal of
the formal complaint. The rule was designed to serve as an instrument to promote and facilitate the
9


orderly administration of justice and should not be interpreted with such absolute literalness as to
subvert its own ultimate and legitimate objective or the goal of all rules or procedure- which is to
achieve substantial justice as expeditiously as possible. The fact that Circular requires that it be
strictly complied with merely underscores its mandatory nature in that it cannot be dispensed with
or its requirements altogether disregarded, but it does not thereby interdict substantial compliance
with its provisions under justifiable circumstances.
Thus, an omission in the certificate of non-forum shopping about any event that would not
constitute res judicata and litis pendentia as in the case at bar, is not fatal as to merit the dismissal
and nullification of the entire proceeding considering that the evil sought to be prevented by the said
certificate are not [present.
Test to determine identity of causes of action
The test to determine identity of causes of action is to ascertain whether the same evidence
necessary to sustain the second cause of action is sufficient to authorize a recovery in the first, even
if the forms or the nature of the two (2) actions are different form each other. If the same facts or
evidence would sustain both, the two (2) actions are considered the same within the rule that the
judgement on the former is a bar to the subsequent action; otherwise, it is not. This method has
been considered the most accurate test as to whether the former judgment is a bar in a subsequent
proceedings between the same parties. It has even been designated as infallible. (Vda de Cruzo v.
Carriage, Jr., G.R. No. 75109 10, June 28, 1998, 175 SCRA 330; Benedicto v. Lacson, supra.)
RULE 9
Default
Remedy in case of default; effect of default.
Once again, in Nabua, et al. v. Lu Ym, G.R. No. 176141, December 16, 2008, the SC had the
occasion to rule that when defendant is declared in default, the proper remedy is to file a motion to
set aside the order of default upon a proper showing that his failure to answer was due to fraud,
accident, mistake or excusable negligence, and that he has a meritorious defense. (Rule 9, Sec.
3(b).
In Martinez v. Republic, G.R. No. 160895, October 30, 2006, 506 SCRA 134, it was stressed
that a party declared in default loses his standing in court and his right to adduce evidence and to
present his defense. He, however, has the right to appeal from the judgment by default on the
ground, inter alia, that the amount of the judgment is excessive or is different in kind from that
prayed for, or that plaintiff failed to prove the material allegations of his complaint, or that the
decision is contrary to law. He may not seek the reversal of the decision on the basis of evidence
submitted in the appellate court. Otherwise, his right to adduce evidence would have been returned
to him.
Rule on summary procedure;

effect of failure to appear at
preliminary conference.
In Soriente v. Estate of the Late Arsenio Concepcion, G.R. No. 160239, November 25, 2009,
Peralta, J, there were three (3) cases for unlawful detainer which were consolidated. One of the
parties failed to appear at the preliminary conference, hence, judgment was rendered against the
defendant. She contended that since the cases were consolidated, it is as if there was a common
cause of action against them and there was a common answer, hence, it was an error for the MTC to
render judgment. In brushing aside the contention, the SC
Held: The contention is not correct. Since the cases were independent of each other, they are not
co-defendants even if the cases were consolidated.
10


RULE 14
Summons
Summons, how served upon one

who is temporarily out of the
country.
In Padua v. Galvez, et. al., G.R. No. 165273, March 10, 2010, Peralta, J., the basic issue is
the manner of service of summons upon a Filipino who is a resident of the Philippines but
temporarily out of the country. The SC held:
In civil cases, the trial court acquires jurisdiction over the person of the defendant either by
the service of summons or by the latters voluntary appearance and submission to the authority of
the former. Private respondent was a Filipino resident who was temporarily out of the Philippines at
the time of the service of summons; thus, service of summons on her is governed by Section 16,
Rule 14 of the Rules of Court, which provides that when an 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 which is Section 15,
that speaks of extraterritorial service.
In Montefalcon v. Vasquez, G.R. No. 165016, June 17, 2008, 554 SCRA 513, it was said that
because Section 15 of Rule 14 uses the words may and also, it is not mandatory. Other methods
of service of summons allowed under the Rules may also be availed of by the serving officer on a
defendant-resident who is temporarily out of the Philippines. Thus, if a resident defendant is
temporarily out of the country, any of the following modes of service may be resorted to : (1)
substituted service set forth in Section 7 (formerly Section 8), Rule 14; (2) personal service outside
the country, with leave of court; (3) service by publication, also with leave of court; or (4) in any
other manner the court may deem sufficient.
In Montalban v. Maximo, l-22997, March 15, 1968, 22 SCRA 1070, it held that substituted
service of summons under the present Section 7, Rule 14 of the Rules of Court in a suit in personam
against residents of the Philippines temporarily absent therefrom is the normal method of service of
summons that will confer jurisdiction on the court over such defendant. The rationale in providing
for substituted service as the normal mode of service for residents temporarily out of the Philippines
is this:
x x x A man temporarily absent from this country leaves a definite place of residence,
a dwelling where he lives, so to speak, to which any inquiry about him may be
directed and where he is bound to return. Where one temporarily absents himself, he
leaves his affairs in the hands of one who may be reasonably expected to act in his
place and stead; to do all that is necessary to protect his interests; and to
communicate with him from time to time any incident of importance that may affect
him or his business or his affairs. It is usual for such a man to leave his home or with
his business associates information as to where he may be contacted in the event a
question that affects him crops up. If he does not do what is expected of him, and a
case comes up in court against him, he cannot just raise his voice and say that he is
not subject to the processes of our courts. He cannot be summoned at his dwelling
house or residence or his office or regular place of business.
Not that he cannot be reached within a reasonable time to enable him to

contest a suit against him. There are now advanced facilities of communication. Long
distance telephone calls and cablegrams make it easy for one he left behind to
communicate with him.
11


A dwelling house or residence refers to the place where the person named in the summons is
living at the time when the service is made, even though he may be temporarily out of the country
at the time. It is, thus, the service of the summons intended for the defendant that must be left
with the person of suitable age and discretion residing in the house of the defendant. Compliance
with the rules regarding the service of summons is as important as the issue of due process as that
of jurisdiction.
Section 7 also designates the person with whom copies of the process may be left. The rule
presupposes that such a relation of confidence exists between the person with whom the copy is left
and the defendant and, therefore, assumes that such person will deliver the process to defendant or
in some way give him notice thereof.
Filing of motion to lift order of

default; voluntary appearance.
In Rapid City Realty & Dev. Corp. v. Villa, G.R. No. 184197, February 11, 2010, Morales, J,
the SC once again had the occasion to say that it is settled that if there is no valid service of
summons, the court can still acquire jurisdiction over the person of the defendant by virtue of the
latters voluntary appearance. Thus Section 20 of Rule 14 of the Rules of Court provides:
The defendants 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 shall not be deemed a voluntary appearance.
And Philippine Commercial International Bank v. Spouses Wilson Dy Hong Pi and Lolita Dy, et
al. enlightens:
Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the
coercive power of legal processes exerted over his person, or his voluntary
appearance in court. As a general proposition, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of the court. It is by reason of this rule
that we have had occasion to declare that the filing of motions to admit answer, for
additional time to file answer, for reconsideration of a default judgment, and to lift
order of default with motion for reconsideration, is considered voluntary submission to
the courts jurisdiction. This, however, is tempered by the concept of conditional
appearance, such that a party who makes a special appearance to challenge, among
others, the courts jurisdiction over his person cannot be considered to have submitted
to its authority.
Prescinding from the foregoing, it is thus clear that:
(1) Special appearance operates as an exception to the general rule on voluntary

appearance;
(2) Accordingly, objections to the jurisdiction of the court over the person of the
defendant must be explicitly made, i.e., set forth in an unequivocal manner; and
(3) Failure to do so constitutes voluntary submission to the jurisdiction of the court,
especially in instances where a pleading or motion seeking affirmative relief is filed and
submitted to the court for resolution. (G.R. No. 171137, June 5, 2009).
In this Motion to Lift the order of default, they prayed for an affirmative relief, especially so
that they did not allege that the filing thereof was a special appearance for the purpose only to
question the jurisdiction over their persons. They acquiesced to the jurisdiction of the court.
12


RULE 16
Motion to Dismiss
MTD; failure to state a cause of action; effect.
Settled is the rule that in a Motion to Dismiss based on failure to state a cause of action, the
issue is passed upon on the basis of the allegations in the complaint, assuming them to be true. The
court does not inquire into the truth of the allegations and declare them to be false; otherwise, it
would be a procedural error and a denial of due process to the plaintiff. Only the statements in the
complaint may be properly considered, and the court cannot take cognizance of external facts or
hold preliminary hearings to ascertain their existence. To put it simply, the test for determining
whether a complaint states or does not state a cause of action against the defendants is whether or
not, admitting hypothetically the truth of the allegations of fact made in the complaint, the judge
may validly grant the relief demanded in the complaint.
In a Motion to Dismiss based on failure to state a cause of action, there cannot be any
question of fact or doubt or difference as to the truth or falsehood of facts, simply because there
are no findings of fact in the first place. What the trial court merely does is to apply the law to the
facts as alleged in the complaint, assuming such allegations to be true. It follows then that any
appeal therefrom could only raise questions of law or doubt or controversy as to what the law is on
a certain state of facts." Therefore, a decision dismissing a complaint based on failure to state a
cause of action necessarily precludes a review of the same decision on questions of fact. One is the
legal and logical opposite of the other. (St. Mary of the Woods School, Inc., et al. v. Office of the
Registry of Deeds of Makati City, et al., G.R. Nos. 174290, 176116, January 20, 2009).
In Guaranteed Homes, Inc. v. Heirs of Maria Valdez, et al., G.R. No. 171531, January 30,
2009, the SC likewise said that the factual allegations in respondents complaint should be
considered in tandem with the statements and inscriptions on the documents attached to it as
annexes or integral parts. In a number of cases, the Court held that in addition to the complaint,
other pleadings submitted by the parties should be considered in deciding whether or not the
complaint should be dismissed for failure to state cause of action. Likewise, other facts not alleged in
the complaint may be considered where the motion to dismiss was heard with the submission of
evidence, or if documentary evidence admitted by stipulation discloses facts sufficient to defeat the
claim. For while the court must accept as true all well pleaded facts in the complaint, the motion
does not admit allegations of which the court will take judicial notice are not true, nor does the rule
apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear by
record or document included in the pleadings to be unfounded.
Q An action reinvindicatoria and/or reconveyance was filed. The defendant moved to dismiss on
the ground of failure to state a cause of action contending that the plaintiffs did not present or
append (annex) proof of their allegations on the complaint to establish a cause of action for
reinvindication. Is the contention? Why?
Answer: No, because it must be born in mind that the compliant does not have to establish or allege
facts proving the existence of a cause of action at the outset; this will have to be done at the trial of
the merits of the case. (Paraaque Kings Ent., Inc. v. CA, 375 Phil. 1184 (1997).
When the ground for dismissal is that the complaint states no cause of action under Section 1
(G), Rule 16 of the Rules of Court, such fact must be determined from the allegations of the
complaint. In a motion to dismiss, a defendant hypothetically admits the truth of the material
allegations of the plaintiffs complaint for the purpose of resolving the motion. The general rule is
that the allegations in a complaint are sufficient to constitute a cause of action against the
defendant, if, admitting the facts alleged, the court can render a valid judgment upon the same in
accordance with the prayer therein. To sustain a motion to dismiss for failure to state a cause of
action, the complaint must show that the claim for relief does not exist. (Heirs of Antonio Santos, et
al. v. Heirs of Crispulo Beramo, et al., G.R. No. 151454, August 9, 2010, Peralta, J).
13


The defenses of res judicata, statute of limitations and laches may not be raised for the first
time in the special civil action for certiorari, citing Buag v. Court of Appeals, 365 Phil. 216 (1999)
which held:
It is settled that an issue which was not raised in the trial court cannot be raised for the first
time on appeal. This principle applies to special civil actions for certiorari under Rule 65. (Heirs of
Antonio Santos, et al. v. Heirs of Crispulo Beramo, et al., G.R. No. 151454, August 9, 2010, Peralta,
J)
Motion to Dismiss in declaration

of nullity of marriage cases;
rationale.
The basic question in Susie Chan-Tan v. Jesse Tan, G.R. NO. 167139, February 25, 2010,
Carpio J., is whether a respondent in an action for declaration of nullity of marriage may file a
motion to dismiss. The SC said that it cannot be. Section 7 of the Rule on the Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages provides that no motion to
dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject
matter or over the parties; provided, however, that any other ground that might warrant a dismissal
of the case may be raised as an affirmative defense in an answer.
The clear intent of the provision is to allow the respondent to ventilate all possible defenses in
an answer, instead of a mere motion to dismiss, so the judgment may be made on the merits. In
construing a statute, the purpose or object of the law is an important factor to be considered.
Further, the letter of the law admits of no other interpretation but that the provision applies only to
a respondent, not a petitioner. Only the respondent in a petition for the declaration of absolute
nullity of void marriage or the annulment of voidable marriage files an answer where any ground
that may warrant a dismissal may be raised as an affirmative defense pursuant to the provision.
The only logical conclusion is that Section 7 of the Rule does not apply to a motion to dismiss filed
by the party who initiated the petition for the declaration of absolute nullity of void marriage or the
annulment of voidable marriage.
Objections and defenses not raised in

the Motion to Dismiss are deemed
waived.
In Mabanag v. Register of Deeds of Quezon City, et. al., G.R. NO. 153142, March 29, 2010,
Bersamin, J., there was an action for specific performance for the execution of a deed of absolute
sale after the payment of the price of the property sold. Judgment was rendered and it became final
and executory but the losing party wanted to thwart the execution on the ground that she was
disqualified from owning land in the Philippines, raising the issue of citizenship on execution. The SC
said:
No. The issue of citizenship of the registered owner of land cannot anymore be raised to
forestall the execution of a final and executory judgment where the objecting party had the
opportunity to raise the issue prior to the finality of the judgment. The time for assailing the
capacity of the winning party to acquire the land was during the trial, not during the execution of a
final decision.
The petitioner did not raise any issue of the qualifications to own land in the Philippines
during the trial or, at the latest, before the finality of the RTC judgment. The petitioner was thereby
deemed to have waived the objection, pursuant to Section 1, Rule 9 of the Rules of Court.
14


Above rule is tested by necessity.
In every action, indeed, the parties and their counsel are enjoined to present all available
defenses and objections in order that the matter in issue can finally be laid to rest in an appropriate
contest before the court. The rule is a wise and tested one, borne by necessity. Without the rule,
there will be no end to a litigation, because the dissatisfied litigant may simply raise new or
additional issues in order to prevent, defeat, or delay the implementation of an already final and
executory judgment. The endlessness of litigation can give rise to added costs for the parties, and
can surely contribute to the unwarranted clogging of court dockets. The prospect of a protracted
litigation between the parties annuls the very rationale of every litigation to attain justice. Verily,
there must be an end to litigation.
Issue of res judicata
The petitioner cannot insist that the RTC did not settle the question of respondents
qualifications to own land due to non-citizenship. It is fundamental that 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 (Sec. 47 (b), Rule 39). Thus, in Gabuya v.
Layug 250 SCRA 218 (1995), it was held that a judgment involving the same parties, the same
facts, and the same issues binds the parties not only as to every matter offered and received to
sustain or defeat their claims or demands, but also to any other admissible matter that might have
been offered for that purpose and all other matters that could have been adjudged in that case.
In fact, the present recourse has not been the only one taken by the petitioner and her
counsel to assail the qualification to acquire and own the subject property. There were other cases
filed resulting in forum shopping.
MTD; litis pendentia.
In G.R. No. 155622, October 26, 2009, the SC once again said that litis pendentia is a Latin
term, which literally means a pending suit and is variously referred to in some decisions as lis
pendens and auter action pendant. As a ground for the dismissal of a civil action, it refers to the
situation where two actions are pending between the same parties for the same cause of action, so
that one of them becomes unnecessary and vexatious. It is based on the policy against multiplicity
of suits.
To constitute litis pendentia, not only must the parties in the two actions be the same; there
must as well be substantial identity in the causes of action and in the reliefs sought. Further, the
identity should be such that any judgment that may be rendered in one case, regardless of which
party is successful, would amount to res judicata in the other.
Guidelines for the dismissal of a

complaint on the ground of litis
pendentia.
In this case, the SC revisited the cases it decided on the issue of litis pendentia and the
factors considered in determining which case should prevail and which must yield to the other.
The rule on litis pendentia does not require that the case later in time should yield to the
earlier case; what is required merely is that there be another pending action, not a prior pending
action. Neither is it required that the party be served with summons before lis pendens can apply; it
is the filing of the action, not the receipt of summons, which determines priority in date.
15


