GENERAL PRINCIPLES

Purpose of Procedural Rules

Procedural rules are not to be disdained as mere technicalities. They may not be
ignored to suit the convenience of a party. Adjective law ensures the effective
enforcement of substantive rights through the orderly administration of justice. Rules
are not intended to hamper litigants or complicate litigation. But they help provide for a
vital system of justice where suitors may be heard following judicial procedure and in
the correct forum. Public order and our system of justice are well served by a
conscientious observance by the parties of the procedural rules (Samahan ng mga
Manggagawa sa Hyatt [Samasah-Nuwhrain] vs. Hon. Voluntary Arbitrator
Buenaventura C. Magsalin and Hotel Enterprises of the Philippines, G.R. No. 172303,
June 6, 2011)

Retroactive application of procedural laws: Reason: Dismissal of appeal for non-

payment of docket fees

Statutes and rules regulating the procedure of courts are considered applicable to
actions pending and unresolved at the time of their passage. Procedural laws and rules
are retroactive in that sense and to that extent. The effect of procedural statutes and
rules on the rights of a litigant may not preclude their retroactive application to
pending action. This retroactive application does not violate any right of a person
adversely affected. Neither it is constitutionally objectionable. The reason is that, as a
general rule, no vested right may attach to or arise from procedural laws and rules. It
has been held that “a person has no vested right in any particular remedy, and a litigant
cannot insist on the application to the trial of his case, whether civil or criminal, of any
other than the existing rules of procedure.” More so when, as in this case, petitioner
admits that it was not able to pay the docket fees on time. Clearly, there were not
substantive rights to speak of when the RTC dismissed the Notice of Appeal. (Panay
Railways, Inc. vs . Heva Management and Development Corporation, Pamplona Agro-
Industrial Corporation, and Spouses Candelaria Dayot and Edmundo Dayot, G.R. No.
154061, January 25, 2012)

“Fresh Period Rule” a procedural law: Retroactive application

The “fresh period rule” is a procedural law as it prescribes a fresh period of 15 days
within which an appeal may be made in the event that the motion for reconsideration is
denied by the lower court. Following the rule of retroactivity of procedural laws, the
“fresh period rule” should be applied to pending actions, such as the present case.

Also, to deny herein petitioners the benefit of the “fresh period rule” will amount to
injustice, if not absurdity, since the subject notice of judgment and final order were
issued two (2) years later or in the year 2000, as compared to the notice of judgment
and final order in Neypes which were issued in 1998. It will be incongruous and illogical
that parties receiving notices of judgment and final orders issued in the year 1998 will
enjoy the benefit of the “fresh period rule” while those later rulings of the lower courts
such as in the instant case, will not. (Priscilla Alma Jose vs Ramon Javellan, et al., G.R. No.
158239, January 25, 2012)

Tribal courts are advisory and conciliatory bodies

This are courts which are existing under the customs and traditions of an indigenous
cultural community and are not part of the Philippine Judicial System (Sec 1. Art. VIII,
1987 Constitution) They do not possess judicial power. Like the pangkat or conciliation
panels created by P.D. 1508 in the barangay, they are advisory and conciliatory bodies.
Decisions of a tribunal based on a compromise may be enforced or set aside, in and
through the regular courts only. (Sps. Badua vs Cordillera Bodong Administration, G.R.
No. 92649, February 14, 1991)

Military commissions or tribunal not judicial courts

This is not a court of law and does not form part of the judicial system and process.
They are agencies of executive character, Their decisions are not appealable to the
courts by would pass the reviewing and conferring authority, but the Supreme Court
may exercise its supervision or correcting power over court-martial proceedings when
jurisdictional errors are involved or when there is grave abuse of discretion, A military
commission for tribunal cannot try and exercise jurisdiction over civilians for offenses
allegedly committed by them as long the civil courts are open and functioning. (Olaguer
vs Military Commission, 150 SCRA 144) Any judgment rendered by such body relating
to a civilian is null and void for lack of jurisdiction on the part of the military tribunal
concerned.

Nature of military courts

The OSG maintains that military commissions or tribunals are not courts within the
Philippine judicial system, citing Olaguer, et al. vs. Military Commission No. 4, hence,
they are not expected to apply criminal law concepts in their implementation and
execution of decisions involving the discipline of military personnel. This is misleading.
In Olaguer, the courts referred to were military commissions created under martial law
during the term of former President Ferdinand Marcos and was declared
unconstitutional by this Court, while in the present case, the General Court Martial
which tried it, was created under Commonwealth Act No. 408, as amended, and remains
a valid entity. (Major General Carlos F. Garcia, AFP [Ret.] vs. The Executive Secretary,
Representing The Office of the President; The Secretary of National Defense Voltaire T.
Gazmin; The Chief of Staff, Armed Forces of the Philippines, Gen. Eduardo SL Oban, Jr.,
and Lt. Gen. Gaudencio S. Pangilinan, AFP [Ret.], Director, Bureau of Corrections, G.R.
No. 198554, July 30, 2012)

Suppletory application of the Rules of Court

The Rules of Court shall not apply to election cases, land registration, cadastral, and
insolvency proceedings, and other cases not herein provided for except by analogy or in
a suppletory in character and whenever practicable and convenient. (Sec. 4, Rule 1 of
the Rules of Court) x x x. The Rules nonetheless be applied in suppletory in character.
(Government Service Insurance System [GSIS] vs. Dinah Villariza, G.R. No. 180291, July
27, 2010)

What is the meaning of “suppletory character” application of the Rules of Court?

It means that the provision in the Rules of Court will be made only where there is a
insufficient in the applicable rule. (Government Service Insurance System [GSIS] vs.
Dinah Villariza, G.R. No. 180291, July 27, 2010)

Application of the Rules of Court in cases of Civil Forfeiture, Assets Preservation, and
Freezing of Monetary Instrument, property, or proceeds representing, involving, or
relating to an unlawful activity or money laundering offense under Republic Act No.
9160, as amended (A.M. No. 05-11-04-SC)

Sec. 3 Rule I of the 2011 NLRC Rules of Procedure provides for the suppletory
application of the Rules of Court.
Sec. 25, A.M. No. 08-8-7-SC, otherwise known as the Rules of Procedure for Small Claims
Cases provides for the rules on the suppletory application of the Rules of Civil
Procedure.
JURISDICTION

Jurisdiction is defined as the power of the court to hear and decide cases (Herrera vs
Barreto, 25 Phil 33) and to execute the judgment thereon. (Echegaray vs Secretary of
Justice, 301 SCRA 96)

Jurisdiction. It is the authority to hear and determine a cause – the right to act in a
particular case. (Palma vs Q & S, Inc., 17 SCRA 97)

Jurisdiction is lodged with the Court not with the judge

It is not the power of a judge but of the court. A court may exist without a judge. There
may be a judge without a court. Jurisdiction is vested in the court and not in the judge.
(Bacalso vs Ramolete, 21 SCRA 519)

Allegations in the complaint determines jurisdiction

Determinative of which regular courts had jurisdiction would be the allegations of the
complaint (on the assessed value of the property) and the principal relief sought.
(Petronilo J. Barayuga vs. Adventist University of the Philippines, G.R. No. 168008,
August 17, 2011)

Regional Trial Court is a court of general jurisdiction because all cases, the jurisdiction
of which is not specifically provided by law to be within the jurisdiction of any other
court falls within the jurisdiction of the Regional Trial Court. (Durisol Philippines, Inc,
vs Court of Appeals, 377 SCRA 353)

A court of general jurisdiction is presumed to be acting within its jurisdiction unless the
contrary is shown (Francisco, Civil Procedure, p. 21, Municipal Trial Courts)

A court of limited jurisdiction has only the jurisdiction expressly delegated and must
appear from the record that its acts are within its jurisdiction. (Francisco, Civil
Procedure, p. 21, Municipal Trial Courts)

Probate Court is of limited jurisdiction: Approval of the agreement entered other than
judicially approved compromise agreement not within its jurisdiction.

A probate court is a tribunal of limited jurisdiction. It acts on matters pertaining to the

estate but never on the rights to property arising from the contract. It approves
contracts entered into for and on behalf of the estate or the heirs to it but this is by fiat
of the Rules of Court. Any agreement between the parties was outside the limited
jurisdiction of the probate court. (Anita Reyes-Mesugas vs. Alejandro Aquino-Reyes,
G.R. No. 174835, March 22, 2010)

SUPREME COURT

Original jurisdiction of the Supreme Court

1. Actions involving ambassadors, public ministers and consuls;

2. Over petition for certiorari, prohibition, mandamus, quo warranto, habeas
corpus;
3. Petitions for writ of Amparo;
4. Petitions for habeas data;
5. Petition writ of continuing mandamus (Sec 2, Rule 8, Part III of Rules of
Procedure in Environmental Cases, A.M. No. 09-6-8-SC);
 6. Petition for writ of Kalikasan. (Sec 12, Rule 7, Part III of Rules of Procedure in
Environmental Cases, A.M. No. 09-6-8-SC)

Exclusive and Original jurisdiction of the Supreme Court

Supreme Court has exclusive original jurisdiction over petitions for certiorari,
prohibition, and mandamus against judgment, final order and resolutions of the
following:
1. Court of Appeals;
2. Sandiganbayan;
3. Court of Tax Appeals;
4. Commission of Elections;
5. Commission of Audit;
6. Ombudsman in criminal cases. (Salvador vs Mapa, G.R. No. 135080, November
28, 2007,; Golango vs Fung, Office of Ombudsman, G.R. Nos. 147640-147762,
October 11, 2006)

Cases which are decided by the Supreme Court en banc

1. All cases involving the constitutionality of a treaty, international or executive
agreement, or law;
2. All other cases which under the Rules of Court are required to be heard en banc,
including those involving the constitutionality, application, or operation of
presidential decrees, proclamation, orders, instructions, ordinances, and other
regulations;
3. Review decisions of the lower courts by way of petition for review on certiorari
under Rule 45;

Appellate Jurisdiction of the Supreme Court

Supreme Court has appellate jurisdiction over judgment, final orders and resolutions of
the following courts:
1. The Court of Appeals under Rule 45 (CA-SC)
2. Sandiganbayan under P.D. 1606 as amended by R.A. 7975 and R.A. 8249 (SB-SC)
3. Court of Tax Appeals en banc pursuant to Sec. 11 of R.A. 9282 in relation to Rule
45 (CTA-SC)
4. Regional Trial Court under Rule 45 (RTC-SC)
5. Court of Appeals, Sandiganbayan, and Regional Trial Court in petition for writ of
Amparo (Sec 19 of A.M. No. 07-9-12-SC, effective October 24, 2007)
6. Court of Appeals, Sandiganbayan, and Regional Trial Court in a petition for
habeas data. (Sec 19 of A.M. No. 08-1-16-SC, effective February 2, 2008)

Question of Law and a question of fact

A question of law exists when there is doubt or controversy as to what law on a certain
state of facts. On the other hand, a question of fact exists when the doubt or controversy
arises as to the truth or falsity of the alleged facts. The resolution of a question of fact
necessarily involves a calibration of the evidence, the credibility of the witnesses, the
existence and the relevance of surrounding circumstances, and the probability of
specific situations. (Arturo C. Cabaron vs. People of the Philippines, G.R. No. 156981,
October 5, 2009)

COURT OF APPEALS

Original jurisdiction of the Court of Appeals

 1. Petition for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
2. Writ of Amparo (A.M. No. 07-9-12-SC);
3. Habeas data (A.M. No. 08-1-16-SC);
4. Writ of Continuing Mandamus (Sec. 2, Rule 8, Part III of Rules of Procedure in
Environment Cases, A.M. No. 09-6-8-SC);
5. Writ of Kalikasan (Sec. 12, Rule 7, Part III of Rules of Procedure in
Environmental Cases, A.M. No. 09-6-8-SC);
6. Actions for annulment of judgment of the Regional Trial Court;
7. Petition for freeze order on any monetary instrument, property, or proceeds
relating to or involving any unlawful activity as defined under Sec. 3(j) of
Republic Act No. 9160 as amended by Republic Act No. 9164. (Sec. 44 of A.M. No.
05-11-04-SC, December 15, 2005)

Exclusive and Original jurisdiction of the Court of Appeals

The Court of Appeals shall exercise exclusive original jurisdiction over petition for
certiorari, prohibition, or mandamus against:

1. Decisions, final orders and resolution of the Regional Trial Court;

2. Decisions, final orders and resolutions of the National Labor Relations
Commission (A.M. No. 99-2-01-SC; St Martin Funeral Homes vs NLRC, G.R. No.
13086, September 16, 1998)
3. Decision, final orders of the Secretary of Labor and Employment in the exercise
of its appellate jurisdiction over decision, final orders of the following offices, to
wit:
a. POEA Administrator in the exercise of its adjudicatory function in case of
violation of the provision of the Labor Code, and POEA Rules and
Regulations:
i. For petitioner’s refusal to comply with his deployment
assignment, respondent manning agency filed a complaint against
him for breach of contract before the Philippine Overseas
Employment Administration (POEA). The POEA penalized
petitioner with one year suspension from overseas deployment.
The suspension was reduced to six months by the Secretary of
Labor. Petitioner appealed the latter’s decision with the Office of
the President (OP). The Supreme Court ruled that petitioner’s
appeal was erroneous. The proper remedy to question the
decisions or orders of the Secretary of Labor is via Petition for
Certiorari under Rule 65. Appeals to the OP in labor cases
have been eliminated, except those involving national interest
over which the President may assume jurisdiction. The
present case does not affect national interest. Hence,
petitioner’s appeal to the OP did not toll the running of the period
and the assailed decision of the Secretary of Labor is deemed to
have attained finality. (Miguel Dela Pena Barairo vs. Office of the
President and MST Marine Services [Phils], Inc, G.R. No. 189314)
b. Decision of the Secretary of Labor and Employment over a decision of its
duly authorized representatives brought on appeal in case of violation of
apprenticeship agreement which is already final (Art 66 of the Labor
Code)
c. Decision of the National Wage Productivity Commission on appeal over
Wage Order by the Regional Tripartite Wage Productivity Board. (Art 121
of the Labor Code, as amended by R.A. No. 6727, June 9, 1989)
d. Decision over the direct and indirect contempt cases decided by the
National Labor Relations Commission.
 e. Decision of the Secretary of Labor and Employment on appeal in case of
denial of union registration by the Regional Director or the Bureau of
Labor Relations. (Art 236 of the Labor Code)
f. Decision of the Bureau of Labor Relations on appeal over the order of
cancellations of union registration. (Art 238 of the Labor Code)
g. Decisions of the Secretary of Labor and Employment on appeal over the
order of the Bureau of Labor Relations over intra-labor dispute.
4. Action for annulment of judgment of the Regional Trial Court which is governed
by Rule 47

Exclusive Appellate Jurisdiction of the Court of Appeals

The Court of Appeals shall exercise exclusive appellate jurisdiction over judgments,
resolutions, orders or awards of the following courts or tribunals, to wit:

1. Regional Trial Court in the exercise of original jurisdiction under Sec 2(a) Rule
41 of the 1997 Rules of Civil Procedure;
2. Regional Trial Court in the exercise of its appellate jurisdiction under Rule 42 of
the 1997 Rules of Civil Procedure by way of verified petition for review;
3. Quasi-judicial bodies in the exercise of its quasi-judicial functions under Rule 43
of the 1997 Rules of Civil Procedure.
a. Civil Service Commission;
b. Securities and Exchange Commission;
c. Office of the President;
d. Land Registration Authority;
e. Social Security Commission;
f. Civil Aeronautics Board;
g. Bureau of Patents Trademarks and Technology Transfer;
h. National Electrification Administration;
i. Energy Regulatory Board;
j. National Telecommunications Commission;
k. Department of Agrarian Reform;
l. Government Service Insurance System;
m. Employees Compensation Commission;
n. Agricultural Inventions Board;
o. Insurance Commission;
p. Philippine Atomic Energy Commission;
q. Board of Investments;
r. Construction Industry Arbitration Commission;
s. Voluntary Arbitration;
t. Decision of the Office of the Ombudsman in administrative cases. (Office
of the Ombudsman vs. Romeo A. Liggayu, G.R. No. 174297, June 20, 2012;
Office of the Ombudsman vs Heirs of Margarita Vda. De Ventura, G.R. No.
151800, November 5, 2009)
4. Metropolitan Trial Court, Municipal Circuit Trial Court/Municipal Trial Court
based on delegated jurisdiction in cadastral and land registration cases under
Sec 34 of B.P. 129, as amended by R.A. 7691.

Powers of the Court of Appeals in the exercise of its exclusive and appellate jurisdiction
(Sec [3], par. 2 of B.P. 129, otherwise known as the Judiciary Reorganization Act of
1980, as amended by R.A. 7902)
1. Try cases and conduct hearings;
2. Receive evidence;
3. Perform any and all acts necessary to resolve factual issues raised in cases falling
within its original and appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings.
Trials or hearings in the Court of Appeals must be continuous and must be completed
within three(3) months, unless extended by the Chief Justice.

SANDIGANBAYAN

No Original Jurisdiction

Exclusive and Original jurisdiction of the Sandiganbayan

Sandiganbayan has exclusive and original jurisdiction over civil cases for the forfeiture
of illegally acquired wealth under R.A. 1379.

1. The provisions found in Sec. 15, Art IX of the 1987 Constitution that “the right of
the State to recover the properties unlawfully acquired by public officials of
employees from them or from their nominees or transferees shall not be barred
by prescription, laches or estoppel, applies only in civil actions for recovery
of ill-gotten wealth and not to criminal cases. (Presidential Ad Hoc Fact-Finding
Committee on Behest Loans vs. Desierto, G.R. No. 135715, April 13, 2011, 648
SCRA 586)
2. The Sandiganbayan is a special court of the same level as the Court of Appeals
(Edgar A. Payumo vs Sandiganbayan., G.R. No. 151911, July 25, 2011)

Exclusive and Appellate Jurisdiction of the Sandiganbayan

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgment,
resolutions, or orders of Regional Trial Courts whether in the exercise of their own
original jurisdiction or their appellate jurisdiction. (Filomena L. Villanueva vs. People,
G.R. No. 188630, February 23, 2011)

COURT OF TAX APPEALS

Court of Tax Appeals is co-equal with the Court of Appeals (Sec 9, R.A. 9282, as
amended)

By virtue of R.A. 9282, an “Act Expanding the Jurisdiction of the Court of Tax Appeals”
as amended, the Court of Appeals has been divested of its jurisdiction over the decisions
or orders of the Court of Tax Appeals, and effectively made the same as its co-equal
court. The decisions of the Divisions of the CTA are now reviewed “under a procedure
analogous to that provided for in Rule 43 of the 1997 Rules of Civil Procedure with the
CTA, which shall hear the case “en banc” and the latter by the Supreme Court on
questions of law under Rule 45.

Exclusive and Appellate Jurisdiction of the Court of Tax Appeals

1. Decision of the Commissioner of Internal Revenue in cases involving disputed
assessments, refund of internal revenue taxes, fees or other charges, penalties in
relation thereto, or other matters relating arising under the National Internal
Revenue or laws administered by the Bureau of Internal Revenue;
2. Inaction of the Commissioner of Internal Revenue, in cases involving disputed
assessments refunds of internal revenue taxes, fees or charges, penalties in
relations thereto, or other matters arising under the National Internal Revenue
Code or other laws administered by the Bureau of Internal Revenue, where the
National Internal Revenue Code provides for a specific period of action, in which
case the inaction shall be deemed a denial;
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases
originally decided or resolved by them of their original or appellate jurisdiction;
 4. Decisions of the Commissioner of Customs on cases involving liability for
customs duties, fees or other money charges, seizure, detention or release of
property affected, fines, forfeitures or other penalties in relation thereto, or
other matters arising under the Customs Law or other law administered by the
Bureau of Customs;
5. Decisions of the Central Board of Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving the assessment and taxation of real
property originally decided by the provincial or city board of assessment
appeals;
6. Decisions of Secretary of Finance on customs cases elevated to him automatically
for review from decisions of the Commissioner of Customs which are adverse to
the Government under Sec 2315 of the Tariff and Customs Code;
7. Decision of the Secretary of Trade and Industry, in the case of nonagricultural
product, commodity or article, and the Secretary of Agricultural in the case of
agricultural product, commodity or article, involving dumping and
countervailing duties under Secs. 301 and 302, respectively, of the Tariff and
Customs Code, and safeguard measures under Republic Act No. 8800, where
either party may appeal the decision to impose or not to impose said duties.

Decisions of the Court of Tax Appeals Division are reviewable by the CTA en banc.

REGIONAL TRIAL COURT

Original jurisdiction of the Regional Trial Court

1. Actions involving ambassadors, public ministers and consuls;

2. Over petition for certiorari, prohibition, mandamus, quo warranto, habeas
corpus;
3. Petitions for writ of Amparo (A.M. No. 07-9-12-SC);
4. Petition for habeas data (A.M. No. 08-1-16-SC);
5. Petition writ of continuing mandamus. (Sec. 2, Rule 8, Part III of Rules of
Procedure in Environmental Cases, A.M. No. 09-6-8-SC)

Exclusive and Original jurisdiction of the Regional Trial Court

1. In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation;
2. In all civil action which involve the title to, or possession of, real property or any
interest therein, where the assessed value of the property involved exceeds,
Twenty thousand pesos (P20,000.00) or for civil actions in Metro Manila, were
such value exceeds Fifty thousand pesos (P50,000.00); except actions for forcible
entry into and unlawful detainer of lands or buildings, original jurisdiction over
which is conferred upon the Metropolitan Trial Court, Municipal Trial Courts,
and Municipal Circuit Trial Courts;
3. In all actions in admiralty and maritime jurisdiction where the demand or claim
exceeds Three Hundred Thousand Pesos (P300,000.00) or, in Metro-Manila,
where such demand or claim exceeds Four Hundred Thousand Pesos
(P400,000.00);
4. In all matters of probate, both testate and intestate, where the gross value of the
estate exceeds Three Hundred Thousand Pesos (P300,000.00) or, in probate
matters in Metro-Manila, where such gross value exceeds Four Hundred
Thousand Pesos (P400,000.00)
5. In all actions involving the contract of marriage and marital relations;
6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising jurisdiction or any court, tribunal person or body exercising
judicial or quasi-judicial functions;
7. In all civil actions and special proceedings falling within the exclusive original
jurisdiction of Juvenile and Domestic Relations Court and of the Court of
Agrarian Relations as now provided by law;
8. In all other cases in which the demand, exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs or the value of the
property in controversy exceeds Three Hundred Thousand Pesos (P300,000.00)
or, in such other cases in Metro Manila, where the demands exclusive of the
abovementioned items exceeds Four Hundred Thousand Pesos (P400,000.00).
(Sec 19 of Batas Pambansa Blg. 129, as amended by R.A. 7691)
9. Over cases involving intra-corporate controversies under the provisions of Sec
5.2 of the Securities and Regulations Code (R.A. 8799) such as:
a. Cases involving devices and schemes employed by or any acts, of the
board of directors, business associations, its officers or partnership,
amounting to fraud or misrepresentation which may be detrimental to
the interest of the public, and/or stockholders, partners, members of
associations, organizations registered with the Commission;
b. Controversies arising out of intra-corporate or partnership relations,
between and among stockholders, members or associates, between any
or all of them and the corporation or partnership or associations of
which they are stockholders, members or associations, respectively; and
between such corporation, partnership or association and the state
insofar as it concerns their individual franchise or right to exist as such
entity;
c. Controversies in the elections and appointments of directors, trustees,
officers or managers of such corporations, partnerships or associations;
d. Petitions of corporations, partnerships or associations to be declared in
the state of suspension of payments in case where the corporation,
partnership or associations, possesses sufficient property to cover all
debts but foresees the impossibility of meeting them when they
respectively fall due or in case where the corporation, partnership or
association has no sufficient assets to cover liabilities, but is under the
management of the Rehabilitation Receiver or a Management Committee.
10. RTC acting as Special Agrarian Court: Determination of just compensation.

A branch of RTC designated as a Sepcial Agrarian Court for a province has the
original and exclusive jurisdiction over all petitions for the determination of just
compensation in that province. In Republic vs. Court of Appeals, the Supreme
Court ruled that Special Agrarian Courts have original and exclusive jurisdiction
over two categories of cases: (1) all petitions for the determination of just
compensation to landowners, and (2) the prosecution of all criminal offenses
under R.A. 6657. (Land Bank of the Philippines vs. Corazon M. Villegas, G.R. No.
180384, March 26, 2010)
11. Over petition for annulment of judgment over decision and final orders of the
Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial Court
(Sec 10, Rule 47 of the 1997 Rules of Civil Procedure);
12. Civil cases for Infringement of Copyright and Unfair Competition under the
provisions of the Intellectual Property Code (IP Code);
13. Regional Trial Court acting as a Family Court has jurisdiction over petitions for
guardianship, custody of minor, habeas corpus in relation of minor (Sec. 3 of
A.M. No. 03-04-04-SC effective May 15, 2003);
14. Petition for custody of minor, habeas corpus in relation to the latter (Sec. 3 of
A.M. No. 03-02-05, effective April 15, 2003);
15. Petition for adoption of children and revocation of adoption (A.M. No. 02-6-02
effective August 22, 2002);
16. Complaints for annulment of marriage and declaration of nullity of marriage and
those relating to marital status and property relations of husband and wife or
 those living together under different status and agreements, and dissolutions of
conjugal partnership of gains (Sec. 2, A.M. No. 02-11-10-SC, effective March 12,
2009);
17. Petition for support and/or acknowledgement;
18. Summary Judicial Proceedings brought under the provision of Executive Order
No. 209, otherwise known as the Family Code of the Philippines;
19. Petition for constitution of family home; (Sec. 5, R.A. 8369)
20. Petition for declaration of status of children as abandoned, dependent, or
neglected children;
21. Petition for involuntary commitment of a child, or removal of custody against
child placement, or child caring agency or individual, or commitment of disabled
child (A.M. 02-1-19-SC, effective April 10, 2012)
22. Petition for civil forfeiture of monetary instrument, property, or proceeds
representing, involving, or relating to an unlawful activity, or to a money
laundering offenses. (Sec. 3, Title II A.M No. 05-11—4, December 15, 2005)

Special Jurisdiction

The Supreme Court may designate certain branches of the Regional Trial Courts to
handle exclusively the following special cases, to wit:
1. Criminal cases;
2. Juvenile and domestic relations cases;
3. Agrarian cases;
4. Urban land reform cases which do not fall under the jurisdiction of quasi-judicial
bodies and agencies; and
5. Such other special cases as the Supreme Court may determine in the interest of a
speedy and efficient administration of justice.

Appellate Jurisdiction of the Regional Trial Court

Sec. 22 of B.P. 129, provides for the power of the Regional Trial Court to review
judgment, final orders of the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts.

SHARIA’H DISTRICT COURT

Original jurisdiction of Shari’ah District Court

1. Petition by the Muslims for the constitution of a family home, change of name,
and commitment of an insane person to an asylum;
2. All other personal or real actions not mentioned in paragraph 1(d) wherein the
parties are Muslims except those for forcible entry and unlawful detainer, which
shall fall under the exclusive original jurisdiction of the Municipal Trial Court;
and
3. All special civil actions for interpleader or declaratory relief wherein the parties
are Muslims or the property involve belongs exclusively to Muslims.

Exclusive and Original Jurisdiction of Shari’ah District Court

1. All cases involving custody, guardianship, legitimacy, paternity and filiation

arising under this code;
2. All cases involving disposition and settlement of the estate of deceased Muslims,
probate of wills, issuance of letters of administration or appointment of
administrator or executors regardless of the nature or the aggregate value of the
property;
 3. Petitions for declaration of absence and death and for the cancellation or
correction of entries in the Muslim registries mentioned in Title VI of Book Two
of this Code;
4. All actions arising from customary contracts in which the parties are Muslims, if
they have not specified which law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
and other auxiliary writs and processes in aid of its appellate jurisdiction.
6. Settlement of the estate of the deceased Muslims. (Montaner vs Shari’ah District
Court, G.R. No. 174975, January 20, 2009)

Appellate Jurisdiction

The Sharia’h’s District Court shall have appellate jurisdiction over all cases tried in the
Sharia’ah Circuit within their territorial jurisdiction.

METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT, AND MUNICIPAL CIRCUIT

TRIAL COURT

Exclusive and Original Jurisdiction of Metropolitan Trial Court, Municipal Trial Court
and Municipal Circuit Trial Court

1. Civil actions and probate proceedings, testate and intestate, including the grant
of provisional remedies in proper cases, where the value of the personal
property, estate, or amount of the demand does not exceed Three Hundred
Thousand pesos (P300,000.00) or, in Metro Manila where such personal
property, estate, or amount of the demand does not exceed Four Hundred
Thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, the amount of which must be
specifically alleged;
2. All civil actions which involve title to, or possession of, real property, or any
interest therein where the assessed value of the property or interest therein
where the assessed value of the property or interest therein does not exceed
Twenty Thousand Pesos (P20,000.00) or, in civil actions in Metro Manila, where
such assessed value does not exceed Fifty Thousand pesos (P50,000.00)
exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses and costs.
3. Summary procedure
a. Forcible entry and unlawful detainer. (Sec 33[2] of B.P. 129, as amended
by R.A. 7691)
b. All other cases, except probate proceedings, where the total amount of
the plaintiffs claim does not exceed One Hundred Thousand Pesos
(P100,000.00) or Two Hundred Thousand Pesos (P200,000.00) in
Metropolitan Manila, exclusive of interest and costs. (Sec 1[A], par. 2 of
the 1991 Rules on Summary Procedure, as amended by A.M. No. 02-11-
09-SC, November 15, 2002)
4. Small Claims cases
a. Payment of money where the value of the claim does not exceed One
Hundred Thousand Pesos (P100,000.00) exclusive of cost and interest.
(Sec. 2 of the Rules of Procedure of Small Claims cases, as amended; A,M.
No. 08-8-07, October 27, 2009)
b. Purpose of Small Claims cases. The small claims process is designed to
function quickly and informally. There are no lawyers, no formal
pleadings, and no strict legal rules of evidence. x x x Thus, the intention of
the law is clear when it provided a period of five(5) days from receipt of
the order of re-assignment to hear and decide cases, if a motion for re-
assignment of a case has been granted by the Executive Judge. (Ernesto Z.
 Orbe vs Judge Manolito Gumarang, A.M. No. MTJ-11-1792, September 26,
2011)

Special jurisdiction

1. Petition for Habeas Corpus in the province or the city where the absent Regional
Trial Judge sit.; and
2. Application for bail in criminal cases in the province or the city where the absent
Regional Trial Judge sit.

SHARI’AH CIRCUIT COURT

Exclusive and Original Jurisdiction

1. All civil actions and proceedings between parties who are Muslims or have been
married in accordance with Article 13 involving disputes relating to:
a. Marriage;
b. Divorce recognized under this Code;
c. Betrothal or breach of contract of marriage;
d. Customary dower (mahr);
e. Disposition and distribution of property upon divorce;
f. Maintenance and support, and cosolatary gifts (mut’a); and
g. Resitution of marital gifts.
2. All cases involving disputes relative to communal properties.

Concurrent/Confluent/Coordinate Jurisdiction

1. Supreme Court and Regional Trial Court have concurrent jurisdiction over civil
actions involving ambassadors, public ministers and consuls;
2. Supreme Court, Court of Appeals, Sandiganbayan, and Regional Trial Courts have
concurrent jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus, writ of Amparo, habeas data, and writ of Kalikasan and
injunctions.

Limitations in the exercise of concurrent/confluent/coordinate jurisdiction

It does not give the petitioner unrestricted freedom of choice of court of forum; A
becoming regard for that judicial hierarchy most certainly indicates that petitions for
the issuance of extraordinary writs against first level (“inferior”) courts should be filed
with the RTC and those against the latter with the Court of Appeals; A direct invocation
of the original jurisdiction to issue those writs should be allowed only when there are
special and important reasons therefore; clearly and specifically set out in the petition.
(Constancio F. Mendoza and Sangguniang Brgy. Of Balatasan, Bulalacao, Oriental
Mindoro vs Mayor Enrillo Villas, G.R. No. 187256, February 23, 2011)

The rationale for this rule is two-fold: (a) it would be an imposition upon the precious
time of this Court, and (b) it would cause an inevitable and resultant delay, intended or
otherwise, in the adjudication of cases, which in some instances had to be remanded or
referred to the lower court as the proper forum under the rules of procedure, or as
better equipped to resolve issues because this Court is not a trier of facts. (CREBA vs
Sec. of Agrarian Reform, G.R. No. 183409, June 18, 2010)

Doctrine of Hierarchy of Courts

One fundamental, but highly important procedure in our remedial law is the directive
that resort to the higher courts should be made in accordance with their hierarchical
order. The court’s pronouncement in Santiago vs Vasquez, et al (G.R. Nos. 99289-90,
January 27, 1993, 217 SCRA 633) is more cogent on the matter, viz.:

“One final observation. The Court discern in the proceedings in this case a
propensity on the part of the petitioner, and, for that matter, the same may be
said of a number of litigants who initiate recourses before the Court, to disregard
the hierarchy of courts in our judicial system by seeking relief directly from this
Court despite the fact that the same is available in the lower courts in the
exercise of their original or concurrent jurisdiction, or is even mandated by law
to be sought therein. This practice must be stopped, not only because of the
imposition upon the precious time of this Court but also because of the
inevitable and resultant delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We, therefore, reiterate the judicial policy
that this Court will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts or where exceptional and
compelling circumstances justify availment of a remedy within and calling for
the exercise of our primary jurisdiction.”

The hierarchy of courts is not to be lightly regarded by litigants. The CA stands

between the RTC and the Court, and its establishment has been precisely to take over
much of the work that used to be done by the Court. Historically, the CA has been of the
greatest help to the Court in synthesizing the facts, issues, and rulings in an orderly and
intelligible manner and in identifying errors that ordinarily might escape detection. The
Supreme Court has thus been freed to better discharge its constitutional duties and
perform its most important work. (Francisco Alonso vs. Cebu Country Club., G.R. No.
188471, April 20, 2010)

This is an established policy. It is a policy necessary to prevent inordinate

demands upon the Court’s time and attention, which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of the
Court’s docket. (United Claimants Association of NEA [UNICAN] vs. National
Electrification Administration [NEA], G.R. No. 187107, January 31, 2012)

Exception to the Hierarchy Courts

The principle of hierarchy of courts may be set aside for special and important
reasons. Such reason exists in the instant case involving as it does the employment of
the entire plantilla of NEA, more than 700 employees all told, who were effectively of
dismissed from employment in one swift stroke. This is to mind of the Court entails its
attention. (United Claimants Association of NEA [UNICAN] vs. National Electrification
Administration [NEA], G.R. No. 187107, January 31, 2012)

Concurrent Jurisdiction of the Ombudsman to investigate offenses of public officials

The power of the Ombudsman to investigate offenses involving public officials is

not exclusive. (United Claimants Association of NEA [UNICAN] vs. National
Electrification Administration [NEA], G.R. No. 187107, January 31, 2012)

It is concurrent with other similarly authorized agencies of the government in

relation to the offense charged. Therefore, with respect to petitioners, the Ombudsman
may share its authority to conduct an investigation concerning administration charges
against them with other agencies. (Theron V. Lacson vs. The Hon. Executive Secretary,
G.R. Nos. 165399 and 165475, May 30, 2011)
Delagated Jurisdiction – the grant of authority to inferior courts to hear and determine
cadastral and land registration cases under certain conditions (Sec. 34 of B.P. 129, as
amended by R.A. 7691)

Cases falling under the delegated jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts

1. Cadastral or land registration cases covering lots where there is no controversy

or opposition, or
2. Cadastral or land registration cases covering lots which is contested lots where
the value of which does not exceed P100,000.00, such value to be ascertained by
the affidavit of the claimant or by agreement of the respective claimant if there
are more than one, or from the corresponding tax declaration of the real
property.