In a case, the SC applied the principle of Qui prior est tempore, potior est jure (literally, he
who is before in time is better in right) in dismissing a case on the ground of litis pendentia. This
was exemplified in the relatively early case of Del Rosario v. Jacinto, 15 SCRA 15 (1965) where two
complaints for reconveyance and/or recovery of the same parcel of land were filed by substantially
the same parties, with the second case only impleading more party-plaintiffs. The Court held that
parties who base their contention upon the same rights as the litigants in a previous suit are bound
by the judgment in the latter case. Without expressly saying so in litis pendentia terms, the Court
gave priority to the suit filed earlier.
In Pampanga Bus Company, Inc. v. Ocfemia, 18 SCRA 407 complaints for damages arising
from a collision of a cargo truck and a bus were separately filed by the owners of the colliding
vehicles. The complaint of the owners of the cargo truck prevailed and the complaint of the owners
of the bus had to yield, as the cargo truck owners first filed their complaint. Notably, the first and
prevailing case was far advanced in development, with an answer with counterclaim and an answer
to the counterclaim having been already filed, thus fully joining the issues. (See also: Salacup v.
Maddela, Jr., 91 SCRA 275 (1979); Andersons Group, Inc. v. CA, 266 SCRA 423 (1997). In Lamis
Ents. v. Lagamon, 108 SCRA 740 (1981) the first case was a complaint for specific performance of
obligations under a Memorandum of Agreement, while the second case was a complaint for sums of
money arising from obligations under a promissory note and a chattel mortgage, and damages. The
second case was dismissed because the claims for sums of money therein arose from the
Memorandum of Agreement sued upon in the first case.
Reason for rule on dismissal due to lis pendens.
Ago Timber Corporation v. Ruiz, 21 SCRA 1381 (1967) offered an insightful reason after both
parties had each pleaded the pendency of another action between the same parties for the same
cause. The Court ruled that the second action should be dismissed, not only as a matter of comity
with a coordinate and co-equal court, but also to prevent confusion that might seriously hinder the
administration of justice. (Cabigao, et al. v. Del Rosario, et al., 44 Phil. 182).
Three (3) tests on lis pendens.
In all these cases, preference was given to the first action filed to be retained. The priority-
in-time rule, however, is not absolute.
In the 1956 case of Teodoro v. Mirasol, 99 Phil. 150 (1956), the SC deviated from the
priority-in-time rule and applied the more appropriate action test and the anticipatory test.
The more appropriate action test considers the real issue raised by the pleadings and the
ultimate objective of the parties; the more appropriate action is the one where the real issues raised
can be fully and completely settled. In Teodoro, the lessee filed an action for declaratory relief to
fix the period of the lease, but the lessor moved for its dismissal because he had subsequently filed
an action for ejectment against the lessee. The Court noted that the unlawful detainer suit was the
more appropriate action to resolve the real issue between the parties whether or not the lessee
should be allowed to continue occupying the land under the terms of the lease contract; this was the
subject matter of the second suit for unlawful detainer, and was also the main or principal purpose
of the first suit for declaratory relief.
In the anticipatory test, the bona fides or good faith of the parties is the critical element. If
the first suit is filed merely to preempt the later action or to anticipate its filing and lay the basis for
its dismissal, then the first suit should be dismissed. In Teodoro, it was noted that the first action,
declaratory relief, was filed by the lessee to anticipate the filing of the second action, unlawful
detainer, considering the lessors letter informing the lessee that the lease contract had expired.
The Court also applied the more appropriate action test in Ramos v. Peralta, 203 SCRA 412.
In this case, the lessee filed an action for consignation of lease rentals against the new owner of the
16


property, but the new owner moved to dismiss the consignation case because of the quieting of title
case he had also filed against the lessee. Finding that the real issue between the parties involved
the right to occupy/possess the subject property, the Court ordered the dismissal of the consignation
case, noting that the quieting of title case is the more appropriate vehicle for the ventilation of the
issues between them; the consignation case raised the issue of the right to possession of the lessee
under the lease contract, an issue that was effectively covered by the quieting of title case which
raised the issue of the validity and effectivity of the same lease contract.
In University Physician Services, Inc. v. Court of Appeals, 233 SCRA 412 (1991) the Court
applied both the more appropriate action test and anticipatory test. In this case, the new owner
of an apartment sent a demand letter to the lessee to vacate the leased apartment unit. When the
lessee filed an action for damages and injunction against the new owner, the new owner moved for
the dismissal of the action for damages on account of the action for ejectment it had also filed. The
Court noted that ejectment suit is the more appropriate action to resolve the issue of whether the
lessee had the right to occupy the apartment unit, where the question of possession is likewise the
primary issue for resolution. It also noted that the lessee, after her unjustified refusal to vacate the
premises, was aware that an ejectment case against her was forthcoming; the lessees filing of the
complaint for damages and injunction was but a canny and preemptive maneuver intended to block
the new owners action for ejectment.
It also applied the more appropriate action test in the 2003 case Panganiban v. Pilipinas
Shell Petroleum Corp., 395 SCRA 624 (2003) where the lessee filed a petition for declaratory relief
on the issue of renewal of the lease of a gasoline service station, while the lessor filed an unlawful
detainer case against the lessee. On the question of which action should be dismissed, the Court
noted that the interpretation of a provision in the lease contract as to when the lease would expire is
the key issue that would determine the lessee's right to possess the gasoline service station. The
primary issue the physical possession of the gasoline station is best settled in the ejectment suit
that directly confronted the physical possession issue, and not in any other case such as an action
for declaratory relief. (Mid-Pasig Land Development v. Court of Appeals, G.R. No. 153751, October
8, 2003, 413 SCRA 204).
A more recent case Abines v. Bank of the Philippine Islands, G.R. No. 67900, February 13,
2006, 487 SCRA 421, in 2006 saw the application of both the priority-in-time rule and the more
appropriate action test. In this case, the respondent filed a complaint for collection of sum of
money against the petitioners to enforce its rights under the promissory notes and real estate
mortgages, while the petitioners subsequently filed a complaint for reformation of the promissory
notes and real estate mortgages. It was held that the first case, the collection case, should subsist
because it is the first action filed and the more appropriate vehicle for litigating all the issues in the
controversy. The Court noted that in the second case, the reformation case, the petitioners
acknowledged their indebtedness to the respondent; they merely contested the amounts of the
principal, interest and the remaining balance. It observed, too, that the petitioners claims in the
reformation case were in the nature of defenses to the collection case and should be asserted in this
latter case.
Under this established jurisprudence on litis pendentia, the following considerations

predominate in the ascending order of importance in determining which action should prevail: (1)
the date of filing, with preference generally given to the first action filed to be retained; (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; and (3) whether the action is the appropriate vehicle for
litigating the issues between the parties.
In this case, there was a contract for the supply of day-old chicks. There was a demand for
payment, but there was contention that there was overpayment. The complaint for the overpayment
was filed ahead of the collection case.
Which case should prevail.
17


The SC said that the collection case is the more appropriate action to decide the rights of the
parties.
RULE 17
Dismissal of Actions
Dismissal due to fault of the plaintiff.
Once again, the SC in Espiritu, et. al. v. Lazaro et. al., G.R. NO. 181020, November 25, 2009,
had the occasion to say that if the plaintiff fails to prosecute an action for an unreasonable length of
time, the court can motu proprio dismiss the same. In this case, the plaintiff failed to file a motion
to set the case for pre-trial despite the lapse of one (1) year from the time the issues were joined.
In affirming the order of dismissal, the SC held:
In every action, the plaintiffs are duty-bound to prosecute their case with utmost diligence
and with reasonable dispatch to enable them to obtain the relief prayed for and, at the same time,
to minimize the clogging of the court dockets. Parallel to this is the defendants right to have a
speedy disposition of the case filed against them, essentially, to prevent their defenses from being
impaired.
Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set the case
for pre-trial after the last pleading is served and filed. Under Section 3 of Rule 17, failure to comply
with the said duty makes the case susceptible to dismissal for failure to prosecute for an
unreasonable length of time or failure to comply with the rules.
Petitioners should not have waited for the court to act on the motion to file supplemental
answer or for the defendants to file a supplemental answer. The rule clearly states that the case
must be set for pre-trial after the last pleading is served and filed. Since respondents already filed a
cautionary answer and (petitioners did not file any reply to it) the case was already ripe for pre-trial.
It bears stressing that the sanction of dismissal may be imposed even absent any allegation
and proof of the plaintiffs lack of interest to prosecute the action, or of any prejudice to the
defendant resulting from the failure of the plaintiff to comply with the rules. The failure of the
plaintiff to prosecute the action without any justifiable cause within a reasonable period of time will
give rise to the presumption that he is no longer interested in obtaining the relief prayed for.
RULE 18
Pre-trial
Counterclaim can proceed even if

main action is dismissed.
Q In an action for damages due to the dishonor of her credit cards after the defendant filed its
answer, the case was set for Pre-trial but the plaintiff failed to appear, hence, the court, upon
motion dismissed the complaint and allowed the defendant to present evidence on the counterclaim.
It was contended by the plaintiff that the defendant cannot present evidence on the counterclaim
anymore since with the dismissal of the complaint, there was no longer a pending action where
defendant can prosecute its claim citing BA Finance v. Co, G.R. No. 105751, 224 SCRA 163 (1993)
where the Court ruled that the dismissal of the complaint for non-appearance of plaintiff at the pre-
trial, upon motion of the defendant, carried with it the dismissal of their compulsory counterclaim. Is
the contention correct? Why?
Answer: No. The New Rule now allows the prosecution of the counterclaim in the same case or in a
separate action after the dismissal of the complaint due to the failure of the plaintiff to appear or
prosecute. The BA Finance v. Co case has been changed by the Rules. In Pinga v. Heirs of German
Santiago, G.R. No. 170354, June 30, 2006, 494 SCRA 393, where the SC explained that:
18


Section 3, [of Rule 17] on the other hand, contemplates a dismissal not
procured by plaintiff, albeit justified by causes imputable to him and which, in the
present case, was petitioners failure to appear at the pre-trial. This situation is also
covered by Section 3, as extended by judicial interpretation, and is ordered upon
motion of defendant or motu proprio by the court. Here, the issue of whether
defendant has a pending counterclaim, permissive or compulsory is not of
determinative significance. The dismissal of plaintiffs complaint is evidently a
confirmation of the failure of evidence to prove his cause of action outlined therein,
hence the dismissal is considered, as a matter of evidence, an adjudication on the
merits. This does not, however, mean that there is likewise such an absence of
evidence to prove defendants counterclaim although the same arises out of the
subject matter of the complaint which was merely terminated for lack of proof. To
hold otherwise would not only work injustice to defendant but would be reading a
further provision into Section 3 and wresting a meaning therefrom although neither
exists even by mere implication. x x x x.
Besides, Section 5 of Rule 18 which is, for convenience, again requoted, provides:
SEC. 5. Effect of failure to appear. The failure of the plaintiff to appear [at the
pre-trial] 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, must be read in conjunction with the above-quoted Section 3 of Rule 17.
Thus, in Perkin Elmer Singapore v. Dakila Trading, G.R. No. 172242, August 14, 2007, 530
SCRA 170, the Court, discussing the application of the dictum in Pinga to situations outside of
Section 3 of Rule 17, held:
It is true that the aforesaid declaration of the Court refers to instances

covered by Section 3, Rule 17 of the 1997 Revised Rules of Civil Procedure on
dismissal of the complaint due to fault of the plaintiff. Nonetheless, it does not also
preclude the application of the same to the instant case just because the dismissal
of respondents [plaintiffs] Complaint was upon the instance of the
petitioner [defendant] who correctly argued lack of jurisdiction over its person.
As the failure of the spouses to appear at the pre-trial amounted to a failure to comply with
the Rules or any order of the court, the dismissal of their Complaint was essentially due to their fault
and the therein defendant Citibank could still prosecute its Counterclaim in the same or in a
separate action.
RULE 19
Intervention
Office of the Ombudsman has no

right to intervene in an appeal
from its decision.
In Office of the Ombudsman v. Sison, G.R. NO. 185954, February 16, 2010, Velasco, J, the
Office of the Ombudsman wanted to intervene in an appeal from its resolution while the appeal is
pending before the Court of Appeals.
The SC ruled No. It is fundamental that the allowance or disallowance of a Motion to

Intervene is addressed to the sound discretion of the court. The permissive tenor of the rules shows
19


the intention to give to the court the full measure of discretion in permitting or disallowing the
intervention.
Simply, intervention is a procedure by which third persons, not originally parties to the suit
but claiming an interest in the subject matter, come into the case in order to protect their right or
interpose their claim. Its main purpose is to settle in one action and by a single judgment all
conflicting claims of, or the whole controversy among, the persons involved.
To warrant intervention under Rule 19 of the Rules of court, two requisites must concur: (1)
the movant has a legal interest in the matter in litigation; and (2) intervention must not unduly
delay or prejudice the adjudication of the rights of the parties, nor should the claim of the intervenor
be capable of being properly decided in a separate proceeding. The interest, which entitles one to
intervene, must involve the matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by the direct legal operation and effect of the judgment.
In support of its argument that it has legal interest, the Office of the Ombudsman cited
Philippine National Bank v. Garcia, Jr. (Garcia), 388 SCRA 485 (2002). In the said case, the
Philippine National Bank (PNB) imposed upon its employee, Garcia, the penalty of forced resignation
for gross neglect of duty. On appeal, the Civil Service Commission (CSC) exonerated Garcia from
the administrative charges against him. In accordance with the ruling in Civil Service Commission v.
Dacoycoy, 306 SCRA 425 (1999), the Court affirmed the standing of the PNB to appeal to the CA
the CSC resolution exonerating Garcia. After all, PNB was the aggrieved party which complained of
Garcias acts of dishonesty. Should Garcia be finally exonerated, it might then be incumbent upon
PNB to take him back into its fold. PNB should, therefore, be allowed to appeal a decision that, in its
view, hampered its right to select honest and trustworthy employees, so that it can protect and
preserve its name as a premier banking institution in the country.
Based on the facts above, the Office of the Ombudsman cannot use Garcia to support its
intervention in the appellate court.
Garcia should be read along with Mathay, Jr. v. Court of Appeals, 320 SCRA 703 (1999) and
National Appellate Board of the National Police Commission v. Mamauag (Mamauag), 466 SCRA 624
(2005), in which the Court qualified and clarified the exercise of the right of a government agency to
actively participate in the appeal of decisions in administrative cases. In Mamauag, the Court ruled:
The government party that can appeal is not the disciplining authority or
tribunal which previously heard the case and imposed the penalty of demotion or
dismissal from the service. The government party appealing must be the one that is
prosecuting the administrative case against the respondent. Otherwise, an anomalous
situation will result where the disciplining authority or tribunal hearing the participant
in prosecuting the respondent. Thus, in Mathay, Jr. v. Court of Appeals, decided after
Dacoycoy, the court declared:
To be sure when the resolutions of the Civil Service Commission were brought
to the Court of Appeals, the Civil Service Commission was included only as a nominal
party. As a quasi-judicial body, the Civil Service Commission can be likened to a
judge who should detach himself from cases where his decision is appealed to a
higher court for review.
In instituting G.R. NO. 126354, the Civil Service Commission dangerously

departed from its role as adjudicator and became an advocate. Its mandated function
is to hear and decide administrative cases instituted by or brought before it directly
or on appeal, including contested appointments and to review decisions and actions of
its offices and agencies, not to litigate.
20


Clearly, the Office of the Ombudsman is not an appropriate party to intervene because it
must remain detached. More importantly, it must be mindful of its role as an adjudicator, not as an
advocate.
It is an established doctrine that judges should detach themselves from cases where their
decisions are appealed to a higher court for review. The raison detre for such a doctrine is the fact
that judges are not active combatants in such proceeding and must leave the opposing parties to
contend their individual positions and the appellate court to decide the issues without the judges
active participation. When judges actively participate in the appeal of their judgment, they, in a
way, cease to be judicial and have become adversarial instead (Calderon v. Solicitor General, 215
SCRA 876 (1992); see also Pleyto v. Philippine National Police Criminal Investigation and Detection
Group (PNP-CIDG), 538 SCRA 534 (2007).
Intervention after judgment.
As a rule, intervention must be done prior to judgment. The rule is not an iron-clad rule as
there are exceptions, if the interest of justice should be served. One such case is Quinto, et al. v.
COMELEC, G.R. No. 189698, February 22, 2010, where after the SC decided that an appointive
public official does not need to resign upon the filing of his certificate of candidacy, Motions for
Reconsideration in Intervention were filed by Senator Franklin Drilon, Senator Manuel A. Roxas
invoking their rights as private individual and public officer respectively. The propriety of the
interventions after judgment was the issue raised in the Supreme Court which
Held: That intervention is proper.
Pursuant to Rule 19, Sec. 1 of the Rules of Court, a motion for intervention shall be
entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he
has a substantial right or interest in the case; and (2) such right or interest cannot be adequately
pursued and protected in another proceeding.
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which
a motion for intervention may be filed, which must be before judgment by the trial court. (Sec. 2).
This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also
been granted to afford indispensable parties, who have not been impleaded, the right to be heard
even after a decision has been rendered by the trial court, (Tahan Dev. Corp. v. CA, G.R. No.
155771, November 15, 1982, 118 SCRA 273) when the petition for review of the judgment has
already been submitted for decision before the Supreme Court, (Director of Lands v. CA, G.R. No. L-
45168, September 25, 1979, 93 SCRA 238) and even where the assailed order has already become
final and executory. (Mago v. CA, G.R. No. 115624, February 25, 1999, 300 SCRA 600). In Lim v.
Pacquing, the motion for intervention filed by the Republic of the Philippines was allowed by the
Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised
by the parties. (G.R. No. 115044, July 27, 1995, 240 SCRA 649).
In fine, the allowance or disallowance of a motion for intervention rests on the sound
discretion of the court after consideration of the appropriate circumstances. (Mago v. CA). Rule 19 of
the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and
completely available for justice. (Manila Railroad Co. v. Attorney-General, 20 Phil. 523; Dir. of Lands
v. CA; Mago v. CA). Its purpose is not to hinder or delay, but to facilitate and promote the
administration of justice. (Manila Railroad Co. v. Attorney-General).
RULE 33
Demurrer to evidence
Effect of demurrer to evidence.
21