Remedy in case of adverse decision of the MTC/MCTC in cadastral and land registration
cases in the exercise of its delegated jurisdiction. Under Sec 34 of B.P. 129, as amended,
shall be appealable in the same manner as decisions of the regional trial courts which is
an implied reference to Rule 41 of the Rules of Civil Procedure on appeals from
decisions of the RTC to the CA in the exercise of its original jurisdiction by way of notice
of appeal within 15 days.
VENUE

Venue in Criminal Cases vs. Civil Cases

1. Venue in criminal cases is jurisdictional while in civil cases, it is only procedural

and for the purpose of convenience of the parties;
2. Venue in criminal cases is conferred by the provision of law while venue in civil
cases may be agreed upon by the parties;
3. Improper venue in criminal cases is a ground for a motion to quash the
complaint or information on the ground of lack of jurisdiction over the offense
charged while improper venue in civil cases can be the subject of a motion to
dismiss based on improper venue;
4. In case of denial of the motion to quash on the ground of lack of jurisdiction over
the offense charged the remedy is to proceed with the arraignment, while the
denial of the motion to dismiss on the ground of improper venue is to file the
answer with the remaining balance of the period to file a responsive pleading,
but in no case less than 5 days and raised the ground as an affirmative defense,
proceed with the trial and in case of adverse decision appeal the same.

COMMENCEMENT OF A CIVIL ACTION

A civil action is commenced by the filling of the original complaint with the court (Sec. 5,
Rule 1 of the 1997 Rules of Civil Procedure) plus the payment of a corresponding
docket and other legal fees (Rule 141, as amended)

If an additional defendant is impleaded in a later pleading, the action is commenced

with regard to him on the date of the filling of such pleading, irrespective of whether a
motion for its admission, if necessary, is denied by the court.

Rules on Small Claims, when commenced?

In small claims cases, it can be commenced by filling with the court an accomplished
and verified Settlement of Claim (Form 1-SCC) in duplicate, accompanied by a
Certificate of Non-forum shopping (Form 1-A SCC), and two duly certified photocopies
of the actionable document/s as well as the affidavits of witnesses and other evidence
to support the claim (Sec. 5, Rules on Small Claims, A.M. No. 08-8-7-SC), and the
payment of the docket and other legal fees under Rule 141 of the Revised Rules of
Court, unless allowed to sue as indigent.

Filing of the action before the court shall toll the running of the period of prescription of
actions as stated in Art 1155 of the New Civil Code.

Action – is a suit filed in court for the protection and enforcement of a right and the
prevention and redress of a wrong;

Cause of Action – The delict or wrongful act or omission committed by the defendant in
violation of the primary rights of the plaintiff. (Racoma vs Fortich et. Al., L-29380, June
10, 1971)

Right of Action – is simply the remedial right or right to relief granted by law to a party
to institute an action against the person who has committed a delict or wrong against
him. “There can be no right of action without a cause of action”

A right of action, although existing, is also dependent upon the prescription of an action,
in accordance with substantive law. It is not eternal, and therefore must be exercised by
the claimant at the most opportune moment within the periods provided by law, else
forever barred.

Basis of Civil Action

It is a rule that “Every ordinary action must be based on a cause of actions (Sec. 1, Rule
2)”. The rule purposely establishes the relevance of a cause of action only as to ordinary
civil actions in obtaining redress for the violation of one’s right.

Basis of Criminal Action

The right of a party or the State to institute an action arises from a violation of an act or
omission punishable by law, not necessarily against the party instituting such action,
especially when it comes to the State, because such right to prosecute an offender of the
law is simply an exercise of the inherent “police power” of the state.

Basis of Special Proceedings

The right to institute an action is merely an exercise of a privilege provided by law or

statute to establish a status, a right, or a particular fact.

Classification of Actions

1. As to its subject: determination of venue

A distinction between real and personal actions is necessary for the purpose of
determining the venue of an action in accordance with Rule 4 of the 1997 Rules
of Civil Procedure. (Nilo Padre vs. Fructosa Badillo, G.R. No. 165423, January 19,
2011)

Real action – one brought for the protection of real rights, lands, tenements or
hereditaments or one founded on privity of estate only. (Paper Industries Corp
of the Phil. vs. Samson, et. al., L-30175, November 28, 1975)

A real action is an action “affecting title to or possession of real property, or

interest therein.” (Sec 1, Rule 4) It should be noted however that an action where
the realty is only incidental to the subject matter of the suit such as damage to
real party is not a real action for the purpose of determining proper venue.

An action which involves title to or possession of any interest in any of the

property mentioned in Art. 415 of the New Civil Code, the same is in the nature
of a real action.

Personal action – one which is not founded upon privity of real rights or real
property. An action for specific performance is a personal action. (Siosoco vs.
Court of Appeals, 303 SCRA 186). An action which seeks to recover personal
property, enforcement of a contract, or the recovery of damages

When the plaintiff joins two or more causes of actions based on the same act or
occurrence, one of which is a real action; For instance, in an action to annul a sale
of a land and to recover the land; For the purpose of venue determination, the
action is a real action and must be filed in the place where the property is
situated regardless of the residence of the parties. (Emergency Loan Pawnshop,
Inc. vs. Court of Appeals, G.R. No. 129184, February 28, 2010)

2. As to its purpose: service of summons; and acquisition of jurisdiction

 a. Action in rem – one which is not directed only against a particular person,
but against the thing itself and the object of which is to bar indifferently
all who is to bar indifferently all who might be minded to make any
objection against the right sought to be enforced, hence, the judgment
therein is binding theoretically upon the whole world.

Example: Cadastral and land registration proceedings, probate

proceedings.

b. Action in personam – one which is directed against particular persons on

the basis of their personal liability to establish a claim against them and
the judgment wherein is binding only upon the parties impleaded or their
successor in interest.

Example: Recovery of damages, specific performance, action for

injunction, rescission of contracts.

c. Action quasi in rem – one which is directed against particular persons but
the purpose of which is to bar and bind not only said persons but any
other person who claims any interest in the property or right subject of
the suit. (As cited in Remedial Law Compendium, Florenz D. Regalado,
Sixth Edition, pg. 20-21)

Example: Foreclosure of mortgage (Rule 68); Partition under Rule 69;

attachment under Rule 57; or any other action the purpose of which is to
exclude the defendant’s interest over the property.

In an action in personam, jurisdiction over the person of the defendant is

necessary for the court to validly try and decide the case. In a proceeding in rem or
quasi in rem jurisdiction over the person of the defendant is not a prerequisite to
confer the jurisdiction over the res. Jurisdiction over the res is acquired either (a) by
the seizure of the property under legal process, whereby it is brought into actual
custody of the law, or (b) as a result of the institution of legal proceedings, in which
the power of the court is recognized and made effective. (Jesse U. Lucas vs. Jesus S.
Lucas, G.R. No. 190710, June 6, 2011)

Petition to establish illegitimate filiation is an action in rem: mere filling of the

petition court acquired jurisdiction over the case. (Jesse U. Lucas vs. Jesus S. Lucas,
G.R. No. 190710, June 6, 2011)

LIBERAL CONSTRUCTION OF THE RULES (Sec 6, Rule 1)

1. Rules should be liberally construed in order to secure a just, speedy and

inexpensive disposition of action.
a. A liberal construction of the procedural rules is proper where the lapse in
the literal observance of a rule of procedure has not prejudiced the
adverse party and has not deprived the court of its authority. Indeed, Sec.
6, Rule 1 of the Rules of Court provides that the Rule s should be literally
construed in order to promote their objective of securing a just, speedy
and inexpensive disposition of every action and proceeding. Rules of
procedure are tools designed to facilitate the attainment of justice, and
courts must avoid their strict and rigid application which would result in
technicalities that tend to frustrate rather than promote substantial
justice. (Douglas F. Anama vs. Philippine Savings Bank, G.R. N. 187021,
January 25, 2012)
 b. The rule on liberal construction does not mean that procedural rules are
to be ignored or disdained at will to suit the convenience of a party.
Procedural law has its own rationale in the orderly administration of
justice, namely to ensure the effective enforcement of substantive rights
by providing for a system that obviates arbitrariness, caprice, despotism,
or whimsically in the settlement of disputes. (Abrenica vs. Law Firm of
Abrenica, Tungol, and Tibayan, G.R. No. 169420, September 22, 2006;
Reyes vs. Fil-Estate Properties, Inc., G.R. No. 148967, February 9, 2007)
c. The liberal construction rule is not a license to violate procedural
requirements. Procedural rules are designed to facilitate the adjudication
of cases. Courts and litigants alike are enjoined to abide strictly by the
rules. And while the Court in some instances allows a relaxation in the
application of rules, this, we stress, was never intended to forge a bastion
for erring litigants to violate the rules with impunity. The liberality in the
interpretation and application of the rules applies only in proper cases
and under justifiable causes and circumstances. While it is true that
litigation is no a game of technicalities, it is equally true that every case
must be prosecuted in accordance with the prescribed procedure to
insure an orderly and speedy administration of justice. (Republic of the
Philippines vs. Kenrick Development Corp., G.R. No. 149576, August 8,
2006). “Concomitant to a procedure adopting a liberal construction of the
rules should be an effort on the part of the party invoking liberality to
explain his failure to abide by the rules.” (Abrenica vs. Law Firm of
Abrenica, Tungol, and Tibayan, G.R. No. 169420, September 22, 2006;
Banez vs. De La Salle University, G.R. No. 167177, September 27, 2006;
Heirs of Gaudiano vs. Benemerito, G.R. No. 174247, February 21, 2007)
d. It should be emphasized that the resort to a liberal application, or
suspension of the application of procedural rules, must remain as the
exception to the well-settled principle that rules must be complied with
for the orderly administration of justice. (Building Care
Corporation/Leopard Security & Investigation Agency and/or Ruperto
Protacio vs. Myrna Macaraeg, G.R. No. 198357, December 2010)
2. Rules of procedure used to secure substantial justice.

The rules of procedure are used only to secure and not override or frustrate
justice. (Republic of the Philippines vs. Court of Appeals, 83 SCRA 453 [1978])
Rules of Court governing practice and procedure were formulated in order to
promote, just, speedy and inexpensive disposition of every action or proceeding
without sacrificing equity considerations. (Republic vs. Imperial, Jr. 303 SCRA
127 [1999])

3. Strict and rigid application of the rules may be disregarded.

A strict and rigid application of the rules must always be eschewed when it
would subvert the rules’ primary objective of enhancing fair trials and
expediting justice. Technicalities should never be used to defeat the substantive
rights of the other party. Every party-litigant must be afforded the amplest
opportunity for the proper and just determination of his cause, free from the
constraints and technicalities. (Al-Amanah Islamic Investment Bank of the
Philippines [formerly Philippine Almanah Bank] vs. Celebrity Travel and Tours,
G.R. No. 155524, August 12, 2004)

4. Court may relax the application of the rules if it will result to miscarriage of
justice.
 It must be kept in mind that substantial justice must prevail. When there is
strong showing that grave miscarriage of justice would result from the strict
application of the Rules, this Court will not hesitate to relax the same in the
interest of substantial justice. The Rules of Court were conceived and
promulgated to set forth guidelines in the dispensation of justice but not to bind
and chain the hand that dispenses it, for otherwise, courts will be mere slaves to
or robots of technical rules, shorn of judicial discretion. That is precisely why
courts in rendering real justice have always been, as they in fact ought to be,
conscientiously guided by the norm that when on the balance, technicalities take
backseat against substantive rights, and not the other way around. (Joanie
Surposa Uy vs. Jose Ngo Chua, G.R. No. 183965, September 18, 2009)

5. Amendment of the procedural rules shall be given retroactive application to

pending actions.

When a procedural rule is amended for the benefit of litigants for the
furtherance of the administration of justice, it shall be retroactively applied to
likewise favor actions then pending, as equity delights equality. (Aurora B. Go.
Vs. Elemer Sunbanun, G.R. No. 168240, February 9, 2011)

6. Technical rules of procedure are intended to secure not to suppress substantial

justice.

The CA, under Sec. 3, Rule 43 of the Rules of the Civil Procedure, can, in the
interest of justice, entertain and resolve factual issues. After all, technical and
procedural rules are intended to help secure, and not suppress, substantial
justice. A deviation from a rigid enforcement of the rules may thus be allowed to
attain the prime objective of dispensing justice, for dispensation of justice is the
core reason for the existence of courts. (Milestone Farms, Inc., vs. Office of the
President, G.R. No. 182332, February 23, 2011)

7. Courts may suspend the application of the rules where matters of life, liberty,
honor or property are at stake.

This, Court has, on occasion, suspended the application of technical rules of

procedure where matters of life, liberty, honor or property, among other
instances, are at stake. It has allowed some meritorious cases to proceed despite
inherent procedural defects and lapses on the principle that rules of procedure
are mere tools designed to facilitate the attainment of justice. The strict and rigid
application of rules that tend to frustrate rather than promote substantial justice
must always be avoided. It is far better and more prudent for the court to excuse
a technical lapse and afford the parties a review of the case to attain the ends of
justice, rather than dispose of the case on technicality and cause grave injustice
to the parties. (Francisco R. Llamas vs. Court of Appeals, G.R. No. 149588, August
16, 2010)

8. Relaxation of the rules in case of excusable formal deficiency in a pleading.

It is settled that liberal construction of the Rules may be invoked in situation s

where there may be some excusable formal deficiency or error in a pleading,
provided that the same does not subvert the essence of the proceeding and
connotes at least a reasonable attempt at compliance with the Rules. After all,
rules of procedure are not to be applied in a very rigid, technical sense; they are
used only to help secure substantial justice. (Sps. Heber & Charlita Edillo vs. Sps.
Norberto & Desideria Dulpina, G.R. No. 188360, January 21, 2010)
9. Exceptions to the rigid application of the rules: Reasonable and meritorious
explanation must be given in case of failure to comply with the rules.

Procedural rules are not to be belittled or dismissed simply because their non-
observance may have prejudiced a party’s substantive rights; like all rules, they
are required to be followed. However, there are recognized exceptions to their
strict observance, such as:

a. Most persuasive and weighty reasons;

b. To relieve a litigant from an injustice not commensurate with his failure
to comply with the prescribed procedure;
c. Good faith of the defaulting party by immediately paying within a
reasonable time from the time of the default;
d. The existence of special or compelling circumstances;
e. The merits of the case;
f. A cause not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules;
g. A lack of any showing that the review sought is merely frivolous and
dilatory;
h. The other party will not be unjustly prejudiced thereby;
i. Fraud, accident, mistake or excusable negligence without appellant’s
fault;
j. Peculiar legal and equitable circumstances attendant to each casel
k. In the name of substantial justice and fair play;
l. Importance of the issues involved; and
m. Exercise of sound discretion by the judge guided by all the attendant
circumstances. Thus, there should be an effort on the part of the party
invoking liberality to advance a reasonable or meritorious explanation for
his/her failure to comply with the rules. (Francisco A. Labao vs. Lolito N.
Flores, et al., G.R. No. 187984, November 15, 2010)

10. Exceptions on the immutability of judgment: Relaxation of the rules

A final and executory judgment can no longer be attacked by any of the parties
or be modified, directly or indirectly, even by the highest court of the land.
However, this Court has relaxed this rule in order to serve substantial justice
considering:

a. Matters of life, liberty, honor or property;

b. The existence of special or compelling circumstances;
c. The merits of the case;
d. A cause not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules;
e. A lack of any showing that the review sought is merely frivolous and
dilatory; and
f. The other party will not unjustly prejudiced thereby. (Cebu Bionic Supply,
Inc. and Lydia Sia vs. Development Bank of the Philippines, et. al., G.R. No.
154366, November 17, 2010)

11. Relaxation of the rules in case of dismissal of the appeal

The court has the discretion to dismiss or not to dismiss an appellant’s appeal. It
is a power conferred on the court, not a duty. The discretion must be a sound
one, to be exercised in accordance with the tenets of justice and fair play, having
in mind the circumstances obtaining in each case. Technicalities, however, must
be avoided. The law abhors technicalities that impede the cause of justice. The
 court’s primary duty is to render or dispense justice. (Voltaire I. Rovira vs. Heirs
of Jose C. Deleste, namely Josefa Deleste, Jose Ray L. Deleste, Raul Hector L.
Deleste and Ruben Alex L. Deleste, G.R. No. 160825, March 26, 2010)

Several times in the past, we emphasized that procedural rules should be treated
with utmost respect and due regard, since they are designed to facilitate the
adjudication of cases to remedy the worsening problem of delay in the
resolution of rival claims and in the administration of justice. From time to time,
however, we have recognized exceptions to the Rules but only for the most
compelling reasons where stubborn obedience to the Rules would defeat rather
than serve the ends of justice. Every plea for a liberal construction of the Rules
must at least be accompanied by an explanation of why the party-litigant failed
to comply with the Rules and by a justification for the requested liberal
construction. Where strong considerations of substantive justice are manifest in
the petition, this Court may relax the strict application of the rules of procedure
in the exercise of its legal jurisdiction. (Tomas R. Osmena vs. Commission on
Audit, G.R. No. 188818, May 31, 2011)

12. Relaxation of the rules based on persuasive reasons

Procedural rules may be relaxed for persuasive reasons to relieve a litigant of an

injustice not commensurate with his failure to comply with the prescribed rules.
(Philippine Economic Zone Authority, et. al vs. Joseph Jude Carates, G.R. No.
181274)

13. Merits of the position of the party in the invocation of liberality in the application
of the rules

What impel the Court to set aside its rules is not a party’s empty invocations of
liberality but the merits of his position so that the same may not be construed by
mere deficiencies in form. If a petition has not an iota of merit in it, there is
nothing for the Court to bring to light at all. (Munoz vs. People , 548 SCRA 473,
March 14, 2008)

14. Merit of the grounds for the suspension of the rules subject to the discretion of
the court

The courts have the power to relax or suspend technical or procedural rules or
to except a case from their operation when compelling reasons so warrant or
when the purpose of justice requires it. What constitutes good and sufficient
case that would merit suspension of the rules is discretionary upon the courts.
(CIR vs. Migrant Pangbilao Corp., G.R. No. 159593, October 12, 2006)

15. Case impressed with public interest ground for relaxation of rules

Indeed, when a case is impressed with public interest, the Court may relax the
application of the Rule. Where strong considerations of substantive justice are
manifest in the petition, the strict application of the rules of procedure may be
relaxed, in the exercise of its equity jurisdiction. In addition to the basic merits of
the main case, such a petition usually embodies a justifying circumstance which
warrants our heeding to the petitioner’s cry for justice in spite of the earlier
negligence of counsel. As we held in Obut vs. Court of Appeals (70 SCRA 546):
We cannot look with favor on a course of action with would place the
administration of justice in a straightjacket for then the result would be a poor
kind of justice if there would be justice at all. Verily, judicial orders, such as the
one subject of this petition, are issued to be obeyed, nonetheless as non-
 compliance is to be dealt with as the circumstances attending the case may
warrant. What should guide judicial action is the principle that a party-litigant is
to be given the fullest opportunity to establish the merits of his complaint or
defense rather than for him to lose life, liberty, honor or property technicalities.
(Al-Amanah Islamic Investment Bank of the Philippines [formerly Philippine
Almanah Bank] vs. Celebrity Travel and Tours, Incorporated, G.R. No. 155524,
August 12, 2004)

16. Relaxation of the Rules affords the parties the opportunity to fully ventilate their
cases on the merits

In not a few instances, the Court relaxed the rigid application of the rules of
procedure to afford the parties the opportunity to fully ventilate their cases on
the merits. This is in line with the time-honored principle that cases should be
decided only after giving all parties the chance to argue their causes and
defenses. Technicality and procedural imperfection should, thus, not serve as
basis of decisions. In that way, the ends of justice would be better served. (El
Reyno Homes, Inc., vs. Ong, 397 SCRA 563 [2003], citing Republic vs. Court of
Appeals, 292 SCRA 243 [1998]) For, indeed, the general objective of procedure is
to facilitate the application of justice to the rival claims of contending parties,
bearing always in mind that procedure is not to hinder but to promote the
administration of justice. (Ibid., citing Udan vs. Amon, 23 SCRA 837 [1968])

17. Pre-requisite for the relaxation of the rules

Recapitulating, the two-requisite for the relaxation of the rules are:

a. Justifiable cause or plausible reason for non-compliance; and

b. Compelling reason to convince the court that outright dismissal of the
petition would seriously impair the orderly administration of justice.
(Tible & Tible Co., Inc. vs. Royal Savings and Loan Association, G.R. No.
155806, April 8, 2008)

18. Jurisprudence on the non-application of the liberal interpretation of the Rules

a. Contrarily, it has also been held in a number of cases that such liberality
in the application of rules of procedure may not be invoked if it will result
in the wanton disregard of the rules or cause needless delay in the
administration of justice. It is equally settled that, save for the most
persuasive of reasons, strict compliance is enjoined to facilitate the
orderly administration of justice. (Asian Spirit Airline Employees
Cooperative vs. Spouses Benjamin and Anna Marie Bautista, G.R. No.
164668, February 14, 2005, citing Ortiz vs. Court of Appeals, 299 SCRA
708 [1998])
b. Thus, procedural rules are not to be belittled or dismissed simply because
their non-observance may have resulted in prejudice to a party’s
substantive rights. Like all rules, they are required to be followed except
to relieve a litigant of an injustice not commensurate with the degree of
his thoughtlessness in not complying with the procedure prescribed.
(Asian Spirit Airline Employees Cooperative vs. Spouses Benjamin and
Anna Marie Bautista, G.R. No. 164668, February 14, 2005, citing Galang
vs. Court of Appeals, 199 SCRA 683 [1991])
c. Such procedural rules are tools designed to facilitate the adjudication of
cases. Courts and litigants alike are, thus, enjoined to abide strictly by the
rules. And while the Court, in some instances, allows a relaxation in the
application of the rules, this, we stress, was never intended to forge a
 bastion for erring litigants to violate the rules with impunity. The
liberality in the interpretation and application of the rules applies only in
proper cases and under justifiable causes and circumstances. While it is
true that litigation is not a game of technicalities, it is equally true that
every case must be prosecuted in accordance with the prescribed
procedure to insure an orderly and speedy administration of justice.
(Asian Spirit Airline Employees Cooperative vs. Spouses Benjamin and
Anna Marie Bautista, G.R. No. 164668, February 14, 2005, citing Garbo vs.
Court of Appeals, 258 SCRA 159 [1996])

19. Rules of evidence and procedures shall be liberally construed in Impeachment

Trial cases. (Art VI of the Rules of Impeachment Trial)
20. Power of the Supreme Court to suspend its own rules discretionary: Grounds for
suspension

a. The courts have the power to relax or suspend technical or procedural

rules or to except a case from their operation when compelling reasons so
warrant or when the purpose of justice requires it. What constitutes good
and sufficient cause that would merit suspension of the rules is
discretionary upon the courts. (Commissioner of Internal Revenue vs.
Migrant Pagbilao Corporation., G.R. No. 159593, October 12 ,2006;
Redena vs Court of Appeals, G.R. No. 146611, February 6, 2007)
b. There are, indeed reasons which would warrant the suspension of the
Rules:
i. The existence of special or compelling circumstances;
ii. Merits of the case;
iii. A cause not entirely attributable to the fault or negligence of the
party favored by the suspension of rules;
iv. A lack of any showing that the review sought is merely frivolous
and dilatory; and
v. The other party will not be unjustly prejudiced thereby.
(Sarmiento vs. Zaratan, G.R. No. 167471, February 5, 2007)

21. Power of the Supreme Court to amend or suspend procedural rules

Inherent power of the Supreme Court to suspend its own rules or to exempt a
particular case from the operation of said rules whenever demanded by justice.
(Rep. vs. Court of Appeals, 107 SCRA 504 [1981])

22. Retroactive application of the fresh period rule to appeal

To standardize the appeal periods ad afford litigants fair opportunity to appeal,

the Supreme Court rules in Neypes vs. Court of Appeals, the litigants must be
given a fresh period of 15 days within which to appeal, counted from receipt of
the order dismissing a motion for a new trial or motion for reconsideration
under Rules 40, 41, 42, 43, 45 of the Rules of Court. This ruling, as the Supreme
Court said in Fil-Estate Properties, Inc., vs. Homena Valencia, retroactively
applies even to cases pending prior to the promulgation of the Neypes on
September 14, 2005, there being no vested rights in the rules of procedure.
(Elena Jane Duarte vs. Miguel Samuel A.E. Duran, G.R. No. 173038, September 14,
2011)

CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

Coverage of Judicial Power

Judicial Power includes the power and duty of the court to:
1. Settle actual controversies involving rights which are legally demandable and
enforceable; and
2. To determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

Due Process of Law

The essence of procedural due process is found in the reasonable opportunity to be

heard and submit one’s evidence in support of his defense. (PDIC vs. Philippine
Countryside Rural Bank, Inc., G.R. No. 176438, January 24, 2011, 640 SCRA 322)

Formal or trial type hearing is not essential: Opportunity to be heard and explain one’s
side is enough.

The essence of due process is simply an opportunity to be heard, a formal or trial-type

is not essential as the due process requirement is satisfied where the parties are
afforded fair and reasonable opportunity to explain their side. (Areno, Jr. vs. Skycable
PCC, G.R. No. 180302, February 5, 2010, 611 SCRA 721)

Equal Protection of Laws

Equal protection simply provides that all persons or things similarly situated should be
treated in a similar manner, both as to rights conferred and responsibilities imposed.
The purpose of the equal protection clause is to secure every person within a state’s
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state’s duly
constituted authorities. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate government
objective. (Bureau of Customs Employee Association vs. Teves, G.R. No. 181704,
December 6, 2011)

Eminent Domain

Eminent domain is the power of the state to take private property for public use. It is an
inherent power of State as it is a power necessary for the State’s existence; it is power
the State cannot do without. As an inherent power, it does not need at all to be
embodied in the Constitution; if it is mentioned at all, it is solely for purposes of limiting
what is otherwise an unlimited power. The limitation is found in the Bill of Rights – that
part of the Constitution whose provisions all aim at the protection of individuals against
excessive exercise of governmental powers. (Republic of the Philippines vs. Sps. Tan
Song Bok, G.R. No. 191448, November 16, 2011)

In expropriation proceedings due process must be strictly followed

In expropriation, the private owner is deprived of property against his will. Withal, the
mandatory requirement of due process ought to be strictly followed, such that the state
must show, at the minimum, a genuine need, an exacting public purpose to take private
property, the purpose to be specifically alleged or least reasonably deductible from the
complaint. (Vda. De Quano vs. Republic, G.R. No. 168770, February 9, 2011, 642 SCRA
384)

Meaning of “compensable taking”

The taking of private property for public use, to be compensable, need not be an actual
physical taking or appropriate. Compensable taking includes destruction, restriction,
diminution, or interruption of the rights of ownership or of the common and necessary
use of enjoyment of the property in a lawful manner, lessening or destroying its value. It
is neither necessary that the owner be deprived of the use of his property, nor material
whether the property is removed from the possession of the owner, or in any respect
changes hands. (National Power Corporation vs. Heirs of Macabangkit Sangkay, G.R. No.
165828, August 24, 2011)

Expropriation must be for public use only

Public use, as an eminent domain concept has now acquired an expansive meaning to
include an use that is of “usefulness, utility, or advantage, or what is productive of
general benefit of the public.” If the genuine public necessity – the very reason or
condition as it were – allowing, at the first instance, the expropriation of a private land
ceases or disappears, then there is no more cogent point for the government’s retention
of the expropriated land. The same legal situation should hold if the government
devotes the property to another public use very much different from the original or
deviates from the declared purpose to benefit another private person. It has been said
that the direct use by the state of its power to oblige landowners to renounce their
productive possession to another citizen, who will use it predominantly for that
citizen’s own private gain, is offensive to our laws. (Vda. De Quano vs. Republic, G.R. No.
168770, February 9, 2011, 642 SCRA 384)

Right to speedy trial

Factors to determine delay

In determining whether petitioner was deprived of his right to speedy trial, the factors
to consider and balance are the following:

1. Duration of the delay;

2. Reason therefore;
3. Assertion of the right or failure to assert it; and
4. Prejudice caused by such delay. (Mari vs. Gonzales, G.R. No. 187728, September
12, 2011)

Numbers of postponement not determinative of violation of the right to speedy trial

In determining the right of an accused to speedy trial, courts required to do more than a
mathematical computation of the number of postponements of the scheduled hearings
of the case. A mere mathematical reckoning of the time involved is clearly insufficient,
and particular regard must be given to the facts and circumstances peculiar to each
case. (Mari vs. Gonzales, G.R. No. 187728, September 12, 2011)

Right to speedy trial applicable in all cases

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. (Roquero vs. Chancellor of UP-Manila, G.R. No. 181851, March 9, 2010, 614
SCRA 723)

Purpose of speedy trial

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. (Roquero vs. Chancellor of UP-
Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723)

Power of the Supreme Court to promulgate rules carries with it the power to overturn
judicial precedents

The constitutional power of the Supreme Court to promulgate rules of practice and
procedure to amend or repeal the same necessarily carries with it the power to
overturn judicial precedents on points of remedial law through the amendment of the
Rules of Court. (Pinga vs. Heirs of Santiago, G.R. No. 170354, June 30, 2006)

Power of the Supreme Court to promulgate rules are means for jurisdiction to be
exercised

The Rules of Court does not define jurisdictional boundaries of the courts. In
promulgating the Rules of Court, the Supreme Court is circumscribed by the zone
properly denominated as the promulgation of rules concerning pleading, practice, and
procedure in all courts; consequently, the Rules of Court can only determine the means,
ways or manner in which said jurisdiction, as fixed by the Constitution and acts of
Congress, shall be exercised. (Minerva A. Gomez-Castillo vs. COMELEC, G.R. No. 187231,
June 22, 2011)

The power to promulgate rules of procedure must conform the Constitution

While the Constitution grants the Supreme Court the power to promulgate rules
concerning the practice and procedure in all courts (and allows the Court to regulate
the consideration of 2nd motions for reconsideration, including the vote that the Court
shall require), these procedural rules must be consistent with the standards set by the
Constitution itself. Among these constitutional standards is the above Sec. 4 which
applies to “all other cases which are under the Rules of Court are required to be heard
en banc,” and does not make any distinction as to the type of cases or rulings it applies
to, i.e., whether these cases are originally filed with the Supreme Court, or cases on
appeal, or rulings on the merits of motions before the Court. Thus, rulings on the merits
by the Court en banc on 2nd motions for reconsideration, if allowed by the Court to be
entertained under its Internal Rules, must be decided with the concurrence of a
majority of the Members who actually took part in the deliberations. (Apo Fruits
Corporation and Hijo Plantation, Inc. vs. Land Bank of the Philippines, G.R. No. 164195,
April 5, 2011)

STAGES OF CIVIL PROCEDURE

FIRST STAGE – REFERRAL TO THE BARANGGAY

Purpose/Objective of Barangay Law

The primordial objective of P.D. 1508 is to reduce the number of court litigations and
prevent the deterioration of the quality of justice which has been brought by the
indiscriminate filing of cases in the courts. To ensure this objective, Sec. 6 of P.D. 1508
requires the parties to undergo a conciliation process before the Lupon Chairman or the
Pangkat ng Tagapagkasundo as a precondition to filing a complaint in court subject to
certain exceptions which are inapplicable to this case. The said section has been
declared compulsory in nature. (Librada M. Aqiono vs. Ernest S. Laure, G.R. No. 153567,
February 18, 2008)

Rule regarding referral to the barangay

No complaint, petition, action or proceeding involving any matter within the authority
of the Lupon shall be filed or instituted directly or indirectly in court or in any other
government office for adjudication, unless there has been a confrontation between the
parties before the Lupon chairman or the Pangkat, and that no conciliation or
settlement has been reached as certified by the Lupon or Pangkat Chairman.

Barangay conciliation procedure, a condition precedent: must be alleged otherwise the

case will be dismissed

The compulsory process of barangay conciliation is a pre-condition for the filing of the
complaint in court. Where the complaint (a) did not state that it is one of the excepted
cases, or (b) it did not allege prior availment of said conciliation process, or (c) did not
have a certification that no conciliation had been reached by the parties, the case should
be dismissed. (Leticia B. Agbayani vs. Court of Appeals, Department of Justice and Loida
Marcelina J. Genabe, G.R. No. 183623, June 25, 2012)

Exceptions to the rule on referral of the case to the barangay (Sec 408)

1. Where one party is the government, or any subdivision or instrumentality

thereof;
2. Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding
P5,000;
4. Offenses where there is no private offended party;
5. Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
6. Disputes involving parties who actually reside in barangay of different cities or
municipalities, except where such barangay units adjoin each other and the
parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon.

Actual residency necessary in order for the lupon to acquire jurisdiction

In fine, since the plaintiff-herein petitioner, the real-party-in-interest, is not an actual

resident of the barangay where the defendant-herein respondent resides, the local
lupon has no jurisdiction over their dispute, hence, prior referral to it for conciliation is
not a pre-condition to its filing in court. (Dante M. Pascual represented by Reymel R.
Sagario vs. Marilou M. Pascual, G.R. No. 157830, November 17, 2005)

Sec 412(b) of LGC provides that:

Where the parties may go directly to court – The parties may go directly to court in the
following instances:
1. Where the accused is under detention;
2. Where a person has otherwise been deprived of personal liberty calling for
habeas corpus proceedings (Edwin N. Tribiana vs. Lourdes M. Tribiana, G.R. No.
137359, September 13, 2004)
 3. Where the actions are coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal liberty, and support pendent lite;
and
4. Where the action may otherwise be barred by the statute of limitations.