Once again, the SC in Dayap v. Sendiong, et al., G.R. No. 177960, January 29, 2009, had the
occasion to rule that the demurrer to evidence in criminal cases, is filed after the prosecution had
rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a
dismissal of the case on the merits, tantamount to an acquittal of the accused. Such dismissal of a
criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to
place the accused in double jeopardy. But while the dismissal order consequent to a demurrer to
evidence is not subject to appeal, the same is still reviewable but only by certiorari under Rule 65 of
the Rules of Court. Thus, in such case, the factual findings of the trial court are conclusive upon the
reviewing court, and the only legal basis to reverse and set aside the order of dismissal upon
demurrer to evidence is by a clear showing that the trial court, in acquitting the accused, committed
grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus
rendering the assailed judgment void. (People v. Uy, G.R. No. 158157, September 30, 2005, 471
SCRA 668).
Civil liability despite acquittal.
The acquittal of the accused does not automatically preclude a judgment against him on the
civil aspect of the case. The extinction of the penal action does not carry with it the extinction of the
civil liability where: (a) the acquittal is based on reasonable doubt as only preponderance of
evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the
civil liability of the accused does not arise from or is not based upon the crime of which the accused
is acquitted. (Hun Hyung Park v, Eung Won Choi, G.R. No. 165496, February 12, 2007, 515 SCRA
502). However, the civil action based on delict may be deemed extinguished if there is a finding on
the final judgment in the criminal action that the act or omission from which the civil liability may
arise did not exist (Rule 111, Sec. 2(2)) or where the accused did not commit the acts or omission
imputed to him. (Salazar v. People, 458 Phil. 504 (2003).
Right of accused to present

evidence if demurrer to evidence
is granted; reason.
Thus, if demurrer is granted and the accused is acquitted by the court, the accused has the
right to adduce evidence on the civil aspect of the case unless the court also declares that the act or
omission from which the civil liability may arise did not exist. (Salazar v. People, 458 Phil. 504
(2003). This is because when the accused files a demurrer to evidence, he has not yet adduced
evidence both on the criminal and civil aspects of the case. The only evidence on record is the
evidence for the prosecution. What the trial court should do is issue an order or partial judgment
granting the demurrer to evidence and acquitting the accused, and set the case for continuation of
trial for the accused to adduce evidence on the civil aspect of the case and for the private
complainant to adduce evidence by way of rebuttal. Thereafter, the court shall render judgment on
the civil aspect of the case. (Salazar v. People; Dayap vs. Sendiong).
RULE 34
Judgment on the Pleadings
If defendant moves for the

judgment on the pleadings, there
is an admission of the facts
alleged in the complaint.
A suit for unlawful detainer was filed by the lessor against the lessee for failure of the latter
to pay the rents. During the pre-trial, the defendant moved that the case be submitted for judgment
on the pleadings considering that the only disagreement between the parties to submit their
22


respective memoranda. The MTC rendered a judgment for the plaintiff. State the effect of the act of
the defendant in moving for judgment on the pleadings. Explain.
Answer: In moving for a judgment on the pleadings without offering proof as to the truth of her own
allegations and without giving the plaintiff the opportunity to introduce evidence, the defendant is
deemed to have admitted the material and relevant averments in the complaint and to rest her
motion for judgment based on the pleadings of the parties. (Rodriguez v. Llorente, 49 Phil. 823
(1926). As held in Tropical Homes, Inc., v. CA, 338 Phil. 930, when there is judgment on the
pleadings, the defendant is deemed to have admitted the allegations of fact in the complaint, so that
there is no necessity for plaintiff to submit evidence of his claim. (Sunbanun v. Go, G.R. No. 163280,
February 2, 2010, Carpio, J.)
RULE 35
Summary Judgment
When partial summary judgment

is appealable or not.
Once again, the SC in Philippine Telephone Co. v. Radiomarine Network, Inc., G. R. No.
152092, August 4, 2010, Leonardo-De Castro, J, had the occasion to rule that special civil action for
certiorari is not the remedy if there is a partial summary judgment. In Monterey Foods Corporation
v. Eserjose, 457 Phil. 771 (2003) the court distinguished when a partial summary judgment is
appealable and when it is not, to wit:
Petitioners maintain that the order granting partial summary judgment was
merely interlocutory in nature and did not dispose of the action in its entirety. They
cited the doctrines laid down in Province of Pangasinan v. Court of Appeals and
Guevarra v. Court of Appeals, where the Court categorically stated that a partial
judgment is not a final or appealable judgment.
Petitioners position is untenable.
The rulings in Province of Pangasinan and Guevarra are not applicable in the
case at bar. The said case specifically delved on the appeal of a summary judgment,
which did not dispose of all the reliefs sought in the complaint. In the case at bar,
other than the admitted liability of petitioners to respondents under the contract
growing agrrement, all other reliefs sought under the complaint had already
been expressely waived by respondent before the trial court. Accordingly,
Order of the trial court which granted partial summary judgment in favor of
respondent was in the nature of a final order which leaves nothing more for
the court to adjudicate in respect of the complaint.
When summary judgment proper.
In Ferrer v. Sps. Diaz, et al., G.R. No. 165300, April 23, 2010, the SC once again said that
summary judgment is a procedural devise resorted to in order to avoid long drawn out litigations
and useless delays. When the pleading on file show that there are no genuine issues of facts to be
tried, the Rules of Court allows a party to obtain immediate relief by way of summary judgment.
That is, when the facts are not in dispute, the court is allowed to decide the case summarily by
applying the law to the material facts. Conversely, where the pleadings tender a genuine issue,
summary judgment is not proper. A genuine issue is such fact which requires the presentation of
evidence as distinguished from a sham, fictitious, contrived or false claim. (D.M. Consunji, Inc. v.
Duvas Corp., G.R. No. 155174, August 24, 2009)
The variance in the allegations of the parties in their pleadings is evident. In this case, the
parents of the mortgagor denied having executed a SPA authorizing their daughter to mortgage their
property.
23


Thus, there was a genuine issue which requires the presentation of evidence. It is necessary
for the court to ascertain the validity and due execution of the SPA, the REM and the PN. Summary
judgment is proper only if there is clearly no genuine issue as a material fact.
In Nocom v. Camerino, et al., G.R. No. 182984, February 10, 2009, while the parties
admitted the existence of an Irrevocable Power of Attorney, the defendants however alleged that
they were never informed that the document they signed was an Irrevocable Power of Attorney and
that they never received the full consideration of the transaction. Hence, the SC ruled that summary
judgment cannot be rendered.
Under Section 1, Rule 35 of the Rules of Court, a party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory 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.
Summary judgment is a procedural device resorted to in order to avoid long drawn out
litigations and useless delays. When the pleadings on file show that there are no genuine issues of
fact to be tried, the Rules allow a party to obtain immediate relief by way of summary judgment,
that is, when the facts are not in dispute, the court is allowed to decide the case summarily by
applying the law to the material facts. Conversely, where the pleadings tender a genuine issue,
summary judgment is not proper. A genuine issue is such issue of fact which requires the
presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. Section 3
of the said rule provides two (2) requisites for summary judgment to be proper: (1) there must be
no genuine issue as to any material fact, except for the amount of damages; and (2) the party
presenting the motion for summary judgment must be entitled to a judgment as a matter of law. A
summary judgment is permitted only if there is no genuine issue as to any material fact and a
moving party is entitled to a judgment as a matter of law. A summary judgment is proper if, while
the pleadings on their face appear to raise issues, the affidavits, depositions, and admissions
presented by the moving party show that such issues are not genuine.
The present case should not be decided via a summary judgment. Summary judgment is not
warranted when there are genuine issues which call for a full blown trial. The party who moves for
summary judgment has the burden of demonstrating clearly the absence of any genuine issue of
fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a
genuine issue for trial. Trial courts have limited authority to render summary judgments and may
do so only when there is clearly no genuine issue as to any material fact. When the facts as pleaded
by the parties are disputed or contested, proceedings for summary judgment cannot take the place
of trial.
RULE 36
Judgment
When there may be a several judgment.
In Heirs of Jose Sy Bang, et al. v. Rolando Sy, et al., G.R. Nos. 114217 and 150797, October
13, 2009, there was an action for partition. There were properties under the names of the plaintiffs
and the defendants. The court rendered judgment on the properties in the name of defendants but
deferred judgment on the properties under the names of the plaintiffs considering that the
properties are separable. The CA affirmed the partial judgment. Is the ruling of the CA correct?
Why?
Answer: Yes. The judgment is in the nature of a several judgment.
The partial decision is in the nature of a several judgment as contemplated by the rule. The
trial court ruled on the status of the properties in the names of petitioners (defendants below) while
24


deferring the ruling on the properties in the names of respondents pending the presentation of
evidence.
A several judgment is proper when the liability of each party is clearly separable and distinct
from that of his co-parties, such that the claims against each of them could have been the subject of
separate suits, and judgment for or against one of them will not necessarily affect the other.
(Fernando v. Santamaria, 487 Phil. 351 (2004).
Petitioners, although sued collectively, each held a separate and separable interest in the
properties of the Sy Bang estate.
The pronouncement as to the obligation of one or some petitioners did not affect the
determination of the obligations of the others. That the properties in the names of petitioners were
found to be part of the Sy Bang estate did not preclude any further findings or judgment on the
status or nature of the properties in the names of the other heirs.
RULE 38
Petition For Relief From Judgment
Mistake contemplated by Rule 38

pertains to mistake of fact, not of
law.
In Samonte v. S.F. Naguiat, Inc., G.R. No. 165544, October 2, 2009, Peralta, J, the petition
for relief from judgment alleged as grounds that the RTC made serious and prejudicial mistakes in
appreciating the evidence presented. Is the petition proper? Why?
Answer: No. The mistake contemplated by Rule 38 of the Rules of Court pertains generally to
mistakes of fact, not of law, which relates to the case. (Agan v. Heirs of Spouses Nueva, G.R. No.
155018, December 11, 2003, 418 SCRA 421). The word mistake which grants relief from judgment,
does not apply and was never intended to apply to a judicial error which the court might have
committed in the trial. (Guevarra v. Tuazon & Co., 1 Phil. 27 (1901). Such error may be corrected by
means of appeal.
Nature of petition for relief from judgment.
Relief from judgment under Rule 38 of the Rules of Court is a remedy provided by law to any
person against whom a decision or order is entered into through fraud, accident, mistake or
excusable negligence. The relief provided for is of equitable character, allowed only in exceptional
cases as where there is no other available or adequate remedy. When a party has another remedy
available to him, which may either be a motion for new trial or appeal from an adverse decision of
the lower court, and he was not prevented by fraud, accident, mistake or excusable negligence from
filing such motion or taking the appeal, he cannot avail himself of the relief provided in Rule 38. The
rule is that relief will not be granted to a party who seeks avoidance from the effects of the
judgment when the loss of the remedy at law was due to his own negligence or a mistaken mode of
procedure, otherwise the petition for relief will be tantamount to reviving the right of appeal which
has already been lost either because of inexcusable negligence or due to a mistake in the mode of
procedure by counsel.
Affidavit of merit required.
Section 3, Rule 38 of the Rules of Court requires that the petition must be accompanied with
affidavits of merits showing the fraud, accident, mistake, or excusable negligence relied upon by
petitioner and the facts constituting the petitioner's good and substantial cause of action or defense
as the case maybe. While a petition for relief without a separate affidavit of merit is sufficient where
facts constituting petitioners substantial cause of action or defense, as the case may be, are alleged
25


in a verified petition since the oath elevates the petition to the same category as a separate
affidavit. (Mago v. Court of Appeals, 363 Phil. 225 (1999). But in this case, the petition for relief filed
by petitioner was not even verified, hence, the CA did not err in no longer considering the merits of
the case.
RULE 39
Judgments and Execution
Doctrine of immutability of judgment.
In Sps. Edillo v. Sps. Dulpina, G.R. No. 188360, January 21, 2010, the SC once again said
that a judgment that has become final and executory is immutable and unalterable; the judgment
may no longer be modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the highest Court of the land. While there are
recognized exceptions e.g., the correction of clerical errors, the so-called nunc pro tunc entries
which cause no prejudice to any party, void judgments, and whenever circumstances transpire after
the finality of the decision rendering its execution unjust and inequitable none of these exceptions
apply to the present case.
Litigation must at some time end, even at the risk of occasional errors. Public policy dictates
that once a judgment becomes final, executory and unappealable, the prevailing party should not be
denied the fruits of his victory by some subterfuge devised by the losing party. Unjustified delay in
the enforcement of a judgment sets at naught the role and purpose of the courts to resolve
justiciable controversies with finality.
Res judicata; requisites.
In RCBC v. Royal Cargo Corp., G.R. No. 179756, October 2, 2009 (Morales, J), the SC once
again ruled that the elements of res judicata are: (1) the judgment sought to bar the new action
must be final; (2) the decision must have been rendered by a court having jurisdiction over the
subject matter and the parties; (3) the disposition of the case must be a judgment on the merits;
and (4) there must be as between the first and second action, identity of parties, subject matter,
and causes of action.
Res judicata has two concepts: (1) bar by prior judgment as enunciated in Rule 39, Section
47 (b) of the Rules of Civil Procedure; and (2) conclusiveness of judgment in Rule 39, Section 47
(c).
There is bar by prior judgment when, as between the first case where the judgment was
rendered, and the second case that is sought to be barred, there is identity of parties, subject
matter, and causes of action. Where there is identity of parties and subject matter in the first and
second cases, but no identity of causes of action, there is conclusiveness of judgment. The first
judgment is conclusive only as to those matters actually and directly controverted and determined,
not as to matters merely involved therein.
An order denying a motion to dismiss is merely interlocutory and cannot give rise to res
judicata, hence, it is subject to amendments until the rendition of the final judgment.
26


When the ownership over a parcel

of land is adjudicated, possession
follows even if not expressly
adjudicated in the judgment.
Once again in De Leon v. Public Estates Authority, et al., G.R. No. 181970; PEA, et al. v. Hon.
Alaras, et al., Gr. No. 182678, August 3, 2010, Peralta, J., the SC had the occasion to say that as a
general rule, a writ of execution should conform to the dispositive portion of the decision to be
executed; an execution is void if it is in excess of and beyond the original judgment or award. The
settled general principle is that a writ of execution must conform strictly to every essential particular
of the judgment promulgated and may not vary the terms of the judgment it seeks to enforce, nor it
may go beyond the terms of the judgment sought to be executed.
However, it is equally settled that possession is an essential attribute of ownership. Where

the ownership of a parcel of land was decreed in the judgment, the delivery of the possession of the
land should be considered included in the decision, it appearing that the defeated partys claim to
the possession thereof is based on his claim of ownership. (Baluyot v. Guiao, 373 Phil. 1013 (1999).
Furthermore, adjudication of ownership would include the delivery of possession if the defeated
party has not shown any right to possess the land independently of his claim of ownership which was
rejected. In the present case, the court had already declared the disputed property as owned by the
State and that De Leon does not have any right to possess the land independently of his claim of
ownership.
In addition, a judgment for the delivery or restitution of property is essentially an order to

place the prevailing party in possession of the property. If the defendant refuses to surrender
possession of the property to the prevailing party, the sheriff or other proper officer should oust him.
No express order to this effect needs to be stated in the decision; nor is a categorical statement
needed in the decision that in such event the sheriff or other proper officer shall have the authority
to remove the improvements on the property if the defendant fails to do so within a reasonable
period of time. The removal of the improvements on the land under these circumstances is deemed
read into the decision, subject only to the issuance of a special order by the court for the removal of
the improvements. (Tumibay v. Sps. Soro, et al., G.R. No. 152016, April 13, 2010).
It bears stressing that a judgment is not confined to what appears upon the face of the
decision, but also those necessarily included therein or necessary thereto.
Rule 39, Sec. 10 sets the

procedure for execution of
judgment for specific acts.
Spouses Soro filed an action for annulment and recovery of ownership of a real property. The
RTC of Cabanatuan City rendered a judgment annulling the title and the sale. On appeal, the CA and
the SC affirmed the decision. After it became final and executory, the RTC issued a writ of execution.
The Register of Deeds cancelled the title and transferred it to the prevailing parties who later on filed
a motion that they be restored to possession of the property and the demolition of the
improvements thereon. The RTC denied it because the writ of execution must conform to the
judgment which the CA affirmed. Is the ruling correct? Why?
Answer: No. As a general rule, the writ of execution to must conform to the dispositive portion of the
decision to be executed; an execution is void if it is in excess of and beyond the original judgment or
award. The settled general principle is that a writ of execution must conform strictly to every
essential particular of the judgment promulgated, and may not vary the terms of the judgment it
seeks to enforce, nor may it go beyond the terms of the judgment sought to be executed.
Nonetheless, a judgment is not confined to what appears on the face of the decision, but
extends as well to those necessarily included therein or necessary thereto. (DHL Philippines Corp.
27


United Rank and File Asso.-Federation of Free Workers v. Buklod ng Manggagawa DHL Philippines
Corp., 478 Phil. 842, 853; Jaban v. Court of Appeals, 421 Phil. 896, 904; 370 SCRA 221, 228
(2001). Thus, in Perez v. Evite, 111 Phil. 564 (1961), where the ownership of a parcel of land was
decreed in the judgment, the delivery of possession of the land was considered included in the
decision where the defeated partys claim to possession was based solely on his claim of ownership.
(See also Baluyut v. Guiao, 373 Phil. 1013 (1999); Tumibay, et al. v. Sps. Soro, et al., G.R. No.
152016, April 13, 2010).
That a party sold her pro indiviso share in the subject property to another person and the
latter caused the annotation of her adverse claim in the TCT Nos. T-98649 and T-98650, is a
supervening event that has no bearing to the present case where the only issue involved is the
propriety of the Order that denied the respondents motion to be restored in possession. Besides,
whatever right Corazon T. Logramente, a third party to the present dispute, may have on the
subject property is adequately protected by the inscription of her adverse claim in the land titles.
Any right she may have can only be raised or brought by her as the affected party, or the real party-
in-interest, in a proper forum.
In their petition, they cited Nazareno v. CA, 383 Phil. 229 (2000), where it was ruled that
being declared the owner of the subject property does not also mean that the winning party is
automatically entitled to possession of all the improvements. Is the contention correct? Why?
Answer: No. This is a misreading of the case. What Nazareno actually holds is that adjudication of
ownership would include the delivery of possession if the defeated party has not shown any right to
possess the land independently of his rejected claim of ownership. This ruling, as understood in its
correct sense, fully applies to the present case, as there is no allegation much less any proof, that
the petitioners have any right to possess the improvements on the land independently of their claim
of ownership of the subject property. Thus, the respondents have full right to possession of the
subject property.
There can be no piecemeal interpretation of a Decision as a means to advance ones case. To

get the true intent and meaning of a decision, no specific portion thereof should be isolated and read
in this context; the decision must be considered in its entirety. Read in this manner, the
respondents right to possession of the subject property fully follows.
5-year period to execute; 10-year

to revive a judgment
A complaint for forcible entry was filed where the judgment became final and executory. The
plaintiff moved to defer the execution of the judgment and the defendant had no hand on it. Neither
was there an agreement. After 5 years the plaintiff moved for execution. It was denied due to
prescription. On the 11th year, he finally sought its revival. Will the action prosper? Why?
Answer: No, because of prescription. An action upon a judgment must be brought within 10 years
from the time the right of action accrues. (Aart. 1144, NCC). Furthermore, the law provides that
once a judgment becomes final and executor, the prevailing party fails to have the decision enforced
by a motion after the lapse of five years, the said judgment is reduced to a right of action which
must be enforced by the institution of a complaint in a regular court within ten years from the time
the judgment becomes final.
When the complaint for revival of judgment was filed, it had already been eleven (11) years
from the finality of the judgment he sought to revive. Clearly, the statute of limitations had set in.
(Villeza v. German Management & Services, Inc., et al., G.R. No. 182937, August 8, 2010, Mendoza,
J).
Effect of Order holding in abeyance

execution.
28


He contended that the abeyance granted to him by the lower court tolled the running of the
prescriptive period. He even cited cases allowing exceptions to the general rule. Is the contention
correct? Why?
Answer: No. Republic v. Court of Appeals, deals with the stay of the period due to the acts of the
losing party. It was impossible for the winning party to have sought the execution of the judgment
because of the dilatory schemes and maneuvers resorted to by the other party.
In Torralba v. delos Angeles, 185 Phil. 40 (1985) the running of the period was interrupted
when the winning party filed a motion for the issuance of the writ of execution. The order of
ejectment was not carried out however due to the judgment debtors begging to withhold the
execution of judgment because of financial difficulties. The agreement of the parties to defer or
suspend the enforcement of the judgment interrupted the period of prescription.
In Casela v. Court of Appeals, 146 Phil. 292 (1970) it was the judgment obligor who moved
to suspend the writ of execution. The judgment oblige was not in delay because he exhausted all
legal means within his power to eject the obligor from his land. The writs of execution issued by the
lower court were not complied with and/or were suspended by reason of acts or causes not of
obligees own making and against his objections.
Right of redemption by a creditor

of property of debtor sold on
execution
In Torres, et al. v. Sps. Alamag, G.R. No. 169569, August 3, 2010, Peralta, J., the SC once
again said that a creditor has the right to redeem a property sold by virtue of a Notice of Levy on the
property of the debtor. He is a creditor who has a lien on the property. (Sec. 27, Rule 39).
For a valid redemption, the amount tendered must include the following: (1) the full amount
paid by the purchaser; (2) with an additional one percent per month interest on the purchase price
up to the time of redemption; (3) together with the amount of any assessments or taxes which the
purchaser may have paid thereon after purchase; (4) interest on the taxes paid by the purchaser at
the rate of one percent per month up to the time of redemption; and (5) 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. However, in Baluyut v. Poblete,
the court held that the purchaser is required to furnish copies of the amounts of assessments of
taxes which he may have paid to inform the mortgagor or redemptioner of the actual amount which
he should pay in case he chooses to exercise his right of redemption and if no such notice is given,
the property may be relieved without paying such assessments or taxes. Then, in Cayton v. Zeonnix
Trading Corporation, the court reiterated the ruling in Estanislao, Jr. v, Court of Appeals that the
payment of the full purchase price and interest thereon by a redemptioner who had not been
apprised of the amount of taxes paid by the purchaser, should already be considered sufficient for
purposes of redemption if the redemptioner immediately pays the additional amount for taxes once
notified of the deficiency. The Court deemed this to be in consonance with the policy of the law to
aid rather than defeat the right of redemption.
Res Judicata; Requisites; donation

declared void action to quiet title will
not prosper anymore.
In Sps. Noceda v. Directo, G.R. No. 178495, July 26, 2010, Nachura, J., after the final and
executory judgment declaring the donation void, the donee filed an action for quieting of title against
the donor. In both cases, issues of ownership were raised especially so that in the first it has been
passed upon.
29


The SC ruled that the action for quieting of title will not prosper anymore because of the
principle of res judicata.
Under the principle of conclusiveness of judgment, such material fact becomes binding and
conclusive on the parties. When a right or fact has been juridically tried and determined by a court
of competent jurisdiction, or when an opportunity for such trial has been given, judgment of the
court as long as it remains unreversed, should be conclusive upon the parties and those in privity
with him. Thus, petitioners can no longer question donors ownership over the land in the suit for
quieting of title. Simply put, conclusiveness of judgment bars the relitigation of particular facts or
issues in another litigation between the same parties on a different claim or cause of action. (Tan v.
CA, 415 Phil. 675 (2001).
Res judicata; there should be no

re-litigation of an issue that has
been settled; rationale.
In Pacifico Cruz v. the Sandiganbayan, et.al., G.R. NO. 174599-609, February 12, 2010,
Abad J, Special Presidential Task Force 156 investigated the One-Stop Shop Inter-Agency Tax Credit
and Duty Drawback Center (the One-Stop Center) of the Department of Finance (DOF). The Task
Force found that certain officials of the One-Stop Center had been issuing tax credit certificates
(TCCs) to entities that did not earn them through tax overpayments.
It found that Diamond Knitting Corporation (DKC), a Board of Investments-registered textile

manufacturer, completely shut down its operations in 1993 yet the DOFs One-Stop Center issued to
it TCCs totalling P131, 205, 391.00 from 1994 to 1997. DKC in turn sold a number of these TCCs to
Pilipinas Shell with the approval of the One-Stop Center. Pilipinas Shell then used these TCCs to pay
off its excise tax obligations to the Bureau of Internal Revenue (BIR).
Believing that petitioner Pacifico R. Cruz, the General Manager of Pilipinas Shells Treasury
and Taxation Department, was a party to the fraud, the Task Force included him in its complaint for
plunder against certain officials of DKC and of the One-Stop Center before the Office of the
Ombudsman (OMB).
OMB dismissed the plunder charge but caused the filing on August 7, 2002 of separate
informations for multiple violations of Section 3(e) of the Anti-Graft and Corrupt Practices Act
against Cruz and the others with him. Before arraignment, Cruz sought the reinvestigation of the
cases, claiming that he had been unable to seek reconsideration because of the hasty filing of the
informations. The Sandiganbayan granted his motion.
After reinvestigation, the Office of the Special Prosecutor (OSP) submitted a memorandum to
the OMB, recommending the dropping of the charges against Cruz for lack of evidence that he
supplied the false documents used for processing the transfers to Pilipinas Shell of the subject
fraudulently issued TCCs. The OSP found that Cruz could not have known that DKC had long
stopped its business operations. Indeed, the OSP had in two similar cases recommended the
dropping of charges against Cruz for the same reason. Upon review, the OMB approved respondent
OSPs recommendation.
Respondent Task Force sought the reconsideration which was not acted upon. In the
meantime, there was a motion to withdraw the motion to drop Cruz.
Meanwhile, on December 21, 2007, the Supreme Court rendered judgment in Pilipinas Shell
Petroleum Corporation v. Commissioner of Internal Revenue (G.R. NO. 172598, December 21, 2007,
541 SCRA 316). The BIR assessed deficiency income taxes against Pilipinas Shell, given that it used
for payment the fraudulently issued TCCs subject of this case. The Court nullified the assessment,
finding that Pilipinas Shell was a transferee in good faith and for value and may thus not be unjustly
prejudiced by the transferors fraud committed in procuring the transfer of those TCCs.
30


Cruz filed a manifestation invoking the Courts ruling in the above tax case as res judicata
with respect to his alleged criminal liabilities relating to the subject TCCs.
The basic issue is whether the finding of the Court in Pilipinas Shell Petroleum Corporation v.
Commissioner of Internal Revenue that Pilipinas Shell was a transferee in good faith and for value of
the TCCs in question bar the prosecution of Cruz in the criminal cases subject of this petition or is
there res judicata? Why?
Answer: Yes. The res judicata rule bars the relitigation of facts or issues that have once been
settled by a court of law upon a final judgment on the merits. Section 47 (b) and (c) of Rule 39 of
the Rules of court establishes two rules:
(a) A judgment on the merits by a court of competent jurisdiction bars the parties and their
privies from bringing a new action or suit involving the same cause of action before either
the same or any other tribunal;
(b) Any right, fact or matter directly adjudged or necessarily involved in the determination of
an action before a competent court that renders judgment on the merits is conclusively
settled and cannot be litigated again between the parties and their privies, regardless of
whether the claims, purposes or subject matters of the two suits are the same.
The first commonly referred to as bar by former judgment; the second as conclusiveness
of judgment. It is the second that is relevant to this case.
Conclusiveness of judgment or auter action pendent ordains that issues actually and directly
resolved in a former suit cannot be raised anew in any future case involving the same parties
although for a different cause of action. Where the rule applies, there must be identity of issues but
not necessarily identity in cases of action (PCGG v. SB, G.R. No. 157592, October 17, 2008, 569
SCRA 360).
In the present case, the OMB charged petitioner Cruz, acting in conspiracy with others, of
violating Section 3(e) of Republic Act 3019 in connection with the transfer of fraudulently issued
TCCs to Pilipinas Shell. The main issue in this case is whether or not Cruz, Pilipinas Shells Treasury
head, connived with the officials of One-Stop Center and others in unlawfully giving, through
manifest partiality and bad faith , unwarranted benefits to DKC by processing and approving such
transfers to Pilipinas Shell, knowing that DKC, the transferee, has been a dormant company.
The Court resolved substantially the same issue in Pilipinas Shell Petroleum Corporation v.
Commissioner of Internal Revenue. There, the Court categorically found that Pilipinas Shell,
represented in its acquisition of the TCCs in question by petitioner Cruz, was a transferee in good
faith and for value of those TCCs. This means that neither Pilipinas Shell nor Cruz was a party to the
fraudulent issuance and transfer of the TCCs. Indeed, there existed, no evidence that Pilipinas Shell
was involved in the processing of the One-Stop Centers approval of the transfer of those TCCs to
Pilipinas Shell.
The parties in the tax case and in the criminal cases are substantially the same. Although it
was respondent Task Force that investigated the irregularities in the issuance and transfers of the
TCCs, the ultimate complainant in the criminal casethe party that suffered the injurywas the
government , represented by the Commissioner of Internal Revenue. The latter also represented
the government in the tax case against Pilipinas Shell. Cruz, on the other hand, represented
Pilipinas Shell in all the transactions in question. In short, the parties in the tax case and in the
criminal cases represent substantially identical interests. The principle of res judicata through
conclusiveness of judgment applies to bar the criminal actions against Cruz.
31


APPEAL
Modes of appeal from RTC to CA, etc.
BF Citiland Corp. v. Otake, G.R. No. 173351, July 29, 2010, Carpio, J., reiterates the basic
principle that in case decided by the RTC in the exercise of its original jurisdiction, appeal to the
Court of Appeals is taken by filing a notice of appeal. On the other hand, in cases decided by the RTC
in the exercise of its appellate jurisdiction, appeal to the Court of Appeals is by a petition for
review under Rule 42.
A petition for certiorari under Rule 65 does not interrupt the course of the principal case
unless a temporary restraining order or writ of preliminary injunction from further proceeding has
been issued against the public respondent. A petition for certiorari under Rule 65 is, without a doubt,
an original action.
Since the decision of the RTC in the petition for certiorari under Rule 65 was rendered in the
exercise of its original jurisdiction, appeal from the said RTC decision to the Court of Appeals should
have been made by filing a notice of appeal, not a petition for review under Rule 42.
However, in numerous cases, the Court has allowed liberal construction of the rules when to
do so would serve the demands of substantial justice. Dismissal of the appeals purely on technical
grounds is frowned upon. It is better to excuse a technical lapse rather than dispose of a case on
technicality, giving a false impression of speedy disposal of cases while actually resulting in more
delay, if not miscarriage of justice. In the present case, a dismissal on technicality would only mean
a new round of litigation between the same parties for the same cause of action, over the same
subject matter. Thus, notwithstanding petitioners wrong mode of appeal, the Court of Appeals
should not have so easily dismissed the petition.
Reiteration of Neypes v. CA.
In Torres, et al. v. Sps. Alamag, G.R. No. 169569, August 3, 2010, Peralta, J., the
respondents were furnished with a copy of the order denying their MR on August 29, 2001. They
filed their notice of appeal on September 11, 2010. Was the appeal perfected on time? Why?
Answer: Yes, because the last day for filing the notice of appeal was on September 13, 2010. In
Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005, 469 SCRA 633, the Court
declared that a party-litigant should be allowed a fresh period of 15 days within which to file notice
of appeal in the RTC, counted from receipt of the order denying a motion for new trial or motion for
new reconsideration, so as to standardize the appeal periods provided in the Rules of Court and do
away with the confusion as to when the 15-day appeal period should be counted. Furthermore, in
Sumiran v. Damaso, the Court again emphasized that the ruling in Neypes, being a matter of
procedure, must be given retroactive effect and applied even to actions pending in the Court.
Note: In Judith Yu v. Judge Tatad, et al., February 9, 2011, the SC ruled that the Neypes principle
applies even in criminal cases.
Order of execution is not

appealable; otherwise, there
would be no end to litigation;
exceptions.
In Phil. Amusement and Gaming Corp. v. Aumentado, Jr., G.R. No. 173634, July 22, 2010,
Carpio, J., the SC had the occasion to say that the general rule is that an order of execution is not
appealable; otherwise, a case would never end. (Buag v. Court of Appeals, 363 Phil. 216 (1999);
Corpus v. Alikpala, 130 Phil. 88 (1968). There are, however, exceptions to this rule, namely:
1. The writ of execution varies the judgment;
32


2. There has been a change in the situation of the parties making execution inequitable or
unjust;
3. Execution is sought to be enforced against property exempt from execution;
4. It appears that the controversy has been submitted to the judgment of the court;
5. The terms of the judgment are not clear enough and there remains room for interpretation
thereof; or
6. It appears that the writ of execution has been improvidently issued, or that it is defective in
substance, or issued against the wrong party, or that the judgment debt has been paid or
otherwise satisfied, or the writ issued without authority. (Phil. Economic Zone Authority v.
Borreta, G.R. No. 142669, March 15, 2006, 484 SCRA 664).
Dismissal of appeal erroneously taken;

exception
In Carriaga v. People, G.R. No. 180010, July 30, 2010, Morales, J., the SC ruled that under
Section 2, Rule 50 of the Rules of Court, an appeal erroneously taken to the CA shall not be
transferred to the appropriate court but shall be dismissed outright. This is not, however, absolute
especially with the liberal interpretation of the Rules and presumption of innocence.
Since the appeal involves criminal case, and the possibility of a person being deprived of
liberty due to procedural lapse militates against the Courts dispensation of justice, the Court
granted petitioners plea for a relaxation of the Rules.
For rules of procedure must be viewed as tools to facilitate the attainment of justice, such
that any rigid and strict application thereof which results in technicalities tending to frustrate
substantial justice must always be avoided. (De Guzaman v. SB, 256 SCRA 171 (1996).
RULE 58
Preliminary Injunction
In Barbieto v. CA, et al., G.R. No. 184645, October 30, 2009, the SC once again said that the
grant or denial of a writ of preliminary injunction in a pending case rests on the sound discretion of
the court taking cognizance of the case, since the assessment and evaluation of evidence towards
that end involves findings of facts left to the said court for its conclusive determination. Hence, the
exercise of judicial discretion by a court in injunctive matters must not be interfered with, except
when there is grave abuse of discretion.
A writ of preliminary injunction may be granted only upon showing by the applicant of a clear
and unmistakable right that is a right in esse.
Requisites for issuance of preliminary

injunction
In Lim v. BPI Agricultural Dev. Bank, G.R. No. 179230, March 9, 2010, Morales, J., the SC
denied a petition for injunction to enjoin the foreclosure of mortgages despite his default in his
obligation under the promissory note which he never challenged because of the inexistence of a right
in esse. .
The SC denied the prayer for the issuance of preliminary injunction. One of the requisites for
the issuance of a writ of preliminary injunction is that the applicant must have a right in esse. A right
in esse is a clear and unmistakable right to be protected, one clearly founded on or granted by law
or is enforceable as a matter of law. The existence of a right to be protected, and the acts against
which the writ is to be directed are violative of said right must be established.
33