Other instances where the party may file case directly with the court pursuant to Adm.
Circular No. 14-93

1. Offenses for which the law prescribes a maximum penalty of imprisonment

exceeding 1 year for a fine over P5,000;
2. Offenses where there is no private offended party;
3. Disputes where the urgent legal action is necessary to prevent injustice from
being committed or further continued, specifically the following:
a. Criminal cases where the accused is under police custody or detention
(See 412[b][1], Revised Katarungang Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of his rightful
custody over another or a person illegally deprived of his liberty or one
acting in his behalf;
4. Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the pendency of
the action; and
5. Actions which may be barred by Statute of Limitations.

Who are persons not covered by Barangay Law? (Sec 410 of LGC)

The provision of law applies only to cases involving natural persons, and not where any
of the parties is a juridical person such as corporation, partnership, corporation sole,
testate or intestate estate. Our Honorable Court in the case of Vda. De Borromeo vs.
Pogoy, 126 SCRA 217, has already ruled that: “Since the real-party-in-interest in this
case is the intestate estate which is a juridical person, the plaintiff administrator may
file the complaint in court without the same being coursed to the barangay lupon for
arbitration.”

Personal appearance in Barangay Proceedings. Rationale: Prohibition on lawyers

The provision clearly requires the personal appearance of the parties in katarungang
pambarangay conciliation proceedings, unassisted by counsel or representative. The
rationale behind the personal appearance requirement is to enable the lupon to secure
first hand and direct information about the facts and issues, the exception being in cases
where the minors or incompetents are parties. There can be no quibbling that laymen of
goodwill can easily agree to conciliate and settle their disputes between themselves
without what sometimes is the unsettling assistance of lawyers whose presence could
sometimes obfuscate and confuse issues. Worse still, the participation of lawyers with
their penchant to use their analytical skills and legal knowledge tend to prolong instead
of expedite settlement of the case. (Atty. Evelyn J. Magno vs. Atty. Olivia Velasco-Jacoba,
November 22, 2005, A.C. No. 6296)

Duty of the judge to determine if there is compliance with barangay conciliation

procedure before judicial actions can be conducted

All complaints and/or informations filed or raffled to your sala/branch of the Regional
Trial Court, Metropolitan Trial Court or Municipal Trial Court shall be carefully read and
scrutinized to determine if there has been a compliance with prior Barangay
conciliation procedure under the Revised Katarungang Pambarangay Law and its
Implementing Rules and Regulations, as a pre-condition to judicial action, particularly
whether the certification to file action attached to the records of the case comply with
the requirements hereinabove enumerated in par. II. (paragraph 4 of Adm. Circ. 14-93)

Confrontation with the Lupon Chairman for amicable settlement is considered as

substantial compliance with the law on barangay

Here, the Lupon/Pangkat Chairman and Lupon/Pangkat Secretary signed the Certificate
to File Action stating that no settlement was reached by the parties. While admittedly
no pangkat was constituted, it was not denied that the parties met at the office of the
Barangay Chairman for possible settlement. The efforts of the Barangay Chairman,
however, proved futile as no agreement was reached. Although no pangkat was formed,
in our mind, there was substantial compliance with the law. It is noteworthy that under
the aforequoted provision, the confrontation before the Lupon Chairman or the pangkat
is sufficient compliance with the precondition for the filing of the case in court. This is
the truth notwithstanding the mandate of Sec. 410(b) of the same law that the Barangay
Chairman shall constitute a pangkat if he fails in his mediation efforts. Sec. 410(b)
should be construed together with Sec. 412, as well as the circumstances obtaining in
and peculiar to the case. On this score, it is significant that the Barangay Chairman or
Punong Barangay is herself the Chairman of the Lupon under the Local Government
Code. (Milagros G. Lumbuan vs. Alfredo A. Ronquillo, G.R. No. 155713, May 5, 2006)

What are the effects of non-referral of the case with the Barangay?

It is well settled that the non-referral of a case for barangay conciliation when so
required under the law is not jurisdictional in nature and may therefore be deemed
waived if not raised seasonably in a motion to dismiss. (Fidel M. Banares II, et. al. vs.
Elizabeth Balising, et al., G.R. No. 132624, March 13, 2000)

Non-compliance with barangay conciliation, a ground for a Motion to Dismiss for failure
to comply with the condition precedent.

What is the nature of dismissal?

The dismissal of the case for failure to comply with the condition precedent of non-
referral of the case to the barangay for purpose of conciliation is without prejudice.

What is the remedy of the plaintiff/claiming party?

1. Before the finality of the order of dismissal, comply with the requirements and
motion to revive;
2. After the order of dismissal becomes final and executor, re-file the case after the
compliance with condition precedent.

Under the Rules on Summary Procedure, motu propio dismissal for the case for failure
to comply with the barangay conciliation. (Sec. 4 of the Rules of Summary Procedure)

Remedy (Sec 18 on the Rules of Summary Procedure)

Revival after compliance. However, it shall not apply to criminal cases where the
accused was arrested without warrant

Dismissal of the case for failure to refer to baranggay is “without prejudice”, and cannot
be revived by motion after it becomes final:

Equally erroneous is private respondent’s contention that the rules regarding finality of
judgments under the Revised Rules of Court do not apply to cases covered by the 1991
Revised Rule on Summary Procedure. Private respondents claim that Sec. 18 of the
1991 Revised Rule on Summary Procedure allows the revival of cases which were
dismissed for failure to submit the same to conciliation at the barangay level, as
required under Sec. 412 in relation to Sec. 408 of the Local Government Code.

There is nothing in the aforecited provision which supports private respondents’ view.
Sec 18 merely states that when a case covered by the 1991 Revised Rule on Summary
Procedure is dismissed without prejudice for non-referral of the issues to the Lupon,
the same may be revived only after the dispute subject of the dismissed case is
submitted to barangay conciliation as required under the Local Government Code.
There is no declaration to the effect that said case may be revived by mere motion even
after the fifteen-day period within which to appeal or to file a motion for
reconsideration has lapsed. (Fidel M. Banares Li, et. al. vs. Elizabeth Balising, et. al., G.R.
No. 132624, March 13, 2000)

Therefore, the remedy in case of dismissal on cases on summary procedure

1. It may be revived by motion within the 15-day period from notice of order of
dismissal after such requirement has been complied with;
2. Compliance with the rule and re-filing of the case.

Remanding of the case by the court to the barangay cured the defect in the barangay
conciliation

The court does not agree with petitioner’s assertion that the filing of the unlawful
detainer case was premature, because respondent failed to comply with the provisions
of the law on barangay conciliation. As held by the RTC, Barangay Kauswagan City
Proper, through its Pangkat Secretary and Chairman, issued not one but two certificates
to file action after herein petitioners and respondent failed to arrive at an amicable
settlement. The Court finds no error in the previous conciliation proceedings leading to
the issuance of the first certificate to file action, which was alleged to be defective, has
already been cured by the MTCC’s act of referring back the case to the Pangkat
Tagapagkasundo of Barangay Kausawagan for proper conciliation and mediation
proceedings. These subsequent proceedings led to the issuance anew of certificate to
file action. (Anita Monasterio-Pe and the Spouses Romulo Tan and Editha Pe-Tan vs.
Jose Juan Tong, herein represented by his Attorney-in-Fact, Jose Y. Ong, G.R. No.
151369, March 23, 2011)

Effect of Amicable Settlement at the Barangay Level

Cognizant of the beneficial effects of amicable settlements, the Katarungang

Pambarangay Law (P.D. 1508) and later the Local Government Code provide for a
mechanism for conciliation where party-litigants can enter into an agreement in the
barangay level to reduce the deterioration of the quality of justice due to indiscriminate
filing of court cases. Thus, under Sec 416 of the said Code, an amicable settlement shall
have the force and effect of a final judgment of the court upon the expiration of 10 days
from the date thereof, unless repudiation of the settlement has been made or a petition
to nullify the award has been filed before the proper court. (Proceso Quiros, et al. vs.
Marcelo Arjona, et al., G.R. No. 158901, March 9, 2004)

Grounds for repudiation of amicable settlement

Under Sec. 416 of the LGC, the amicable settlement executed by the parties before the
Lupon on the arbitration award has the force and effect of a final judgment of a court
upon the expiration of 10 days from the date thereof, unless the settlement is
repudiated within the period therefor, where the consent is vitiated by force, violence
or intimidation, or a petition to nullify the award is filed before the proper city or
municipal court. The repudiation of the settlement shall be sufficient basis for the
issuance of a certification to file a complaint. (Ma. Teresa Vidal, et. al. vs. Ma. Teresa O.
Escueta, G.R. No. 156228, December 10, 2003)

Rules of venue of referral of the case to the barangay (Sec 409)

1. Disputes between or among persons actually residing in the same barangay shall
be brought for amicable settlement before the Lupon of said barangay.

2. Those involving actual residents of different barangays within the same city or
municipality shall be brought in the barangay where the respondent or any of
the respondents actually resides, at the election of the complainant.

However, all disputes which involve real property or any interest therein shall
be brought in the barangay where the real property or any part thereof is
situated.

3. Also, those arising at the workplace where the contending are employed or at
the institution where such parties are enrolled for study, shall be brought in the
barangay where such workplace or institution is located.

Procedure to arrive at an amicable settlement in the barangay (Sec 410 of LGC)

1. Filing of the complaint orally or in writing with the lupon chairman, and
payment of filing fee;
2. Upon receipt of the complaint, the lupon chairman shall, within the next working
day, summon the respondent(s), with notice to the complainant(s) for them and
their witnesses to appear before him for a mediation of their conflicting
interests. If he fails in his mediation effort within 15 days from the first meeting
of the parties before him, he shall forthwith set a date for the constitution of the
pangkat in accordance with the provisions of this Chapter.
3. The pangkat shall arrive at a settlement or resolution of the dispute within 15
days from the day it convenes in accordance with this Section. This period shall,
at the discretion of the pangkat, be extendible for another period which shall not
exceed 15 days, except in clearly meritorious cases.

Effect of mediation, conciliation, and arbitration in the interruption of prescriptive

period of offenses and cause of action.

1. Upon the receipt of the complaint by the Punong Barangay

While the dispute is under mediation, conciliation, or arbitration, the

prescriptive periods for offenses and cause of action under existing laws shall be
interrupted upon filing of the complaint with the punong barangay.

2. Upon the receipt of the complainant: Certificate of repudiation: Certificate to file

action

The prescriptive periods shall resume upon receipt by the complainant of the
complaint or the certificate of repudiation or of the certification to file action
issued by the lupon or pangkat secretary.

3. Period of interruption of prescriptive period of offenses and cause of action.

 Such interruption shall not exceed sixty days from the filing of the complaint
with the punong barangay.

Actions of the court in case of non-compliance with the conciliation proceedings

A case filed in court without compliance with prior Barangay conciliation which is a
pre-condition for formal adjudication (Sec 412[a] of the Revised Katarungang
Pambarangay Law) may be dismissed upon motion of defendant/s, not for lack of
jurisdiction of the court but for failure to state a cause of action or prematurity (Royales
vs. IAC, 127 SCRA 470; Gonzales vs .CA 151 SCRA 289), or the court may suspend
proceedings upon petition of any party under Sec. 1, Rule 21 of the Rules of Court; and
refer the case motu propio to the appropriate Barangay authority, applying by analogy
Sec. 408(g), 2nd par. of the Revised Katarungang Pambarangay Law (Adm. Circ. 14-93)

Lack of conciliation process does not affect the jurisdiction of the court once it acquires
jurisdiction over the subject matter and the defendant.

It is true that the precise technical effect of failure to comply with the requirement of
Sec. 412 of the Local Government Code on barangay conciliation (previously contained
in Sec. 5 pf P.D. 1508) is much the same effect produced by non-exhaustion of
administrative remedies – the complaint becomes afflicted with the vice of pre-
maturity; and the controversy there alleged is not ripe for judicial determination. The
complaint becomes vulnerable to a motion to dismiss. Nevertheless, the conciliation
process is not a jurisdictional requirement, so that non-compliance therewith cannot
affect their jurisdiction which the court has otherwise acquired over the subject matter
or over the person of the defendant. (Librada M. Aquino vs. Ernest S. Laure, G.R. No.
153567, February 18, 2008)

Lack of barangay conciliation must be raised in a motion to dismiss, otherwise waived

It is well-settled that the non-referral of a case for barangay conciliation when so

required under the law is not jurisdictional in nature and may therefore be deemed
waived if not raised seasonably in a motion to dismiss. The Court notes that although
petitioners could have invoked the ground of prematurity of the causes of action against
them due to the failure to submit the dispute to Lupon prior to the filing of the cases as
soon as they received the complaints against them, petitioners raised the said ground
only after their arraignment. (Fidel M. Banares Li, et.al. vs. Elizabeth Balising, et. al., G.R.
No. 132624, March 13, 2000)

New complaint should be filed before the barangay against the heirs of the original
respondent, otherwise there is non-compliance of the rule

The court thus rules that the petitioner’s complaint against the respondent Heirs of
Carlos Palanca was premature. It bears stressing that they were not impleaded by the
petitioner as parties-respondents before the Lupon. The petitioner filed her complaint
solely against respondent Josephine Pablo. Moreover, the said respondent heirs were
not privy to the said agreement, and, such were not bound by it. (Estela L. Berba vs
.Josephine Pablo and The Heirs of Carlos Palanca, G.R. No. 160032, November 11, 2005)

Effect of amicable settlement and arbitration award (Sec. 416 of R.A. 7160)

Amicable settlement and arbitration award entered into by the parties during the
conciliation proceedings at the barangay level has the force and effect of a final
judgment of a court after 10 days from its date, unless repudiated. (Proceso Quiros, et.
al. vs . Marcelo, et. al., G.R. No. 158901, March 9, 2004)
Earnest efforts towards amicable settlement between members of the same family
under Art . 151 of the Family Code must be complied with

The petitioners were able to comply with the requirements of Art. 151 of the Family
Code because they alleged in their complaint that they had initiated a proceeding
against the respondent for unlawful detainer in the Katarungang Pambarangay, in
compliance with P.D. 1508; and that, after due proceedings, no amicable settlement was
arrived at, resulting in the barangay chairman’s issuance of a certificate to file action.
The Court rules that such allegation in the complaint, as well as the certification to file
action by the barangay chairman, is sufficient compliance with Art 151 of the Family
Code. It bears stressing that under Sec. 412(a) of Republic Act 7160, no complaint
involving any matter within the authority of the Lupon shall be instituted or filed
directly in court for adjudication unless there has been a confrontation between the
parties and no settlement was reached. (April Martinez, Fritz Daniel Martinez and Maria
Olivia Martinez vs. Rodolfo G. Martinez, G.R. No. 162084, June 28, 2005

Amicable Settlement has the force and effect of final judgment/res judicata even not
judicially approved: Remedies for enforcement.

It is true that an amicable settlement reached at the barangay conciliation proceedings,

like the Kasunduang Pag-aayos in this case, is binding between the contracting parties
and, upon its perfection, is immediately executor insofar as it is not contrary to law,
good morals, good customs, public order and public policy. This is in accord with the
broad precept of Art. 2037 of the Civil Code, viz.:

A compromise has upon the parties the effect and authority if res judicata; but there
shall be no execution except in compliance with a judicial compromise.

Being a by-product of mutual concessions and good faith of the parties, an amicable
settlement has the force and effect of res judicata even if not judicially approved. It
transcends being a mere contract binding only upon the parties thereto, and is akin to a
judgment that is subject to execution in accordance with the Rules. Thus, under Sec 417
of the Local Government Code, such amicable settlement or arbitration award may be
enforced by execution by the Barangay Lupon within six (6) months from the date of
settlement, or by filing an action to enforce such settlement in the appropriate city or
municipal court, if beyond the six-month period.

Under the first remedy, the proceedings are covered by the Local Government Code and
Katarungang Pambarangay Implementing Rules and Regulations. The Punong Barangay
is called upon during the hearing to determine solely the fact of non-compliance of the
terms of the settlement and to give the defaulting party another chance at voluntarily
complying with his obligation under the settlement. Under the second remedy, the
proceedings are governed by the Rules of Court, as amended. The cause of action is the
amicable settlement itself, which, by operation of law, has the force and effect of a final
judgment. (Crisanta Alcaraz Miguel vs. Jerry D. Montanez, G.R. No. 191336, January 25,
2012)

Execution of amicable settlement or arbitration award

1. Execution by lupon within six (6) months from the date of settlement; and
2. After the lapse of such time, the settlement may be enforced by action in the
appropriate city or municipal court.

Execution of amicable settlement within six (6) months from execution before filing of
the action to the court: effect
We agree with the contention of the petitioners that under Sec 416 of the LGC, the
amicable settlement executed by the parties before the Lupon on the arbitration award
has the force and effect of a final judgment of a court upon the expiration of ten (10)
days from the date thereof, unless the settlement is repudiated within the period
therefore, where the consent is vitiated by force, violence or intimidation, or a petition
to nullify the award filed before the proper city or municipal court. The repudiation of
the settlement shall be sufficient basis for the issuance of a certification to file a
complaint. (Ma. Teresa Vidal, Lulu Marquez, and Carlos Sobremonte, petitioners vs. Ma.
Teresa O. Escueta, represented by Herman O. Escueta, G.R. No. 156228, December 10,
2003)

How to execute agreement after six months period under Sec. 417: Venue? Enforcement
of amicable settlement does not fall under summary procedure

By express provision of Sec. 417 of the LGC, an action for the enforcement of the
settlement should be instituted in the proper municipal or city court. This is regardless
of the nature of the complaint before the Lupon, and the relief prayed for therein. The
venue for such actions is governed by Rule 4, Sec. 1 of the 1997 Rules of Civil Procedure,
as amended. An action for the enforcement of a settlement is not one of those covered
by the Rules on Summary Procedure in civil cases; hence, the rules on regular
procedure shall apply, as provided for in Sec. 1, Rule 5 of the Rules of Civil Procedure, as
amended. ((Ma. Teresa Vidal, Lulu Marquez, and Carlos Sobremonte, petitioners vs. Ma.
Teresa O. Escueta, represented by Herman O. Escueta, G.R. No. 156228, December 10,
2003)

Repudiation of the settlement

Any party to the dispute may repudiate the settlement within 10 days from the date of
the said settlement by:
1. Filing with the lupon chairman a statement to that effect sworn to before him
where the consent is vitiated by fraud, violence, or intimidation.
2. Under Sec 416 of the LGC, the amicable settlement executed by the parties
before the Lupon on the Arbitration award has the force and effect of a final
judgment of a court upon the expiration of 10 days from the date thereof, unless
the settlement is repudiated within the period therefor, where the consent is
vitiated by force, violence or intimidation, or a petition to nullify the award is
filed before the proper city or municipal court. The repudiation of the settlement
shall be sufficient basis for the issuance of a certification to file a complaint. (Ma.
Teresa Vidal, et. al. vs. Ma. Teresa O. Escueta, G.R. 156228, December 10, 2003)

Remedies in case of repudiation of the amicable settlement: Amicable settlement

deemed rescinded even without court intervention

It must be emphasized, however, that enforcement by execution of the amicable

settlement, either under the first or the second remedy, is only applicable if the
contracting parties have not repudiated such settlement within 10 days from the date
thereof in accordance with Sec. 416 of the Local Government Code. If the amicable
settlement is repudiated by one part, either expressly or impliedly, the other party has
two options, namely, to enforce the compromise in accordance with the Local
Government Code or Rules of Court as the case may be, or to consider it rescinded and
insist upon his original demand. This is in accord with Art. 2041 of the Civil Code, which
qualifies the broad application of Art. 2037, viz.:

If one of the parties fail or refuses to abide by the compromise, the other party may
either enforce the compromise or regard it as rescinded and insist upon his original
demand.
In the case of Leonor vs. Sycip, the Supreme Court had the occasion to explain this
provision of law. It ruled that Art. 2041 does not require an action for rescission, and
the aggrieved party, by the breach of compromise agreement, may just consider it
already rescinded, to wit:

It is worthy of notice, in this connection, that, unlike Art. 2039 of the same Code, which
speaks of “a cause of annulment or rescission of the compromise” and provides that
“the compromise may be annulled or rescinded” for the cause therein specified, thus
suggesting an action for annulment or rescission said Art. 2041 confers upon the party
concerned, not a “cause” for rescission, or the right to “demand” the rescission of a
compromise, but the authority, not only to “regard it as rescinded,” but also to “insist”
upon his original demand. The language of this Art. 2041, and that the party aggrieved
by the breach of a compromise agreement, may, if he chooses, bring the suit
contemplated or involved in his original demand, as if there had never been any
compromise agreement, without bringing an action for rescission thereof. He need not
seek a judicial declaration of rescission, for he may “regard” the compromise agreement
already “rescinded.” (Crisanta Alcaraz Miguel vs. Jerry D. Montanez, G.R. No.191336,
January 25, 2012)

Enforcement of amicable settlement before the barangay or through regular court

As well stated in the case of Chavez vs. Court of Appeals, a party’s non-compliance with
the amicable settlement paved the way for the application of Art. 2041 under which the
other party may either enforce the compromise, following the procedure laid out in the
Revised Katarungang Pambarangay Law, or consider it as rescinded and insist upon his
original demand. To quote:

In the case at bar, the Revised Katarungang Pambarangay law provides for a two-tiered
more of enforcement of an amicable settlement, to wit: (a) by execution by the Punong
Barangay which is quasi-judicial and summary on nature on mere motion of the party
entitled thereto; and (b) an action in regular form, which remedy is judicial. However,
the mode of enforcement does no rule out the right of rescission under Art 2041 of the
Civil Code. The availability of the right of rescission is apparent from the wording of Sec.
417 which provides that the amicable settlement “may” be enforced by execution by the
lupon within six (6) months from its date or by action in the appropriate city or
municipal court, if beyond that period. The use of the word “may” clearly makes the
procedure provided in the Revised Katarungang Pambarangay Law directory or merely
optional in nature. (Crisanta Alcaraz Miguel vs. Jerry D. Montanez, G.R. No. 191336,
January 25, 2012)

Requirements for the issuance of a Certificate to file Action

1. Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong
Barangay), certifying that a confrontation of the parties has taken place and that
a conciliation or settlement has been reached, but the same has been
subsequently repudiated. (Sec 412, Revised Katarungang Pambarangay Law; Sec
2[h], Rule III, Katarungang Pambarangay Rules)
2. Issued by the Pangkat Secretary and attested by the Pangkat Chairman,
certifying that:
a. A confrontation of the parties took place but no conciliation/settlement
has been reached (Sec 4[f], Rule III, Katarungang Pambarangay Rules); or
b. That no personal confrontation took place before the Pangkat through no
fault of the complainant (Sec 4[f], Rule III, Katarungang Pambarangay
Rules)
 3. Issued by the Punong Barangay, as requested by the proper party on the ground
of failure of settlement where the dispute involves members of the same
indigenous cultural community, which shall be settled in accordance with the
customs and traditions of that particular cultural community, or where one or
more of the parties to the aforesaid dispute belong to the minority and the
parties mutually agreed to submit their dispute to the indigenous system of
amicable settlement, and there has been no settlement as certified by the datu or
tribal leader or elder to the Punong Barangay of the place of settlement. (Secs. 1,
4 and 5, Rule IX, Katarungang Pambarangay Rules)
a. Instances of non-issuance of certification: Constitution of Pangkat by the
Punong Barangay

If mediation or conciliation efforts before the Punong Barangay proved

unsuccessful, there having been no agreement to arbitrate (Sec 410[b],
Revised Katarungang Pambarangay Kaw; Sec. 1, c[1], Rule III,
Katarungang Pambarangay Rules), or where the respondent fails to
appear at the mediation proceeding before the Punong Barangay (3rd
par., Sec. 8, a, Rule IV, Katarungang Pambarangay Rules), the Punong
Barangay shall not cause the issuance at this stage of a certification to file
action, because it is now mandatory for him to constitute the Pangkat
before whom mediation, conciliation, or arbitration proceedings shall
held.

SECOND STAGE – PLEADINGS/COMPLAINT

Distinction between initiatory pleading and responsive pleading

1. Initiatory pleading is a pleading which commences an action containing
plaintiff’s cause or cause of action, while responsive pleading is a pleading which
responds to the adverse party’s pleading;
2. Initiatory pleading needs to be verified while a responsive pleading need not be
verified as a general rule, except those required to be verified under the rules
and law;
3. Initiatory pleadings should contain a certification of non-forum shopping, while
a responsive pleading need not contain a certification of non-forum shopping,
unless it is accompanied by counterclaim or cross-claim.

Initiatory pleading is a pleading filed before the court which commences an action.
1. Original complaint
2. Permissive counterclaim
3. Cross claim
4. Third-party complaint
5. Fourth-party complaint
6. Complaint-in-intervention
7. Petition (including special action and special proceedings)
8. Statement of claims under the Rules on Small Claims

Responsive pleading is:

1. a pleading which responds to the pleadings of the adverse party
2. a pleading that replies to the opponent’s earlier pleading. (Black’s Law
Dictionary, ninth edition, pg. 1271, April 2009)

1. Answer to the original complaint

2. Answer to the permissive counterclaim
3. Answer to the cross claim
4. Answer to the third party complaint
5. Answer to the fourth party complaint
 6. Answer to the complaint in intervention
7. Answer to the amended pleading
8. Answer to the supplemental pleading
9. Reply to all the answers
10. Compulsory counterclaim
11. Response in a Small Claims Case

A complaint is the pleading alleging the plaintiff’s cause or causes of action.

The matters contained in the complaint

1. The names and residences of the plaintiff and defendant.
2. The acts or omission constituting the cause or causes of action must be alleged in
the complaint.
3. The relief prayed for.

What must be alleged in the complaint?

Only the ultimate facts and not legal conclusions or evidentiary facts, which should not
be alleged in the complaint in the first place, are considered for purposes of applying
the test. (D.M. Ferrer & Associates Corporation vs. University of Santo Tomas, G.R. No.
189496, February 1, 2012)

Compulsory Counterclaim is a pleading which, being cognizable by the regular courts of

justice, arises out of or is connected with the transaction or occurrence constituting the
subject matter of the opposing party’s claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire jurisdiction.

Requirements of a counterclaim
1. It must be within the jurisdiction of the court both as to the amount and the
nature thereof.
2. Except that in an original action before the Regional Trial Court, the
counterclaim may be considered compulsory regardless of the amount.

Permissive counterclaim is a claim which, being cognizable by the regular courts of

justice, which does not arise out of or is not connected with the transaction or
occurrence constituting the subject matter of the opposing party’s claim and require for
its adjudication the presence of third parties of whom the court can acquire jurisdiction.

Rule on bringing new parties (Sec. 12, Rule 6 of the 1997 Rules of Civil Procedure)

When the presence of parties other than those to the original action is required for the
granting of complete relief in the determination of a counterclaim or cross claim, the
court shall order them to be brought in as defendants, if jurisdiction over them can be
obtained.

Nature of a third-party complaint: not mandatory: secondary or derivative liability

Explaining the application of Sec. 12, Rule 6 of the 1997 Rules of Civil Procedure, the
Court said in Balbastro vs. Court of Appeals, to wit:

Sec. 12, Rule 6 of the Revise Rules of Court authorizes a defendant to bring into a
lawsuit any person “not a party to the action … for contribution, indemnity, subrogation
or any other relief in respect of his opponent’s claim.” From its explicit language it does
not compel the defendant to bring the third-parties into the litigation, rather it simply
permits the inclusion of anyone who meets anyone who meets the standard set forth in
the rule. The secondary or derivative liability of the third-party is central – whether the
basis is indemnity, subrogation, contribution, express or implied warranty or some
other theory. The impleader of new parties under this rule is proper only when a right
to relief exists under the applicable substantive law. This rule is merely procedural
mechanism, and cannot be utilized unless there is some substantive basis under
applicable law.

Apart from the requirement that the third-party complainant should assert a derivative
or secondary claim for relief from the third-party defendant there are other limitations
on said party’s ability to implead. The rule requires that the third-party defendant is
“not a party to the action” for otherwise the proper procedure for asserting a claim
against one who is already a party to the suit is by means of counterclaim or cross claim
under Secs. 6 and 7 of Rule 6. In addition to the afore cited requirement, the claim
against the third party defendant must be based upon plaintiff’s claim against the
original defendant (third-party claimant). The crucial characteristic of a claim under
Sec. 12 of Rule 6, is that the original “defendant is attempting to transfer to the third-
party defendant the liability asserted against him by the original plaintiff.” (Philtranco
Service Enterprises, Inc. vs. Felix Paras and Inland Trailways, Inc. and Hon. Court of
Appeals, G.R. No. 161909, April 25, 2012)

Third-party complaint: Requisites

1. That the party to be impleaded must not yet be a party to the action;
2. That the claim against the third-party defendant must belong to the original
defendant;
3. The claim of the original defendant against the third-party defendant must be
based upon the plaintiff’s claim against the original defendant;
4. The defendant is attempting to transfer to the third-party defendant the liability
asserted against him by the original plaintiff.
5. The claim that the third-party complaint asserts against the third-party
defendant must be predicated on substantive law. (Philtranco Service
Enterprises, Inc. vs. Felix Paras and Inland Trailways, Inc., and Hon. Court of
Appeals, G.R. No. 161909, April 25, 2012)

Third-party complaint: when proper?

The third-party claim need not be based on the same theory as the main claim. For
example, there are cases in which the third-party is based on an express indemnity
contract and the original complaint is framed in terms of negligence. Similarly, there
need not be any legal relationship between the third-party there need not be any legal
relationship between the third-party defendant and any other parties to the action.
Impleader also is proper even though the third party’s liability is contingent, and
technically does not come into existence until the original defendant’s liability has been
established. In addition, the words “is or may be liable” in Rule 14(a) make it clear that
impleader is proper even though the third-party defendant’s liability is not
automatically established once the third-party plaintiff’s liability to the original plaintiff
has been determined. (Philtranco Service Enterprises, Inc. vs. Felix Paras and Inland
Trailways, Inc. and Hon. Court of Appeals, G.R. No. 161909, April 25, 2012)

Complaint in intervention is a pleading filed before the court with leave of court by a
person who has a legal interest in the matter in litigation, or against either or all of the
original parties, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.

Answer is a pleading in which a defending party sets forth his defenses.

Reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or
make issue as to such new matters.

If a party does not file such reply, all the new matters alleged in the answer are deemed
controverted.

Matters which can be raised in the answer to the third or fourth party complaint
1. His defenses
2. Counterclaims
3. Cross-claims
4. Defenses that the third-(fourth, etc.) party plaintiff may have against the original
plaintiff’s claim. In proper cases, he may also assert a counterclaim against the
original plaintiff in respect of the latter’s claim against the third-party plaintiff.

Limitations on pleadings in criminal, civil cases, special proceedings and land

registration cases under A.M. No. 11-6-10-SC (February 21, 2012): Guidelines for
Litigation in Quezon City Trial Courts.

The pleadings that may be filed in the trial courts of Quezon City are as follows, to wit:
1. Complaint
2. Answer, and
3. Reply

What are the limitations on the pleadings that may be filed after the reply?
1. With prior leave of court
2. In no case to exceed 40 pages in length, double-spaced, using 14 font

Pleadings, which are allowed under the Rules on Summary Procedure (Sec. 3 of the
Rules on Summary Procedure)
1. Complaint
2. Compulsory Counterclaim pleaded in the answer
3. Cross-claims pleaded in the answer

Prohibited pleadings under the Rules of Summary Procedure (Sec. 19 of the Rules on
Summary Procedure)
1. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
2. Reply;
3. Third-party complaints; and
4. Interventions

Pleadings, which are allowed under the Rules on Small Claims (A.M. 08-8-7-SC, October
27, 2009)
1. Statement of Claims (Form 1-SSC-Sec. 5)
2. Response (Sec. 11)
3. Permissive counterclaim (Sec 13)
4. Compulsory counterclaim (Sec 13)

Prohibited pleadings under the Rules of Small Claims (Sec. 14)

1. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
2. Reply;
3. Third-party complaints; and
4. Interventions
Pleadings, which are not allowed in petition for writ of Amparo and habeas data
1. Counterclaim;
2. Cross-claim;
3. Third-party complaint;
4. Reply; and
5. Pleadings in intervention

Pleadings and motions allowed under the Rules on Environmental Cases (A.M. 09-6-8-
SC April 29, 2010)

Pleadings
1. Complaint
2. Answer which may include compulsory counterclaim

Motions
1. Motion for intervention;
2. Motion for discovery;
3. Motion for reconsideration of a judgment;
4. Motion for postponement, motion for new trial and petitions for relief from
judgment shall be allowed in highly meritorious cases to prevent a manifest
miscarriage of justice.

Prohibited pleadings and motions in environmental cases

1. Motion to dismiss the complaint;
2. Motion for bill of particulars;
3. Motion for extension of time to file pleadings, except to file answer, the extension
not to exceed 15 days;
4. Motion to declare defendant in default;
5. Reply and rejoinder; and
6. Third-party complaint

BASIC CONCEPTS OF JURISDICTION

Origin of the term Jurisdiction

The term derives its origin from two Latin words – “jus” meaning law and the other,
“dicere”, meaning to declare. (I BOUVIER’S LAW DISCTIONARY, pg. 1760 [3rd Revision]
The term has also been variably explained to be “the power of a court to hear and
determine a cause of action presented to it, the power of a court to adjudicate the kind
of case before it, the power of a court to adjudicate a case when the proper parties are
before it, and the power of a court to make the particular decision it is asked to render
(20 Am Jur 2d§55; Allen A. Macasaet, et al. vs. People, G.R. No. 153747, February 23,
2005)

When to raise the issue of jurisdiction? Jurisdiction can be questioned at any stage of
the proceedings even if not raised in the answer or a motion to dismiss.

The general rule is that the jurisdiction of a court may be questioned at any stage of the
proceedings. Lack of jurisdiction is one of those excepted grounds where the court may
dismiss a claim or a case at any time when it appears from the pleadings or the evidence
on record that any of those grounds exists, even if they were not raised in the answer or
in a motion to dismiss. The reason is that jurisdiction is conferred by law, and lack of it
affects the very authority of the court to take cognizance of and to render judgment on
the action. (Honorio Bernardo vs. Heirs of Eusebio Villegas, G.R. No. 1833357, March 15,
2010)
What is the “residual power/jurisdiction” of the court? Ancillary Jurisdiction? (Sec. 9,
Rule 41 of the Revised Rules)

The court of origin loses jurisdiction over the case only upon the perfection of the
appeal filed in due time by the appellant and the expiration of the time to appeal of the
other parties. Withal, prior to the transmittal of the original records of the case to the
CA, the RTC may issue orders for the protection and preservation of the rights of the
prevailing party, as in this case, the issuance of the writ of execution because the
respondent’s appeal was not perfected. (Agustus Gonzales and Spouses Nestor Victor
and Maria Lourdes Rodriguez vs. Quirico Pe, G.R. No. 167398, August 9, 2011)

What is the doctrine of primary jurisdiction? Application

Under the doctrine of primary jurisdiction, courts must refrain from determining a
controversy involving a question which is within the jurisdiction of the administrative
tribunal prior to its resolution by the latter, where the question demands the exercise of
sound administrative discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical and intricate matters of
fact – In recent years, it has been jurisprudential trend to apply [the doctrine of primary
jurisdiction] to cases involving matters that demand the special competence of
administrative agencies. [It may occur that the Court has jurisdiction to take cognizance
of a particular case, which means that the matter involved is also judicial in character.
However, if the case is such that its determination requires the expertise, specialized
skills and knowledge of the proper administrative bodies because technical matters or
intricate questions of fact are involved, then relief must first be obtained in an
administrative proceeding before a remedy will be supplied by the courts even though
the matter is within the proper jurisdiction of a court. This is the doctrine of primary
jurisdiction.] It applies “where a claim is originally cognizable in the courts, and comes
into play whenever enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, have been placed within the special competence of an
administrative body, in such case the judicial process is suspended pending referral of
such issues to the administrative body for its view.” (Rosito Bagunu vs. Spouses
Francisco Aggabao & Rosenda Acerit, G.R. No. 186487, August 15, 2011)

What is the objective of primary jurisdiction?