TRO is inextendible; rule is absolute.
The basic issue is National Electrification Administration v. Villanueva, G.R. No. 168203,
March 9, 2010, Peralta, J, is whether a TRO issued by the RTC is extendible.
The SC ruled, No. It can be extended by agreement of the parties.
RULE 63
Declaratory Relief
RTC has jurisdiction over a

petition for declaratory relief.
Once again in G.R. No. 181303, September 17, 2009, the SC had the occasion to rule that a
petition for declaratory relief under Sec. 1, Rule 63 of the Rules of Court may be brought before the
RTC.
The second paragraph of Section 1, Rule 63 of the Rules of Court specifically refers to (1) an
action for the reformation of an instrument, recognized under Articles 1359 to 1369 of the Civil
Code; (2) an action to quiet title, authorized by Articles 476 to 481 of the Civil Code; and (3) an
action to consolidate ownership required by Article 1607 of the Civil Code in a sale with a right to
repurchase. These three remedies are considered similar to declaratory relief because they also
result in the adjudication of the legal rights of the litigants, often without the need of execution to
carry the judgment into effect.
To determine which court has jurisdiction over the actions identified in the second paragraph
of Section 1, Rule 63 of the Rules of Court, said provision must be read together with those of the
Judiciary Reorganization Act of 1980, as amended.
It is important to note that Section 1, Rule 63 of the Rules of Court does not categorically
require that an action to quiet title be filed before the RTC. It repeatedly uses the word may
that an action for quieting of title may be brought under [the] Rule on petitions for declaratory
relief, and a person desiring to file a petition for declaratory relief may x x x bring an action in the
appropriate Regional Trial Court. The use of the word may in a statute denotes that the provision
is merely permissive and indicates a mere possibility, an opportunity or an option.
In contrast, the mandatory provision of the Judiciary Reorganization Act of 1980, as

amended, uses the word shall and explicitly requires the MTC to exercise exclusive original
jurisdiction over all civil actions which involve title to or possession of real property where the
assessed value does not exceed P20,000.00.
Since, the assessed value of the subject property is only P410.00; therefore, the Complaint
involving title to and possession of the said property is within the exclusive original jurisdiction of the
MTC, not the RTC.
When petition is proper; no actual breach.
Furthermore, an action for declaratory relief presupposes that there has been no actual
breach of the instruments involved or of rights arising thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative statement of the rights and obligations of the parties
under a statute, deed, or contract for their guidance in the enforcement thereof, or compliance
therewith, and not to settle issues arising from an alleged breach thereof, it may be entertained only
before the breach or violation of the statute, deed, or contract to which it refers. A petition for
declaratory relief gives a practical remedy for ending controversies that have not reached the state
where another relief is immediately available; and supplies the need for a form of action that will set
34


controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a
commission of wrongs.
When it does not apply; breach has been committed.
Where the law or contract has already been contravened prior to the filing of an action for
declaratory relief, the courts can no longer assume jurisdiction over the action. In other words, a
court has no more jurisdiction over an action for declaratory relief if its subject has already been
infringed or transgressed before the institution of the action.
The Complaint for quieting of title was filed after petitioners already demanded and
respondents refused to vacate the subject property. In fact, said Complaint was filed only
subsequent to the latters express claim of ownership over the subject property before the Lupong
Tagapamayapa, in direct challenge to petitioners title.
Since they alleged in the Complaint that they had already been deprived of the possession of
their property, the proper remedy for them is the filing of an accion publiciana or an accion
reivindicatoria, not a case for declaratory relief. An accion publiciana is a suit for the recovery of
possession, filed one year after the occurrence of the cause of action or from the unlawful
withholding of possession of the realty. An accion reivindicatoria is a suit that has for its object
ones recovery of possession over the real property as owner.
The Complaint contained sufficient allegations for an accion reivindicatoria. Jurisdiction over
such an action would depend on the value of the property involved. Given that the subject property
herein is valued only at P410.00, then the MTC, not the RTC, has jurisdiction over an action to
recover the same. The RTC, therefore, did not commit grave abuse of discretion in dismissing,
without prejudice for lack of jurisdiction.
RULE 65
Certiorari
Certiorari under Rule 65 is the

proper remedy if a case is
dismissed while the main case is
pending against other defendants.
In Palma v. Hon. Danilo Galvez, et. al., G.R. NO. 165273, March 10, 2010, Peralta, Jr, J., a
complaint for damages was filed against several defendants alleging that defendants committed
professional fault, negligence and omission for having removed her right ovary against her will, and
losing the same and the tissues extracted from her during the surgery; and that although the
specimens were subsequently found, petitioner was doubtful and uncertain that the same was hers
as the label therein pertained to that of somebody else. Defendants filed their respective Answers.
Petitioner subsequently filed a Motion for Leave to Admit Amended Complaint, praying for the
inclusion of additional defendants who were all nurses at the PHC, namely Karly Reyes, Myra
Mangaser and respondent Agudo. Thus, summons were subsequently issued to them.
Private respondent moved to dismiss on the ground that the court has not acquired
jurisdiction over her as there was no proper service of summons. The court granted the motion and
dismissed the case even if there are several defendants and during the pendency of the case against
them. A special civil action for certiorari was filed. Is this the proper remedy? Why?
Answer: Yes, as an exception to the rule. Section 1, Rule 41 of the 1997 Rules of Civil
Procedure states that an appeal may be taken only from a final order that completely disposes of the
case; that no appeal may be taken from (a) an order denying a motion for new trial or
reconsideration; (b) an order denying a petition for relief or any similar motion seeking relief from
judgment; (c) an interlocutory order; (d) an order disallowing or dismissing an appeal; (e) an order
denying a motion to set aside a judgment by consent , confession or compromise on the ground of
35


fraud, mistake or duress, or any other ground vitiating consent; (f) an order of execution; (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; or (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 for certiorari under Rule 65.
In this case, the RTC Order granting the motion to dismiss filed by private respondent is a
final order because it terminated the proceedings against her, but it falls within exception (g) of the
Rule since the case involves several defendants and the complaint for damages against these
defendants is still pending (Jan.- Dec. Const. Dev. Corp. v. CA, 481 SCRA 556 (2006)). Since there
is no appeal, or any plain, speedy, and adequate remedy in law, the remedy of a special civil action
for certiorari is proper as there is a need to promptly relieve the aggrieved party from the injurious
effects of the acts of an inferior court or tribunal.
Prohibition
Prohibition is the remedy if a tax

ordinance was passed without
public hearing.
In Ongsuco, et al. v. Hon. Mariano Malones, G.R. No. 182065, October 27, 2009, the SC had
the occasion to say that if a tax ordinance was passed by a Local Government Unit without public
hearing Prohibition is the appropriate remedy. Mandamus is not the proper remedy.
In a petition for prohibition against any tribunal, corporation, board, or person -- whether
exercising judicial, quasi-judicial, or ministerial functions -- who has acted without or in excess of
jurisdiction or with grave abuse of discretion, the petitioner prays that judgment be rendered,
commanding the respondent to desist from further proceeding in the action or matter specified in
the petition. On the other hand, the remedy of mandamus lies to compel performance of a
ministerial duty. The petitioner for such a writ should have a well-defined, clear and certain legal
right to the performance of the act, and it must be the clear and imperative duty of respondent to do
the act required to be done.
Mandamus
Mandamus, when it issues.
In Angeles v. The Sec. of Justice, et al., G.R. No. 142549, March 9, 2010, there was a finding
by the LRA that there was a double titling of a parcel of land, hence, the refusal to issue the TCT.
Yet, the petitioner filed a petition for mandamus to compel the issuance of the title.
The SC denied the petition.
It is settled that mandamus is employed to compel the performance, when refused, of a

ministerial duty, but not to compel the performance of a discretionary duty. Mandamus will not
issue to enforce a right which is in substantial dispute or to which a substantial doubt exists. It is
nonetheless likewise available to compel action, when refused, in matters involving judgment and
discretion, but not to direct the exercise of judgment or discretion in a particular way or the
retraction or reversal of an action already taken in the exercise of either.
In Laburada v. Land Registration Authority, 350 Phil 779 (1998) it was held that:
That the LRA hesitates in issuing a decree of registration is understandable.

Rather than a sign of negligence or nonfeasance in the performance of its duty, the
36


LRA's reaction is reasonable, even imperative. Considering the probable

duplication of titles over the same parcel of land, such issuance may
contravene the policy and the purpose, and thereby destroy the integrity, of
the Torrens system of registration.
xxxx
x x x Likewise, the writ of mandamus can be awarded only when the

petitioners' legal right to the performance of the particular act which is sought to be
compelled is clear and complete. Under Rule 65 of the Rules of Court, a clear legal
right is a right which is indubitably granted by law or is inferable as a matter of law. If
the right is clear and the case is meritorious, objections raising merely technical
questions will be disregarded. But where the right sought to be enforced is in
substantial doubt or dispute, as in this case, mandamus cannot issue.
It is settled that under Section 5, Rule 58 of the Rules of Court, a judge may issue a
temporary restraining order within a limited life of twenty (20) days from date of issue. If before the
expiration of the twenty (20)-day period the application for preliminary injunction is denied, the
temporary restraining order would be deemed automatically vacated. If no action is taken by the
judge on the application for preliminary injunction within the said twenty (20) days, the temporary
restraining order would automatically expire on the 20th day by the sheer force of law, no judicial
declaration to that effect being necessary and the courts having no discretion to extend the same.
(Mendoza v. Judge Ubiadas, 462 Phil. 633 (2003). The rule against the non-extendibility of the
twenty (20)-day limited period of effectivity of a temporary restraining order is absolute if issued by
a regional trial court. (Bacolod City Water District v. Hon. Labayen, 487 Phil. 335 (2004).
When mandamus will lie.
For mandamus to issue, it is essential that the person petitioning for it has a clear legal right
to the claim sought. It will not issue to enforce a right, or to compel compliance with a duty, which is
questionable or over which a substantial doubt exists. Thus, unless the right to the relief sought is
unclouded, it will be denied. (Araos, et al. v. Hon. Regala, et al., G.R. No. 174237, February 18,
2010, Morales, J).
RULE 68
Foreclosure
Effect if foreclosure did not

proceed as scheduled;
requirement of republication.
In Metrobank v. Nikko Resources Intl. Corp., et al., G.R. No. 178479, October 23, 2009,
Morales, J, it was once again held that if the foreclosure does not push through as scheduled, there
is a need for republication of the notice and reposting of notice.
The sale at public auction of the properties covered by the foreclosed mortgage in Philippine
National Bank v. Nepomuceno Productions, Inc. cited by petitioner took place in 1976, also prior to
the effectivity on April 22, 2002 of this Courts Circular No. 7-2002. The Court therein held that
under Act No. 3135, as amended, republication as well as reposting of the notice of sale is required if
the foreclosure does not proceed on the date originally intended.
The principal object of a notice of sale in a foreclosure of mortgage is

not so much to notify the mortgagor as to inform the public generally of the
nature and condition of the property to be sold, and of the time, place, and
terms of the sale. Notices are given to secure bidders and prevent a sacrifice
of the property. Clearly, the statutory requirements of posting and publication
37


are mandated, not for the mortgagors benefit, but for the public or third
persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure
proceedings is not even necessary, unless stipulated. As such, it is imbued
with public policy considerations and any waiver thereon would be inconsistent
with the intent and letter of Act No. 3135.
RULE 70
Forcible Entry and Unlawful Detainer
When there is forcible entry.
In Dy v. Mandy Commodities Co., Inc., G.R. No. 171842, July 22, 2009, it was held that there
is forcible entry or desahucio when one is deprived of physical possession of land or building by
means of force, intimidation, threat, strategy or stealth. The basic inquiry centers on who has the
prior possession de facto. The plaintiff must prove that he was in prior possession and that he was
deprived thereof. (Sps. Lopez v. Sps. Espinosa, G.R. No. 184225, September 4, 2009).
Nature of ejectment proceedings;

title cannot be attacked in the UD
case.
In Sps. Fernandez v. Sps. Co, G.R. No. 167390, July 26, 2010, Peralta, J., the SC once again
had the occasion to say that ejectment proceedings are summary proceedings only intended to
provide an expeditious means of protecting actual possession or right to possession of property. The
sole issue to be resolved is who is entitled to the physical or material possession of the premises or
possession de facto. The issue of the validity of the title of respondents can only be assailed in an
action expressly instituted for that purpose. (Soriente v. Estate of the Late Arsenio Concepcion, G.R.
No. 160239, November 29, 2009, 605 SCRA 315). Section 48 of Presidential Decree No. 1529,
specifically states that a certificate of title shall not be subject to collateral attack, and that it cannot
be altered, modified or cancelled, except in a direct proceeding in accordance with law.
In forcible entry, even if the

property is idle or unguarded, it
can prosper.
In an action for forcible entry, the complaint stated that the property was idle and
unguarded; hence, the defendant contended that the plaintiffs claim of prior possession is negated
or false. Is the contention correct? Why?
Answer: No. While prior possession is, admittedly, an indispensable requirement in forcible entry
cases, the lack of merit in petitioners position is, however, evident from the principle that
possession can be acquired not only by material occupation, but also by the fact that a thing subject
to the action of ones will or by the proper acts and legal formalities established for acquiring such
right. Because possession can also be acquired by juridical acts to which the law gives the force of
acts of possession, e.g., donations, succession, execution and registration of public instruments,
inscription of possessory information titles and the like, it has been held that one need not have
actual or physical occupation of every square inch of the property at all times to be considered in
possession. (Quizon v. Juan, G.R. No. 171442, June 17, 2008, 554 SCRA 601; Nuez v. SLTeas
Phoenix Solutions, Inc., G.R. No. 180542, April 12, 2010, Perez, J).
MTCs adjudication on ownership

in UD is merely provisional
Once again, in Sps. Fernandez v. Sps. Co, G.R. No 167390, July 26, 2010, Peralta, J., the SC
had the occasion to say that the courts adjudication of ownership in an ejectment case is merely
38


provisional, and affirmance of the trial courts decision would not prejudice an action between the
same parties involving title to the property. Section 18, Rule 70 of the Rules of Court specifically
provides that 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.
Owner of land allowed the State

to use it for educational purposes;
no payment of compensation; no
title by the RP; ejectment suit is
not the remedy; demand
compensation
Paninsingin Primary School is a public school operated by the government using a parcel of
land owned by the Mendozas since 1957. The government however failed to acquire a title under its
name. A complaint for ejectment was filed by the Mendozas due to the governments failure to
acquire ownership. Is the action proper? Why?
Answer: No. Where the owner agrees voluntarily to the taking of his property by the government for
public use, he thereby waives his right to the institution of a formal expropriation proceeding
covering such property. In Eusebio v. Luis, G.R. No. 162474, October 13, 2009, 603 SCRA 576, the
failure for a long time of the owner to question the lack of expropriation proceeding covering a
property that the government had taken constitutes a waiver of his right to gain back possession.
The owners remedy is an action for the payment of just compensation, not ejectment.
In Republic of the Philippines v. Court of Appeals, 494 SCRA 494 (2005), the Court affirmed
the RTCs power to award just compensation even in the absence of proper expropriation
proceeding. It held that the RTC can determine just compensation based on the evidence presented
before it in an ordinary civil action for recovery of possession of property or its value and damages.
As to the time when just compensation should be fixed, it is settled that where property was taken
without the benefit of expropriation proceedings and its owner filed an action for recovery of
possession before the commencement of expropriation proceedings, it is the value of the property at
the time of taking that is controlling.
Since the MTCC did not have jurisdiction either to evict the Republic from the land it had
taken for public use or to hear and adjudicate the owners right to just compensation for it, the CA
should have ordered the complaint for unlawful detainer dismissed without prejudice to their filing a
proper action for recovery of such compensation. (Republic, et al. v. Mendoza, et al., G.R. No.
185091, August 9, 2010, Abad, J).
Possession in forcible entry

means actual physical possession,
not legal possession
In Antango v. Doblada, et. al., G.R. No. 178908, February 4, 2010, Nachura, J., after the
purchase of a real property, a letter was sent asking the occupants to vacate the premises. In their
complaint for forcible entry, they alleged that they have been in open and peaceful possession of the
parcel of land. In their answer, the defendants alleged that they have been in possession of the
property since time immemorial. The plaintiffs on the other hand alleged that after they purchased
the property, possession was transferred to them. The Supreme Court held:
No, the action for forcible entry cannot prosper. The possession claimed by plaintiffs is one
flowing from ownership of the property, as opposed to actual possession. In ejectment cases,
possession means nothing more than actual physical possession, not legal possession in the sense
contemplated in civil law (Arbizo v. Santillan, G.R. No. 171315, February 26, 2008, 546 SCRA 600).
39


Prior physical possession is the primary consideration in a forcible entry case (Lagazo v.
Soriano et. al., G.R. No. 170864, February 16, 2010). A party who can prove prior possession can
recover such possession even against the owner himself. Whatever may be the character of his
possession, if he has in his favor prior possession in time, he has the security that entitles him to
remain on the property until a person with better right lawfully ejects him. The party in peaceable
quiet possession shall not be thrown out by a strong hand, violence or terror (Pajuyo v. CA, G.R. No.
146364, June 3, 2004, 430 SCRA 492).
If it is true that they were in actual prior physical possession, it would have been unnecessary
to write a letter if petitioners were already in possession of the property. The contents of the letter
are clearpetitioners are demanding that respondents restore possession of the property to them.
Unlawfully entering the subject property, erecting a structure thereon and excluding
therefrom the prior possessor would necessarily imply the use of force. In order to constitute force,
the trespasser does not have to institute a state of war.
Judgment in Unlawful Detainer is

immediately executory; there are
exceptions.
In La Campana Dev. Corp. v. Ledesma, et. al., G.R. No. 154152, August 25, 2010, Peralta, J.,
there was a complaint for ejectment filed by the lessor against the lessee. Judgment was rendered
against the defendant which was affirmed by the Regional Trial Court. It was contended by the
defendant that the lessor had no more right to eject the defendant since the property was already in
the possession of the Development Bank of the Philippines after it foreclosed the mortgage. The
Court of Appeals issued an order enjoining the execution of the judgment considering the change in
the nature of the title of the lessor during the subsistence of the lease. Is the ruling of the CA
correct? Why?
Answer: Yes. It is true that Section 21, Rule 70 of the Rules of Court provides that 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. However, it was ruled in Benedicto v.
Court of Appeals, G.R. No. 157604, October 19, 2005, 473 SCRA 363, that on appeal the appellate
court may stay the said writ should circumstances require. x x x even if the RTC judgments in
unlawful detainer cases are immediately executory, preliminary injunction may still be granted.
Citing Amagan v. Marayag, 383 Phil 486 (2000) and Vda. De Legaspi v. Avendano, 169 SCRA 138
(1977) the Court explained that:
Where the action, therefore, is one of illegal detainer, as distinguished from

one of forcible entry, and the right of the plaintiff to recover the premises is seriously
placed in issue in a proper judicial proceeding, it is more equitable and just and less
productive of confusion and disturbance of physical possession, with all its
concomitant inconvenience and expenses. For the Court in which the issue of legal
possession, whether involving ownership or not, is brought to restrain, should a
petition for preliminary injunction be filed with it, the effects of any order or decision
in the unlawful detainer case in order to await the final judgment in the more
substantive case involving legal possession or ownership. x x x
Moreover, the Court also stressed in City of Naga v. Asuncion, 557 SCRA 528 (2008), that
when exigencies in the case warrant it, the appellate court may stay the writ of execution issued by
the RTC in an action for ejectment if there are circumstances necessitating such action. An example
of such exceptional circumstance can be seen in Laurel v. Abalos, 140 Phil 532 (1969). Therein, a
defendant was ordered by the trial court to vacate the premises of the disputed property and return
possession thereof to the plaintiffs, but while the ejectment case was on appeal, a judgment was
promulgated in a separate case where the sale of the property to said plaintiffs was declared null
40


and void, making the plaintiffs right to possess the disputed property inconclusive. The Court ruled
in said case that:
Where the supervening events (occurring subsequent to the judgment) bring
about a material change in the situation of the parties which makes the execution
inequitable, or where there is no compelling urgency for the execution because it is
not justified by the prevailing circumstances, the court may stay immediate execution
of the judgment.
Based on the foregoing earlier ruling in Laurel, the Court also considered it just and equitable
to stay the execution of the RTC judgment in an ejectment case against the City of Naga, stating
that:
Needless to reiterate, grave and irreparable injury will be inflicted on the City
of Naga by the immediate execution of the June 20, 2005 RTC Decision. x x x the
people of Naga would be deprived of access to basic social services. It should not be
forgotten that the land subject of the ejectment case houses government offices which
perform important functions vital to the orderly operation of the local government. x x
x
SPEEDY DISPOSITION OF CASES
Coverage of speedy disposition of cases.
In Roquero v. The Chancellor of UP-Manila, et al., G.R. No. 181851, March 9, 2010, Perez, J,
the SC had the occasion to say that while it is true that administrative investigations should not be
bound by strict adherence to the technical rules of procedure and evidence applicable to judicial
proceedings, the same however should not violate the constitutional right of respondents to a
speedy disposition of cases.
Section 16, Article III of the 1987 Constitution provides:
Section 16. All person shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial, or administrative bodies.
The constitutional right to a speedy disposition of cases is not limited to the accused in
criminal proceedings but extends to all parties in all cases, including civil and administrative cases,
and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution,
any party to a case may demand expeditious action by all officials who are tasked with the
administration of justice.
The right to a speedy disposition of a case, like the right to a speedy trial, is deemed violated
only when the proceedings are attended by vexatious, capricious, and oppressive delays; or when
unjustified postponements of the trial are asked for and secured; or even without cause or
justifiable motive, a long period of time is allowed to elapse without the party having his
case tried. Equally applicable is the balancing test used to determine whether a defendant has been
denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the
conduct of both the prosecution and the defendant is weighed, and such factors as the length of the
delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and
the prejudice caused by the delay. The concept of a speedy disposition is a relative term and must
necessarily be a flexible concept.
Hence, the doctrinal rule is that in the determination of whether that right has been violated,
the factors that may be considered and balanced are as follows: (1) the length of delay; (2) the
reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the
prejudice caused by the delay.
41


The Constitutional guarantee against unreasonable delay in the disposition of cases was
intended to stem the tide of disenchantment among the people in the administration of justice by
our judicial and quasi-judicial tribunals. The adjudication of cases must not only be done in an
orderly manner that is in accord with the established rules of procedure but must also be promptly
decided to better serve the ends of justice. Excessive delay in the disposition of cases renders the
rights of the people guaranteed by the Constitution and by various legislations inutile.
SPECIAL PROCEEDINGS
Appeal in special proceedings.
In In the Matter of the Heirship of the Late Hermogenes Rodriguez, et al. v. Rene B. Pascual,
et al., G.R. No. 182645, December 4, 2009, after receipt of the Amended Decision, a notice of
appeal instead of filing a record on appeal was filed. The RTC denied the appeal for failure to file a
record on appeal. The CA reversed and entertained the appeal. Is the CA correct? Why?
Answer: No. The CA committed an error for entertaining the case knowing that appeal was not
perfected and had lapsed into finality.
In special proceedings, such as a proceeding for settlement of estate, the period of appeal
from any decision or final order rendered therein is 30 days, a notice of appeal and a record on
appeal being required. (Section 2, Rule 41 of the Rules of Civil Procedure).
The appeal period may only be interrupted by the filing of a motion for new trial or
reconsideration. Once the appeal period expires without an appeal being perfected, the decision or
order becomes final.
The Court has invariably ruled that perfection of an appeal in the manner and within the
period laid down by law is not only mandatory but also jurisdictional. The failure to perfect an
appeal as required by the rules has the effect of defeating the right to appeal of a party and
precluding the appellate court from acquiring jurisdiction over the case. The right to appeal is not a
natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only
in the manner and in accordance with the provisions of the law. The party who seeks to avail of the
same must comply with the requirement of the rules. Failing to do so, the right to appeal is lost.
The reason for rules of this nature is because the dispatch of business by courts would be
impossible, and intolerable delays would result, without rules governing practice. Public policy and
sound practice demand that judgments of courts should become final and irrevocable at some
definite date fixed by law. Such rules are a necessary incident to the proper, efficient and orderly
discharge of judicial functions.
RULE 102
Habeas corpus
Appeal in habeas corpus is more

appropriate than Rule 65.
In Go, Sr. v. Ramos, G.R. No. 67569; Go v. Ramos, G.R. No. 167570; Hon. Fernandez, et al.
v. Go, et al., G.R. No. 171946, September 4, 2009, a petition for habeas corpus was denied. The
petitioner filed a special civil action for certiorari. The respondents contended that appeal was the
proper and appropriate remedy. Is the contention correct? Why?
Answer: Yes, the 48-hour period of appeal is the more appropriate remedy. The 48-hour appeal
period demonstrates the adequacy of such remedy in that no necessary time will be wasted before
the decision will be re-evaluated.
A petition for the issuance of a writ of habeas corpus is a special proceeding governed by
Rule 102 of the Revised Rules of Court. The objective of the writ is to determine whether the
42


confinement or detention is valid or lawful. If it is, the writ cannot be issued. What is to be inquired
into is the legality of a persons detention as of, at the earliest, the filing of the application for the
writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some
supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at
the time of the filing of the application. (OSG v. De Castro, 529 SCRA 157 (2007).
Remedy if already charged.
Once a person detained is duly charged in court, he may no longer question his detention
through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the
information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be
allowed after the party sought to be released had been charged before any court. The term court
in this context includes quasi-judicial bodies of governmental agencies authorized to order the
persons confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the
cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is
detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the
Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in
habeas corpus proceedings because there is no law authorizing it.
Q Go, the person subject of deportation contended that he was deprived of the right to due
process in the deportation proceedings alleging that he was not furnished with a copy of the
Resolution and the Charge Sheet. The record however, showed that he was given the opportunity to
explain his side and present controverting evidence. Is his contention correct? Why?
Answer: No. Deportation proceedings are administrative in character, summary in nature, and need
not be conducted strictly in accordance with the rules of ordinary court proceedings. The essence of
due process is simply an opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain ones side or an opportunity to seek reconsideration of the action or ruling
complained of. As long as the parties are given the opportunity to be heard before judgment is
rendered, the demands of due process are sufficiently met.
CRIMINAL PROCEDURE
RULE 110
Date of offense.
People v. Lazaro, G.R. No. 186379, August 19, 2009 reiterates the basic rule that the exact
date of the commission of rape is not material. In rape cases, the time of commission of the crime
is not a material ingredient of the offense. In rape cases, victims of rape hardly retain in their
memories the dates, number of times, and manner in which they were violated.
Minority and relation must be

alleged in qualified rape.
In People v. Impas, G.R. No. 176157, June 18, 2009, the SC said that to obtain a conviction
for qualified rape, however, the minority of the victim and her relationship to the offender must be
both alleged in the information and proved with certainty. (People v. Corpus, G.R. No. 175836,
January 30, 2009). In the case at bar, only the circumstance of minority was alleged in the
information and the prosecution failed to show independent proof to establish the presence of the
qualifying circumstances of minority and relationship. Thus, the lower courts may only convict the
accused of simple rape and not qualified rape.
43


RULE 111
Prejudicial Question
In Zuzuarregui v. Hon. Joselito Villarosa, et. al., G.R. No. 183788, April 5, 2010, Villarama J.,
after the death of Bella Torres, her daughter Rosemary filed a petition for the issuance of letters
testamentary. There was an opposition by petitioner but there was a compromise agreement
between them which was approved by the intestate court. Later on, Peter and Catherine who
claimed to be biological children of Bella filed an action for declaration of nullity of the compromise
alleging that they were entitled to inherit from the estate of Bella. Rosemary filed an answer
alleging that the plaintiffs in the annulment case were not biological children of Bella but were
merely purchased from third persons. This was never revealed to them and that they were not
legally adopted. While the action for the annulment of judgment was pending before the CA, they
filed a complaint for falsification and perjury against Rosemary, alleging that Rosemary and
petitioner falsely and maliciously stated in pertinent pleadings before the RTC of Pasig that the late
Bella had only two heirs, the petitioner and Rosemary. There was a motion to suspend the criminal
action on the ground of prejudicial question. They argued that the issue of whether Peter, etc. are
related to Bella and therefore legal heirs of the latter was pending before the CA. The same was
denied. Was the denial proper? Why?
Answer: No. Under Rule 111 of the Revised Rules of Criminal Procedure, as amended, a
criminal action may be suspended upon the pendency of a prejudicial question in a civil action to wit:
Sec. 6. Suspension by reason 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.
For a prejudicial question in a civil case to suspend a criminal action, it must appear not only
that said civil case involves facts intimately related to those upon which the criminal prosecution
would be based, but also that in the resolution of the issue or issues raised in the civil case, the guilt
or innocence of the accused would necessarily be determined. The rationale behind the principle of
prejudicial question is to avoid two conflicting decisions.
Thus, for a civil action to be considered prejudicial to a criminal case as to cause the
suspension of the criminal proceedings until the final resolution of the civil case, the following
requisites must be present: (1)the present civil case involves facts intimately related to those upon
which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in
the civil action, the guilt or innocence of the accused would necessarily be determined; and (3)
jurisdiction to try said question must be lodged in another tribunal.
If the resolution of the issue in the civil action will not determine the criminal responsibility of
the accused in the criminal action based on the same facts, or there is no necessity that the civil
case be determined first before taking up the criminal case, the civil case does not involve a
prejudicial question. Neither is there a prejudicial question if the civil and criminal action can,
according to law, proceed independently of each other.
As stated, the determination of whether the proceedings may be suspended on the basis of a
prejudicial question rests on whether the facts and issues raised in the pleadings in the civil case are
so related with the issues raised in the criminal case such that the resolution of the issues in the civil
case would also determine the judgment in the criminal case.
A perusal of the allegations in the petition to annul judgment shows that CA-G.R. SP No.
87222 pending before the Court of Appeals is principally for the determination of the validity of the
44


compromise agreement which did not include Peter, Catherine, and Fannie as heirs of Bella. Peter,
Catherine and Fannie presented evidence to prove that they are also biological children of Bella and
Alejandro. On the other hand, Criminal Case Nos. 343812 to 343814 before the MeTC involve the
determination of whether petitioner committed falsification of public documents in executing
pleadings containing untruthful statements that she and Rosemary were the only heirs of Bella.
It is evident that the result of the civil case will determine the innocence or guilt of the
petitioner in the criminal cases for falsification of public documents. The criminal cases arose out of
the claim of Peter, Catherine and Fannie and that they are also the legal heirs of Bella. If it is finally
adjudged in the civil case that they are not biological children of the late Bella and consequently not
entitled to a share in her estate as heirs, there is no more basis to proceed with the criminal cases
against petitioner who could not have committed falsification in her pleadings filed before the RTC of
Pasig City, the truth of her statements regarding the filiation of Peter, Catherine and Fannie having
been judicially settled.
RULE 112
Preliminary Investigation
In Ang-Abaya, et al. v. Ang, G.R. No. 178511, December 4, 2008, the SC had the occasion to
rule once more that a preliminary investigation is in effect a realistic judicial appraisal of the merits
of the case; sufficient proof of the guilt of the criminal respondent must be adduced so that when
the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal.
Although a preliminary investigation is not a trial and is not intended to usurp the function of the
trial court, it is not a casual affair; the officer conducting the same investigates or inquires into the
facts concerning the commission of the crime with the end in view of determining whether or not an
information may be prepared against the accused. After all, the purpose of preliminary investigation
is not only to determine whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent therein is probably guilty thereof and should be held
for trial; it is just as well for the purpose of securing the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of a crime, from the
trouble, expense and anxiety of a public trial. More importantly, in the appraisal of the case
presented to him for resolution, the duty of a prosecutor is more to do justice and less to prosecute.
If the prosecutor is convinced during preliminary investigation of the validity of the

respondents claim of a justifying circumstance, then he must dismiss the complaint; if not, then he
must file the requisite information. This is his discretion, the exercise of which the court grants
sufficient latitude.
A preliminary investigation is the crucial sieve in the criminal justice system which spells for
an individual the difference between months if not years of agonizing trial and possibly jail term, on
the one hand, and peace of mind and liberty, on the other. Thus, the courts have characterized the
right to a preliminary investigation as not a mere formal or technical right but a substantive one,
forming part of due process in criminal justice. Due process, requires that an inquiry into the motive
behind accuseds attempt at inspection should have been made even during the preliminary
investigation stage, just as soon as petitioners set up the defense of improper use and motive.
RULE 114
Bail
Discretionary power of the court

to grant bail where the penalty of
life, etc. is imposable by law.
In People v. Plaza, G.R. No. 176933, October 2, 2009, Morales, J, the SC once again said that
under the Constitution all persons, except those charged with offenses punishable by reclusion
45


perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties,
or be released on recognizance as may be provided by law. (Sec. 13, Art. III).
Section 4 of Rule 114 of the Revised Rules of Court, as amended, likewise provides that all
persons in custody shall, before conviction by a regional trial court of an offense not punishable by
reclusion perpetua or life imprisonment, be admitted to bail as a matter of right.
The exercise by the trial court of its discretionary power to grant bail to an accused charged
with a capital offense thus depends on whether the evidence of guilt is strong. Stressing this point,
the Court held:
When bail is discretionary, a hearing, whether summary or

otherwise in the discretion of the court, should first be conducted to
determine the existence of strong evidence or lack of it, against the
accused to enable the judge to make an intelligent assessment of the
evidence presented by the parties. A summary hearing is defined as
such brief and speedy method of receiving and considering the
evidence of guilt as is practicable and consistent with the purpose of
hearing which is merely to determine the weight of evidence for the
purposes of bail. On such hearing, the court does not sit to try the
merits or to enter into any nice inquiry as to the weight that ought to be
allowed to the evidence for or against the accused, nor will it speculate
on the outcome of the trial or on what further evidence may be therein
offered and admitted. The course of inquiry may be left to the
discretion of the court which may confine itself to receiving such
evidence as has reference to substantial matters, avoiding unnecessary
examination and cross examination. (People v. Rapatalo, 269 SCRA
220 (1997).
The Peoples recourse to Section 5, Rule 114 of the Revised Rules of Criminal Procedure to
support its contention that respondent should be denied bail is unavailing, for said Section clearly
speaks of an application for bail filed by the accused after a judgment of conviction has already been
handed down by the trial court.
RULE 115
Rights of the Accused
Speedy trial.
In Olbes v. Hon. Buemio, et al., G.R. No. 173319, December 4, 2009, Morales, J, it was
contended that there was violation of the Speedy Trial Act when the case was set 253 days after
arraignment.
The SC said, No. As early as Solar Team Entertainment, Inc. v. Judge How, 393 Phil. 172
(2000) the Court stressed that the exceptions consisting of the time exclusions provided in the
Speedy Trial Act of 1998 reflect the fundamentally recognized principle that speedy trial is a
relative term and necessarily involves a degree of flexibility. This was reiterated in People v.
Hernandez, G.R. Nos. 154217 & 154372, August 28, 2006, 499 SCRA 688; Caballes v. CA, 492 Phil.
410 (2005), where it was held:
The right of the accused to a speedy trial is guaranteed under Sections 14(2)
and 16, Article III of the 1987 Constitution. In 1998, Congress enacted R.A. No. 8493,
otherwise known as the "Speedy Trial Act of 1998." The law provided for time limits in
order "to ensure a speedy trial of all criminal cases before the Sandiganbayan, [RTC],
Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court." On
August 11, 1998, the Supreme Court issued Circular No. 38-98, the Rules
46