Strictly speaking, the objective of the doctrine of primary jurisdiction is to guide a court
in determining whether it should refrain from exercising its jurisdiction until after an
administrative agency has determined some question or some aspect of some question
arising in the proceeding before the court. The court cannot or will not determine a
controversy involving a question which is within the jurisdiction of the administrative
tribunal prior to resolving the same, where the question demands the exercise of sound
administrative discretion requiring special knowledge, experience and services in
determining technical and intricate matters of fact. (Vincent E. Omictin vs. Hon. Court of
Appeals [Special Twelfth Division] and George I. Lagos, G.R. No. 148004, January 22,
2007)

Acts and decision of the court is null and void if it is in violation of the doctrine of
primary jurisdiction.

When an administrative body is clothed with original and exclusive jurisdiction, courts
are utterly without power and authority to exercise concurrently such jurisdiction.
Accordingly, all the proceedings of the court in violation of that doctrine and all orders
and decisions reached are null and void. (Manolito Agra, et. al. vs. Commission on Audit,
G.R. No. 167807, December 6, 2011)
Court is precluded in resolving controversy falling under the jurisdiction of an
administrative tribunal: Agrarian cases falls under Department of Agrarian Reform
Board (DARAB)

The doctrine of primary jurisdiction precludes the courts from resolving a controversy
over which jurisdiction has initially been lodged with an administrative body of special
competence. For agrarian reform cases, jurisdiction is vested in the Department of
Agrarian Reform (DAR); more specifically, in the Department of Agrarian Reform
Adjudication Board (DARAB). (Spouses Jesus Fajardo and Emer Fajardo vs. Anito R.
Flores, assisted by her husband, Bienvenido Flores, G.R. No. 167891, January 15, 2010)

What is the “Doctrine of Non-Interference” or “Doctrine of Judicial Stability”?

1. No court can interfere by injunction with the judgment or orders of another
court of concurrent jurisdiction having the power to grant the relief sought by
injunction. The rationale for the rule is founded on the concept of jurisdiction
over its judgment, to the exclusion of all other coordinate courts, for its
execution and over all its incidents, and to control, in furtherance of justice, the
conduct of ministerial officers acting in connection with the judgment. (Atty.
Tomas Ong Cabili vs. Judge Rasad G. Balindong, A.M. No. RTJ-10-2225,
September 6, 2011)
2. No court has authority to interfere by injunction with the judgment of another
court of coordinate jurisdiction. (Ngo Bun Tiong vs. Judge Sayo, 163 SCRA 237)
The various branches of the RTC of a province or city, having as they do the same
or equal authority and exercising as they do concurrent and coordinate
jurisdiction, should not, cannot, and are not permitted to interfere with their
respective cases, much less with their orders or judgments by means of
injunction. (PNB vs. Pineda, 197 SCRA 1)
3. No Regional Trial Court can pass upon and scrutinize, and much less declare as
unjust a judgment of another Regional Trial Court and sentence the judge
thereof liable for damages without running afoul with the principle that only the
higher appellate courts, namely, the Court of Appeals and the Supreme Court are
vested with authority to review and correct errors of the trial courts. (Villamor
vs. Salas, 203 SCRA 540)

Lack of jurisdiction should be raised at the earliest possible opportunity

It is conceded that this Court adheres to the policy that “where the court itself clearly
has no jurisdiction over the subject matter or the nature of the action, the invocation of
this defense may be done at any time.” While it is the general rule that neither the
waiver nor estoppels shall apply to confer jurisdiction upon a court, the Court may rule
otherwise under meritorious and exceptional circumstances. One such exception is
Tijam vs. Sibonghanoy. This Court held in Tijam that “after voluntarily submitting a
cause and encountering an adverse decisions on the merits, it is too late for the loser to
question the jurisdiction or power of the court. (Heirs of Cesar Marasigan vs. Apolonio
Marasigan, G.R. No. 156078, March 14, 2008)

Lack of jurisdiction over the subject matter may be raised at any stage of proceedings

Jurisdiction over the subject matter is conferred only by the Constitution or the law. It
cannot be acquired through a waiver or enlarged by the omission of the parties or
conferred by the acquiescence of the court. Consequently, question of jurisdiction may
be cognizable even if raised for the first time on appeal. (Republic of the Philippines vs.
Batigue Point Development Corporation, G.R. No. 162322, March 14, 2012)

Laches defined: It must be clearly present in order to bar the issue of lack of
jurisdiction: Tijam vs. Sibonghanoy an exception rather than the general rule.
 1. Laches has been defined as the “failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence, could
or should have done earlier; it is negligence or omission to assert a right within a
reasonable time, warranting the presumption that the party entitled to assert it
either has abandoned or declined to assert it.” (Tijam, supra; Republic of the
Philippines vs. Batigue Point Development Corporation, G.R. No. 162322, March
14, 2012)
2. The ruling of the Court of Appeals that “a party may be estopped from raising
such [jurisdictional] question if he has actively taken part in the very proceeding
which he questions, belatedly objecting to the court’s jurisdiction in the event
that the judgment or order subsequently rendered is adverse to him” is based on
the doctrine of estoppel by laches. We are aware of that doctrine first enunciated
by this Court in Tijam vs. Sibonghanoy. In Tijam, the party-litigant actively
participated in the proceedings before the lower court and filed pleadings
therein. Only 15 years thereafter, and after receiving an adverse decision on the
merits from the appellate court, did the party-litigant question the lower court’s
jurisdiction. Considering the unique facts in that case, the Court held that
estoppel by laches had already precluded the party-litigant from raising the
question of lack of jurisdiction on appeal. In Figueroa vs. People, the Court
cautioned that Tijam must be construed as an exception to the general rule and
applied only in the most exceptional cases whose factual milieu is similar to that
in the latter case.

What is the doctrine of “estoppel by laches” or “equitable estoppel”?

The rule is that the active participation of the party against whom the action was
brought, coupled with his failure to object to the jurisdiction of the court or
administrative body where the action is pending, is tantamount to an invocation of that
jurisdiction and a willingness to abide by the resolution of the case and will bar the said
party from later on impugning the court or the body’s jurisdiction. (Megar Sugar
Corporation vs. RTC of Iloilo, Br. 68, Dumiglas, Iloilo, et. al., G.R. No. 170352, June 1,
2011)

Payment of Filing/Docket Fees – Jurisdictional

It is not simply the filing of the complaint that vests the court with jurisdiction over the
action filed but also by the payment of the prescribed docket fee. The Supreme Court, in
several cases, has held that a coutrt acquired jurisdiction over the case ONLY upon the
payment of fees. (Manchester Development Corporation vs. Court of Appeals, G.R. No
75919, May 7, 1987; Nestle Philippines, Inc vs. FY Sons, Inc., G.R. No. 150789, May 5,
2006

Ruling in Manchester case relaxed by the Supreme Court: Unpaid legal fees considered
as a lien on the judgment

This ruling was relaxed in Sun Insurance vs. Court of Appeals (149 SCRA 562), when the
Court made a liberal interpretation of the rule allowing a late payment of the docket fee
as long as it should not be made beyond the action’s prescriptive period. It also declared
in the same case that any unpaid fees should also be considered a lien on the judgment.
In this case, there is no evidence that the plaintiff tried to evade payment of the docket
fees.

It should be noted that the pronouncements of the Court on the matter of docket fees
have always influenced by the peculiar legal and equitable circumstances surrounding
each case. The rule is not as simple, as rigid or as uncomplicated as the Manchester case
makes it appear. There are other circumstances equally important. While the timely
payment of docket fees is jurisdictional, considerations of equity also come into the
picture. (Yuchengco vs. Republic, 333 SCRA 368)

MANNER OF ACQUIRING JURISDICTION BY THE COURT

1. Over the subject matter of the action

2. Over the parties
3. Over the issues
4. Over the case and
5. Over the res or thing

Jurisdiction over the subject matter of the action

Jurisdiction over the subject matter is the power to hear and determine the general
class to which the proceedings in question belongs. Jurisdiction over the subject matter
is conferred by law and not by the consent or acquiescence of any or all of the parties or
by erroneous belief of the court that it exists. Basic is the rule that jurisdiction over the
subject matter is determined by the cause or causes of action as alleged in the
complaint. (Danilo S. Ursua vs. Republic of the Philippines, G.R. No. 178193)

Jurisdiction over the subject matter is conferred by law and determined by the
allegations in the complaint

1. It is axiomatic that the nature of an action and whether the tribunal has
jurisdiction over such action are to be determined from the material allegations
of the complaint, the law in force at the time the complaint is filed, and the
character of the relief sought irrespective of whether the plaintiff is entitled to all
or some of the claims averred. Jurisdiction is not affected by the pleas or the
theories set up by defendant in an answer to the complaint or a motion to
dismiss the same. (Republic of the Philippines, rep. by the Regional Executive
Director of the Department of Environment and Natural Resources, Regional
Office No. 3 vs. Roman Catholic Archbishop of Manila/Samahang Kabuhayan ng
San Lorenzo KKK, Inc., rep by its vice President Zenaida Turla vs. Roman Catholic
Archbishop of Manila, G.R. No. 192975/G.R. No. 192994, November 12, 2012)
2. It is an elementary rule of procedural law that jurisdiction over the subject
matter of the case is conferred by law and is determined by the allegations of the
complaint irrespective of whether the plaintiff is entitled to recover upon all or
some of the claims asserted therein. As a necessary consequence, the jurisdiction
of the court cannot be made to depend upon the defenses set up in the answer or
upon the motion to dismiss, for otherwise, the question of jurisdiction would
almost entirely depend upon the defendant. What determines the jurisdiction of
the court is the nature of the nature of the action pleaded as appearing from the
allegations in the complaint. The averments in the complaint and the character
of the relief sought are the matters to be consulted. (Fe V. Rapsing, Tita C.
Villanueca and Annie F. Aparejado, represented by Edgar Aparejado vs. Hon.
Judge Maximino R. Ables of RTC-Branch 47, Masbate City; SSGT. Edison Rural, et.
al., G.R. No. 171855, October 15, 2012)
3. It is, therefore, clear that jurisdiction over the subject matter is conferred by law.
In turn, the question on whether a given suit comes within the pale of a statutory
conferment is determined by the allegations in the complaint, regardless of
whether or not the plaintiff will be entitled at the end to recover upon all or
some of the claims asserted therein. We said as much in Magay vs. Estiandan:
“Jurisdiction over the subject matter is determined by the allegations of the
complaint, irrespective of whether or not the plaintiff is entitled to recover upon
all or some of the claims asserted therein – a matter that can be resolved only
 after and as a result of the trial. Nor may the jurisdiction of the court be made to
depend upon the motion to dismiss, for, were we to be governed by such rule,
the question of jurisdiction could depend almost entirely upon the defendant.”
(Danilo S. Ursua vs .Republic of the Philippines, G.R. No. 178193, January 24,
2012)
4. Jurisdiction over the subject matter of a case is generally conferred by law and,
unlike jurisdiction over the parties, cannot be bestowed upon the court by the
voluntary act or agreement of such parties. But the determination of whether or
not a court may assume jurisdiction over a case for a subject matter that by law
is within its ambit is made by simply looking at the “mere allegations of the
complaint”. (Deltaventures Resources vs. Cabato, 327 SCRA 521)

Jurisdiction over the subject matter is a matter of substantive law

This kind of jurisdiction is not procedural but a matter of substantive law. This
jurisdiction is conferred by law. Nothing else can confer jurisdiction except the law. (De
la Cruz vs. Court of Appeals, 510 SCRA 103; Guy vs. Court of Appeals, December 10,
2007)

Allegations in the complaint determines jurisdiction

1. Determinative of which regular court had jurisdiction would be the allegations of

the complaint (on the assessed value of the property) and the principal relief
thereby sought. (Petronilo J. Barayuga vs. Adventist University of the Philippines,
G.R. No. 168008, August 17, 2011)
2. Jurisdiction over the subject matter is determined by the allegations of the
complaint. In ascertaining, for instance, whether an action is one for forcible
entry falling within the exclusive jurisdiction of inferior courts, the averments of
the complaint and the character of the relief sought are to be examined. (Sps.
Teresito Y. Villacastin and Lourdes Fua Villacastin vs. Paul Pelaez, G.R. No.
170478, May 22, 2008)
3. The well-entrenched principle is that the jurisdiction of the court over the
subject matter on the existence of the action is determined by the material
allegations of the complaint and the law, irrespective of whether or not the
plaintiff is entitled to recover all or some of the claims or reliefs sought therein.
(Cruz vs. Torres, 316 SCRA 193 [1999]) Substantive law provides for the
jurisdictions of various courts in the entire judicial system, depending on the
nature of the action. Basic is the legal principle that the nature of an action is
determined by the material averments in the complaint and the character of the
relief. (Zenaida R. Gregorio vs. Court of Appeals, Sansio Phils. Inc., and Emma J.
Datun, G.R. No. 179799, September 11, 2009)
4. 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
plaintiff’s cause of action. (Irene Sante and Reynaldo Sante vs. Hon. Edilberto T.
Claravall, G.R. No. 173915, February 22, 2010)

Jurisdiction is determined by the allegations in the complaint and not on the averments
in the answer

The nature of an action, as well as which court or body has jurisdiction over it, is
determined based on the allegations contained in the complaint of the plaintiff,
irrespective of whether or not the plaintiff is entitled to recover upon all or some of the
claims asserted therein. The averments in the complaint and the character of the relief
sought are the ones to be consulted. Once vested by the allegations in the complaint,
jurisdiction also remains vested irrespective of whether or not the plaintiff is entitled to
recover upon all or some of the claims asserted therein. As a necessary consequence,
the jurisdiction of the court cannot be made to depend upon the defenses set up in the
answer or upon the motion to dismiss; for otherwise, the question of jurisdiction would
almost entirely depend upon the defendant. What determines the jurisdiction of the
court is the nature of the action pleaded as appearing from the allegations in the
complaint. The averments therein and the character of the relief sought are the ones to
be consulted. (City of Dumaguete vs. Philippine Ports of Authority, G.R. No. 168973,
August 24, 2011)

Jurisdiction not dependent on the defenses in the answer or motion to dismiss

In Basco Integrated Port Services, Inc. vs. Cyborg Leasing Corporation, 371 SCRA 327
(1999), the Supreme Court had ruled that the jurisdiction of the court over the nature of
the action and the subject matter thereof cannot be made to depend upon the defenses
set up in the court or upon a motion to dismiss for, otherwise, the question of
jurisdiction would depend almost entirely on the defendant. (Boleyley vs Villanueva,
314 SCRA 364 [1999]) Once jurisdiction is vested, the same is retained up to the end to
the end. (Cervanted vs. Court of Appeals, 263 SCRA 323 [1996])

MTC does not lose jurisdiction over an ejectment case if the party alleged as a defense
their tenancy relationship.

The Municipal Trial Court does not lose its jurisdiction over an ejectment case by the
simple expedient of a party raising as a defense therein the alleged existence of a
tenancy relationship between the parties. (Onquit vs, Binamira-Parcia, 297 SCRA 354
[1998]) But it is the duty of the court to receive evidence to determine the allegations of
tenancy. If, after hearing, tenancy had, in fact, been shown to be the real issue, the court
should dismiss the case for lack jurisdiction. (Cervantes vs. Court of Appeals, supra,
citing Isidro vs. Court of Appeals, 228 SCRA 503 [1993]; Amando G. Sumawang vs. Engr.
Eric D. De Guzman, G.R. No. 150106, September 8, 2004)

Lack of jurisdiction over the subject matter may be invoked at any time, even on appeal

1. Jurisdiction over the subject matter is conferred only by the Constitution or the
law. It cannot be acquired though a waiver or enlarged by the omission of the
parties or conferred by the acquiescence of the court. Consequently, question of
jurisdiction may be cognizable even if raised for the first time on appeal.
(Republic vs. Bantiques Point Development Corporation, G.R. No. 162322, March
14, 2012)
2. Objections to jurisdiction over the subject matter may, as a rule, be made at any
stage of the proceedings, even for the first time on appeal as long as estoppel by
laches does not set in. (Calimlim vs. Ramirez, 118 SCRA 399; Francel Realty vs.
Sycip, 469 SCRA 430) Being estopped to question jurisdiction is the exception
rather than the rule.

Important matters to consider in case of lack of jurisdiction over the subject matter of
the action
1. It is sufficient ground for the dismissal of an action under Sec 1(b) of Rule 16
2. It can be raised as an affirmative defense in the answer under Sec 6, Rule 16
3. Lack of jurisdiction is a ground for a motion to dismiss an action under the Rules
on Summary Procedure (Sec 19[a] of the Rules on Summary Procedure)
4. Dismissal of the action motu propio by the court for lack of jurisdiction over the
subject matter under Sec. 1, Rule 9.
5. In summary procedure, Sec. 4 of the Rules on Summary Procedure provides for
the motu propio dismissal of the case based on the grounds for the dismissal of
the action under the rules.
 6. It may be curable by amendment when made as a matter of right: If the ground
was invoked by the defendant in a motion to dismiss, the court may either
dismiss the action or deny the motion or order the amendment of the pleadings
in order to confer jurisdiction under Sec. 3, Rule 16.
7. The court may allow the plaintiff to amend his complaint to confer jurisdiction
upon the court as a matter of right since a motion to dismiss is not a responsive
pleading under Sec. 2, Rule 10.
8. If the court granted the motion and dismissed the case, but the order is not yet
final and executory, amendment of the pleading may be done as a matter of right
in order to confer jurisdiction since there is no responsive pleading yet filed.
9. Appeal dismissing the case without trial for lack of jurisdiction over the subject
matter: RTC may assume jurisdiction if the lower court has no jurisdiction.
a. The Regional Trial on appeal may affirm the order of dismissal by the
lower court without trial on the ground of lack of jurisdiction over the
subject matter, and if it has jurisdiction, it shall try the case as if it was
originally filed therein. (Sec 8, par. 1 of Rule 40)
b. If the case was decided by the lower court without jurisdiction over the
subject matter, the Regional Trial Court on appeal shall not dismiss the
case without prejudice to the admission of amended pleadings and
additional evidence. (Sec. 8, par. 2 of Rule 40)
10. Dismissal on this ground is without prejudice. (Sec. 1[g] of Rule 41)

Jurisdiction over the parties

Jurisdiction over the plaintiff or petitioner

This is acquired by the filling of the complaint, petition or initiatory pleading before the
court by the plaintiff or petitioner.

Jurisdiction over the defendant or respondent

1. By the voluntary appearance or submission by the defendant or respondent to

the court (Sec. 20, Rule 14); or
2. By a coercive process issued by the court to him, generally by a valid service of
summons. (Sharuff vs. Bubla, L-17029, September 30, 1964; Aban vs. Engage, L-
30666, February25, 1983; Ofelia Herrera-Felix vs. CA, G.R. No. 143736, August
11, 2004)

Acquisition of jurisdiction over the person of the defendant by Voluntary Appearance:

Motion questioning jurisdiction of the court not voluntary appearance.

A voluntary appearance is a waiver of the necessity of a formal notice. An appearance in

whatever form, without explicitly objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court over the person. While the formal
method of entering an appearance in a cause pending in the courts is to deliver to the
clerk a written direction ordering him to enter the appearance of the person who
subscribes it, an appearance may be made by simply filing a formal motion, or plea or
answer. This formal method of appearance is not necessary. He may appear without
such formal appearance and thus submit himself to the jurisdiction of the court. He may
appear by presenting a motion, for example, and unless by such appearance he
specifically objects to the jurisdiction of the court over his person. When the
appearance is by motion objecting to the jurisdiction of the court over his person, it
must be for the sole and separate purpose of objecting to the jurisdiction of the court. If
his motion is for any other purpose than to object to the jurisdiction of the court over
his person, he thereby submits himself to the jurisdiction of the court. (Ofelia Herrera-
Felix vs. Court of Appeals, et. al., G.R. No. 143736, August 11, 2004, citing Busuego vs.
Court of Appeals, 151 SCRA 376 [1987], citing Flores vs. Zurbito, 37 Phil 746 [1918])

Special Appearance to challenge jurisdiction of the court is not voluntary appearance.

1. When the defendant appearance is made precisely to object to the jurisdiction of

the court over his person, it cannot be considered as appearance in court.
(French Oil Mill Machinery, Inc. vs. Court of Appeals, G.R. No. 126477, September
11, 1998 as cited in JAPRL Development Corp. vs. Security Bank Corporation,
G.R. No. 190107, June 6, 2011)
2. A party who makes a special appearance in court challenging the jurisdiction of
said court based on the ground of invalid service of summons is not deemed to
have submitted himself to the jurisdiction of the court. (Allan C. Go vs. Mortimer
F. Cordero, G.R. No. 164703, May 4, 2010)

Objection to jurisdiction must be explicit: Motion seeking affirmative relief from the
court is submission to the jurisdiction of the court.

Preliminary, 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 court’s
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 court’s
jurisdiction over his person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

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

appearance.

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

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. (Rapid City Realty and Development Corporation
vs. Orlando Villa and Lourdes Paez Villa, G.R. No. 184197, February 11, 2010)

A party who makes a special appearance in court challenging the jurisdiction of the said
court based on the ground of invalid service of summons is not deemed to have
submitted himself to the jurisdiction of the court. (United Coconut Planters Bank vs.
Ongpin, G.R. No. 146593, October 26, 2001) In this case, however, although the Motion
to Dismiss filed specifically stated as one (1) grounds for lack “personal” jurisdiction.” It
must be noted that defendant had earlier filed a Motion for Time to file an appropriate
responsive pleading even beyond the time provided in the summons by publication.
Such motion did not state that it was conditional appearance entered to question the
regularity of the service of summons, but an appearance submitting to the jurisdiction
of the court by acknowledging the summons by publication issued by the court by
praying for additional time to file a responsive pleading. Consequently, defendant
having acknowledged the summons by publication and also having invoked the
jurisdiction of the court to secure to secure affirmative relief in his motion for
additional time, he effectively submitted voluntarily to the trial court’s jurisdiction. He
is now stopped from asserting otherwise even before this Court. (Allan C. Go vs
Mortimer F. Cordero, G.R. No. 164703, MY 4, 2010)

Objection to jurisdiction may be raised in a motion to dismiss or as an affirmative

defense in the answer

Objection to jurisdiction over the person of the defendant may be made initially either
in a motion to dismiss or in the answer as an affirmative defense. (Calimlim vs. Ramirez,
118 SCRA 399; Francel Realty vs . Sycip, 469 SCRA 430)

Motion to Dismiss questioning jurisdiction over the person of the defendant together
with other grounds is not voluntary appearance.

A defendant who files a motion to dismiss, assailing the jurisdiction of the court over his
person, together with other grounds therein, is not deemed to have appeared
voluntarily before the court. When the rule on voluntary appearance means is that the
voluntary appearance of the defendant in court is without qualification, in which case
he is deemed to have waived his defense a lack of jurisdiction over his person due to
improper service of summons. (Edna Diago Lhuillier vs. British Airways, G.R. No.
171092, March 15, 2010)

Jurisdiction over the person of the defendant can be acquired by the court through valid
service of summons.

1. Summons is important, primarily, in order to comply with the due process

requirement of the Constitution on proper notice. However, in actions in
personam, valid service of summons is more than just compliance with due
process, in that the same is jurisdictional in order for the court to render a valid
judgment over the defendant.
2. A resident defendant should be served personally (Sec. 6, Rule 14), by
substituted service (Sec. 7), or by extraterritorial service when his whereabouts
is unknown and cannot be ascertained by diligent inquiry or his identity is
unknown (Sec. 14), or even when he is simply temporarily out of the country
(Sec. 16), subject to the respective rules on domestic private or public
corporations, entities without juridical personality, minors and incompetents,
and prisoners.

Jurisdiction over the issue of the case

Jurisdiction over the issue is conferred by the pleadings

This is determined and conferred by the pleadings filed in the case 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 evidence on an issue not covered by the pleadings,
as provided in Sec. 5, Rule 10. (Lazo, et. al. vs. Republic Surety & Ins. Co., Inc. L-27365,
January 30, 1970)

Only issues raised by the parties in their pleadings must be passed upon by the court.

This jurisdiction means that the court must only pass upon issues raised by the
pleadings of the parties. Hence, if the issue raised by the parties is possession, the court
has no jurisdiction to pass upon the issue of ownership because it is not an issue in the
case. Conversely, if the issue in the case is ownership and no issue of possession is
found in the pleadings of the parties, the court has no authority to adjudicate on the
possession of the property. Thus, it is not correct for the court to order the lessee to
vacate the premises where the lessor did not include in his pleadings a claim for
restoration of possession. (Buce vs Court of Appeals, 332 SCRA 151)

Issues which are not raised in the pleading and tried with the express or implied
consent of the parties, amendment is allowed: Court acquires jurisdiction over the
issue. (Sec. 5, Rule 10)

Court acquires jurisdiction over the issues not objected to by the parties during trial
though not raised in the pleadings.

If a party presents evidence on a matter not at issue in the pleadings, the other may
object to such evidence. The court may sustain the objection and excluded the evidence.
However, the same rule likewise allows the court, in the interest of substantial justice,
to direct an amendment to the pleadings so the pleadings may conform to the evidence.
This is true despite the objection to the evidence. The evidence will then be admitted
after the amendments are made. (Mercader vs. DBP[Cebu Branch], 332 SCRA 82, 97)

Jurisdiction over the case

Jurisdiction over the case is acquired by the court by the act of the plaintiff in filing the
complaint or information before the said court.

Distinctions between jurisdiction over the subject matter vs. jurisdiction over the case

The case of Villa vs .Ibanez, et. al., 88 Phil 402 (1951) is authority for the principle that
lack of authority on the part of the filing officer prevents the court from acquiring
jurisdiction over the case. Jurisdiction over the subject matter is conferred by law while
jurisdiction over the case is invested by the act of plaintiff and attached upon the filing
of the complaint or information. (People of the Philippines vs. Hon. Zeida Aurora B.
Garfin, G.R. No. 153176, March 29, 2004)

Jurisdiction over the res

This is acquired by the actual or constructive seizure by the court of the thing in
question, thus placing it in custodial egis, as in attachment or garnishment; or by
provision of law which recognizes in the court the power to deal with the property or
subject matter within its territorial jurisdiction, as in land registration proceedings or
suits involving civil status or real property in the Philippines of a non-resident
defendant.

BASIC CONCEPTS ON CAUSE OF ACTION (RULE 2)

Basis of a Civil Action

It is a rule that “Every ordinary action must be based on a cause of actions.” (Sec. 1, Rule
2) The rule purposely establishes the relevance of a cause of action only as to ordinary
civil actions in obtaining redress for the violation of one’s right. This is especially true in
special proceedings where the party merely seeks to establish a right, a status, or a
particular fact, there is normally no violation of a right to speak of, and hence, a cause of
action is not a condition sine qua non.

What is a cause of action?

1. It is the act or omission by which a party violates the right of another
2. Sec., Rule 2 of the Rules of Court defines a cause of action as an act or omission
by which a party violates the right of another. A complaint states a cause of
action when it contains three (3) essential elements of a cause of action, namely:
 a. The legal right of the plaintiff,
b. The correlative obligation of the defendant, and
c. The act or omission of the defendant in violation of said right.

(Juana Complex I Homeowners Association, Inc., Andres C. Bautista, Brigido

Dimaculangan, Dolores P. Prado, Imelda De La Cruz, Editha C. Dy, Florencia M.
Mercado, Leovino C. Datario, Aida A. Abayon, Napoleon M. Dimaano, Rosita G.
Estigoy and Nelson A. Loyola vs. Fil-Estate Land, Inc., Fil Estate Ecocentrum
Corporation, La Paz Housing and Development Corporation, Warbird Security
Agency, Enrique Rivilla, Michael E. Jethmal and Michael Alunan, Respondents, G.R.
No. 152272, March 5, 2012)

3. A cause of action is the act or omission by which a party violates a right of

another. A Complaint states a cause of action when it contains three essential
elements: (1) a right in favor of the plaintiff by whatever means and whatever
law it arises; (2) the correlative obligation of the defendant to respect such right;
(3) the act or omission of the defendant violates the right of the plaintiff. If one of
these elements is absent the complaint becomes vulnerable to a motion to
dismiss on the ground of failure to state a cause of action. (Development Bank of
the Philippines vs. Hon. Silverio Castillo & Cristina Trinidad Zarate Romero, G.R.
No. 163827, August 17, 2011)

Nature of a cause of action: Relation to the complaint

In relation to a complaint, it is a formal statement of the operative facts that give rise to
a remedial right. The question of whether the complaint states a cause of action is
determined by its averments regarding the acts committed by the defendant. Thus, it
must contain a concise statement of the ultimate or essential facts constituting the
plaintiff’s cause of action. As such, the failure to make a sufficient allegation of a cause of
action in the complaint warrants its dismissal. (Philippine Daily Inquirer vs. Hon. Elmo
Alameda and Luz Cortez Babaran, G.R. No. 160604, March 28, 2008)

Elements of Cause of Action

1. A complaint states a cause of action when it contains three essential elements:

(a) a right in favour of the plaintiff by whatever means and whatever laws it
arises; (b) the correlative obligation of the defendant to respect such right; and
(c) the act or omission of the defendant violates the right of the plaintiff. If any of
these elements is absent, the complaint becomes vulnerable to motion to dismiss
on the ground of failure to state a cause of action. (Development Bank of the
Philippines vs. Hon. Silverio Q. Castillo & Cristina Trinidad Zarate Romero, G.R.
No. 16382, August 17, 2011)
2. Since a cause of action requires, an essential elements, not only a legal right of
the plaintiff and a correlative obligation of the defendant but also an act or
omission of the defendant in violation said legal right, the cause of action does
not accrue until the party obligated refuses, expressly or impliedly, to comply
with its duty. (Texon Manufacturing and Betty Chua vs .Grace Millena and
Marilyn Millena, G.R. No. 141380, April 14, 2004, citing Baliwag Transit, Inc. vs.
Ople, G.R. No. 57642, March 16, 1999, 171 SCRA 250, cited in Serrano vs. Court of
Appeals, G.R. No. 139420, August 15, 2001, 363 SCRA 223, 230)
3. A cause of action is the wrongful act or omission committed by the defendant in
violation of the primary rights of the plaintiff. Its elements consists of:
a. A right existing in favor of the plaintiff;
b. A duty on the part of the defendant to respect the plaintiff’s right; and
 c. An act or omission of the defendant in violation of such right. (Virra Mall
Tenants Association, Inc. et.al., G.R. No. 182902, October 5, 2011; Shell
Philippines vs .Efren Jalos, et. al., G.R. No. 179918, September 8, 2010)
4. An act or omission of the defendant in violation of such right – most important
element.

Of the three, the most important is the last element, since it is only upon the
occurrence of the last element that a cause of action arises, giving the plaintiff
the right to maintain an action in court for recovery of damages or other
appropriate relief. In determining whether an initiatory pleading states a cause
of action, “the test is as follows: admitting the truth of the facts alleged, can the
court render a valid judgment in accordance with the prayer?” To be taken into
account are only the material allegations in the complaint; extraneous facts and
circumstances or other matters aliunde are not considered. The court may
however consider, in addition to the complaint, the appended annexes or
documents, other pleadings of the plaintiff, or admissions in the records.
(Philippine Daily Inquirer vs. Hon. Elmo Alameda and Luz Cortez Babarn, G.R.
No. 160604, March 28, 2008)

Test of sufficiency of cause of action

The test of sufficiency of facts alleged in the complaint as constituting a cause of action
is whether or not admitting the facts alleged, the court could render a valid verdict in
accordance with the prayer of said complaint. Stated differently, if the allegations in the
complaint furnish sufficient basis by which the complaint can be maintained, the same
should not be dismissed regardless of the defense that may be asserted by the
defendant. (Juana Complex I Homeowners Association, Inc., Andres C. Bautista, Brigido
Dimaculangan, Dolores P. Prado, Imelda De la Cruz, Editha C. Dy, Florencia M. Mercado,
Leovino C. Datario, Aida A. Abayon, Napoleon M. Dimaano, Rosita G. Estigoy and Nelson
A. Loyola vs. Fil-Estate Land, Inc., Fil Estate Ecocentrum Corporation, La Paz Housing
and Development Corporation, Warbird Security Agency, Enrique Rivilla, Michael E.
Jethmal and Michael Alunan, Respondents, G.R. No. 152272, March 5, 2012)

How to determine whether the complaint states a cause of action?