Implementing R.A. No. 8493. The provisions of said circular were adopted in the 2000
Revised Rules of Criminal Procedure. As to the time limit within which trial must
commence after arraignment, the 2000 Revised Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of

section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-
month period following its effectivity on September 15, 1998, the time limit with
respect to the period from arraignment to trial imposed by said provision
shall be one hundred eighty (180) days. For the second twelve-month period, the
time limit shall be one hundred twenty (120) days, and for the third twelve-month
period, the time limit shall be eighty (80) days.
R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal
Procedure enumerate certain reasonable delays as exclusions in the computation of
the prescribed time limits. They also provide that "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 speedy trial as provided by Article III, Section 14(2), of the 1987
Constitution." Thus, in spite of the prescribed time limits, jurisprudence
continues to adopt the view that the concept of "speedy trial" is a relative
term and must necessarily be a flexible concept. In Corpuz v. Sandiganbayan, it
was held:
The right of the accused to a speedy trial and to a speedy disposition of the
case against him was designed to prevent the oppression of the citizen by holding
criminal prosecution suspended over him for an indefinite time, and to prevent delays
in the administration of justice by mandating the courts to proceed with reasonable
dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy
disposition of a case is violated only when the proceeding is attended by vexatious,
capricious and oppressive delays. x x x
While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too long in
a system where justice is supposed to be swift, but deliberate. It is consistent with
delays and depends upon circumstances. It secures rights to the accused, but it does
not preclude the rights of public justice. Also, it must be borne in mind that the rights
given to the accused by the Constitution and the Rules of Court are shields, not
weapons; hence, courts are to give meaning to that intent.
A balancing test of applying societal interests and the rights of the

accused necessarily compels the court to approach speedy trial cases on an
ad hoc basis.
In determining whether the accused has been deprived of his right to a

speedy disposition of the case and to a speedy trial, four factors must be
considered: (a) length of delay; (b) the reason for the delay; (c) the
defendants assertion of his right; and (d) prejudice to the defendant.
The time limits set by the Speedy Trial Act of 1998 do not thus preclude justifiable
postponements and delays when so warranted by the situation. (Domondon v. SB, 476 SCRA 496).
RULE 117
Motion to Quash
Distinctions between MTQ and

Provisional Dismissal.
47


In Los Baos v. Pedro, G.R. No. 173588, April 22, 2009, the SC made certain distinctions
between a Motion to Quash and Provisional Dismissal of an information. A motion to quash is the
mode by which an accused assails, before entering his plea, the validity of the criminal complaint or
the criminal information filed against him for insufficiency on its face in point of law, or for defect
apparent on the face of the Information. The motion, as a rule, hypothetically admits the truth of the
facts spelled out in the complaint or information. The rules governing a motion to quash are found
under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates the grounds for the
quashal of a complaint or information, as follows:
(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.
Provisional Dismissal
On the other hand, Section 8, Rule 117 that is at the center of the dispute states that:
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.
A case is provisionally dismissed if the following requirements concur:

1) the prosecution with the express conformity of the accused, or the accused, moves
for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and
the accused move for its provisional dismissal;
2) the offended party is notified of the motion for a provisional dismissal of the case;
3) the court issues an order granting the motion and dismissing the case
provisionally; and
4) the public prosecutor is served with a copy of the order of provisional dismissal of the
case.
In People v. Lacson, 400 SCRA 267 (2003) it was ruled that there are sine quanon
requirements in the application of the time-bar rule stated in the second paragraph of Section 8 of
Rule 117. The time-bar under the foregoing provision is a special procedural limitation qualifying the
right of the State to prosecute, making the time-bar an essence of the given right or as an inherent
part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to
prosecute the accused.
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Their Comparison
A dismissal based on a motion to quash and a provisional dismissal are far different from one
another as concepts, in their features, and legal consequences. While the provision on provisional
dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to
quash results in a provisional dismissal to which Section 8, Rule 117 applies.
A first notable feature of Section 8, Rule 117 is that it does not exactly state what a
provisional dismissal is. The modifier provisional directly suggests that the dismissals which
Section 8 essentially refers to are those that are temporary in character (i.e., to dismissals that are
without prejudice to the re-filing of the case), and not the dismissals that are permanent (i.e., those
that bar the re-filing of the case). Based on the law, rules, and jurisprudence, permanent dismissals
are those barred by the principle of double jeopardy, by the previous extinction of criminal liability,
by the rule on speedy trial, and the dismissals after plea without the express consent of the
accused. Section 8, by its own terms, cannot cover these dismissals because they are not
provisional.
A second feature is that Section 8 does not state the grounds that lead to a provisional
dismissal. This is in marked contrast with a motion to quash whose grounds are specified under
Section 3. The delimitation of the grounds available in a motion to quash suggests that a motion to
quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A
necessary consequence is that where the grounds cited are those listed under Section 3, then the
appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground
does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for
provisional dismissal may then apply if the conditions required by Section 8 obtain.
A third feature, closely related to the second, focuses on the consequences of a meritorious
motion to quash. This feature also answers the question of whether the quashal of an information
can be treated as a provisional dismissal. Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide
for the consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the
complaint or information, if the motion to quash relates to a defect curable by amendment. Section
5 dwells on the effect of sustaining the motion to quash - the complaint or information may be re-
filed, except for the instances mentioned under Section 6. The latter section, on the other hand,
specifies the limit of the re-filing that Section 5 allows it cannot be done where the dismissal is
based on extinction of criminal liability or double jeopardy. Section 7 defines double jeopardy and
complements the ground provided under Section 3(i) and the exception stated in Section 6.
Rather than going into specifics, Section 8 simply states when a provisional dismissal can be
made, i.e., when the accused expressly consents and the offended party is given notice. The consent
of the accused to a dismissal relates directly to what Section 3(i) and Section 7 provide, i.e., the
conditions for dismissals that lead to double jeopardy. This immediately suggests that a dismissal
under Section 8 i.e., one with the express consent of the accused is not intended to lead to
double jeopardy as provided under Section 7, but nevertheless creates a bar to further prosecution
under the special terms of Section 8.
This feature must be read with Section 6 which provides for the effects of sustaining a motion
to quash the dismissal is not a bar to another prosecution for the same offense unless the basis
for the dismissal is the extinction of criminal liability and double jeopardy. These unique terms, read
in relation with Sections 3(i) and 7 and compared with the consequences of Section 8, carry
unavoidable implications that cannot but lead to distinctions between a quashal and a provisional
dismissal under Section 8. They stress in no uncertain terms that, save only for what has been
provided under Sections 4 and 5, the governing rule when a motion to quash is meritorious are the
terms of Section 6. The failure of the Rules to state under Section 6 that a Section 8 provisional
dismissal is a bar to further prosecution shows that the framers did not intend a dismissal based on
a motion to quash and a provisional dismissal to be confused with one another; Section 8 operates
in a world of its own separate from motion to quash, and merely provides a time-bar that uniquely
49


applies to dismissals other than those grounded on Section 3. Conversely, when a dismissal is
pursuant to a motion to quash under Section 3, Section 8 and its time-bar does not apply.
Other distinctions.
Other than the above, we note also the following differences stressing that a motion to quash
and its resulting dismissal is a unique class that should not be confused with other dismissals:
First, a motion to quash is invariably filed by the accused to question the efficacy of the
complaint or information filed against him or her (Sections 1 and 2, Rule 117); in contrast, a case
may be provisionally dismissed at the instance of either the prosecution or the accused, or both,
subject to the conditions enumerated under Section 8, Rule 117.
Second, the form and content of a motion to quash are as stated under Section 2 of Rule
117; these requirements do not apply to a provisional dismissal.
Third, a motion to quash assails the validity of the criminal complaint or the criminal
information for defects or defenses apparent on face of the information; a provisional dismissal may
be grounded on reasons other than the defects found in the information.
Fourth, a motion to quash is allowed before the arraignment (Section 1, Rule 117); there
may be a provisional dismissal of the case even when the trial proper of the case is already
underway provided that the required consents are present.
Fifth, a provisional dismissal is, by its own terms, impermanent until the time-bar applies, at
which time it becomes a permanent dismissal. In contrast, an information that is quashed stays
quashed until revived; the grant of a motion to quash does not per se carry any connotation of
impermanence, and becomes so only as provided by law or by the Rules. In re-filing the case, what
is important is the question of whether the action can still be brought, i.e., whether the prescription
of action or of the offense has set in. In a provisional dismissal, there can be no re-filing after the
time-bar, and prescription is not an immediate consideration.
To recapitulate, quashal and provisional dismissal are different concepts whose respective
rules refer to different situations that should not be confused with one another. If the problem
relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face,
the remedy is a motion to quash under the terms of Section 3, Rule 117. All other reasons for
seeking the dismissal of the complaint or information, before arraignment and under the
circumstances outlined in Section 8, fall under provisional dismissal.
Demurrer to evidence must touch

on evidence of prosecution, can
be done only after prosecution
has rested its case.
In Cabador v. People, G.R. No. 186001, October 2, 2009, the prosecution filed its formal offer
of exhibits and on the same day, the accused filed his motion to dismiss. The trial court still needed
to give him an opportunity to object to the admission of the exhibits. He did not state what evidence
the prosecution had presented against him to show in what respect such evidence failed to meet the
elements of the crime. He did not touch on the testimonies of witnesses. He cited no documentary
evidence. Is the demurrer proper? Why?
Answer: No, because the prosecution has not even rested its case.
A demurrer to evidence assumes that the prosecution has already rested its case. Section
23, Rule 119 of the Revised Rules of Criminal Procedure, provides that after the prosecution rests its
case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own
50


initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to the
evidence filed by the accused with or without leave of court.
Here, after the prosecution filed its formal offer of exhibits, the same day he filed his motion
to dismiss, the trial court still needed to give him an opportunity to object to the admission of those
exhibits. It also needed to rule on the formal offer. And only after such a ruling could the
prosecution be deemed to have rested its case. Since he filed his motion to dismiss before he could
object to the prosecutions formal offer, before the trial court could act on the offer, and before the
prosecution could rest its case, it could not be said that he had intended his motion to dismiss to
serve as a demurrer to evidence.
To say that he filed a demurrer to evidence is equivalent to the proverbial blind man,
touching the side of an elephant, and exclaiming that he had touched a wall.
EVIDENCE
Interpretation of contracts; effect

if terms are clear.
In Heirs of Zamora v. Multi-Wood International, Inc., G.R. No. 146428, January 19, 2009,
there was a Marketing Agreement between the parties. The plaintiff asked for commission for the
renovation contracts of the defendant with Shangrila Hotels and Diamond Hotels. The defendant
contended that the construction contracts are not covered by the marketing agreement as the
Agreement spoke only of sale of products. The RTC ruled that it was included, but the CA reversed
as the agreement was limited to the solicitation of the products of the defendant, excluding other
services like construction contracts. The plaintiff contended on appeal that the identification,
solicitation, finding or introduction for negotiation of buyers, dealers and customers for Multi-
woods product as stated in the agreement is an encompassing term as to include the solicitation of
interior construction projects. Besides the construction projects it afforded Multi-wood the
opportunity to sell and supply its products to the project owner to implement the overall interior
design. Petitioners advert to their interpretation of the text of the Marketing Agreement, as well as
Multi-woods subsequent alleged acquiescence in Zamoras solicitation of the disputed construction
contracts and supposed partial payment of her commission therefore as indicia of the parties
intention to include the said solicitation of construction contracts within the coverage of the
Marketing Agreement. These operative acts purportedly lead to the perfection of a new contract
between the parties, albeit not reduced in writing. Hence, Multi-wood is estopped from denying its
obligation as the same would unjustly enrich the latter at Zamoras expense. Is the contention
correct? Why?
Answer: No. When the terms of the agreement are clear and explicit, such that they do not justify
an attempt to read into them any alleged intention of the parties, the terms are to be understood
literally just as they appear on the face of the contract. It is only in instances when the language of
a contract is ambiguous or obscure that courts ought to apply certain established rules of
construction in order to ascertain the supposed intent of the parties. However, these rules will not
be used to make a new contract for the parties or to rewrite the old one, even if the contract is
inequitable or harsh. They are applied by the court merely to resolve doubts and ambiguities within
the framework of the agreement. The plain import of the Marketing Agreement leaves no doubt as to
the intention of the parties. The Agreement does not mention construction contracts.
Need to offer evidence, otherwise

it cannot be considered by the
court; reason.
Q At the trial pieces of evidence were identified to prove entitlement to commission, but were
never offered. May the court consider the same? Why?
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Answer: No. Rule 132, Sec. 34 of the Rules of Court provides that the court shall not consider any
evidence which has not been formally offered. The purpose for which the evidence is offered must
be specified. The offer of evidence is necessary because it is the duty of the court to rest its findings
of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until
admitted by the court in evidence for the purpose or purposes for which such document is offered,
the same is merely a scrap of paper barren of probative weight. Mere identification of documents
and the markings thereof as exhibits do not confer any evidentiary weight on documents unless
formally offered. (Landingin v. Republic, G.R. No. 164948, June 27, 2006, 493 SCRA 415).
Plainly, the trial court should not have read terms into the Marketing Agreement that were
not expressly in the agreement itself. The agreement is clear, plain and simple that it leaves no
room for interpretation. (Heirs of Zamora v. Multi-Word International, Inc., supra.).
As mandated by Article 1370 of the Civil Code, if the terms of the contract are clear and leave
no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall
control.
Moreover, Section 9, Rule 130 of the Revised Rules of Court is also in point:
SEC. 9. Evidence of written agreements. When the terms of an agreement

have been reduced in writing, it is considered as containing all the terms agreed upon
and there can be, between the parties and their successors in interest, no evidence of
such terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain, or add to the terms
of the written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake, or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors
in interest after the execution of the written agreement.
The parol evidence rule forbids any addition to or contradiction of the terms of a written
instrument by testimony or other evidence purporting to show that, at or before the execution of the
parties written agreement, other or different terms were agreed upon by the parties, varying the
purport of the written contract. When an agreement has been reduced to writing, the parties cannot
be permitted to adduce evidence to prove alleged practices which to all purposes would alter the
terms of the written agreement. Whatever is not found in the writing is understood to have been
waived and abandoned. None of the above-cited exceptions finds application to the instant case,
more particularly, the alleged failure of the contract to express the true intent and agreement of the
parties nor did Zamora raise any of the issues at the proceedings before the trial court.
With more reason, documentary evidence which was not formally offered cannot be used to
modify, explain or add to the terms of an agreement.
Burden of Proof.
In Ono, et al. v. Lim, et al., G.R. No. 154270, March 10, 2010, Bersamin, J, it was held that
in civil cases, the party having the burden of proof must establish his case by a preponderance of
evidence. Preponderance of evidence is the weight, credit, and value of the aggregate evidence on
either side, and is usually considered to be synonymous with the term greater weight of the
52