The question of whether the complaint states a cause of action is determined by its
averments regarding the acts committed by the defendant. Thus, it must contain a
concise statement of the ultimate or essential facts constituting the plaintiff’s cause of
action. To be taken into account are only the material allegations in the complaint;
extraneous facts and circumstances or other matters aliunde are not considered. (Juana
Complex I Homeowners Association, Inc., Andres C. Bautista, Brigido Dimaculangan,
Dolores P. Prado, Imelda De la Cruz, Editha C. Dy, Florencia M. Mercado, Leovino C.
Datario, Aida A. Abayon, Napoleon M. Dimaano, Rosita G. Estigoy and Nelson A. Loyola
vs. Fil-Estate Land, Inc., Fil Estate Ecocentrum Corporation, La Paz Housing and
Development Corporation, Warbird Security Agency, Enrique Rivilla, Michael E. Jethmal
and Michael Alunan, Respondents, G.R. No. 152272, March 5, 2012)

A party may not institute more than one suit for a single cause of action. (Sec. 3., Rule 2
of 1997 Rules of Civil Procedure)

Failure to state a cause of action (Sec. 1[g], Rule 16) compared to Lack of cause of action
(Demurrer to Evidence, Rule 33, Sec. 5, Rule 10)

Failure to state a cause of action and lack of cause of action are really different from
each other. On the one hand, failure to state a cause of action refers to the insufficiency
of the pleading, and is a ground for dismissal under Rule 16 of the Rules of Court. On the
other hand, lack of cause of action refers to a situation where the evidence does not
prove the cause of action alleged in the pleading. Justice Regalado, a recognized
commentator on remedial law, has explained the distinction:

“x x x What is contemplated, therefore, is a failure to state a cause of action which is

provided in Sec. 1(g) of Rule 16. This is a matter of insufficiency of the pleading. Sec. 5 of
Rule 10, which was also included as the last mode for raising the issue to the court,
refers to the situation where the evidence does not prove a cause of action. This is,
therefore, a matter of insufficiency of evidence. Failure to state cause of action is
different from failure to prove a cause of action. The remedy in the first is to move for
dismissal of the pleading, while the remedy in the second is to demur to the evidence
(Rule 33) xxx The procedure would consequently be to require the pleading to state a
cause of action, by timely objection to its deficiency; or, at the trial, to file a demurrer to
evidence, if such motion is warranted. (Dolores Adora Macaslang vs. Renato and Melba
Zamora, G.R. No. 156375, May 30, 2011)

Distinctions between failure to state a cause of action (Rule 16) and lack of cause of
action (Rule 33)

1. Motion to dismiss based on failure to state a cause of action under Rule 16 is

made “within the time for but before filing an answer.” A demurrer is file d “after
the plaintiff has completed the presentation of his evidence/rested its case.”
2. Failure to state a cause of action is determined simply on the basis of the
allegations in the complaint of the plaintiff. Lack or insufficiency of cause of
action is predominantly based on the appreciation of evidence.
3. Failure to state a cause of action may still be curable by an amendment of the
pleading (Sec. 3, Rule 16) as a matter of right before a responsive pleading has
been filed, even when a motion to dismiss on such ground has been made by the
defendant, the same not being a “responsive pleading” under the rules. When a
demurrer is filed on the ground of insufficiency of evidence after the plaintiff
rests its case, the latter may not anymore asks for an amendment of his pleading,
but may ask the court for the admission of a supplemental pleading in light of
supervening events, setting forth “transactions, occurrences or events which
have happened since the date of the pleading sought to be supplemented.” (Sec.
6, Rule 10)

The court may however require an amendment during the presentation of

evidence of the plaintiff, if evidence that is not in issue is not objected to by the
defendant, in which case the evidence is deemed “impliedly admitted” so an
amendment is not really necessary to appreciate the evidence; or when an
objection was in fact mad, but at the liberal discretion of the court “if the
presentation of the merits of the action and the ends of substantial justice will be
subserved thereby.” (Sec. 5, Rule 10)

4. If the motion to dismiss is denied, the movant shall be required to file his answer
within the balance of the period to which he is entitled at the time such motion
was filed, but in no case shall be less than five (5) days. (Sec. 4, Rule 16) If the
demurrer is denied, the defendant shall have the right to present evidence.
5. If a motion to dismiss on the ground of failure to state a cause of action has been
granted, the dismissal is without prejudice to the refilling of the action. If a
demurrer to evidence is granted, the dismissal is with prejudice, as the same is
considered a judgment on the merits of the case, hence, the remedy of the
plaintiff is to appeal from such judgment. Consequently, on appeal, if the
judgment was reversed, the defendant shall be deemed to have waived his right
to present his evidence.
 6. The ground of failure to state a cause of action may be invoked in a motion to
dismiss or as an affirmative defense in the pleading. (Sec. 6, Rule 16) The ground
of insufficiency of evidence may be invoked in a motion for demurrer to evidence
(Rule 33), in a motion for reconsideration (Rule 37) or in an appeal
memorandum.

Splitting a cause of action (Sec. 4, Rule 2)

It is the act of dividing a single or indivisible cause of action into several parts or claims
and instituting two or more actions upon them. A single cause of action or entire claim
or demand cannot be split or divided in order to be made the subject of two or more
different actions. (Catalina Chu, et. al. vs. Spouses Hernando Cunanan & Trinidad
Cunanan, G.R. No. 156185, September 12, 2011)

Generally, a suit may only be instituted for a single cause of action. If two or more suits
are instituted on the basis of the same cause of action, the filing of one or a judgment on
the merits in any one is ground for the dismissal of the others. (George Leonard S.
Umale vs. Canoga Park Development Corporation., G.R. No. 167246, July 20, 2011)

Same Evidence Test

1. To determine identity of cause of action, it must be ascertained whether the
same evidence which is necessary to sustain the second cause of action would
have been sufficient to authorize a recovery in the first. (Pantranco North
Express, Inc., et. al. vs. Standard Insurance Company, Inc., et. al. G.R. No. 140746,
March 16 ,2005, citing Mendoza vs. Court of Appeals, G.R. No. 81909, September
5, 1991, 201 SCRA 343)
2. Several tests exist to ascertain whether two suits relate to a single or common
cause of action, such as whether the same evidence would support and sustain
both the first and second causes of action (also known as “same evidence” test),
or whether the defenses in one case may be used to substantiate the complaint
in the other. Also fundamental is the test of determining whether the cause of
action in the second case existed at the time of filing of the first complaint.
(George Leonard S. Umale vs. Canoga Park Development Corporation, G.R. No.
167246, July 20, 2011)

Effects of splitting of cause of action

In case a single cause of action was split into two or more cases it will result in the
dismissal of the action on the ground of litis pendentia or res judicata under Sec 1(e) or
(f), Rule 16.

Remedy of the defendant in case of splitting of cause of action

In case of splitting of cause of action defendant may file a motion to dismiss on the
ground of:
1. If the first complaint is still pending the ground is litis pendentia (Sec 1[e], Rule
16);
2. Res Judicata (Sec 1[f], Rule 16); or
3. File an answer alleging as affirmative defense either or both grounds and a
preliminary hearing may be had thereon as if a motion to dismiss was filed. (Sec.
6, Rule 16)

Motu propio dismissal of the claims on the ground of litis pendentia or res judicata (Sec.
1, Rule 9)

Consolidation of cases in case of identity of causes of action (Sec. 1, Rule 31)

Consolidation of cases discretionary

It is plain as day that the trial court is not mandated to consolidate two or more related
cases. The trial court is vested with discretion whether or not to consolidate two or
more cases. (Spouses Salvador F. De Vera and Feliza V. De Vera vs. Agloro, G.R. No.
155673, January 14, 2005, citing Philippine Airlines, Inc vs. Teodoro, Sr., 97 Phil 461
[1955])

Purpose of consolidation

However, it bears stressing that consolidation aimed to obtain justice with the least
expense and vexation to the litigants. The object of consolidation is to avoid multiplicity
of suits, guard against oppression or abuse, prevent delays and save the litigants
unnecessary acts and expense. (Raymundo vs. Felipe, 42 SCRA 615 [1971])
Consolidation should be denied when prejudice would result to any of the parties or
would cause complications, delay, prejudice, cut off, or restrict the rights of a party. (1
CJS, Actions, pp. 1347-1348; Spouses Salvador F. De Vera and Feliza V. De Vera vs.
Agloro, G.R. No. 155673, January 14, 2005)

General rule – consolidation is applicable if the cases are pending in the same judge:
Exception.

Generally, consolidation applies only to cases pending before the same judge and not to
cases pending in different branches of the same court or in different courts. Yet in
appropriate instances and in the interest of justice, cases pending in different branches
of the court or in different courts may be consolidated, consistent with the rule in our
jurisdiction that leans toward s permitting consolidation of cases whenever possible
and irrespective of the diversity of the issues for resolution. (Bank of Commerce vs.
Hon. Estela Perlas-Bernabe, etc., et. al. G.R. No. 172393, October 20, 2010)

Joinder of Causes of Actions (Sec. 5, Rule 2)

Rules and Conditions on the joinder of causes of action

A party may in one pleading assert, in the alternative or otherwise, as many causes of
action as he may have against an opposing party, subject to the following conditions:

1. The party joining the causes of action shall comply with the rules on joinder of
parties;
2. The joinder shall not include special civil actions or actions governed by special
rules;
3. Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the jurisdiction of said court and
the venue lies therein; and
4. Where the claims in all the causes of action are principally for recovery of
money, the aggregate amount claimed shall be the test of jurisdiction.

Joinder of causes of action shall not included special civil action

The rule on joinder of causes of action under Sec. 5, Rule of 1997 Rules of Civil
Procedure, as amended, requires that the joinder shall not include special civil actions
governed by special rules. Sec. 6, Rule 2, explicitly provides that misjoinder of causes of
action is not a ground for the dismissal of the action. (Roman Catholic Archbishop of San
Fernando Pampanga vs. Fernando Soriano, Jr., et. al., G.R. No. 153829, August 17, 2011)
Limitations on the rule on joinder of causes of action

Joinder of causes of actions is only allowed for ordinary civil actions. The rules that a
cause of action may not be joined with:

1. Special Civil actions: or

a. Interpleader (Rule 62)
b. Declaratory relief, reformation of instrument, quieting of title, and
consolidation of ownership (Rule 63)
c. Certiorari over the final judgment or orders of the Commission on
Elections or Audit (Rule 64)
d. Certiorari, prohibition and mandamus (Rule 65)
e. Petition for quo warranto (Rule 66)
f. Complaint for expropriation (Rule 67)
g. Complaint for foreclosure of real estate mortgage (Rule 68)
h. Complaint for Partition (Rule 69)
i. Forcible entry and Unlawful Detainer (Rule 70)
j. Contempt (Rule 71)
2. Actions governed by special rules
a. Probate of the will
b. Intestate estate proceedings
c. Escheat
d. Trustees
e. Guardianship of minors or incompetents and custody of minors
f. Adoption and Revocation of adoption
g. Hospitalization of insane person
h. Habeas Corpus
i. Change of name
j. Declaration of absence and death
k. Correction of entries in the civil registry
l. Insolvency proceedings
m. Alternative dispute resolution
n. Annulment of marriage
o. Declaration of nullity of marriage
p. Writs of Amparo and Habeas Data
q. Environmental case
r. Special rules on Alternative Dispute Resolution

Joinder of claims under the Rule of Procedure on Small Claims Cases (A.M. 08-8-7-SC,
October 27, 2009)

Sec. 6 of the Rules of Procedure on Small Claims cases … Plaintiff may join in a single
statement of claim one or more separate claims against the defendant provided that the
total amount claimed, exclusive of interest and cost, does not exceed P100,000

Misjoinder causes of action (Sec. 6, Rule 2)

Misjoinder causes of action is not a ground for the dismissal of action, but upon motion
or motu propio be severed and proceeded separately.

The rule on joinder of causes of action under Sec. 5, Rule 2 of the 1997 Rules of Civil
Procedure, as amended, requires that the joinder shall not include special civil actions
governed by special rules. Sec. 6, Rule 2 explicitly provides that misjoinder of causes of
action is not a ground for the dismissal of the action (Roman Catholic Archbishop of San
Fernando Pampanga vs. Fernando Soriano, Jr., et. al., G.R. No. 153829, August 17, 2011)
BASIC CONCEPTS ON PARTIES (RULE 3)

Parties in the Civil Action (Sec. 1, Rule 3 of the 1997 Rules of Civil Procedure)
1. Natural persons;
2. Juridical persons; or
3. Entities authorized by law may be parties in a civil action

Entities authorized by law who may be parties in a civil action are:

1. State or political subdivision;
2. Labor organizations;
3. Partnership by estoppel (Art. 1825 NCC); or
4. Corporation by estoppel (Sec. 21, Corporation Code)
5. Foreign Corporations, according to the Intellectual Property Code, even though
not engaged in business in the Philippines may nevertheless bring a civil or
administrative action for opposition, cancellation, infringement, unfair
competition, or false designation of origin and false description, whether or not
it is licensed to do business in the Philippines under existing laws. (Sec 160, R.A.
8293)

Classification of parties in Civil Action

1. Real Parties in interest (Sec. 2, Rule 3)
2. Representative parties (Sec. 3, Rule 3)
3. Indispensable parties (Sec. 7, Rule 3)
4. Necessary parties (Sec. 8, Rule 3)

Real Parties in interest

A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the
name of the real-party-interest.

Every action must be prosecuted and defended in the name of the real-party-in-interest.
i.e., the party who stands to be benefited or injured in the judgment in the suit, or the
party entitled to the avails of the suit. A case is dismissable for lack of personality to sue
upon proof that the plaintiff is not the real-party-in-interest, hence grounded on failure
to state a cause of action. (Allan C. Go vs. Mortimer F. Cordero, G.R. No. 164703, May 4,
2010)

Meaning of interest

The word “interest” as contemplated by the Rules, means material interest or an

interest in issue and to be affected by the judgment, as distinguished from mere interest
in the question involved or a mere incidental interest. Stated differently, the rule refers
to a real or present substantial interest as distinguished from a mere expectancy, or a
future, contingent, subordinate, or consequential interest. As a general rule, one who
has no right or interest to protect cannot invoke the jurisdiction of the court as party-
plaintiff in an action. (Mayor Rhustom L. Dagadag vs. Michael C. Tongnawa, et. al., G.R.
No. 161166-67, February 3, 2005, citing Francisco Abella, Jr. vs. Civil Service
Commission, G.R. No. 152574, November 17, 2004; Francisco Alonso vs. Cebu Country
Club Inc., G.R. No. 188471, April 20, 2010)

The gist of the question of standing is whether a party has “alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.” (Baker vs. Carr, 369 U.S. 186, 7 L. Ed.
2d. 633 cited in, among others, Agan, Jr. vs. Piatco, G.R. No. 155001, 155547 and
155661, May 5, 2003 and Farinas vs. Executive Secretary, G.R. No. 147387 and 152161,
December 10, 2003)

Interest of a party must be direct and personal

Accordingly, it has been held that the interest of a party assailing the constitutionality of
a statute must be direct and personal. Such party must be able to show, not only that
the law or any government act is invalid, but also that he has sustained or is in
imminent danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. (Agan, Jr. vs. PIATCO, supra; Province of
Batangas vs. Alberto G. Romulo, G.R. No. 152774, May 27, 2004)

Real-party-in-interest meaning

Interest within the meaning of the Rules of Court means material interest or an interest
in issue to be affected by the decree or judgment of the case, as distinguished from mere
curiosity about the question involved. A real-in-interest is the party who, by the
substantive law, has the right sought to be enforced.

Applying the foregoing rule, it is clear that Atty. Aceron is not a real-party-in-interest in
the case below as he does not stand to be benefited or injured by any judgment therein.
He was merely appointed by the petitioners as their attorney-in-fact for the limited
purpose of filing and prosecuting the complaint against the respondents. Such
appointment, however, does not mean that he is subrogated into the rights of
petitioners and ought to be considered as a real-party-in-interest. (Theodore and Nancy
Ang, represented by Eldridge Marvin B. Ceron vs. Spouses Alan and Em Ang,
respondents, G.R. No. 186993, August 22, 2012)

Party referred to under Rule 45, original party

The Court has previously held that the “party” referred to in [Rule 45] is the original
party in the main case aggrieved by the order or decision. Hence, only the aggrieved
original party in the main case is the only proper party as petitioner. One who has not
been an original party in the main case has no personality to file a petition under said
rule. (City Government of Tuguerarao vs. Ting, G.R. Nos. 192435-36, September 14,
2011)

Real-party-in-interest in environmental cases (Sec. 4, Part III of A.M. 09-6-08 on the

Rules of Procedure in Environmental Cases)

The following may file a civil action for the enforcement or violation of environmental
laws, as follows:
1. Any real-party-in-interests;
2. Government;
3. Juridical entities authorized by law.

Real-party-in-interest in citizens suit in environmental cases (Sec. 5, Part II of A.M. No.

09-6-08 on the Rules of Procedure in Environmental Cases)

A citizen suit to enforce rights and obligations under environmental laws may be filed
by:
 1. Any Filipino citizen in representation of others;
2. Including minors or generations yet unborn.

Parties to civil forfeiture (Sec. 2, Part II of A.M. No. 05-11-04 on the Rules of Procedure
in cases of civil forfeiture, asset preservation, and freezing of monetary instrument,
property, or proceeds representing, involving, or relating to an unlawful activity or
money laundering offense under R.A. 9160, as amended, provides for the parties who
may initiate an action for forfeiture)

The party who may initiate an action for civil forfeiture, assets preservation, and
freezing of monetary instrument, property, or proceeds representing, involving, or
relating to an unlawful activity or money laundering offense is the Republic of the
Philippines, through the Anti-Money Laundering Council, represented by the Office of
the Solicitor General.

Real-party-in-interest in a derivative suit

In a derivative suit, the corporation is the real-party-in-interest while the stockholder

filing suit for the corporation’s behalf is only a nominal party, the corporation should
therefore be included as a party in the suit. (Santiago Cua, Jr., et. al. vs. Miguel Ocampo
Tan, et. al., G.R. Nos. 181455-56, December 4, 2009)

Action filed by or against a person who is not a real party-in-interest is a ground for the
dismissal of the action under Sec. 1(g), Rule 16 – Failure to state a cause of action

Action prosecuted by a person not a real party in interest may be dismissed on the
ground that the pleadings fails to state a cause of action. (Aguila, Jr. vs .Court of Appeals,
319 SCRA 245; Balagtas vs. Court of Appeals, 317 SCRA 69)

Motu propio dismissal of the action under the Rules of Summary Procedure on the
ground of failure to state a cause of action. (Sec. 4 of the Rules on Summary Procedure)

Remedy of the defendant if he failed to file a motion to dismiss

If no motion to dismiss has been filed or it is prohibited under the rules on Summary
Proceedings, the ground of failure to state a cause of action can be raised in the answer
as an affirmative defense under Sec. 6, Rule 16.

Remedies available to the plaintiff in case of dismissal of the action for failure to state a
cause of action
1. It may be curable by amendment when made as a matter of right. (Sec. 3, Rule
16). A motion to dismiss is not a responsive pleading under Sec. 2, Rule 10.
2. Re-filing of the case since the dismissal is without prejudice. (Sec. 5 of Rule 16)

What is the nature of the dismissal of the action based on the complaint states no cause
of action under Rule 16(g)?

In case of dismissal of the case due to failure to state a cause of action it is not
considered as a judgment on the merits that completely disposes of the case, but rather
the order of dismissal is considered as “without prejudice” to the re-filing of the case
and cannot be subject to appeal. (Sec. 1 of Rule 41 of Rules of Civil Procedure)

Representative as parties (Sec. 3, Rule 3)

Where the action is allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party-in-interest.

A representative may be the following:

1. A trustee of an express trust;
2. Guardian;
3. Executor or administrator; or
4. A party authorizing by law or these rules;
5. An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract
involves things belonging to the principal.

Representative as parties is not a real party-in-interest

The petitioner’s reliance on Sec. 3, Rule 3 of the Rules of the Court to support their
conclusion that Atty. Aceron is likewise a party in interest in the case below is
misplaced. Sec. 3, Rule 3 of the Rules of Court provides that:

Sec. 3. Representative as parties – Where the action is allowed to be prosecuted and

defended by a representative or someone acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and shall be deemed to be the real property in
interest. A representative may be a trustee of an expert trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. An agent acting in his own
name and for the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the principal.

Nowhere in the rule cited above is it stated or, at the very least implied, that the
representative is likewise deemed as the real party-in-interest. The said rule simply
states that, in actions which are allowed to be prosecuted or defended by a
representative, the beneficiary shall be deemed the real party-in-interest and, hence,
should be included in the title of the case.

Indeed, to construe the express requirement of residence under the rules on venue as
applicable to the attorney-in-fact of the plaintiff would abrogate the meaning of a “real
party-in-interest,” as defined in Sec. 2 of Rule 3 of the 1997 Rules of Court vis-à-vis
Section 3 of the same Rule. (Theodore and Nancy Ang, Represented by Eldrige Marvin B.
Ceron vs. Spouses Alan and Em Ang, Respondents, G.R. No. 186993, August 22, 2012)

Sec. 5, Part II of A.M. No. 09-6-08 on the Rules of Procedure in Environment Cases
provide for the parties in interest who may file a citizen suit to enforce rights and
obligations under environmental laws.

Sec. 4, Rule 3 provides for the rule on spouses as parties to the action.

Action may be prosecuted jointly by or against:

1. Jointly by husband and wife;
2. Except as provided by law (otherwise known as pro-forma parties)

The exception as provided by law are as follows, to wit:

1. Action involving the exclusive property of the spouse which are as follows, to
wit:
a. Property brought to the marriage as his or her own;
b. That which each acquires during the marriage by gratuitous title;
c. That which is acquired by right of redemption, by barter or by exchange
with property belonging to only one of the spouses; and
 d. That which is purchased with exclusive money of the wife or of the
husband. (Art 109 of the New Civil Code)

Minor or incompetents (Sec. 5, Rule 3)

A minor, or a person alleged to be incompetent, may sue or be sued with the assistance
of the following representative:
1. His father;
2. Mother;
3. Guardian; or
4. If he has none, a guardian ad litem

Permissive Joinder of parties (Sec. 6, Rule 3)

All persons in whom against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist whether jointly, severally,
or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs
or be joined as defendants in one complaint subject to the following requirements:
1. Where any questions of law or fact common to all such plaintiffs or to all such
defendants may arise in the action;
2. The court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest.

Indispensable parties (Sec. 7, Rule 3)

1. Parties in interest without whom no final determination can be had of an action

shall be joined either as plaintiffs or defendants.
2. The definition in the Rules of Court, Sec. 7, Rule 3 thereof, of indispensable
parties as “parties in interest without whom no final determination can be had of
an action” has been jurisprudentially amplified. In Sps. Garcia vs. Garcia, et. al.,
this Court held that:

An indispensable party is a party who has such an interest in the controversy or

subject matter that a final adjudication cannot be made, in his absence, without
injuring or affecting that interest, a party who has not only an interest in the
subject matter of the controversy, but also has an interest of such nature that a
final decree cannot be made without affecting his interest or leaving the
controversy in such a condition that its final determination may be wholly
inconsistent with equity and good conscience. It has also been considered that
an indispensable party is a person in whose absence there cannot be a
determination between the parties already before the court which is effective,
complete, or equitable. Further, an indispensable party is one who must be
included in an action before it may properly go forward. (Simny G. Guy,
Geraldine G. Guy, Gladys G. Yao, and the Heirs of the Late Grace G. Cheu vs.
Glibery G. Guy, G.R. No. 189486, September 5, 2012)

3. An indispensable party is one who must be included in an action before it may

properly go forward. (Pimentel, Jr., et. al. vs. Senate Committee of the Whole, G.R.
No. 187714, March 8, 2011)

Joinder of indispensable party is compulsory

Settled is the rule that joinder of indispensable parties is compulsory being a sine qua
non for the exercise of judicial power, and, it is precisely “when an indispensable party
is not before the court that the action should be dismissed” for such absence renders all
subsequent actions of the court null and void for want of authority to act, not only as to
the absent parties but even as to those present. (Simny G. Guy, Geraldine G. Guy, Gladys
G. Yao, and the Heirs of the Late Grace G. Cheu vs. Glibery G. Guy, G.R. No. 189486,
September 5, 2012)

Effect of non-joinder
1. The general rule with reference to the making of parties in a civil action requires
of course, the joinder of all necessary parties as possible, and the joinder of all
indispensable parties under any and all conditions, their presence being a sine
qua non for the exercise of judicial power. It is precisely “when an indispensable
party is not before the court the action should be dismissed.” The absence of an
indispensable party renders all subsequent actions of the court is null and void
for want of authority to act, not only to the absent parties but even as those
present. (Arcelona vs. Court of Appeals, 354 Phil 250 [1997] cited in Maximina A.
Bulawan vs. Emerson B. Aquende, G.R. No. 182819, June 22, 2011)
2. The nature of the solidary obligation under the surety does not make one an
indispensable party. An indispensable party is a party-in-interest without whom
no final determination can be had of an action, and who shall be joined
mandatorily either as plaintiffs or defendants. The presence of indispensable
parties is necessary to vest the court with jurisdiction, thus, without their
presence to a suit or proceeding, the judgment of a court cannot attain real
finality. The absence of an indispensable party renders all subsequent actions of
the court null and void for want of authority to act, not only as to the absent
parties but even as to those present. (Living @ Sense, Inc. vs .Malayan Insurance
Company, Inc., G.R. No. 193753, September 26, 2012)

Interest of party in the controversy or subject matter is separable from the interest of
other parties not an indispensable party.

A person who is not an indispensable party, if his interest in the controversy or subject
matter is separable from the interest of other parties, so that it will not necessarily be
directly or injurious affected by a decree which does not complete justice between
them. Also, a person is not indispensable party if his presence would merely permit a
complete relief between him and those already parties to the action or if he has no
interest in the subject matter of the action. It is not sufficient reason to declare a person
indispensable party that his presence will avoid multiple litigation. (Aquilino Pimentel
Jr., et. al. vs. Senate Committee of the Whole, G.R. No. 187714, March 8, 2010)

The purpose of the rules of joinder of indispensable party is a complete determination

of all issues not only between the parties themselves, but also as regards other persons
who may be affected by the judgment. A decision valid on its face cannot attain finality
where there is want of indispensable parties. (Philip L. Go, Pacifico Q. Lim and Andrew
Q. Lim vs .Distinction Properties Development and Construction, Inc. G.R. No. 194024,
April 24, 2012)

Presence of an indispensable party is a sine qua non for the exercise of judicial power

Similarly, in the case of Plasabas vs. Court of Appeals, the Court held that a final decree
would necessarily affect the rights of indispensable parties so that the Court could not
proceed without their presence. In support thereof, the Court in Plasabas cited the
following authorities, thus:

The general rule with reference to the making of parties in a civil action requires the
joinder of all indispensable parties under any and all conditions, their presence being a
sine qua non of the exercise of judicial power. (Borlasa vs .Polistico, 47 Phil 345, 348)
For this reason, our Supreme Court has held that when it appears of record that there
are other persons interested in the subject matter of the litigation, who are not made
parties to the action, it is the duty of the court to suspend the trial until such parties are
made either plaintiffs or defendants. (Pobre, et. al. vs. Blanco, 17 Phil 156). x x x Where
the petition failed to join as party defendant the person interested in sustaining the
proceeding in the court, the same should be dismissed. x x x When an indispensable
party is not before the court, the action should be dismissed. (People, et. al. vs.
Rodriguez, et. al., G.R. No. L-14059-62, September 30, 1959) (sic) (Philip L. Go, Pacifico
Q. Lim and Andrew Q. Lim vs .Distinction Properties Development and Construction,
Inc. G.R. No. 194024, April 24, 2012)

Burden to procure the indispensable party is on the plaintiff: Purpose

“Parties in interest without whom no final determination can be had of an action shall
be joined either as plaintiffs or defendants. (Sec. 7, Rule 3 Rules of Court) The burden of
procuring the presence of all indispensable parties is on the plaintiff. (39 Amjur[sic]
885) The evident purpose of the rule is to prevent the multiplicity of suits by requiring
the person arresting a right against the defendant to include with him, either as co-
plaintiffs or as co-defendants, all persons standing in the same position, so that the
whole matter in dispute may be determined once and for all in one litigation. (Palarca
vs. Baginsi, 38 Phil 177, 178; Philip L. Go, Pacifico Q. Lim and Andrew Q. Lim vs.
Distinction Properties Development and Construction, Inc., G.R. No. 194024, April 25,
2012)

NECESSARY PARTY (Sec. 8, Rule 3)

A necessary party is one who is not indispensable but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action.

Effect of non-joinder and misjoinder of necessary parties (Sec. 9, Rule 3)

A necessary party may be omitted in a pleading, but the pleader shall “set forth his
name, if known, and shall state why he is omitted. Should the court find the reason for
the omission unmeritorious, it may order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.” On the contrary, if the court finds the
omission justifiable, or even if not justifiable but jurisdiction over the person of such
party cannot be obtained by such court, then such omission will be allowed, and the
proceedings shall continue despite such non-joinder.

Rule in case of unwilling co-plaintiff (Sec 10, Rule 3)

If the consent of any party who should be joined as plaintiff cannot be obtained, he may
be made a defendant and the reason therefore shall be stated in the complaint.

Misjoinder and non-joinder of parties (Sec. 11, Rule 3)

Effects in case of misjoinder and non-joinder of parties

1. It is not a ground for dismissal of an action;
2. Parties may be dropped or added by order of the court on motion of any party or
on its own initiative at any stage of action and on such terms as are just;
3. Any claim against a misjoined party may be severed and proceeded with
separately.

Dropping of parties; remedies for joinder or misjoinder

Under the rules, parties may dropped or added by order of the court on motion of any
party or on its initiative at any stage of the action and on such terms as are just. Indeed,
it would have been just for the collection court to have allowed Estrella to prosecute her
annulment case by dropping her as a party plaintiff in the collection case, not only so
that she could protect her conjugal share, but also to prevent the interests of her co-
plaintiffs from being adversely affected by their conflicting actions in the same case. By
seeking to be dropped from the collection case, Estrella was foregoing collection of her
share in the amount that may be due and owing from the sale. It does not imply a
waiver in any manner that affects the rights of other heirs.

While Estrella correctly made use of the remedies available to her – amending the
complaint and filing a motion to drop her as a party – she committed a mistake in
proceeding to file the annulment case directly after these remedies were denied her by
the collection court without first questioning or addressing the propriety of these
denials. Whoe she may have been frustrated by the collection court’s repeated rejection
of her motions and its apparent inability to appreciate her plight, her proper recourse
nevertheless should have been to file a petition for certiorari or otherwise question the
trial courts denial of her motion to be dropped as plaintiff, citing just reasons which call
for a ruling to the contrary. Issues arising from joinder or misjoinder of parties are the
proper subject of certiorari. (Estrella Aduan Orpiano vs. Spouses Antonio C. Tomas and
Myrna U. Tomas, G.R. No. 178611, January 14, 2013)

Refusal of a party with the order of inclusion of an indispensable or necessary party

may be ground for the dismissal of the action.

As gleaned from the foregoing provisions, it is not the nonjoinder or the misjoinder of a
party which automatically provokes a court to dismiss the action. In fact, “Neither
misjoinder nor nonjoinder of parties is ground for dismissal of an action.” The basis of a
possible dismissal of the action is the refusal of a party to comply with a order of the
inclusion of an indispensable or a necessary party, in accordance with Sec. 3 of Rule 17
for failure “to comply with the Rules or any order of the Court.”

Based on the same provision, this dismissal is one with prejudice, unless otherwise
declared by the court, since the same “shall have the effect of an adjudication upon the
merits.

Parties may be added by order of the court on motion of the party or on its own
initiative at any stage of the action and/or such times as are just. If the petitioner or
plaintiff refuses to implead an indispensable party despite the order of the court, the
latter may dismiss the complaint or petition for the petitioner for failure to comply
therefor. The remedy is to implead the non-party claimed to be indispensable.

Non-inclusion of the names of all the complainants in the title of the complaint is not
fatal.

The inclusion of the names of all parties in the title of a complaint is a formal
requirement under Sec. 3, Rule 7 of the Rules of Court. However, the rules of pleadings
require courts to pierce the form and go into the substance. The non-inclusion of one or
some of the names of all the complainants in the title of a complaint is not fatal to the
case, provided there is a statement in the body of the complaint indicating that such
complainant/s should have been amended to reflect in the title the individual
complainants. There being a “defect in the designation of the parties” , its correction
could be summarily made at any stage of the action provided no prejudice is caused
thereby to the adverse party. (Spouses William Genato and Rebecca Genato vs. Rita
Viola, G.R. No. 169706, February 5, 2010)
CLASS SUIT (Sec. 12, Rule 3, 1997 Rules of Civil Procedure)

Elements of Class Suit

1. The subject matter of the controversy is one of common or general interest to
many persons;
2. The number of persons is so numerous that it is impracticable to join all as
parties;
3. The parties actually before the court are sufficiently numerous and
representative as to fully protect the interest of all concerned;
4. The representative sue or defend for the benefit of all.

Necessary elements for the maintenance of a class suit:

1. The subject matter of the 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
the 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. (Juana Complexi, et.
al., vs. Fil-Estate Land, Inc., et. al., G.R. 152272, March 5, 2012)

Lack of common or general interest in the subject matter of the controversy is not a
class suit

In the case of Newsweek vs. IAC, the Court had opportunity to explain what a class suit
is, thus:

“Where the defamation is alleged to have been directed at a group or class, it is essential
that the statement must be so sweeping or all-embracing as to apply to every individual
in that group or class, or sufficiently specific so that each individual in the class or group
can prove that the defamatory statement specifically pointed to him, so that he can
bring the action separately, if need be.

“The case at bar is not a class suit. It is not a case where one or more may sue for the
benefit of all (Mathay vs. Consolidated Bank and Trust Company, 58 SCRA 559) or
where the representation of class interest affected by the judgment or decree is
indispensable to make each member of the class an actual party. (Borlaza vs. Polistico,
47 Phil 348) We have here a case where each of the plaintiffs has a separate and distinct
reputation in the community. They do not have a common or general interest in the
subject matter of the controversy.” (Newsweek, Inc. vs. Intermediate Appellate Court,
G.R. No. L-63559, May 30, 1986)

What is required in class suit is not the commonality or general interest in the question
involved in the case but common or general interest in the subject matter of the
litigation.

Whether the suit is not a class suit depends upon the attendant facts. A class suit does
not require commonality or interest in the question involved in the suit. What is
required by the rules is a common or general interest in the subject matter of litigation.
The subject matter of the action means the physical, the things real or personal, the
money, lands, chattels, and the like, in relation to the suit which is prosecuted and not
the direct or wrong committed by the defendant. It is not also a common question of
law that sustains a class suit but a common interest in the subject matter of
controversy. ((Mathay vs. Consolidated Bank and Trust Company, 58 SCRA 559)

Subject matter is a common or general interest

In this case, the suit is clearly one that benefits all commuters and motorists who use La
Paz Road. As succinctly stated by the CA:

The subject matter of the instant case, i.e., the closure and excavation of the La Paz
Road, is initially shown to be of common or general interest to many persons. The
records reveal that numerous individuals have filed manifestations with the lower
court, conveying their intention to join private respondents in the suit and claiming that
they are similarly situated with private respondents for they were also prejudiced by
the acts of petitioners in closing and excavating the La Paz Road. Moreover, the
individuals sought to be represented by private respondents in the suit are so
numerous that it is impracticable to join them all as parties to be named individually as
plaintiffs in the complaint. These individuals claim to be residents of various barangays
in Binan, Laguna and other barangays in San Pedro, Laguna. (Juana Complex I
Homeowners Association, Inc., Andres C. Bautista, Brigido Dimaaculangan, Dolores P.
Prado, Imelda De La Cruz, Editha C. Dy, Florencia M. Mercado, Leovino C. Datario, Aida
A. Abayon, Napoleon M. Dimaano, Rosita G. Estigoy and Nelson A. Loyola, vs. Fil-Estate
Land, Inc., Fil Estate Ecocentrum Corporation, La Paz Housing and Development
Corporation, Warbird Security Agency, Enrique Rivilla, Michael E. Jethmal and Michael
Alunan, Respondents, G.R. No. 152272, March 5, 2012)

Class suit vs. Derivative Suit vs. Citizen Suit

1. A class suit is filed regardless a controversy of common or general interest in

behalf of many persons so numerous that it is impracticable to join all as parties,
as number which the court finds sufficiently representative who may sue or
defend for the benefit of all. (Sec. 12, Rule 3)
2. A derivative suit is a suit in equity that is filed by a minority shareholder in
behalf of a corporation to redress wrongs committed against it, for which the
directors refuse to sue, the real party-in-interest being the corporation itself
(Lint vs. Lim-Yu, G.R. No. 138343, February 19, 2001), while
3. A citizen suit is an action filed by any Filipino citizen in representation of others,
including minors or generations not yet born to enforce rights and obligations
under environmental laws. (Sec. 5, Rule 2, Part II of A.M. 09-6-8-SC)

ALTERNATE PARTIES (Sec. 13, Rule 3)

Where the plaintiff is uncertain against who of several persons he is entitled to relief, he
may join any or all of them as defendants in the alternative, although a right to relief
against one may be inconsistent with a right of relief against the other.