evidence or greater weight of the credible evidence. Preponderance of evidence is a phrase that
means, in the last analysis, probability of the truth. It is evidence that is more convincing to the
court as worthy of belief than that which is offered in opposition thereto.
When corroborative evidence necessary.
In People v. Alberto, G.R. No. 179717, February 5, 2010, the SC ruled that the argument of
the appellant that the prosecutions account of the buy-bust operation is unworthy of belief since no
corroborative testimony was presented, fails to impress. There is no law requiring that in drug cases
the testimony of a single witness has to be corroborated to be believed. Corroborative evidence is
vital only when there are reasons to suspect that the witness twisted the truth, or that his or her
observation was inaccurate. Evidence is assessed in terms of quality, not quantity. It is to be
weighed, not counted. Thus, it is not uncommon to reach a conclusion of guilt on the basis of the
testimony of a lone witness. Moreover, it is on record that the appellant no longer required the
presentation of corroborative testimony. During the trial, the prosecution was ready to present
another witness in the person of PO1 Santos. However, the parties agreed to dispense with his
testimony since it would only be corroborative in nature.
In People v. Ofemiano, G.R. No. 187155, February 1, 2010, the SC had the occasion to say
that it is hornbook doctrine that the findings of the trial court on the credibility of witnesses and their
testimonies are entitled to the highest respect. Having seen and heard the witnesses and observed
their behavior and manner of testifying, the trial court is deemed to have been in a better position to
weigh the evidence. Thus, the trial courts evaluation shall be binding on the appellate court unless it
is shown that certain facts of substance and value have been plainly overlooked, misunderstood, or
misapplied.
Jurisprudence holds that the failure of the victim to shout for help does not negate rape. Even
the victims lack of resistance, especially when intimidated by the offender into submission, does not
signify voluntariness or consent. In People v. Corpuz, it was acknowledged that even absent any
actual force or intimidation, rape may be committed if the malefactor has moral ascendancy over the
victim. We emphasized that in rape committed by a close kin, such as the victims father,
stepfather, uncle, or the common-law spouse of her mother, moral influence or ascendancy
substitutes for violence or intimidation.
Thus, in this case, it was understandable for the victim to have silently endured the sexual
attacks of her mothers live-in partner. As correctly observed by the appellate court, accused-
appellant evidently used his moral ascendancy over the victim to carry out his bestial desire. The CA
wrote:
x x x Although unmarried, the accused and the girls mother were living
together as husband and wife, and it was to a household where the accused wielded
the patriarchal authority that she was brought. It was not unlikely that the girl had
come to his words in a manner that would not exist if they were not living under the
same roof. The power of the father-figure is not uncommon in rural households where
families are large and cramped into living conditions without the elemental decency
and privacy that growing children need. While the offended party might have initially
resisted the sexual advances of the accused, the fact that the mother refused to
interfere with the actuations of her live-in partner must have contributed to the sense
of helplessness and resignation of the girl. She had nowhere else to go and could
certainly not have survived by herself. It is not surprising that she ultimately endured
her ordeal in silence.
Moreover, it is of no moment that the rape occurred in a small room where other people were
sleeping together with the victim. It is already established that rape is not a respecter of people,
time, or place. It may be committed not only in seclusion but also in public places, inside an
occupied house, or even where there are other people around. The Court has already taken judicial
53


notice of the fact that among poor couples with big families cramped in small quarters, copulation
does not seem to be a problem despite the presence of other persons.
Effect of inability to remember exact dates of rape.
Also, the victims inability to remember the exact dates of the rape should not be taken
against her. The exact time of the commission of the crime of rape is not a material ingredient of
this crime. In this case, the victim was raped almost every night for a year by her mothers live-in
partner, with her mother turning a deaf ear to her cries for help. Under these circumstances, we
could not expect the victim to recall her harrowing experiences in an exact, detailed, and flawless
testimony. Verily, as in this case, it is sufficient if the acts complained of are alleged to have taken
place as near to the actual date at which the offenses are committed as the information or complaint
will permit.
Doctrine of equipoise.
The case of Amanquiton v. People, G.R. No. 186080, August 14, 2009, reiterates the
application of pro reo principle and the equipoise rule.
Where the evidence on an issue of fact is in question or there is doubt on which side the
evidence weighs, the doubt should be resolved in favor of the accused. If inculpatory facts and
circumstances are capable of two or more explanations, one consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral
certainty and will not justify a conviction. (People v. Lagmay, 365 Phil. 606, 633 (1999).
Mentally deficient persons can testify.
In People v. Calango, G.R. No. 179280, August 27, 2009, the SC rule that human experience
teaches that even mentally deficient persons or individuals having low intelligence can still narrate
their ordeals in detailed manner and recall painful experiences like any average individual could.
Here, the victim notably could not even recall feeling anything after appellant supposedly penetrated
her private part.
Circumstantial evidence may

prove guilt of an accused.
In People v. Pabol, G.R. No. 187084, October 12, 2009, accused harped at every turn on the
absence of direct evidence to show he had forced himself sexually on victim. Direct evidence,
however, is not the only way to establish guilt. Circumstantial evidence is a recognized method to
establish the commission and the authorship of a crime. The Rules of Court in fact contains
provisions on the matter.
Circumstantial evidence, also known as indirect or presumptive evidence, refers to proof of

collateral facts and circumstances whence the existence of the main fact may be inferred according
to reason and common experience. It can support a conviction as long as the following requisites
prescribed under Section 4, Rule 133 of the Rules of Court are satisfied, such as:
(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
In People v. Delim, it was ruled that for circumstantial evidence to be sufficient to support a
conviction, all the circumstances must be consistent with each other, consistent with the hypothesis
that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and
with every other rational hypothesis except that of guilt. If the prosecution adduced the requisite
54


circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of
evidence shifts to the accused to controvert the evidence of the prosecution. (396 SCRA 386 (2003);
People v. Hipona, G.R. No. 185709, February 18, 2010, Morales, J).
Inconsistencies in testimonies.
In People v. Sibunga, G.R. No. 179475, September 25, 2009, Morales, J, it was once again
said that inconsistencies in the police officers testimonies, the same are neither substantial nor of
such a nature as to cast serious doubts on their credibility. The established rule of evidence is that
inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral
matters do not affect either the substance of their declaration, their veracity or the weight of their
testimony. (People v. Nicolas, 311 Phil. 79 (1995).
Frame-up as defense; its nature.
Finally, the defense of frame-up in drug cases is generally frowned upon, for like alibi, it is
inherently weak as it is easy to concoct but difficult to prove. (Co v. Rep., 539 SCRA 147 (2007). For
it to prosper, it must be supported by clear and convincing evidence. This appellant failed to do. The
presumption that the police officers performed their duties regularly thus remains. (People v.
Nicolas, 241 SCRA 67 (1995).
Proof of handwriting.
In Progressive Trade Services Ent. V. Antonio, G.R. No. 179502, September 18, 2009,
Morales, J, the SC said that the trial courts ruling that Secundina failed to prove her allegation that
the Deed of Absolute Sale to Milagrosa was a forgery because she failed to present expert witnesses
does not lie. It is settled that handwriting experts, while useful, are not indispensable in examining
or comparing handwritings or signatures. For Section 22 of Rule 132 of the Rules of Court provides:
The handwriting of a person may be proved by any witness who believes it to

be the handwriting of the person because he has seen the person write, or has seen
writing purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person. Evidence respecting
the handwriting may also be given by a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the party against whom the evidence
is offered, or proved to be genuine to the satisfaction of the judge.
Complementing the said provision is Section 50 of Rule 130 of the Rules of Court which allows
the reception of the opinion of a witness, like Judge Lavia, for which proper basis is given, as
evidence regarding a handwriting with which he has sufficient familiarity.
Admission before the media.
Accuseds confessions to the media are admissible in evidence. The confessions were made in
response to questions by news reporters, not by the police or any other investigating officer. It has
been held that statements spontaneously made by a suspect to news reporters on a televised
interview are deemed voluntary and are admissible in evidence. (People v. Hipona, G.R. No. 185709,
February 18, 2010, citing People v. Andan, G.R. No. 116437, March 3, 1997, 269 SCRA 95; People
v. Vizcara, 115 SCRA 743 (1982).
Plain view doctrine; when it applies; its requisites.
In Firaza v. People, G.R. No. 179319, September 18, 2009, Morales, J, it was contended by
the accused that he was searched without warrant. But the SC ruled otherwise on the basis of the
plain view doctrine as the firearm was tucked inside his shirt. The SC said that even assuming
55


arguendo that, as claimed by petitioner, his firearm was tucked inside his shirt, the plain view
doctrine, of which the following requirements which must concur, viz: (1) the law enforcement
officer has a prior justification for the intrusion, (2) the discovery of the evidence in plain view is
inadvertent, and, (3) the illegality of the evidence observed in plain view is apparent to the
apprehending officer, (People v. Go, 411 SCRA 81 (2003), justified the intervention by the police
officers in petitioners and the officers heated arguments in the course of which they noticed the
suspicious bulging object on petitioners waist to draw them to check what it was.
Judicial notice; notoriety is a fundamental requisite.
In Sps. Latip v. Chua, G.R. No. 177809, October 16, 2009, there was a lease contract over
two (2) cubicles in Roferxane Building at Baclaran, Paraaue signed by the lessor and the lessee. A
year later, the lessor demand for payment of back rentals, otherwise, a complaint for ejectment
would be filed. Having failed to comply, a complaint was filed but the lessee contended that there
was already full payment when the lessees paid P2,570,000.00. The MTC ruled in favor of the
plaintiff, but the RTC reversed due to defects of the contract. The CA reversed the RTC and took
judicial notice of the fact that there is a common practice in Baclaran of payment of goodwill money.
There was however, no evidence that the amount was paid as goodwill money. In the petition for
review, a joint declaration by other stockholders that they had paid goodwill money to the lessor. Is
the CA correct in taking judicial notice of payment of goodwill money? Why?
Answer: No, because of the lack of notoriety of the practice as belied by the necessity of attaching
documentary evidence, like the joint declaration. In short, the practice had yet to be proven
contravening the title of the Rule, what need not be proved. (Rule 129).
Sections 1 and 2 of Rule 129 of the Rules of Court declare when the taking of judicial notice is
mandatory or discretionary on the courts, thus:
SECTION 1. Judicial notice, when mandatory. A court shall take judicial

notice, without the introduction of evidence, of the existence and territorial extent of
states, their political history, forms of government and symbols of nationality, the law
of nations, the admiralty and maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time,
and the geographical divisions.
SEC. 2. Judicial notice, when discretionary. A court may take judicial notice
of matters which are of public knowledge, or are capable of unquestionable
demonstration or ought to be known to judges because of their judicial functions.
On this point, State Prosecutors v. Muro, 236 SCRA 505 (1994) is instructive:
I. The doctrine of judicial notice rests on the wisdom and discretion of the
courts. The power to take judicial notice is to be exercised by courts with
caution; care must be taken that the requisite notoriety exists; and every
reasonable doubt on the subject should be promptly resolved in the negative.
Requisites of judicial notice.
Generally speaking, matters of judicial notice have three material requisites:

(1) the matter must be one of common and general knowledge; (2) it must be well
and authoritatively settled and not doubtful or uncertain; and (3) it must be known to
be within the limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts
evidenced by public records and facts of general notoriety.
56


To say that a court will take judicial notice of a fact is merely another way of
saying that the usual form of evidence will be dispensed with if knowledge of the fact
can be otherwise acquired. This is because the court assumes that the matter is so
notorious that it will not be disputed. But judicial notice is not judicial knowledge.
The mere personal knowledge of the judge is not the judicial knowledge of
the court, and he is not authorized to make his individual knowledge of a
fact, not generally or professionally known, the basis of his action. Judicial
cognizance is taken only of those matters which are commonly known.
Things of common knowledge, of which courts take judicial notice, may be

matters coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by mankind
as true and are capable of ready and unquestioned demonstration. Thus, facts which
are universally known, and which may be found in encyclopedias, dictionaries or other
publications, are judicially noticed, provided they are of such universal notoriety and
so generally understood that they may be regarded as forming part of the common
knowledge of every person.
There must be compliance with the requisite of notoriety for the taking of judicial notice in
the recent case of Expertravel & Tours, Inc. v. Court of Appeals, G.R. No. 152392, May 26, 2005,
459 SCRA 147) which cited State Prosecutors:
As the common knowledge of man ranges far and wide, a wide variety of
particular facts have been judicially noticed as being matters of common knowledge.
But a court cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive knowledge.
From the foregoing provisions of law and our holdings thereon, it is apparent that the matter
which the appellate court took judicial notice of does not meet the requisite of notoriety. To begin
with, only the CA took judicial notice of this supposed practice to pay goodwill money to the lessor in
the Baclaran area. Neither the MeTC nor the RTC, with the former even ruling in favor of Rosalie,
found that the practice was of common knowledge or notoriously known.
Res gestae.
In People v. Tirso Sace, G.R. NO. 178063, April 5, 2010, Villarama, J, after the rape and
killing of a young girl, the accused admitted to the barangay officials and tanods that he was the one
who committed the crime. Another barangay tanod obtained the same confession from the accused
when he interviewed him infront of other people. The barangay officials testified that accused
admitted having raped and killed the victim. The testimonies were not rebutted.
Issue: Are the statements of the accused admissible in evidence? Why?
Answer: Yes. Accuseds statements infront of the prosecution witnesses are admissible for
being part of the res gestae. Under the Revised Rules on Evidence (Rule 130, Sec. 4), a declaration
is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule
when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence;
(2) the statements were made before the declarant had time to contrive or devise; and (3) the
statements must concern the occurrence in question and its immediately attending circumstances.
All these requisites are present in this case. Appellant had just been through a startling and
gruesome occurrence, victims death. His admission was made while he was still under the influence
of said startling occurrence and before he had an opportunity to concoct or contrive a story. In
addition, he was still under the influence of alcohol at that time, having engaged in a drinking spree
from 1:00pm to 7:00pm that day. His confession concerned the rape and killing of the victim.
Appellants spontaneous statements made to private persons, not agents of the State or law
57


enforcers, are not covered by the constitutional safeguards on custodial investigation and, as res
gestae, admissible in evidence against him.
RULE ON SUMMARY PROCEDURE
MR is a prohibited motion under

the Rule on Summary Procedure.
In Sps. Edillo v. Sps. Dulpina, G.R. No. 188360, January 10, 2010, the SC once again had the
occasion to rule that a motion for reconsideration is a prohibited motion under the Rule on Summary
Procedure. In this case, after the judgment in an unlawful detainer in favor of the defendants, the
plaintiffs filed a motion for reconsideration. The same is not proper. The rule is applied to prevent
undue delays in the disposition of cases, to achieve this end, the filing of certain motions like a
motion for reconsideration is prohibited (Estate of Macadangdang v. Gaviola, G.R. No. 156809,
March 4, 2009, 580 SCRA 565). Thus, when the motion was filed, it did not stop the running of the
period for appeal, hence, the judgment lapsed to finality.
58


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SURVEY OF 2009 2010 SC Decisions in

Place of printing, venue in libel cases.

Effect if court has no jurisdiction.

Doctrine of Judicial stability.

In accion publiciana, assessed

Estoppel to question jurisdiction;

The operation of estoppel on the question of jurisdiction seemingly depends on

Matters that determine the

Unlawful detainer and forcible entry

Designed to provide an expeditious means of protecting actual possession or the right to

Required allegations in Forcible Entry cases.

Forfeiture proceedings are within the

Recovery of damages due to malicious

In holding that the RTC has jurisdiction, the SC held:

Capacity of co-owner to sue for ejectment.

Sole proprietorship, no personality to sue.

x x x In fact, there is no law authorizing sole proprietorships to file a suit in

A sole proprietorship does not possess a juridical personality separate and

Real party interest to prosecute

Thus, an appeal is an action to be prosecuted by a party in interest before a higher court. In

Effect of misjoinder/non-joinder of party.

When there is or there is no class suit

When counterclaim is compulsory

Nature of compulsory counterclaim

Criteria to determine nature of

The criteria to determine whether the counterclaim is compulsory or permissive are as

No need to state that a case was filed

Test to determine identity of causes of action

Remedy in case of default; effect of default.

Rule on summary procedure;

Summons, how served upon one

Not that he cannot be reached within a reasonable time to enable him to

Filing of motion to lift order of

The defendants voluntary appearance in the action shall be equivalent to service of

Prescinding from the foregoing, it is thus clear that:

(1) Special appearance operates as an exception to the general rule on voluntary

MTD; failure to state a cause of action; effect.

Motion to Dismiss in declaration

Objections and defenses not raised in

Above rule is tested by necessity.

Issue of res judicata

MTD; litis pendentia.

Guidelines for the dismissal of a

Reason for rule on dismissal due to lis pendens.

Three (3) tests on lis pendens.

Under this established jurisprudence on litis pendentia, the following considerations

Dismissal due to fault of the plaintiff.

Counterclaim can proceed even if

It is true that the aforesaid declaration of the Court refers to instances

Office of the Ombudsman has no

The SC ruled No. It is fundamental that the allowance or disallowance of a Motion to

In instituting G.R. NO. 126354, the Civil Service Commission dangerously

Intervention after judgment.

Held: That intervention is proper.

Effect of demurrer to evidence.

Civil liability despite acquittal.

Right of accused to present

If defendant moves for the

When partial summary judgment

Petitioners position is untenable.

When summary judgment proper.

When there may be a several judgment.

Answer: Yes. The judgment is in the nature of a several judgment.