Rule in case of unknown identity or name of defendant (Sec. 14, Rule 3)

Whenever the identity or name of a defendant is unknown, he may be sued as:

1. The unknown owner;
2. Unknown heir;
3. Unknown devisee;
4. By such other designation as the case may require.

When his identity or true name is discovered, the pleading must be amended
accordingly.

Entity without juridical personality as defendant (Sec. 15, Rule 3)

When two or more persons not organized as an entity with juridical personality enter
into a transaction, it has the following effects:
 1. They may be sued under the name by which they are generally or commonly
known; and
2. In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed.

Duty of attorney in case of death of a client (Sec. 16, Rule 3)

What are the duties of a counsel in case of death of party in an action that survives:
Failure to perform duty is a ground for disciplinary action.

Whenever a party to a pending action dies, and the claim is not thereby extinguished, it
shall be the duty of his counsel to:
1. Inform the court within 30 days after such death of the fact thereof;
2. To give the name and address of his legal representative or representatives; and
3. Failure of counsel to comply with this duty shall be a ground for disciplinary
action.

Actions of the court

In case of death of the party in an action that survives, the court shall:
1. The heirs of the deceased party may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator
and the court may appoint a guardian ad litem for the minor heirs.
2. The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of 30 days from notice.
3. If no legal representative is named by the counsel of the deceased party, or if the
one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time, to procure the appointment of
a executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be
recovered as costs.

Duty of his counsel in case of death of his client

It is the duty of counsel for the deceased to inform the court of the death of his client.
The failure of counsel to comply with his duty under Sec. 16 to inform the court of the
death of his client and the non-substitution of such party will not invalidate the
proceedings and the judgment thereon if the action survives the death of such party.
The decision rendered shall bind the party’s successors-in-interest. (Generoso
Saligumba vs. Monica Palanog, G.R. No. 143365, December 4, 2008; Judge Antonio C.
Sumaliag vs. Sps. Diosdidit and Menendez M. Literato, G.R. No. 149787, June 18, 2008)

Duty of the counsel after the death of his client under the Rules

The duty of the counsel under the afore-cited provision is to inform the court within the
30 days after the death of his client of the fact of death, and to give the name and
address of the deceased’s legal representative/s. Incidentally, this is the only
representation that counsel can undertake after the death of a client as the fact of death
terminates any further lawyer-client relationship. (Judge Antonio C. Sumaliag vs. Sps.
Diosdidit and Menendez Literato, G.R. No. 149787, June 18, 2008)

Purpose of the rule

The rule is intended to protect every party’s right to due process. The estate of the
deceased party will continue to be properly represented in the suit, through the duly
appointed legal representative. Moreover, no adjudication can be made against the
successor of the deceased if the fundamental right a day in court is denied. (Jose Ramilo
O. Regalado vs. Chaucer B. Regalado, G.R. No. 196919, June 6, 2011)

Duty of the court to order legal representatives appear arises only upon notice (Sec. 17,
Rule 3)

Sec. 17, Rule 3 is explicit that the duty of the court to order the legal representative or
heir to appear arises only “upon proper notice.” The notation “Party-Deceased” on the
undeserved notices could not be the “proper notice” contemplated by the rule. As the
trial court could not expected to know or take judicial notice of the death of a party
without the proper manifestation from counsel, the trial court was well within tis
jurisdiction to proceed as it did with the case. Moreover, there is no showing that the
court’s proceedings were tainted with irregularities. (Generoso Saligumba vs. Monica
Palanog, G.R. No. 143365, December 4, 2008)

Effect of failure to inform the court: Presumption on the attorney

It is the duty of counsel for the deceased to inform the court of the death of his client.
The failure of counsel to comply with his duty under Sec. 16 to inform the court of the
death of his client and the non-substitution of such party will not invalidate the
proceedings and the judgment thereon if the action survives the death of such party.
The decision rendered shall bind the party’s successor-in-interest.

The rules operate on the presumption that the attorney for the deceased party is in a
better position than the attorney for the adverse party to know about the death of his
client and to inform the court of the name and address of his legal representative.
(Generoso Saligumba vs. Monica Palanog, G.R. No. 143365, December 4, 2008)

Substitution of heirs – part of due process: Failure to Substitute is not sufficient ground
to nullify court’s decision.

Mere failure to substitute a deceased party is not sufficient ground to nullify a trial
court’s decision. The party alleging nullity must prove that there was an undeniable
violation of due process.

Strictly speaking, the rule on substitution by heir is not a matter of jurisdiction, but a
requirement of due process. The rule on substitution was crafted to protect every
party’s right to due process. It was designed to ensure that the deceased party would
continue to be properly represented in the suit through his heirs or duly appointed
legal representative of his estate. Moreover, non-compliance with the Rules result in the
denial of the right to due process for the heirs who, though not duly notified of the
proceedings, would be substantially affected by the decision rendered therein. Thus, it
is only when there is a denial of due process, as when the deceased is not represented
by any legal representative or heir, that the court nullifies the trial proceedings and the
resulting judgment therein. (Capitolina Vivero Napere vs. Amando Barbarona, G.R. No.
160426, January 31, 2008)

Death or separation of a party who is public officer (Sec. 17, Rule 3)

When a public officer is a party in an action in his official capacity and during its
pendency dies, resigns, or otherwise ceases to hold office, the action may be:
1. Continued and maintained by or against his successor if, within 30 days after the
successor take office or such time as may be granted by the court, it is
satisfactorily shown to the court by any party that there is a substantial need for
 continuing or maintaining it and that the successor adopts or continues or
threatens to adopt or continue the action of his predecessor.
2. Before a substitution is made, the party or officer to be affected, unless expressly
assenting thereto, shall be given reasonable notice of the application therefor
and accorded an opportunity to be heard.

Incompetency or incapacity of a party (Sec. 18, Rule 3)

If a party becomes incompetent or incapacitated, the court, upon motion with notice,
may allow the action to be continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem.

Transfer of interest (Sec. 19, Rule 3)

In case of transfer of interest by the party, the court may allow:

1. The action be continued by or against the original party;
2. Unless the court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original party.

Action that survives (Sec. 20, Rule 3)

Effect in case of death of a party in action based on a contractual money claims

When the action is for recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, the case shall:
1. It will not be dismissed but shall instead be allowed to continue until entry of
final judgment; and
2. In case of a favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person.

Action which may not be brought against the executor or administrator (Sec. 1, Rule 87)
1. The recovery of money;
2. Debt;
3. Interest thereon;

Except:
1. Actions to recover real property;
2. Recovery of personal property or an interest therein, from the estate, or to
enforce a lien thereon; and
3. Actions to recover damages for an injury to person or property, real or personal,
may be commenced against him.

An action for quieting of title with damages is an action involving real property, hence,
it is an action that survives.

An action for quieting of title with damages which is an action involving real property, is
an action that survives pursuant to Sec. 1, Rule 87 as the claim is not extinguished by
the death of a party. And when a party dies in an action that survives, Sec. 17, Rule 3
provides for the procedure. (Generoso Saligumba vs. Monica Palanog, G.R. No. 143365,
December 4, 2008)

“The criteria for determining whether an action survives the death of a plaintiff or
petitioner was elucidated upon in Bonilla vs.Barcena, 71 SCRA 491 (1976) as follows:
“The question as to whether an action survives or not depends on the nature of the
action and damage sued for. In the causes of action which survive, the wrong
complained [of] affects primarily and principally property and property rights, the
injuries to the person being merely incidental, while in the causes of action which do
not survive, the injury complained of is to the person, the property and rights of
property affected being incidental.”

Sec. 1, Rule 86 of the Rules of Court provides for the rules in case of a claim against the
estate based on a favorable judgment.

Immediately after granting letters of testamentary or of administration, the court shall

issue a notice requiring all persons having money claims against the deceased to file
them in the office of the clerk of said court.

What and When to file claims? Otherwise barred. (Sec. 5, Rule 86)

The following may be claimed against the estate of the deceased:

1. All claims for money against the decedent arising from contract, express or
implied, whether the same be due, not due, or contingent;
2. All claims for funeral expenses;
3. Expenses for the last sickness of the decedent; and
4. Judgment for money against the decedent, must be filed within the time limited
in the notice.

Claims after notice issued by the court must be filed within the time limited in the
notice; otherwise barred forever, except that they may be set forth as counterclaims in
any action that the executor or administrator may bring against the claimants.

Remedies of the debtor in case an action is commenced by the deceased and prosecuted
by the executor or administrator

Where an executor or administrator commences an action, or prosecutes an action

already commenced by the deceased in his lifetime, the debtor may:
1. Set forth by answer the claims he has against the decedent, instead of presenting
independently to the court;
2. Mutual claims may be set off against each in such action;
3. If final judgment is rendered in favor of he defendant, the amount so determined
shall be considered the true balance against the estate, as though the claim had
been presented directly before the court in the administration proceedings; and
4. Claims not yet due, or contingent, may be approved at their present value.

Remedy of the party in case of approval or disapproval of the claim (Sec 13, Rule 86)

In case of judgment of the court approving or disapproving a claim, the aggrieved party
may file with record of the administration proceedings with notice to both parties, an
appeal as in ordinary cases.

A judgment against the executor or administrator shall be as follows:

1. The he pay, in due course of administration, the amount ascertained to be due,
and
2. That it shall not create any lien upon the property of the estate, or
3. It shall not give to the judgment creditor any priority of payment.

Indigent party (Sec. 21, Rule 3)

An indigent party, one who is allowed to litigate an action who has no money or
property sufficient and available for food, shelter and basic necessities for himself and
his family.

Requirements to be declared as indigent party

A party may be authorized to litigate his action, claim or defense as an indigent if the
court allows subject to the following requirements:
1. Upon an ex parte application and hearing;
2. The court is satisfied that the party is one who has no money or property
sufficient and available for food, shelter and basic necessities for himself and his
family.

Effects of the declaration of party as indigent

If a party is declared by the court as an indigent party the authority shall include:
1. An exemption from payment of docket and other lawful fees; and
2. Exemption from the payment of transcripts of stenographic notes which the
court to be furnished him.

Docket and other lawful fees a lien in case of favorable judgment

The amount of the docket and other lawful fees which the indigent was exempted from
paying shall be a lien on any judgment rendered in the case favorable to the indigent,
unless the court otherwise provides.

Remedy of the adverse party in case of declaration of indigency

Any adverse party may contest the grant of such authority at any time before judgment
is rendered by the trial court.

Effect if the party has sufficient income

If the court should determine after hearing that the party declared as an indigent is in
fact a person with sufficient income or property, the proper docket and other lawful
fees shall be assessed and collected by the clerk of court. If payment is not made within
the time fixed by the court, execution shall issue for the payment thereof, without
prejudice to such other sanctions as the court may impose.

Notice to the Solicitor General (Sec. 22, Rule 3)

The court, in its discretion, may require the appearance of the Solicitor General who
may be heard in person or through a representative duly designated by him in any
action involving:
1. The validity of any treaty;
2. Law;
3. Ordinance;
4. Executive Order;
5. Presidential Decree; and
6. Rules and regulations.

BASIC CONCEPTS ON VENUE (RULE 4)

Concept of venue vs. Concept of jurisdiction

The concept of venue in civil cases is distinct from the concept of jurisdiction. Both
concepts have their own peculiar means of determination in which the former deals
with the place where the case shall be heard and tried, while the latter deals with the
authority or power of the court, and each would constitute a different ground to dismiss
an action in court, as provided in Sec. 1, Rule 16.

Jurisdiction distinguished from venue

Jurisdiction should not be confused with that of venue, since the two (2) are different on
the following aspects:
1. Jurisdiction is the authority to hear an determine a case; venue is the place
where the case is to be heard or tried;
2. Jurisdiction is a matter of substantive law; venue, of procedural law;
3. Jurisdiction establishes a relation between the court and the subject matter;
venue, a relation between plaintiff and defendant, or petitioner and respondent;
4. Jurisdiction is fixed by law and cannot be conferred by the parties; venue may be
conferred by the act or agreement of the parties. (Nocum & Philippine Daily
Inquirer vs. Lucio Tan, G.R. No. 145022, September 23, 2005; Manila Railroad Co.
vs. Attorney-General, 20 Phil 523)
5. The court may motu propio dismiss a case for lack of jurisdiction (over the
subject matter), while in venue the court cannot dismiss a case based on
improper venue, unless the defendant timely invokes such ground, otherwise,
the same is waived (except under the Rules on Summary Procedure and Small
Claims cases wherein the court may dismiss a case outright on any of the
grounds apparent therefrom for the dismissal of a civil action.” (Sec. 19)
6. Jurisdiction cannot be waived, enlarged or diminished by agreement of the
parties, while venue may be waived and stipulated upon by the parties;
7. Rules as to jurisdiction can never be left to the consent or agreement of the
parties. Venue is procedural not jurisdictional and hence may be waived. It is
meant to provide convenience to the parties rather than restrict their access to
the court, as it relates to the place of trial. In such an event, the court may still
render a valid judgment. (Dr. Francisca T. Yoingco, et. al. vs. Hon. Concepcion V.
Gonzaga, A.M. No. MTJ-03-1489, March 31, 2004)

Venue in a civil action as distinguished from venue in criminal action

Venue in civil action relates to the place of trial or geographical location in which an
action or proceeding should be brought and not to the jurisdiction of the court. It is
meant to provide convenience to the parties, rather than restrict their access to the
courts as it relates to the place of trial. Assuming that venue improperly laid in the court
where the action was instituted, that would be procedural, not a jurisdictional
impediment. Improper venue does not divest a court of its jurisdiction to take
cognizance of a case. In contrast, in criminal actions, it is fundamental that venue is
jurisdictional it being an essential element of jurisdiction. (Nocum & Philippine Daily
Inquirer vs. Lucio Tan, G.R. No. 145022, September 23, 2005)

Venue in criminal action jurisdictional

In criminal actions, venue is but an element of jurisdiction; jurisdiction includes venue;

venue is jurisdictional. Territorial jurisdiction must be had before a court can take
cognizance of a criminal action. (Sec. 15, Rule 110)

Rules on venue under Sec. 4, Rule 4 is applicable only in actions but not to extra-judicial
foreclosure of mortgage.
The exclusive venue of Makati City, as stipulated by the parties and sanctioned by Sec. 4,
Rule 4 of the Rules of Court, cannot be made to apply to the petition for extra-judicial
foreclosure of mortgage filed by the respondent bank because the provisions of Rule 4
pertain to venue of action, which an extrajudicial foreclosure is not. (Spouses Hermes P.
Ochoa and Araceli D. Ochoa vs. China Banking Corporation, G.R. No. 192877, March 23,
2011)

Venue in real actions

Real actions are actions involving title to, ownership, possession, or any interest in real
property. If the real property is merely incidental to the issue, such if the action is to
recover damages to real property, the same is a personal action.

Real action – One brought for the protection of real rights, lands, tenements or
hereditaments or one founded on privity of estate only. (Paper Industries Corporation
of the Philippines vs. Samson, et. al., L-30175, November 28, 1975)

(Please check Art 415 of NCC of the list of real properties which can be the subject of a
real action)

For purposes of determining venue, if the issue involve in the case is title to, possession,
or any interest in the properties enumerated under Art 415 of the New Civil Code it is
considered as a real action and the venue is governed by Sec. 1, 1st paragraph of Rule 4.

Where is the venue in case of real action?

1. Actions affecting title to or possession of real property, or interest therein, shall

be commenced and tried in the proper court, which has jurisdiction over the
area wherein the real property involved, or a portion thereof, is situated.
2. Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.

Action to annul Sale and Titles is an action in rem

Civil Case No. 01-1567, being an action for Annulment of Sale and Titles resulting from
the extrajudicial foreclosure by Union Bank of the mortgaged real properties, is
classified as a real action. In Fortune Motors vs. Court of Appeals, this Court held that a
case seeking to annul a foreclosure of a real estate mortgage is a real action, viz:

An action to annul a real estate mortgage foreclosure sale is no different from an action
to annul a private sale of real property. (Munoz vs. Llamas, 87 Phil 737 [1950])

While it is true that petitioner does not directly seek the recovery of title or possession
of the property of the property in question, his action for annulment of sale and his
claim for damages are closely intertwined with the issue of ownership of the building
which, under the law, is considered immovable property, the recovery of which is
petitioner’s primary objective. The prevalent doctrine is that an action for the
annulment or rescission of a sale of real property does not operate to efface the
fundamental and prime objective and nature of the case, which is to recover said real
property. It is a real action. (Paglaum Management & Development Corporation and
Health Marketing Technologies, Inc. vs. Union Bank of the Philippines, Notary Public
John Doe, and Register Deeds of Cebu City and Cebu Province, J. King & Sons Co., Inc.
Intervenor, G.R. No. 179018, June 18, 2012)

Venue of real actions; Rule on exclusivity of venue

In Sps. Lantin vs. Lantion, this Court explained that a venue stipulation must contain
words that show exclusivity or restrictiveness, as follows:

At the outset, we must make clear that under Sec. 4(b) of the Rule 4 of the 1997 Rules of
Civil Procedure, the general rules on venue of actions shall not apply where the parties,
before the filing of the action, have validly agreed in writing on an exclusive venue. The
mere stipulation on the venue of an action, however, is not enough to preclude parties
from bringing a case in other venues. The parties must able to show that such
stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation
should be deemed as merely an agreement on an additional forum, not as limiting
venue to the specified place.

Clearly, the words “exclusively” and “waiving for this purpose any other venue” are
restrictive and used advisedly to meet the requirements.

According to the Rules, real actions shall be commenced and tried in the court that has
jurisdiction over the area where the property is situated. In this case, all the mortgaged
properties are located in the Province of Cebu. Thus, following the general rule,
PAGLAUM and HealthTech should have filed their cases in Cebu, and not in Makati.
(Paglaum Management & Development Corp and Health Marketing Technologies, Inc,
vs. Union Bank of the Philippines, Notary Public John Doe, and Register of Deeds of Cebu
City and Cebu Province, J. King & Sons Co., Inc., Intervenor, G.R. No. 179018, June 18,
2012)

Exception to the rule on exclusivity of venue

However, the Rules provide an exception, in that real actions can be commenced and
tried in a court other than where the property is situated in instances where the parties
have previously and validly agreed in writing on the exclusive venue thereof. In the case
at bar, the parties claim that such an agreement exists. The only dispute is whether the
venue that should be followed is that contained in the Real Estate Mortgages, as
contended by Union Bank, or that in the Restructuring Agreement, as posited by
PAGLAUM and HealthTech. This Court rules that the venue stipulation in the
Restructuring Agreement should be controlling.

Even if this Court were to consider the venue stipulations under the Real Estate
Mortgages, it must be underscored that those provisions did not contain words showing
exclusivity or restrictiveness. In fact, in the Real Estate Mortgages dated 11 February
1994, the phrase “parties hereto waiving” – from the entire phrase “the parties hereto
waiving any other venue” – was stricken from the final executed contract. Following the
ruling in Sps. Lantin as earlier quoted, in the absence of qualifying or restrictive words,
the venue stipulation should only be deemed as an agreement on an additional forum,
and not as a restriction on a specified place. (Paglaum Management & Development
Corp and Health Marketing Technologies, Inc, vs. Union Bank of the Philippines, Notary
Public John Doe, and Register of Deeds of Cebu City and Cebu Province, J. King & Sons
Co., Inc., Intervenor, G.R. No. 179018, June 18, 2012)

Venue in personal actions

Personal actions – One which is not founded upon the privity of real rights or real
property. An action for specific performance is a personal action. (Siosoco vs. Court of
Appeals 303 SCRA 186)

If the property involve in the case is any of those enumerated under Arts 416 and 417 of
New Civil Code, it is considered as a personal action.
Rule on venue in personal actions (Sec. 2, Rule 4)

Personal actions may be commenced and tried:

1. Where the plaintiff or any of the principal plaintiffs resides, or
2. Where the defendant or any of the principal defendants resides, or
3. In the case of a non-resident defendant where he may be found, at the election of
the plaintiff.

Venue in personal actions: Plaintiff or defendant must be resident of the place where
the action must be instituted.

It is a legal truism that the rules on the venue of personal actions are fixed for the
convenience of the plaintiffs and their witnesses. Equally settled, however, is the
principle that choosing the venue of an action is not left to a plaintiff’s caprice; the
matter is regulated by the Rules of Court.

The petitioners’ complaint for collection of sum of money against the respondents is a
personal action as it primarily seeks the enforcement of a contract. The Rules give the
plaintiff the option of choosing where to file his complaint. He can file it in the place (1)
where he himself or any of them resides, or (2) where the defendant or any of the
defendants resides may be found. The plaintiff or the defendant must be residents of
the place where the action has been instituted at the time the action is commenced.
(Theodore and Nancy Ang, Represented by Eldridge Marvin B. Ceron vs. Spouses Alan
and Em Ang, Respondents, G.R. No. 186993, August 22, 2012)

Plaintiff not resident of the Philippines venue is where the defendant resides: No
election of the plaintiff.

However, if the plaintiff does not reside in the Philippines, the complaint in such case
may only be filed in the court of the place where the defendant resides. In Cohen and
Cohen vs. Benguet Commercial Co., Ltd., this Court held that there can be no election as
to the venue of the filing of a complaint when the plaintiff has no residence in the
Philippines. In such case, the complaint may only be filed in the court of the place where
the defendant resides. Thus:

Sec. 377 provides that actions of this character “may be brought in any province where
the defendant or any necessary party defendant may reside or be found, or in any
province where the plaintiff or one of the plaintiffs resides, at the election of the
plaintiff.” The plaintiff in this action has no residence in the Philippine Islands. Only one
of the parties to the action resides here. There can be, therefore, no election by plaintiff
as to the place of trial. It must be in the province where the defendant resides.
(Theodore and Nancy Ang, Represented by Eldridge Marvin B. Ceron vs. Spouses Alan
and Elem Ang, Respondents, G.R. No. 186993, August 22, 2012)

Personal actions involving juridical personalities

For personal actions involving juridical personalities, “resident” is to be construed as

the place where the principal place of business is found.

The venue in real actions shall be the proper court which has territorial jurisdiction
over the area wherein the real property involved, or portion thereof, is situated. The
venue in personal actions is the court where the plaintiff or any of the principal plaintiff
resides, or where the defendant or any of the principal defendant resides, or in the case
of a non-resident where he may be found, at the election of the plaintiff. Sec. 2 of the
Rules of Court indicates quiet clearly that when there is more than one plaintiff in a
personal action case, the residences of the principal parties should be the basis in
determining the proper venue. (Irene Marcos-Araneta, et. al. vs. Court of Appeals, et. al.,
G.R. No. 154096, August 22, 2008)

Mixed Action: Venue in case of annulment of sale and recovery of land – real action
where the property is located.

When the plaintiff joins tow or more causes of actions based on the act or occurrence,
one of which is a real action; for instance, in an action to annul a sale of a land and to
recover the land, for the purpose of venue determination, the action is a real action and
must be filed in the place where the property is situated regardless of the residence of
the parties. (Emergency Loan Pawnshop, Inc. vs. Court of Appeals, G.R. No. 129184,
February 28, 2010)

Venue in case of non-resident defendants (Sec3, Rule 4)

If any of the defendants does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff, or any of the property of said
defendant located in the Philippines, the action may be commenced and tried in the
court of:
1. The place where the plaintiff resides (quasi in rem); or
2. Where the property or any portion thereof is situated or found (in rem)

Non-applicability of the rules on venue (Sec. 4, Rule 4)

The rules on venue shall not apply in the following circumstances:

1. In those cases where a specific rule or law provides otherwise; or
2. Where the parties have validly agreed in writing before filing of the action on the
exclusive venue.

Venue subject to the agreement of the parties

1. While Sec. 1, Rule 4 of the Rules of Court states that ejectment shall be filed in
“the municipal trial court of the municipality or city wherein the real property
involved x x x is situated,” Sec. 4 of the same Rule provides that the rule shall not
apply “where the parties have validly agreed in writing before the filing of the
action on the exclusive venue thereof.” Precisely, in this case, the parties
provided for a different venue. In Villanueva vs. Judge Mosqueda, etc., et. al., the
Court upheld the validity of a stipulation in a contract providing for a venue for
ejectment actions other than that stated in the Rules of Court. Since the unlawful
detainer action is connected with the contract, Union Bank rightfully filed the
complaint with the MeTC of Makati City. (Union Bank of the Philippines vs.
Maunlad Homes, Inc. and All Other Persons or Entities Claiming Rights Under It,
Respondents, G.R. No. 190071, August 15, 2012)
2. Sec. 4, Rule 4 of the Revised Rules of Civil Procedure allows the parties to agree
and stipulate in writing, before the filing of an action, on the exclusive venue of
any litigation between them. Such an agreement would be valid and binding
provided that the stipulation on the chosen venue is exclusive in nature or in
intent, that it is expressed in writing by the parties thereto, and that it is entered
into before the filing of the suit. (Pilipino Telephone Corporation vs. Delfino
Tecson, G.R. No. 156966, May 7, 2004)

If the stipulation is not exclusive, the agreement is merely an additional option

In the case of Polytrade Corporation vs. Blance (30 SCRA 187), where the stipulation
was: “parties agree to sue and be sued in the courts of Manila,” it was held that the
venue laid was not exclusive. Where the stipulation is not exclusive, the agreed venue is
merely considered as an additional option for the plaintiff aside from the residences of
the latter and the defendant.

Venue in case of Petition for civil forfeiture of monetary instrument, property, or

proceeds representing, involving, or relating to an unlawful activity, or to a money
laundering offenses. (Sec. 3, Title III of A.M. 05-11-04-SC [December 15, 2005])

Property within the Philippines

Any Regional Trial Court of the judicial region where the monetary instrument,
property, or proceeds representing, involving, or relating to an unlawful activity, or to a
money laundering offenses are located;

Outside the Philippines

Where all or any portion of the monetary instrument, property, or proceeds is located
outside the Philippines, the petition may be filed in the regional trial court in Manila of
the judicial region where any portion of the monetary instrument, property, or
proceeds is located, at the option of the petitioner.

Improper venue is a ground for a dismissal of the action under Rule 16(c)

1. Court cannot motu propio dismiss the case based on improper venue: Except
summary procedure

A court cannot motu propio dismiss a complaint on the ground of improper

venue since improper venue may be waived for failure to object it. (Dacoycoy vs.
IAC, 195 SCRA 641 [1991])

2. Motu propio dismissal based on improper venue in cases under Rules of

Summary Procedure. (Sec. 4 on the Rules of Summary Procedure)

3. Dismissal on the ground of improper venue – remedy is re-filling of the case (Sec.
5, Rule 16 of the 1997 Rules of Civil Procedure)

4. Dismissal on the ground of improper venue is without prejudice (Sec. 1, Rule 41)

5. Improper venue can be raised in an answer as affirmative defense if no motion

to dismiss is filed (Sec. 6, Rule 16)

If no motion to dismiss has been filed by the defending party, he may:

1. Any of the grounds for dismissal provided for in this Rule may be pleaded as
an affirmative defense in the answer; and
2. In the discretion of the court, a preliminary hearing may be had thereon as if
a motion to dismiss had been filed.
BASIC CONCEPTS ON THE PARTS OF A PLEADING/COMPLAINT (RULE 7)

Secs. 1-5, Rule 7 of the 1997 Rules of Civil Procedure

The formal requirements of pleading or a complaint under the Rules:

1. Captions;
2. Body;
3. Signature and address;
4. Verification;
5. Certification of against forum shopping.

Other requirements set forth by the administrative circulars of the Supreme Court are
as follows, to wit:

6. Professional Tax Receipt Number ([PTR]-Circular No. 10, July 24, 1985; Bar
Matter No. 287, September 26, 2000);
7. IBP Official Receipt Number (Circular No. 10, July 24, 1985; Bar Matter No. 287,
September 26, 2000);
8. Rolls of Attorney (Bar Matter No. 1132, April 2003);
9. MCLE Certificate of Compliance or Certification of Exemption (Bar Matter No.
1922, En Banc Resolution, June 3, 2008);
10. Evidence of Competent Identity in the jurat of the pleading (Sec. 12, 2004
Notarial Rules)

Caption of the Pleading (Sec. 1, Rule 7)

The caption of the pleadings sets forth the following:

1. Name of the court;
2. The title of the action; and
3. The docket number if assigned.

The title of the pleading includes:

1. Indicate the names of the parties;
2. They shall be named in the original complaint or petition;
3. In all subsequent pleadings, it shall be sufficient if the name of the first party on
each side be stated with an appropriate indication when there are other parties;
and
4. Their respective participation in the case shall be indicated.

The allegations in the complaint not the caption determine the nature of the case

It is not the caption of the pleading but the allegations therein that determine the nature
of the action, and the court should grant relief warranted by the allegations and the
proof even if no such relief is prayed for. Thus, the fact that the complaint was
categorized by the plaintiff to be one for reformation of the instrument should not
preclude the court from passing upon the real issue of whether or not the transaction as
the said issue had been squarely raised in the complaint and had been the subject of
arguments and evidence of the parties (Lorbes vs. Court of Appeals, G.R. No. 139884,
February 15, 2000)

Body of the pleading (Sec. 2, Rule 7)

The body of the pleading set forth the following:

1. Its designation;
2. The allegations of the party’s claim and defenses;
3. The relief prayed for; and
 4. The date of the pleading.

Manner of making allegations in the body of the pleading

1. It shall be divided into paragraphs so numbered as to be readily identified;
2. Each of which shall contain a statement of a single set of circumstances so far as
that can be done with convenience;
3. A paragraph may be referred to by its number in all succeeding pleadings.

Rule in case two or more causes of action are joined in a complaint

1. The statement of the first shall be prefaced by the words “first cause of action.”
2. The second by “second cause of action,” and soon on for the others.
3. When one or more paragraphs in the answer are addressed to one of several
causes of action in the complaint, they shall be prefaced by the words “answer to
the first cause of action” or “answer cause of action” and so on.
4. When one or more paragraphs of the answer are addressed to several causes of
action, they shall be prefaced by words to that effect.

What are included in the relief?

The pleading shall specify the following:

1. The relief sought;
2. It may add a general prayer for such further or other relief as may be deemed
just or equitable.

Court cannot grant relief not prayed for in the pleadings: Reason.

It is settled that courts cannot grant a relief not prayed for in the pleadings or in excess
of what is being sought by the party. They cannot also grant a relief without first
ascertaining the evidence presented in court. In Development Bank of the Philippines
vs. Tecson, this Court expounded that:

Due process considerations justify this requirement, it is improper to enter an order

which exceeds the scope of relief sought by the pleadings, absent notice, which affords
the opposing party an opportunity to be heard with respect to the proposed relief. The
fundamental purpose of the requirement that allegations of the complaint must provide
the measure of recovery is to prevent surprise to the defendant. (Leticia Diona,
represented by her Attorney-in fact, Marcelina Diona vs. Romeo Balangue, Sonny
Balangue, Reynaldo Balangue, and Esteban Balangue, Jr., G.R. No. 173559, January 7,
2013)

When may a general prayer, “other reliefs just and equitable” be granted by the court?

A general prayer for “other reliefs just and equitable appearing in a complaint or
pleading normally enables the court to award reliefs supported by the complaint or
other pleadings, by the facts admitted at the trial, and by the evidence adduced by the
parties, even if these reliefs are not specifically prayed for in the complaint. (Philippine
Charter Insurance Corp. vs. Philippine National Construction Corp., G.R. No. 185066,
October 2, 2009)

Signature and address (Sec. 3, Rule 7)

Sec. 3, 1st par., Rule 7 of the 1997 Rules of Civil Procedure mandates that every
pleading must be either signed either by the party himself or by the counsel
representing him. The one who signs the pleading must give an address which should
not be post office box.
Duty of the counsel in case of change of his address

Clearly, it is the duty of the counsel to promptly inform the court of a change of address.
The contention of the defendants-appellants’ counsel that his failure to inform the Court
of his change of address was due to the fault of his legal secretary in not including the
instant case in the inventory of his cases is a lame excuse and deserves no
consideration. It has to be stressed that it devolves upon every counsel to take full
responsibility in supervising the work in his office with respect to all the cases he
handles and he should not delegate the responsibility to his legal secretary. (Mariano
Navarro vs. Jarson Development Corp., G.R. No. 142627, January 28, 2008)

Under Sec. 3, Rule 7, it states that the signature of the counsel certifies that he has read
the pleading, to the best of his knowledge, information and belief there is a good ground
to support it, and it is not interposed for delay.

Unsigned Pleading

An unsigned pleading produces no legal effect.

However, the court may, in its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not intended for delay.

Liability of the counsel who filed an unsigned pleading, etc.

Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of

this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to
the court a change of his address, shall be subjected to appropriate disciplinary action.

Verification of pleading

Verification is a statement under oath. It includes both actual swearing to the truth of
the statements by the subscriber and also the certification thereto by the notary or
other officer authorized to administer oath. (71 C.J.S. Pleading S 343 [1931])

Purpose of verification

The purpose of verification is to secure an assurance that the allegations in the petition
have been made in good faith, or are true and correct and not merely speculative. The
requirement is simply a condition affecting the form of pleadings and non-compliance
therewith is neither jurisdictional nor does not render the pleading fatally defective.
(Alma B. Russel vs. Teofista Ebasan and Agapito Austria, G.R. No. 184542, April 23,
2010)

Use of personal knowledge and authentic records required

While the rule gives the pleaders several ways of verifying their pleading, the use of the
phrase personal knowledge or authentic records is not without any legal signification
and the pleaders are not at liberty to choose any of these phrases fancifully. (Makilito B.
Mahinay vs. Ireneo Lee Gako, Jr., G.R. No. 165338 and G.R. No. 179375, November 28,
2011)

Pleadings need not be under oath, verified or accompanied by affidavit. Except when:
1. Otherwise specifically required by law; or
2. Rule

Amendment on Sec. 4, Rule 7

Under A.M. No. 00-2-10 (2000) of the Supreme Court amending Sec. 4, Rule 7 mandates
that a pleading shall be verified by an affiant states that:
1. He has read the pleadings, and
2. That the allegations therein are true and correct of his own knowledge and
authentic records.

Purpose of verification

1. Verification requirement is significant, as it is intended to secure an assurance

that the allegations in the pleading are true and correct and not the product of
the imagination or a matter of speculation, and that the pleading is filed in good
faith. Verification is deemed substantially complied with when, as in this case,
one who has ample knowledge to swear to the truth of the allegations in the
complaint or petition signs the verification, and when matters alleged in the
petition have been made in good faith or are true and correct. (Felix Martos,
Jimmy Eclana, Rodel Pilones, et. al. vs. New San Jose Builders, Inc., G.R. No.
192650, October 24, 2012)
2. Verification of pleadings is not an empty ritual bereft of any legal importance. It
is intended to secure an assurance that the allegations contained in the pleading
are true and correct; are not speculative or merely imagined; and have been
made in good faith. A pleading may be verified by stating that the pleaders have
read the allegations in their petition and that the same are true and correct
based either on their personal knowledge and authentic records. (Makilito B.
Mahinay vs. Ireneo Lee Gako, Jr., G.R. No. 179375, November 28, 2011)
3. In any event, the purpose of requiring a verification is to secure an assurance
that the allegations in the petition have been made in good faith, or are true and
correct, not merely speculative. The requirement is simply a condition affecting
the form of the pleadings and non-compliance therewith is neither jurisdictional
nor renders the pleading fatally defective. A perusal of the verification in
question shows sufficient compliance with the requirements of the Rules and the
perceived defects, if that be the case, are not so material as to justify the
dismissal of the petition. (Gilbert G. Uy vs. Asia United Bank, G.R. No. 174874,
October 4, 2007)

Nature of verification: Verification of a pleading only a formal and not jurisdictional

requisite.
1. Verification of a pleading is a formal, not jurisdictional requirement. The
requirement is simply a condition affecting the form of the pleading and non-
compliance with the requirement does not render the pleading fatally defective.
(Carbonilla, et. al., vs. Board of Airlines Representatives, G.R. No. 193247,
September 14, 2011)
2. Verification of a pleading is only a formal requirement. It is not jurisdictional as
it is only a condition affecting the form of the pleadings, and non-compliance
therewith does not necessarily render the pleading fatally defective. The court
may order the correction of the pleading if verification is lacking or act on the
pleading although it is not verified, if the attending circumstances are such that
strict compliance with the rules may be dispensed with in order that the ends of
justice may thereby be served. (Mediserv, Inc. vs. Court of Appeals, et. al., G.R. No.
161368, April 5, 2010)
3. On the other hand, the requirement on verification of a pleading is a formal and
not a jurisdictional requirement. (Buenaventura vs. Uy, G.R. No. L-28156, March
31, 1987, 149 SCRA 220) It is intended simply to secure an assurance that what
are alleged in the pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good
faith. The party need not sign the verification. A party’s representative, a lawyer
 or any person who personally knows the truth of the facts alleged in the pleading
may sign the verification. (Florenz D. Regalado, Remedial Law Compendium, Vol.
I, Sixth Revised Edition., 14; Colito T. Pajuyo vs. Court of Appeals. G.R. No.
146364, June 3, 2004)

Action of the court in case of lack of verification

When circumstances warrant, the court may simply order the correction of unverified
pleadings or act on it and waive the strict compliance with the rules in order that the
ends of justice may thereby be served. (Vallacar Transit, Inc. vs. Jocelyn Catubig, G.R. No.
175512, May 30, 2011)

The court may order the correction of the pleading if verification is lacking or act on the
pleading although it is not verified, if the attending circumstances are such that strict
compliance with the rules may be dispensed with in order that the ends of justice may
thereby be served. (Mediserv, Inc. vs. Court of Appeals, et. al., G.R. No. 161368, April 5,
2010)

Liberal application of the rules on verification

The liberal construction of the rules may be invoked in situations where there may be
some excusable formal deficiency or error in a pleading, provided that the same does
not subvert the essence of the proceeding and it at least connotes a reasonable attempt
at compliance with the rules. Besides, fundamental is the precept that rules of
procedure are meant not to thwart but to facilitate the attainment of justice; hence their
rigid application may, for deserving reasons, be subordinated by the need for an apt
dispensation of substantial justice in the normal course. They ought to be relaxed when
there is subsequent or even substantial compliance, consistent with the policy of
liberality espoused by Rule 1, Sec. 6. Not being inflexible, the rule on verification allows
for such liberality. (Felix Martos, Jimmy Eclana, Rodel Pilones, et. al., vs. New San Jose
Builders, Inc., G.R. No. 192650, October 24, 2012)

Lack of Verification vs. Lack of Certification against Forum Shopping

The Court has consistently held that the requirement regarding verification of a
pleading is formal, not jurisdictional. (Uy vs. Land Bank, G.R. No. 136100, July 24, 2000,
336 SCRA 419) Such requirement is simply a condition affecting the form of the
pleading, non-compliance with which does not necessarily render the pleading fatally
defective. Verification is simply intended to secure an assurance that the allegations in
the pleading are true and correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith. The court may order the
correction of the pleading if verification is lacking or act on the pleading although it is
not verified, if the attending circumstances are such that strict compliance with the
rules may be dispensed with in order that the ends of justice may thereby be served.
(Mediserv, Inc. vs. CA, G.R. No. 161368, April 5, 2010)

On the other hand, the lack of certification against forum shopping is generally not
curable by the submission thereof after the filling of the petition. Sec. 5, Rule 45 of the
1997 Rules of Civil Procedure provides that the failure of the petitioner to submit the
required documents that should accompany the petition, including the certification
against forum shopping shall be sufficient ground for the dismissal thereof. The same
rule applies to certifications against forum shopping signed by a person on behalf of the
corporation which are unaccompanied by proof that said signatory is authorized to file
a petition on behalf of the corporation. (Mediserv, Inc. vs. CA, G.R. No. 161368, April 5,
2010)
A lawyer may sign the verification – but not the Certification against Forum Shopping

In a case where the petitioner is the Commission on Appointments, a government

created by the Constitution and headed by its Chairman, the Supreme Court ruled that
there was “no need for the Chairman himself to sign the verification. Its representative,
a lawyer or any person who personally knew the truth of the facts alleged in the
petition could sign the verification. With regard, however, to the certification of non-
forum shopping, the established rule is that it must be executed by the plaintiff or any of
the principal parties and not by counsel.” (COA, represented herein by its Secretary
Hon. Arturo L. Tiu vs. Celso M. Paler, G.R. No. 172623, March 3, 2010)

Person who will sign the verification in case of a corporation must be authorized by
way of board resolution

It is clear from the NLRC Rules of Procedure that appeals must be verified and certified
against forum-shopping by the parties-in-interest themselves. The purpose of
verification is to secure an assurance that the allegations in the pleading are true and
correct and have been filed in good faith. In the case at bar, the parties-in-interest are
petitioner Salenga, as the employee, and respondent Clark Development Corporation as
the employer. A corporation can only exercise its powers and transact its business
through its board of directors and through its officer and agents when authorized by a
board resolution or its by-laws. The power of a corporation to sue and be sued is
exercised by the board of directors. The physical acts of the corporation, like the signing
of documents, can be performed only by natural persons duly authorized for the
purpose by corporate by-laws or by a specific act of the board. Absent the requisite
board resolution, neither Timbol-Roman nor Atty. Mallari, who signed the
Memorandum of Appeal and Joint Affidavit of Declaration allegedly on behalf of
respondent corporation, may be considered as the “appellant” and “employer” referred
to by the NLRC Rules of Procedure. As such, the NLRC had no jurisdiction to entertain
the appeal. (Antonio B. Salenga, et. al., vs. Court of Appeals, et. al., G.R. No. 174941,
February 1, 2012)

Effect if the person who signed the verification has no authority: Dismissal of the
complaint since the court has no jurisdiction over the complaint and the plaintiff

What then, is the effect of a complaint filed by one who has not proven his authority to
represent a plaintiff in filing an action? In Tamondong vs. Court of Appeals, the Court
categorically stated that “if the complaint is filed for and in behalf of the plaintiff by one
who is not authorized to do so, the complaint is not deemed filed. An unauthorized
complaint does not produce any legal effect. Hence, the court should dismiss the
complaint on the ground that it has no jurisdiction over the complaint and the plaintiff.”
This ruling was reiterated in Cosco Philippines Shipping, Inc. vs. Kemper Insurance
Company, where the Court went on to say that “in order for the court to have authority
to dispose of the case on the merits, it must acquire jurisdiction over the subject matter
and the merits. Courts acquire jurisdiction over the plaintiffs upon the filing of the
complaint, and to be found by a decision, a party should first be subjected to the court’s
jurisdiction. Clearly, since no valid complaint was ever filed with the [MeTC], the same
did not acquire jurisdiction over the person of respondent [plaintiff before the lower
court].” Pursuant to the foregoing rulings, therefore, the MeTC never acquired
jurisdiction over this case and all proceedings before it were null and void. The courts
could not have delved into the very merits of the case, because legally, there was no
complaint to speak of. The court’s jurisdiction cannot be deemed to have been invoked
at all. (Atty. Fe Q. Palmiano-Salvador vs. Constantino Angeles, Substituted by Luz G.
Angeles, G.R. No. 171219, September 3, 2012)
Substantial compliance rule if the person who signs the verification has ample
knowledge and made in good faith

Verification is deemed substantially complied with when, as in the instant case, one
who has ample knowledge to swear the truth of the allegations in the complaint or
petition signs the verification, and when matters alleged in the petition have been made
in good faith or are true and correct. (Georgia T. Estel vs. Recaredo vs. Recaredo P.
Diego, Sr., And REcaredo R. Diego, Jr., G.R. No. 174082, January 16, 2012)

Guidelines in case of non-compliance or submission of defective verification

Respecting the appellate court’s dismissal of petitioner’s appeal due to the failure of
some of them to sign therein accompanying verification and certification against forum
shopping, the Court’s guidelines for the bench and the bar in Alteres vs. Empleo, which
were culled “from jurisprudential pronouncements,” are instructive:

For the guidance of the bench and the bar, the Court restates in capsule from the
jurisprudential pronouncements already reflected above respecting non-compliance
with the requirements on or submission of defective, verification and certification of
non-forum shopping:
1. A distinction must be made between non-compliance with the requirement or
submission of defective certification against forum shopping.
2. As to verification non-compliance therewith or a defect therein does not
necessarily render the pleading defective. The Court may order its submission or
correction or act on the pleading circumstances are such that strict compliance
with the Rule may be dispensed with in order that the ends of substantial justice
may be served thereby.
3. Verification is deemed substantially complied with when one has ample
knowledge to swear to the truth or are true and correct.
4. As to certification against forum shopping, non-compliance therewith or a defect
therein, unlike in verification is generally not curable by its subsequent
submission or correction thereof, unless there is a need to relax the Rule on the
ground of “substantial compliance” or presence or “special circumstances or
compelling reasons.”
5. The certification against forum shopping must be signed by all the plaintiffs or
petitioners in a case; otherwise those who did not sign will be dropped as parties
to the case. Under reasonable or justifiable circumstances, however, as when all
the plaintiffs or petitioners share a common interest and invoke a common cause
of action or defense, the signature of only one of them in the certification against
forum shopping substantially complies with the rule.
6. Finally, the certification against forum shopping must be executed by the party-
pleader, not by counsel. If however, for reasonable or justifiable reasons, the
party-pleader is unable to sign, he must execute a Special Power of Attorney
designating his counsel or record to sign in his behalf. (Oldarico S. Traveno vs.
Bobongon Banana Growers Multi-Purpose Cooperative, G.R. No. 164205,
September 3, 2009 as cited in Nelle Vda. De Francisco, et. al., vs. PNB, G.R. No.
154704, June 1, 2011)

Pleadings that should be verified under the Rules and law

1. Petition for relief from judgment or order (Sec. 3, Rule 38)
2. Petition for review from the RTC to the CA (Sec. 1, Rule 42)
3. Petition for review from quasi-judicial agencies to the CA (Sec. 5, Rule 43)
4. Petition for review on certiorari from the RTC or CA to the SC (Sec. 4, Rule 45)
5. Petition for annulment of judgments or final orders and resolutions (Sec. 4, Rule
47)
6. Complaint for injunction (Sec. 4, Rule 58)
7. Application for appointment of receiver (Sec. 1, Rule 59)
8. Application for support of pendent lite (Sec. 1, Rule 69)
9. Petition for certiorari against the judgments , final orders or resolution of the
COA and COMELEC (Sec. 2, Rule 64)
10. Petition for certiorari (Sec. 1, Rule 65)
11. Petition for prohibition (Sec. 2, Rule 65)
12. Petition for mandamus (Sec. 3, Rule 65)
13. Petition for quo warranto (Sec. 1, Rule 66)
14. Complaint for expropriation (Sec. 1, Rule 67)
15. Complaint for forcible entry or unlawful detainer, the answers thereto, and the
answers thereto, and the answers to any compulsory counter-claim and cross-
claim pleaded in the answer (Sec. 4, Rule 70)
16. Petition for indirect contempt (Sec. 4, Rule 71)
17. Petition for adoption (Sec. 7, Rule on Adoption)
18. Petition for legal separation (Sec. 2[b][3], Rule on Legal Separation)
19. Petition for declaration of absolute nullity of void marriages and annulment of
voidable marriages (Sec. 5, Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages);
20. Petitions in summary judicial proceedings in the family law based on Arts. 41,
51, 69, 73, 96, 124, 127, 223, 225, 235, 239 of the Family Code (Arts. 239, 249
and 253 of the Family Code)
21. All complaints, compulsory counterclaims and cross-claims’ pleaded in the
answer, and the answer thereto, filed under summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, and the Municipal Circuit Trial Courts (Sec. 3, Rule 2, Revised Rules
on Summary Procedure)
22. Petition for appointment of a general guardian (Sec. 2, Rule 93); Petition for
appointment of limited guardian under Sec. 6 of Rule 93 need not be verified
23. Petition for leave to sell or encumber property of an estate by a guardian (Sec. 1,
Rule 95)
24. Petition for the declaration of competency of a ward (Sec. 1, Rule 97)
25. Petition for habeas corpus (Sec. 3, Rule 102)
26. Petition for change of name (Sec. 2, Rule 103)
27. Petition for voluntary judicial dissolution of a corporation (Sec. 1, Rule 104)
28. Petition for cancellation or correction of entries in the civil registry (Sec. 1, Rule
108) or for correction of a clerical or typographical error in an entry pursuant to
Republic Act No. 9048 (Sec. 3, RA 9048)
29. Civil complaints or initiatory pleadings asserting claims for relief (including
permissive counter-claims) (Sec. 5, Rule 7, Rules of Civil procedure)
30. Statement of Claim for Small Claims Cases as well as the Response thereto (Secs.
5 and 11, Rules of Procedure for Small Claims Cases)
31. Complaints filed under the Interim Rules of Procedure on Intra-Corporate
Controversies, as well as the Answer thereto (Sec. 3, Rule 2, Interim Rules of
Procedure on Intra-Corporate Controversies)
32. All pleadings. Motions, oppositions, defenses or claims filed by any interested
party in any proceeding governed by the Rules of Procedure on Corporate
Rehabilitation (2008) (Sec. 1, Rule 3, Rules of Procedure on Corporate
Rehabilitation)
33. Complaints filed with the Court of Tax Appeals (Sec. 1, Rule 6, Revised Rules of
Procedure of the Court of Tax Appeals (Sec. 1, Rule 6, Revised Rules of Procedure
of the Court of Tax Appeals)
34. Petition for review filed with the CTA (Sec. 2, Rule 6, Revised Rules of Procedure
of the Court of Tax Appeals)
35. Application of an issuance for a writ of search and seizure in civil actions for
infringement of intellectual property rights. (Sec. 4, Rule on Search and Seizure
 in Civil Actions for infringement of intellectual property rights. (Sec. 4, Rule on
Search and Seizure in Civil actions for Infringement of IP Rights)
36. A petition for the issuance of a Writ of Amparo and the return thereof; and in
connection with the Amparo proceedings, motion for a inspection order or for a
production order (The Rule on the Writ of Amparo)
37. A petition for the issuance of a writ of Habeas Data and the return thereof (The
Rule on the Writ of Habeas Data)
38. Election protests or petitions for quo warranto relating to relating to elective
municipal and barangay officials filed with the general courts; as well as the
answers thereto. (Sec. 7, Rule 3 and Sec. 1, Rule 4, Rules of Procedure in Election
Contests before the courts involving elective municipal and barangay officials)

Pleadings filed with Quasi-Judicial Bodies with verification

1. Complaints filed with the Regional Office of the Housing and Land Use
Regulatory Board (Sec. 1, Rule III, 1996 Revised Rules of Procedures of HLURB,
as amended)
2. The following pleadings filed before the Commission on Elections, as well as the
answers thereto: protests or petitions in ordinary actions, special actions, special
cases, special reliefs, provisional remedies, special proceedings, counter-
protests, counter-petitions, interventions, motions for reconsiderations, appeals
from rulings of board of canvassers. (Sec. 3[b], Rule 7, COMELEC Rules of
Procedure)
3. Petition for review, as well as the comment thereto, filed with the Secretary of
the Department of Justice, appealing from resolutions of Chief State Prosecutors,
Regional State Prosecutors, and Provincial/City prosecutors in cases subject of
preliminary investigation/reinvestigation. (Secs. 4 and 8, 2000 NPS Rule on
Appeal)
4. Petition for review filed with Regional Officer of the HLURB. (See Sec. 1, Rule XII,
1996 Revised Rules of Procedure of the HLURB)
5. Position papers filed before Labor Arbiters. (Sec. 7, Rule V, 2005 Rules of
Procedure of the National Labor Relations Commission)
6. Complaints filed in administrative cases filed with the Insurance Commission
(Sec. 4, Rule I, Rules of Procedure Governing Administrative Cases before the
Insurance Commission) and Complaints seeking relief from insurance companies
or mutual benefit associations filed with Insurance Commission. (Sec. 1, Rule 3,
Rules of Procedure Governing Hearings before the Insurance Commission)
7. Complaints and petitions filed with Securities and Exchange Commission in the
exercise of its adjudicative functions, as well as the answers thereto. (Sec. 3-3,
Rule III, Revised Rules of Procedure 2000 of the Securities and Exchange
Commission)
8. Applications for new services, complaints, petitions, oppositions and answers
filed with the Land Transportation Franchising and Regulatory Board. (Sec. 2,
Rule 3, Rules of Practice and Procedure Before the LTFRB)

Pleadings or motions that should be under oath

The following pleadings are not required to be verified in the manner and form
prescribed by Sec. 4 of this Rule, but the same must be under oath:
1. Denial of the genuineness and due execution of an actionable document (Sec. 8,
Rule 8)
2. Denial of allegations of usury (Sec. 11, Rule 8)
3. Motion to set aside a default order (Sec. 3[b] Rule 9; The Phil. British Co., et. al.,
vs. De Los Angeles, etc., et. al., L-33720-21, March 10, 1975)
4. Answer to written interrogatories (Sec. 2, Rule 25)
5. Answer to request for admission (Sec. 2, Rule 26)
Pleadings or motions accompanied with an Affidavit of Merit

The following pleadings or motion must be accompanied by an affidavit or affidavit of

merit, to wit:
1. Motion to postpone for absence of evidence (Sec. 3, Rule 30)
2. Motion to postpone for illness of a party or counsel (Sec. 4, Rule 30)
3. Motion for summary judgment or opposition thereto (Secs. 1, 2, 3 and 5, Rule 35)
4. Motion for new trial on the ground of fraud, accident, mistake or excusable
negligence or opposition thereto (Sec. 2, Rule 37)
5. Petition for relief from judgment or order (Sec. 3, Rule 38)
6. Third-party claim (Sec. 16, Rule 39)
7. Proof required of a redemptioner (Sec. 30, Rule 39)
8. Motion for preliminary attachment (Sec. 3, Rule 57)
9. Motion for dissolution of preliminary injunction (Sec. 6, Rule 58)
10. Application for writ of replevin (Sec. 2, Rule 60)
11. Claim against the estate of a decedent (Sec. 9, Rule 86)
12. Motion for new trial on the ground of newly-discovered evidence in criminal
cases (Sec. 4, Rule 121)

Sample Form: Verification

VERIFICATION/CERTIFICATION OF FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES )

QUEZON CITY ) S.S.

I, __________________, of legal age, Filipino citizen, married, and resident of

_____________, after having been duly sworn to in accordance with law do hereby depose
and say:

1. That I am the plaintiff in the above-entitled case;

2. That I have caused the preparation of the foregoing Complaint and have read
the allegations contained therein;
3. The allegations in the said complaint are true and correct of my own
knowledge and authentic records;
4. I hereby that I have not commenced any other action or proceeding involving
the same issues in the Supreme Court, Court of Appeals, or any other tribunal
or agency;
5. That if I should thereafter learned that a similar action or proceeding has
been filed or is pending before the Supreme Court, Court of Appeals, or any
other tribunal agency, I hereby undertake to report that fact within five (5)
days therefrom to the court or agency wherein the original pleading and
sworn certification contemplated herein have been filed;
6. I executed this verification/certification to attest to the truth of the foregoing
facts and to comply with the provisions of Adm. Circular No. 04-94 of the
Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this _____ day of

__________ 2016, in Quezon City.

__________________________________
Affiant
 SUBSCRIBED AND SWORN to before me this ________ day of ________ 2016, Quezon
City, affiant exhibiting to me his _______________ issued at ______________ on ______________.

Acts and Certification against Forum Shopping (Sec. 5, Rule 7)

Act of Forum shopping defined

1. Forum shopping is the act of litigants who repetitively avail of themselves of
multiple judicial remedies in different for a, simultaneously or successively, all
substantially founded on the same transactions and the same essential facts and
circumstances; and raising substantially similar issues either pending in or
already resolved adversely by some other court; or for the purpose of increasing
their chances of obtaining a favorable decision, if not in one court, then in
another. The rationale against forum-shopping is that a party should not be
allowed to pursue simultaneous remedies in two different courts, for to do so
would constitute abuse of court processes which tends to degrade the
administration of justice, wreaks havoc upon orderly judicial procedure, and
adds to the congestion of the heavily burdened dockets of the courts.

We emphasize that the grave evil sought to be avoided by the rule against forum
shopping is the rendition by two competent tribunals of two separate and
contradictory decisions. (Spouses Daisy and Socrates M. Arevalo vs. Planters
Development Bank and the Register of Deeds of Paranaque City, G.R. No. 193415,
April 18, 2012)

2. Forum shopping has been defined as an act of a party, against whom an adverse
judgment has been rendered in one forum, of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or a special civil action
for certiorari, or the institution of two or more actions or proceedings grounded
on the same cause on the supposition that one or the other court would make a
favorable disposition. (Metropolitan Bank and Trust Company, Substituted by
Meridian [SPV-AMCI] Corporation vs. International Exchange Bank, G.R. No.
176008, August 10, 2011)

3. Forum shopping has been defined as an act of a party, against whom an adverse
judgment has been rendered in one forum, of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or a special civil action
for certiorari, or the institution of two or more actions or proceedings grounded
on the same cause on the supposition that one or the other court would make a
favorable disposition. (Metropolitan Bank and Trust Company, Substituted by
Meridian [SPV-AMCI] Corporation vs. International Exchange Bank, G.R. No.
176008, August 10, 2011)

4. Settled is the rule that forum shopping is the act of a litigant who repetitively
availed of several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and the same
essential facts and circumstances, and all raising substantially the same issues,
either pending in or already resolved adversely by some other court, to increase
his chances of obtaining a favorable if not in one court, then in another. (Spouses
Nelson R. Villanueva and Myra P. Villanueva vs. Court of Appeals, G.R. No.
163433, August 22, 2011)

5. Forum shopping is an act of malpractice that is proscribed and condemned as

trifling with the courts and abusing their processes. It is improper conduct that
tends to degrade the administration of justice. (Beneco, Inc. vs. NEA, G.R. No.
93924, January 23, 1991, 193 SCRA 250)
Nature of forum shopping: Effects

Forum shopping is defined as an act of a party, against whom an adverse judgment or

order has been rendered in one forum of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action for certiorari. It
may also be the institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make a favorable
decision. x x x It is expressly prohibited x x x because it trifles with and abuses court
processes, degrades the administration of justice, and congest our court dockets. A
willful and deliberate violation of the rule against forum shopping is a ground for
summary dismissal of the case, and may also constitute direct contempt. (Estrella
Aduan Orpiano vs. Spouses Antonio C. Tomas and Mryna U. Tomas, G.R. No. 178611,
January 14, 2013)

When does forum shopping exist?

1. There is forum-shopping when as a result of an adverse decision in one forum, or
in anticipation thereof, a party seeks a favorable opinion in another forum
through means other appeal or certiorari. Forum shopping exists when two or
more action involve the same transactions, essential facts, and circumstances;
and raise identical causes of action, subject matter, and issues. Forum-shopping
exists when the elements of litis pendentia are present or where a final judgment
in one case will amount to res judicata in the other. (Making Enterprise, Inc. vs.
Jose Marfori, G.R. No. 152239, August 17, 2011)
2. There is forum shopping whenever, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion (other than by appeal or certiorari) in
another. The principle applies not only with respect to suits filed in the courts
while an administrative proceeding is pending in order to defeat administrative
ruling and a favorable court ruling (Villanueva vs. Adre, G.R. No. 80863, April 27,
1989, 172 SCRA 876)
3. Forum shopping “occurs when a party attempts to have his action tried in a
particular court or jurisdiction where he feels he will receive the most favorable
judgment or verdict.” (Black’s Law Dictionary, 5th Ed. 1979, 590) In our
jurisdiction, it has taken the form of filing multiple petitions or complaints
involving the same issues before two or more tribunals or agencies in the hope
that one or the other court would make a favorable disposition. (Melo vs. Court
of Appeals, G.R. No. 123689, November 16, 1999, 318 SCRA 94, 100, citing
Executive Secretary vs. Gordon, G.R. No. 134171, November 18, 1998, 298 SCRA
736, 740; Domingo, Jr. vs. Commission on Elections, G.R. No. 136587, August 30,
1999, 313 SCRA 311, 317)
4. There is also forum shopping when, because of an adverse decision in one forum,
a party seeks a favorable opinion (other than by appeal or certiorari in another).
(Fortich vs. Corona, G.R. No. 131457, April 24, 1998, 289 SCRA 624, 647, citing
First Philippine International Bank vs. Court of Appeals, G.R. No. 115849, January
24, 1996, 252 SCRA 259, 283; Villanueva vs. Adre, G.R. No. 80863, April 27, 1989,
172 SCRA 876, 882; Crisostomo vs. Securities and Exchange Commission, G.R.
Nos. 89095 and 89555, November 6, 1989, 179 SCRA 146, 155)

Factors in determining forum shopping

1. An important factor in determining the existence of forum shopping is the
vexation caused to the courts and the parties-litigants by the filing of similar
cases to claim substantially the same reliefs. (Catalina Balais-Mabanag vs. The
Register of Deeds of Quezon City, G.R. No. 153142, March 29, 2010)
2. What is truly important to consider in determining whether forum shopping
exist or not is the vexation caused to the courts and the litigants by a party who
accesses different courts and administrative agencies to rule on the same or
related causes or to grant the same or substantially the same reliefs, in the
 process creating the possibility of conflicting decisions being rendered by the
different for upon the same issue. (Luis Lokin, Jr. vs. COMELEC, G.R. No. 179431-
32, June 18, 2010)

Reason for the prohibition on forum shopping

1. The rationale against forum shopping is that a party should not be allowed to
pursue simultaneous remedies in two different fora. Filing multiple petitions or
complaints constitutes abuse of court processes (Zebra Security Agency vs.
NLRC, G.R. No. 115951, March 26, 1997, 337 Phil. 200, 209), which tends to
degrade the administration of justice, wreaks havoc upon orderly judicial
procedure, and adds to the congestion of the heavily burdened docket of the
courts. (Nacuray vs. NLRC, G.R. Nos. 114924-27, March 18, 1997, 336 Phil. 749,
756)
2. Thus, the rule proscribing forum shopping seeks to promote candor and
transparency among lawyers and their clients in the pursuit of their cases before
the courts to promote the orderly administration of justice, prevent undue
inconvenience upon the other party, and save the precious time of the courts. It
also aims to prevent the embarrassing situation of two courts or agencies
rendering conflicting resolutions or decisions upon the same issue. (Solid
Homes, Inc. vs. Court of Appeals, G.R. No. 108451, April 11, 1997, 337 Phil. 605;
Spouses Manuel and Rosemarie Wee vs. Rosario D. Galvez, G.R. No. 147394,
August 11, 2004)

Test to determine violation of forum shopping

1. To determine whether a party violated the rule against forum shopping, the
most important factor to ask is whether the elements of litis pendentia are
present, or whether a final judgment in one case will amount to res judicata in
another; otherwise stated, the test for determining forum shopping is whether in
the two (or more) cases pending, there is identity of parties, rights or causes of
action, and reliefs sought.

Hornbook is the rule that identity of causes of action does not mean absolute
identity; otherwise, a party could easily escape the operation of res judicata by
changing the form of the action or the relief sought. The test to determine
whether the causes of action are identical is to ascertain whether the same
evidence will sustain both actions, or whether there is an identity in the facts
essential to the maintenance of the two actions. If the same facts or evidence
would sustain both, the two actions are considered the same, and a judgment in
the first case is a bar to the subsequent action. Hence, a party cannot, by varying
the form of action or adopting a different method of presenting his case, escape
the operation of the principle that one and the same cause of action shall not be
twice litigated between the same parties or their privies. Among the several tests
resorted to in ascertaining whether the two suits relate to a single or common
cause of action are: (1) whether the same evidence would support and sustain
both the first and second causes of action; and (2) whether the defenses in one
case may be used to substantiate the complaint in the other. Also fundamental is
the test of determining whether the cause of action in the second case existed at
the time of the filing of the first complaint. (Jesse Yap vs. Court of Appeals
[Special Eleventh Division], and Eliza Chua and Evelyn Te, G.R. No. 186730, June
13, 2012)

2. To determine whether a party violated the rule against forum shopping, the
most important question to ask is whether the elements of litis pendentia are
present or whether a final judgment in one case will result to res judicata in
another. (SM Systems Corp. vs. Oscar Camerino, G.R. No. 178591, July 26, 2011)
Forum shopping exist when there is substantial identity of cases: Annulment of Extra-
judicial foreclosure and Injunction case.

There can be no determination of the validity of the extrajudicial foreclosure and

propriety of injunction in the Injunction Case without necessarily ruling on the validity
of the REM, which is already the subject of the Annulment Case. The identity of the
causes of action in the two cases entails that the validity of the mortgage will be ruled
upon in both, and creates a possibility that the two rulings will conflict each other. This
is precisely what is sought to be avoided by the rule against forum shopping.

The substantial identity of the two cases remains even if the parties should add
different grounds or legal theories for the nullity of the REM or should alter the
designation or form of the action. The well-entrenched rule is that “a party cannot, by
varying the form of action, or adopting a different method of presenting his case, escape
the operation of the principle that one and the same cause of action shall not be twice
litigated. (Goodland Company, Inc., vs. Asia United Bank, Abraham Co., Atty. Joel T.
Pelicano and the Register of Deeds of Makati City, G.R. No. 195561, March 14, 2012)

Three ways of committing forum shopping

1. By filing multiple cases based on the same cause of action and with the same
prayer, the previous case not having resolved yet (where the ground for
dismissal is litis pendentia);
2. By filing multiple cases based on the same cause of action and with the same
prayer, the previous case having been finally resolved (where the ground for
dismissal is res judicata); and
3. By filing multiple cases based on the same cause of action but with different
prayers (splitting of causes of action), where the ground for dismissal is also
either litis pendentia or res judicata. (Spouses Nelson R. Villanueva and Myra P.
Villanueva vs. the Court of Appeals, G.R. No. 163433, August 22, 2011)

Elements of forum shopping

1. Forum shopping exists when a party repetitively avails himself of several judicial
remedies in different courts, simultaneously or successively, all substantially
founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in, or
already resolved adversely by, some other court. (Mario B. Dacworks United
Incorporated and/or Dean A. Cancino, G.R. No. 191053, November 28, 2011)
2. For forum shopping to exist, both actions must involve the same transaction,
same essential facts and circumstances and must raise identical causes of action,
subject matter and issues. (In Re: Reconstitution of TCT Nos. 303168 and
303169 and Issuance of Owner’s Duplicate Certificates of Title in Lieu of those
Lost, G.R. No. 156797, July 6, 2010)
3. The elements of forum shopping are the same as in litis pendentia where the
final judgment in one case will amount to res judicata in the other. The elements
of forum shopping are:
a. Identity of parties, or at least such parties as would represent the same
interest in both actions;
b. Identity of rights asserted and relief prayed for, the relief being founded
on the same facts; and
c. Identity of the two preceding particulars such that any judgment
rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration. (Spouses Nelson
R. Villanueva and Myra P. Villanueva vs. the Court of Appeals, G.R. No.
163433, August 22, 2011; Evelina G. Chavez and Aida Chavez-Deles vs. CA
and Atty. Fidela Y. Vargas, G.R. No. 174356, January 20, 2010; GD Express
 Worlwide N.V. and Amihan Management Services, Inc. vs. Court of
Appeals, G.R. No. 136978, May 8, 2009)

No forum shopping if two remedies were availed of for the same order with different
objectives.

The successive filing of a notice of appeal and a petition for certiorari to challenge the
same orders, ruled by the SC in the cases of Young vs. Sy and Zosa vs. Estrella as
constituting forum shopping because the appeal and the petition for certiorari actually
sought different objectives. In his appeal in C.A.-G.R. CV No. 68259, Javellana amined to
undo the RTC’s erroneous dismissal of Civil Case No. 79-M-97 to clear the way for his
judicial demand for specific performance to be tried and determined in due course by
the RTC; but his petition for certiorari had the ostensible objective “to prevent
(Priscilla) from developing the subject property and from proceeding with the
ejectment case until his appeal is finally resolved,” as the CA explicitly determined in its
decision in C.A.-G.R. No. SP No. 60455.

Instead, we see the situation of resorting to two inconsistent remedial approaches to be

the result of the tactical misjudgment by Javellana’s counsel on the efficacy if the appeal
to stave off his caretaker’s eviction from the parcels of land and to prevent the
development of them into a residential or commercial subdivision pending the appeal.
In the petition for certiorari, Javellana explicitly averred that his appeal was
“inadequate and not speedy to prevent private respondent Alma Jose and her
transferee/assignee x x x from developing and disposing of the subject property to
other parties to the total deprivation of petitioner’s rights of possession and ownership
over the subject property,” and that the dismissal by the RTC had “emboldened private
respondents to fully develop the property and for respondent Alma Jose to file an
ejectment case against petitioner’s overseer x x x.” Thereby, it became far-fetched that
Javellana brought the petition for certiorari in violation of the policy against forum
shopping. (Priscilla Alma Jose vs. Ramon C. Javellana, et al., G.R. No. 158239, January 29,
2012)

Dangers of forum shopping

The first danger, i.e., the multiplicity of suits upon one and same cause of action. x x x
The second action, i.e., the unethical malpractice of shopping for a friendly court or
judge to ensure a favorable ruling or judgment after not getting it in the appeal.
(Priscilla Alma Jose vs. Ramon C. Javellana, et al., G.R. No. 158239, January 29, 2012)

What is the essence of forum shopping?

The essence of forum shopping is the filing of multiple suits involving the same parties
for the same cause of action, either simultaneously or successively, or the purpose of
obtaining a favorable judgment, through means other than by appeal or certiorari. The
rule thus does not apply to cases that arise from an initiatory or original action which
has been elevated by way of appeal or certiorari to higher or appellate courts or
authorities. This is so not only because the issues in the appellate courts necessarily
differ from those in the lower court, but also because the appealed cases are a
continuation of the original case and treated as only one case. For, it would be absurd to
require, say in this petition, to make mention in the certification against non-forum
shopping the CA case that is being sought to be reviewed in the petition at bench.
(Gilbert G. Uy vs. Asia United Bank. G.R. No. 174874, October 4, 2007)

Litis pendentia defined

Litis pendentia is a latin term, which literally means “a pending suit” and is variously to
in some decisions as lis pendens and auter action pendant. As a ground for the dismissal
of a civil action, it referes to the situation where two actions are pending between the
same cause of action, so that one of them becomes unnecessary and vexatious. It is
based on the policy against multiplicity of suits. (Goodland Company, Inc. vs. Asia
United Bank, Abraham Co, Atty. Joel T. Pelicano and the Register of Deeds of Makati City,
G.R. No. 195561, March 14, 2012)

Elements of litis pendentia

Litis pendentia requires the concurrence of the following requisites: (1) identity of
parties, or at least such parties as those representing the same interests in both actions;
(2) identity of rights asserted and reliefs prayed for, the reliefs being founded on the
same facts; and (3) identity with respect to the two preceding particulars in the two
cases, such that any judgment that may be rendered in the pending case, regardless of
which party is successful, would amount to res judicata in the other case.

Forum shopping a sufficient ground for the dismissal of an action under Sec. 1(e) and (f)
of Rule 16 based on res judicata or litis pendentia.

Remedy of the defendant has been filed, the ground of res judicata or litis pendentia can
be raised in the answer as an affirmative defense under Sec. 6, Rule 16.

Dismissal of the action motu propio by the court based on litis pendentia or res judicata
under Sec. 1, Rule 9.

The dismissal of the case based on litis pendentia and res judicata is considered as a
final order, which completely disposes of the case, which bars the re-filing of the case
(Sec. 5 of Rule 16)

Motu propio dismissal based on res judicata or litis pendentia in cases under Rules on
Summary Procedure. Sec. 4 of the Rules on Summary procedure provides for the
outright dismissal of the action on any grounds for the dismissal of the action which
includes venue.

Certification against forum shopping

Nature of certification of non-forum shopping

The need to abide by the Rules of Court and the procedural requirements it imposes has
been constantly underscored by this Court. One of these procedural requirements is the
certificate of non-forum shopping which, time and again, has been declared as basic,
necessary and mandatory for procedural orderliness. (Mary Louise R. Anderson vs.
Enrique Ho, G.R. No. 172590, January 7, 2013)

What does a certification against forum shopping contains? (Sec. 5, Rule 7 of the 1997
Rules of Civil Procedure)

The plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith:
1. That he has not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein;
2. If there is such other pending action or claim, a complete statement of the
present status thereof; and
 3. If he should thereafter learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.

Non-compliance with the requirement of certification against forum shopping not

curable by amendment: Cause for the dismissal of the “without prejudice.”

Failure to comply with the foregoing requirement shall not curable by mere
amendment of the complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise provided, upon motion and
after hearing.

Non-compliance with the certification of non-forum shopping not curable by

amendment

In Vda. De Formoso vs. Philippine National Bank, the Court reiterated the guidelines
respecting non-compliance with or submission of a defective certificate of non-forum
shopping, the relevant portions of which are follows:

As to certification against forum shopping, non-compliance therewith or a defect

therein, generally not curable by its subsequent submission or correction thereof,
unless there is a need to relax the Rule on the ground of substantial compliance or
presence of special circumstances or compelling reasons. (Mary Louise R. Anderson vs.
Enrique Ho, G.R. No. 172590, January 7, 2013)

Remedy of the defendant in case of failure to comply with the certification of non-forum
shopping

In case there is non-compliance with the required certification of against forum

shopping the defendant may file a motion to dismiss the case on the ground of failure to
comply precedent under Sec. 1(j) of Rule 16.

The dismissal of the case based on litis pendentia and res judicata is considered as a
final order which completely disposes of the case which bars refilling of the case (Sec. 5
of Rule 16)

Can there be a dismissal of the action motu propio based on failure to comply with the
certification of non forum-shopping?

No, by express provision of Sec. 5, Rule 7 which states that: “Failure to comply with the
foregoing requirements shall not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the dismissal of the casue without
prejudice unless otherwise provided, upon motion and after hearing.

Motu propio dismissal based on failure to comply with condition precedent on

certification against forum shopping in cases under the Rules on Summary Procedure
(Sec. 4 of the Rules on Summary Procedure)

Effects of submission of false certification or non-compliance with the undertaking

1. It will constitute as indirect contempt of court.
2. Corresponding administrative and criminal actions may be filed;
3. If the acts of the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal with prejudice
and shall constitute direct contempt, as well as a cause for administrative
sanctions.
What is the nature of dismissal in case of willful and deliberate forum shopping?

The order of dismissal is with prejudice by express provision of Sec.5, Rule 7 which
states that “if the acts of the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause for administrative sanctions.

What are the pleadings that should contain a certification against forum shopping
under ordinary rules on civil action?

Complaints and all other initiatory pleadings must contain a certification against forum
shopping which are as follows, to wit:
1. Original complaint
2. Permissive counterclaim
3. Cross-claim
4. Third-party complaint
5. Fourth-party complaint
6. Complaint in Intervention
7. Petition

Petitions filed before the appellate courts which must contain a certification against
forum shopping
1. Petition for review on the judgment of the Regional Trial Court in the exercise of
its appellate jurisdiction under Rule 42;
2. Petition for review on the judgment, resolution, orders or awards of quasi-
judicial bodies under Rule 43;
3. Petition for review on certiorari against the judgment, order or resolution of the
Regional Trial Court, Court of Tax Appeals, Sandiganbayan, and Court of Appeals.

Petition or complaint which must contain a certification against forum shopping under
the Rules on Special civil actions
1. Interpleader (Rule 62)
2. Declaratory relief, reformation of instrument, quieting of title, and consolidation
of ownership (Rule 63)
3. Certiorari over the final judgment or orders of the Commission on Elections or
Audit (Rule 64)
4. Certiorari, prohibition and mandamus (Rule 65)
5. Petition for quo warranto (Rule 66)
6. Complaint for expropriation (Rule 67)
7. Complaint for foreclosure of real estate mortgage (Rule 68)
8. Complaint for partition (Rule 69)
9. Forcible entry and unlawful detainer (Rule 70)
10. Contempt (Rule 71)

Complaint in Summary Procedure

1. Complaint for forcible entry and unlawful detainer
2. Complaint where the amount of the claim does not exceed P100,000.00 outside
Metro Manila, and P200,000.00 within Metro Manila
3. Statement of Claims in Small Claims Cases.

Petitions which must contain a certification against forum shopping under the Rules on
Special Proceedings
1. Probate of a will
2. Intestate estate proceedings
3. Escheat
4. Trustees
 5. Guardianship of minors or incompetents and custody of minors
6. Adoption and Revocation of adoption
7. Hospitalization of insane person
8. Habeas corpus
9. Change of name
10. Declaration of absence and death
11. Correction of entries in the civil registry
12. Insolvency proceedings
13. Alternative dispute resolution
14. Annulment of marriage
15. Declaration of nullity of marriage
16. Writs of Amparo and Habeas Data
17. Environmental cases

Pleadings or documents in Labor cases which must contain a certification against forum
shopping
1. NLRC Complaint
2. Position paper
3. Reply
4. Rejoinder
5. Memorandum of Appeal

Certification against forum shopping is mandatory

1. It should be emphasized that the resort to a liberal application, or suspension of
the application of procedural rules, must remain as the exception to the well-
settled principle that rules must be complied with for the orderly administration
of justice. (Building Care Corporation/Leopard Security & Investigation Agency
and/or Ruperto Protacio vs. Myrna Macaraeg, G.R. No. 198357, Dece,ber 5, 2012)
2. The verification of a complaint and the attachment of a certificate of non-forum
shopping are requirements that – as pointed out by the Court, time and again –
are basic, necessary and mandatory for procedural orderliness. (Bank of the
Philippine Islands vs. Hon. Court of Appeals, et. al., G.R. No. 168313, October 6,
2010)
3. The filing of a certificate of non-forum shopping is mandatory in initiatory
pleadings. The subsequent compliance with the requirement does not excuse a
party’s failure to comply therewith in the first instance. In those cases where the
Court excused non-compliance with the requirement to submit a certificate of
non-forum shopping, it found special circumstances or compelling reasons
which made the strict application of the Circular clearly unjustified or
inequitable. (Mandaue Galleon Trade, Inc. vs. Bienvenido Isidto, G.R. No. 181051,
July 5, 2010)

Purpose of certification of non-forum shopping

We emphasized that the rules on forum shopping are meant to prevent such
eventualities as conflicting final decisions. This Court has consistently held that the
costly consequence of forum shopping should remind the parties to ever be mindful
against abusing court processes. In addition, the principle of res judicata requires that
stability be accorded to judgments. Controversies once decided on the merits shall
remain in repose for there should be an end to litigation which, without the doctrine,
would be endless. (Elsa D. Medado vs. Heirs of the late Antonio Cosing, G.R. No. 186720,
February 8, 2012)

In certain exceptional circumstances, however, the Court has allowed the belated filing
of the certification
In Loyola vs. Court of Appeals, et. al., (245 SCRA 477 [1995]), the Court considered the
filing of the certification one day after the filing of an election protest as substantial
compliance with the requirement. In Roadway Express, Inc. vs. Court of Appeals, et. al.
(264 SCRA 696 [1996]), the Court allowed the filing of the certification 14 days before
the dismissal of the petition. In Uy vs. Landbank, supra, the Court had dismissed Uy’s
petition for lack of verification and certification against non-forum shopping. However,
it subsequently reinstated the petition after Uy submitted a motion to admit verification
and non-forum shopping certification. In all these cases, there were special
circumstances or compelling reasons that justified the relaxation of the rule requiring
verification and certification on non-forum shopping.

Substantial compliance rule in certification against forum shopping: Relaxation of the

rules: Obligatory not jurisdictional

The general rule is that the certificate of non-forum shopping must be signed by all the
plaintiffs in a case and the signature of only one of them is sufficient. However, the
Court has also stressed that the rules on forum shopping were designed to promote and
facilitate the orderly administration of justice and thus should not be interpreted with
such absolute literalness as to subvert its own ultimate and legitimate objective. The
rule of substantial compliance. The rule of substantial compliance may be availed of
with respect to the contents of the certification. This is because the requirement of
strict compliance with the provisions regarding the certification of non-forum shopping
merely underscores its mandatory nature in that the certification cannot be altogether
dispensed with or its requirements completely disregarded. Thus, under justificable
circumstances, the Court has relaxed the rule requiring the submission of such
certification considering that although it is obligatory, it is not jurisdictional. (Elsa D.
Medado vs. Heirs of the late Antonio Cosing, G.R. No. 186720, February 8, 2012)

As to respondents’ certification on non-forum shopping, reading of respondents’

Verification/Certification reveals that they, in fact, certified therein that they have not
commenced any similar action before any other court or tribunal and to the best of their
knowledge no such other action is pending therein. The only missing statement is
respondents’ undertaking that if they should thereafter learn that the same or similar
action has been filed or is pending, they shall report such fact to the court. This,
notwithstanding, the Court finds that there has been substantial compliance on the part
of the respondents.

It is settled that with respect to the contents of the certification against forum shopping,
the rule of substantial compliance may be availed of. This is because of strict
compliance with the provisions regarding the certification of non-forum shopping
merely underscores its mandatory nature in that the certification cannot be altogether
dispensed with or its requirements completely disregarded. It does not thereby
interdict substantial compliance with its provisions under justifiable circumstances, as
the Court finds in the instant case. (Georgia T. Estel vs. Recaredo P. Diego, Sr., And
Recaredo R. Diego Jr., G.R. No. 174082, January 16, 2012)

The fact that the Circular (Administrative Circular No. 04-94) requires that it be strictly
complied with merely underscores its mandatory nature in that it cannot be dispensed
with its requirements altogether disregarded, but it does not thereby interdict
substantial compliance with its provisions under justifiable circumstances. (Loyola vs.
CA, G.R. No. 117186, June 29, 1995, 315 Phil 529, 538) Administrative Circular No. 04-
94 is now incorporated in the 1997 Rules of Civil Procedure, as Rule 7, Sec. 5. It is basic
that the Rules “shall be liberally construed in order to promote their objective of
securing a just and speedy and inexpensive disposition of every action and proceeding.”
(Rule 1, Sec. 6) Otherwise put, the rule requiring a certification of forum shopping to
accompany every initiatory pleading, “should not be interpreted with such absolute
literalness as to subvert its own ultimate and legitimate objective or the goal of all rules
of procedure – which is to achieve substantial justice as expeditiously as possible.” (Dar
vs. Alonzo-Legasto, G.R. No. 143016, August 30, 2000, 339 SCRA 306, 309, citing
Gabionza vs. Court of Appeals, G.R. No. 112547, July 18, 1994, 234 SCRA 192, 198;
Spouses Manuel and Rosemarie Wee vs. Rosario D. Galvez, G.R. No. 147394, August 11,
2004)

Belated filing of a certification against forum shopping is a substantial compliance

Here, the verification and certification of non-forum shopping was signed by

petitioner’s counsel. Upon receipt of the resolution of the Court of Appeals dismissing
her petition for non-compliance with the rules, petitioner submitted, together with her
motion for reconsideration, a verification and certification signed by her in compliance
with the said rule. We deem this to be sufficient compliance especially in view of the
merits of the case, which may be considered as a special circumstance or a compelling
reason that would justify tempering the hard consequence of the procedural
requirement on non-forum shopping. (Krizia Katrina Ty-De Zuzuarregui vs. The Hon.
Joselito C. Villarosa, G.R. No. 183788, April 5, 2010)

In the case of Cagayan Valley Drug Corp. vs. Commissioner of Internal Revenue, the
Court held that there was substantial compliance with Secs. 4 and 5, Rule 7 of the 1997
Rules of Civil Procedure. First, the requisite board resolution has been submitted albeit
belatedly by petitioner. Second, the ruling in Lepanto was applied with the rationale
that the President of petitioner is in a position to verify the truthfulness and correctness
of the allegations in the petition. Third, the President of petitioner has signed the
complaint before the CTA at the inception of the judicial claim for refund or tax credit.
(Cagayan Valley Drug Corp. vs. Commissioner of Internal Revenue, G.R. No. 151413,
February 13, 2008)

Who shall sign the certification against non-forum shopping?

Rule 7, Sec. 5 of the Rules of Court, requires that the certification should be signed by
the “petitioner or principal party” himself. The rationale behind this is “because only
the petitioner himself has actual knowledge of whether or not he has initiated similar
actions or proceedings in courts or agencies.” (Digital Microwave Corporation vs. Court
of Appeals, G.R. No. 128550, March 16, 2000, 328 SCRA 286, 290) However, the
rationale does not apply where it is the attorney-in-fact who instituted the action.
(Spouses Manuel and Rosemarie Wee vs. Rosario D. Galvez, G.R. No. 147394, August 11,
2004)

As a rule the certification against forum shopping must be signed by the party not the
counsel

The petitioner in this case is the Commission on Appointments, a government entity

created by the Constitution, and headed by its Chairman. There was no need for the
Chairman himself to sign the verification. Its representative, lawyer or any person who
personally knew the truth of the facts alleged in the petition could sign the verification.
With regard, however, to the certification of non-forum shopping, the established rule is
that it must be executed by the plaintiff or any of the principal parties and not by
counsel. (COA, represented herein by its Secretary Hon. Arturo L. Tiu vs. Celso M. Paler,
G.R. No. 172623, March 3, 2010)

A party’s failure to sign the certification against forum shopping is different from the
party’s failure to sign personally the verification. The certification of non-forum
shopping must be signed by the party, and not by counsel. (Far Eastern Shipping
Company vs. Court of Appeals, 357 Phil. 703 [1998]) The certification of counsel
renders the petition defective.

Instance where the counsel may sign in behalf of the client

Finally, the certification against forum shopping must be executed by the party-pleader,
not by his counsel. If, however, for reasonable or justifiable reasons, the party-pleader
is unable to sign, he must execute a Special Power of Attorney designating his counsel of
record to sign on his behalf.

The requirement that it is the petitioner, not her counsel, who should sign the
certificate of non-forum shopping is due to the fact that a “certificate is a peculiar
personal representation on the part of the principal party, an assurance given to the
court or other tribunal that there are no other pending cases involving basically the
same parties, issues and causes of action.” “Obviously, it is the petitioner, and not
always the counsel whose professional services have been retained for a particular
case, who is in the best position to know whether [she] actually filed or caused the filing
or caused the filing of a petition in that case.” Per the above guidelines, however, if a
petitioner is unable to sign a certification for reasonable or justifiable reasons, she must
execute an SPA designating her counsel of record to sign on her behalf. [A] certification
which had been signed by counsel without the proper authorization is defective and
constitutes a valid cause for the dismissal of the petition.” (Mary Louise R. Anderson vs.
Enrique Ho, G.R. No. 172590, January 7, 2013)

Authority to institute action includes power to execute certification of forum shopping

and verification

The Supreme Court has also held that “the power to constitute actions necessarily
includes the power to execute the verification and certification against forum shopping
required in initiatory pleadings, such as the complaint. (Isabelita Cunanan vs. Jumping
Jap Trading Corp., G.R. No. 173834, April 24, 2009)

Board Resolution is required in signing the Certificate of Forum Shopping in case of

corporation

The requirement that a petitioner or principal party should sign the certificate of non-
forum shopping applies even to corporations, considering that the mandatory
directives of the Rules of Court make no distinction between natural and jurdicial
persons. A corporation, however, exercises its power through its board of directors
and/or duly authorized officers and agents. Physical acts, like the signing of documents,
can be performed only by natural persons duly authorized for the purpose by corporate
by-laws or by a specific act of the board of directors. (Mediserv, Inc. vs. Court of
Appeals, G.R. No. 161368, April 5, 2010)

In Philippine Airlines vs. Flight Attendants and Stewards Association of the Philippines,
the Court ruled that only individuals vested with authority by a valid board resolution
may sign the certificate of non-forum shopping on behalf of a corporation. The action
can be dismissed if the certification was submitted unaccompanied by proof of the
signatory’s authority. The Court believe that appending the board resolution to the
complaint or petition is the better procedure to obviate any question on the authority of
the signatory to the verification and certification. The required submission of the board
resolution is grounded on the basic precept that corporate powers are exercised by the
board of directors, and not solely by an officer of the corporation. Hence, the power to
sue and be sued in any court or quasi-judicial tribunal is necessarily lodged with the
said board.
The President of a corporation may sign without Board approval

It is true that the power of a corporation to sue and be sued is lodged in the board of
directors that exercises its corporate powers. However, it is settled and the court have
so declared in numerous decisions that the president of a corporation may sign the
verification and the certification of non-forum shopping. (HUTAMA-RSEA/Supermax
Phils., J.V. vs. KCD Builders Corporation, G.R. No. 173181, March 3, 2010)

Attorney-in-fact may sign the certification against forum shopping

The attorney in fact, who has the authority to file, and who actually filed the complaint
as the representative of the plaintiff, is party to the ejectment suit. (Anita Monasterio, et.
al., vs. Jose Juan Tong, G.R. No. 151369, March 23, 2011)

Case when corporate counsel was allowed to sign the certification against forum
shopping

In the case of Elinel Cana vs. Evangelical Free Church of the Philippines, the Court held
thus:

“Circular 28-91 was prescribed by the Supreme Court to prohibit and penalize the evils
of forum shopping. We see no circumvention of this rationale if the certificate was
signed by the corporation’s specifically authorized counsel, who had personal
knowledge of the matters required in the circular. In Bernardo vs. NLRC, we explained
that a literal interpretation of the Circular should be avoided if doing so would subvert
its very rationale. Said the Court:

“Indeed, while the requirement as to certificate of non-forum shopping is mandatory,

nonetheless the requirements must not be interpreted too literally and thus defeat the
objective of preventing the undesirable practice of forum-shopping.”

“Thus, the subsequent submission of the authority granted herein respondent’s counsel
to sing the certification is substantial compliance, especially in view of the merits of the
instant case. (Elinel Cana vs. Evangelical Free Church of the Philippines, G.R. No.
157573, February 11, 2008)

Failure to sign the verification and certification against forum shopping is a fatal defect:
Dismissal of the petition

However, this very case does not involve a failure to attach the Annexes. Rather, the
procedural infirmity consists of omission – the failure to sign a Verification and
Certification against forum shopping. Addressing this defect squarely, we have already
resolved that because of noncompliance with the requirements governing the
certification of non-forum shopping, no error could be validly attributed to the CA when
it ordered the dismissal of the special civil action for certiorari. The lack of certification
against forum shopping is not curable by mere amendment of the complaint, but shall
cause for the dismissal of the case without prejudice. Indeed, the general rule is that
subsequent compliance with the requirements will not excuse a party’s failure to
comply in the first instance. Thus, on procedural aspects, the appellate court correctly
dismissed the case. (Vivian T. Ramirez, et. al., Mar Fishing Co., Inc., Miramar Fishing Co.,
Inc., Robert Buehs and Jerome Spitz, G.R. No. 168208, June 13, 2012)

Liberal application of the rule on the certification against forum shopping

It must be kept in mind that while the requirement of the certification of non-forum
shopping is mandatory, nonetheless, the requirements must not be interpreted too
literally and, thus, defeat the objective of preventing the undesirable practice of forum
shopping.

Time and again, this Court has held that rules of procedure are established to secure
substantial justice. Being instruments for the speedy and efficient administration of
justice, they must be used to achieve such end, not to derail it. In particular, when a
strict and literal application of the rules on non-forum shopping and verification will
result in a patent denial of substantial justice, these may be liberally construed.

In a number of cases, this Court has excused the belated filing of the required
verification and certification of non-forum shopping, citing that special circumstances
or compelling reasons make the strict application of the rule clearly unjustified. This
Court ruled that substantial justice and the apparent merits of the substantive aspect of
the case are deemed special circumstances or compelling reasons to relax the said rule.

In fact, this Court has held that even if there was complete non-compliance with the rule
on certification against forum-shopping, the Court may still proceed to decide the case
on the merits, pursuant to its inherent power to suspend its own rules on grounds, as
stated above, of substantial justice and apparent merit of the case. (SM Land, Inc.
[Formerly Shoemart, Inc.] and Watsons Personal Care Store, Phils., Inc. vs. City of
Manila, Liberty Toledo, in her official capacity as the City Treasurer of Manila, et. al., G.R.
No. 197151, October 22, 2012)

Certification against forum shopping is not required in an Answer with compulsory

counterclaim

As to the failure to submit a certificate of forum shopping, PGSMC’s Answer is not an

initiatory pleading which requires a certification against forum shopping under Sec. 5 of
Rule 7, 1997 Revised Rules of Civil Procedure. It is a responsive pleading hence the
courts a quo did not commit reversible error in denying KOGIES’ motion to dismiss
PGSMC’s compulsory counterclaim. (Korea Technologies Co., Ltd vs. Hon. Alberto A.
Lerma, G.R. No. 143581, January 2008)

Is compliance with the certification against forum shopping required in case of answer
with Permissive Counterclaim?

Yes, since a permissive counterclaim is in effect, a separate and distinct complaint or an

initiatory pleading within the purview of Administrative Circular No. 04-91 which
mandates a certification against forum shopping by a “plaintiff, petitioner, applicant or
principal party seeking relief in the complaint, petition, application or other initiatory
pleading.”

Rule of certification against forum shopping in case of dismissal of prior complaint

under Sec. 1, Rule 17

When a complaint is dismissed without prejudice at the instance of the plaintiff,

pursuant to Sec. 1, Rule 17 of the 1997 Rules of Civil Procedure, there is no need to state
in the certification of non-forum shopping is a subsequent re-filed complaint the fact of
the prior filing and dismissal of the former complaint. (Bendicto vs. Lacson, et. al., G.R.
No 141508, May 5, 2010)

Guidelines in case of submission of defective certification against forum shopping

Respecting the appellate court’s dismissal of petitioners’ appeal due to the failure of
some of them to sign therein accompanying verification and certification against forum
shopping, the Court’s guidelines for the bench and the bar in Alteres vs. Empleo, which
were culled “from jurisprudential pronouncements,” are instructive:

For the guidance of the bench and the bar, the Court restates in capsule from the
jurisprudential pronouncements already reflected above respecting non-compliance
with the requirements on or submission of defective, verification and certification of
non-forum shopping:
1. A distinction must be made between non-compliance with the requirement or
submission of defective certification against non-forum shopping;
2. As to verification non-compliance therewith or a defect therein does not
necessarily render the pleading defective. The Court may order its submission or
correction or act on the pleading circumstances are such that strict compliance
with the Rule may be dispensed with in order that the ends of substantial justice
may be served thereby.
3. Verification is deemed substantially complied with when one who has ample
knowledge to swear to the truth or are true and correct.
4. As to certification against forum shopping, non-compliance therewith or a defect
therein, unlike in verification is generally not curable by its subsequent
submission or correction thereof, unless there is a need to relax the Rule on the
ground of “substantial compliance” or presence of “special circumstances or
compelling reasons.”
5. The certification against forum shopping must be signed by all the plaintiffs or
petitioners in a case; otherwise those who did not sign will be dropped as parties
to the case. Under reasonable or justifiable circumstances, however, as when all
plaintiffs or petitioners share a common interest and invoke a common cause of
action or defense, the signature of only one of the min the certification against
forum shopping substantially complies with the rule.
6. Finally, the certification against forum shopping must be executed by the party-
pleader, not by counsel. If however, for reasonable or justifiable reasons, the
party-pleader is unable to sign, he must execute a Special Power of Attorney
designating his counsel of record to sign in his behalf. (Oldarico S. Traverno vs.
Bobongan Banana Growers Multi-Pupose Cooperative, G.R. No. 164205,
September 3, 2009 as cited in Nelle Vda. De Francisco, et. al., vs. PNB, G.R. No.
154704, June 1, 2011)

Duty of the plaintiff not the defendant to declare pending suits in the certification of
non-forum shopping

Anent dismissal on ground of forum shopping, the same is likewise denied for lack of
merit. It is well-settled that it is the duty of the plaintiff, not the defendant, to declare
pending suits it initiated between and among the parties in its verification and
certificate of non-forum shopping and not the other way around. A plaintiff in a civil
case therefore, is not mandated under the Rules to declare that said plaintiff was a
defendant in a prior suit instituted against him and other defendants by the defendant
in a subsequent case of different nature. (Jesse Yap vs .Court of Appeals Special Eleventh
Division, and Eliza Chua and Evelyn Te, G.R. No. 186730, June 13, 2012)

Professional Tax Receipt Number (PTR) and IBP Official Receipt Number (Circular No.
10, July 24, 1985; Bar Matter No. 287, September 26, 2000; April 7, 2003)

All pleadings, motions and papers filed in court by counsel should bear in addition to
counsel’s current Professional Tax Receipt Number (PTR), counsel’s current IBP Official
Receipt Number indicating its date of issue. (Circular No. 10, July 24, 1985; Bar Matter
No. 287, September 26, 2000)

What is the effect of failure to comply with the requirements?

Pleadings, motions, and papers which do not comply with this requirement may not be
acted upon the court, without prejudice to whatever disciplinary action the court may
take against the erring counsel who shall likewise be required to comply with the
requirement within five (5) days from the notice. Failure to comply such requirement
shall be a ground for further disciplinary sanction and for contempt of court. (Circular
No. 10, July 24, 1985; Bar Matter No. 287, September 26, 2000)

MCLE Certificate of Compliance or Certification of Exemption (Bar Matter No 1922, En

Banc Resolution, June 3, 2008)

All practicing members of the bar are required to indicate in all the pleadings filed
before the courts or quasi-judicial bodies, the number and date of issue of their MCLE
Certificate of their Compliance or Certificate of Exemption. (Bar Matter No. 1922, En
Banc Resolution, June 3, 2008)

What is the effect of failure to indicate the MCLE Compliance Number in the pleading?

Failure to disclose the required information would cause the dismissal of the case and
the expunging of the pleadings from the records. (Bar Matter No. 1922, En Banc
Resolution, June 3, 2008)

Roll of Attorney (Bar Matter No. 1132, April 2003)

On November 12, 2002 the Supreme Court granted the request of the Board of
Governors of the IBP and the Sangguniang Panlalawigan of Ilocos Norte to require all
lawyers to indicate their Roll of Attorneys Number in all papers and pleadings filed in
judicial and quasi-judicial bodies in addition to the previously required current
Professional Tax Receipt (PTR) and the IBP Official Receipt Number. (Bar Matter 1132,
April 1, 2003)

What is the purpose of indicating the Roll of Attorney in the Pleading?

The requirement was meant to protect the public by making it easier to detect
impostors who represent themselves as members of the bar. Non-compliance with this
requirement has the same effect as the failure to indicate counsel’s IBP Receipt Number.
This requirement. This requirement is directed only to lawyers and is not to be
construed as precluding a party who is not a lawyer from signing a pleading himself.
(Bar Matter 1132, April 1, 2003)

BASIC CONCEPTS ON THE MANNER OF MAKING ALLEGATIONS IN THE PLEADING

(Rule 8)

What does a pleading should contain?

Every pleading shall contain in a methodical and logical form the following:
1. A plain, concise and direct statement of the ultimate facts on which the party
pleading relies for his claim or defense, as the case may be;
2. Omitting the statement of mere evidentiary facts;
3. If a defense relied on is based on law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely stated.

Plain, concise and direct statement of the ultimate facts is required in a pleading

In the case of Jesse U. Lucas vs. Jesus S. Lucas, the Court held that the petition to
establish filiation is sufficient in substance and satisfies Sec. 1, Rule 8 of the Rules of
Court, which requires the complaint to contain a plain, concise, and direct statement of
the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it cannot
be stricken out without leaving the statement of the cause of action inadequate. (Jesse
U. Lucas vs. Jesus S. Lucas, G.R. No. 190710, June 6, 2011)

Rule in case a party will plead two or more statement of claim or defense
1. Two or more statements of claim or defense alternatively or hypothetically,
either in one cause of action or defense or in separate causes of action or
defenses;
2. When two or more statements are made in the alternative and one of them if
made insufficient by the insufficiency of one or more of the alternative
statements.

Rule in case of allegation of condition precedent in the pleading

In any pleading a general averment of the performance or occurrence of all conditions

precedent shall be sufficient.

Rule in case of allegation of capacity of a party in the pleading (Sec. 4, Rule 8)

A party desiring to allege facts or raise as an issue the capacity of the party to the action
must state:
1. Facts showing the capacity of a party to sue or be sued or the authority of a party
to sue or be sued in a representative capacity or the legal existence of an
organized association of persons that is made a party, must be averred.
2. A party desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall do so
by specific denial, which shall include such supporting particulars as are
peculiarly within the pleader’s knowledge.

Manners of alleging fraud, mistake, condition of mind in a pleading (Sec. 5, Rule 8)

In all averments of fraud, mistake, condition of mind it must be averred by:

1. Stating the circumstances constituting fraud or mistake must be stated with
particularity;
2. Malice, intent, knowledge or other condition of the mind of a person may be
averred generally.

Manner of making allegation of a judgment in a pleading (Sec. 6, Rule 8)

A party may assert in his pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer in manner that by sufficiently
to averring the judgment or decision without setting forth matter showing jurisdiction
to render it.

Rule in making allegations in the pleading in case of written instrument or document

Whenever an action or defense is based upon a written instrument or document the

allegations must be made by:
1. Alleging the substance of such instrument or document in the pleading;
2. The original or a copy thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said copy may with like
effect be set forth in the pleading.

Terms and condition on the use of credit card is not an actionable document
In this case, the complaint is an action for collection of sum of money arising from
Ledda’s default in her credit card obligation with BPI. BPI’s cause of action is primarily
based on Ledda’s (1) acceptance of the BPI card, (2) usage of the BPI credit card to
purchase goods, avail services and secure cash advances, and (3) non-payment of the
amount due for such credit card transactions, despite demands. In other words, BPI’s
cause of action is not based only on the document containing the Terms and Conditions
accompanying the issuance of the BPI credit card in favor of Ledda. Therefore, the
document containing the Terms and Conditions governing the use of the BPI credit card
is not an actionable document contemplated in Sec. 7, Rule 8 of the 1997 Rules of Civil
Procedure. As such, it is not required by the Rules to be set forth in and attached to the
complaint. (Anita A. Ledda vs. Bank of the Philippine Islands, G.R. No. 200868,
November 21, 2012)

Rule in contesting an actionable document (Sec. 8, Rule 8)

When an action or defense is founded upon a written instrument, copied in or attached

to the corresponding pleading as provided in the preceding Section must be denied by:
1. The genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies them, and
2. It shall set forth what he claims to be the facts.

When can the genuineness and due execution of an actionable documents not deemed
admitted even if pleading is not under oath?

The requirement of an oath in a pleading does not apply when:

1. The adverse party does not appear to be a party to the instrument; or
2. When compliance with an order for an inspection of the original instrument is
refused.

What is an actionable document?

1. It is written instrument or document on which the plaintiff’s cause of action or
defendant’s defense is based;
2. It is a document relied upon by either the plaintiff or defendant. (Araneta, Inc. vs.
Lyric Factor Exchange, Inc., 5 Phil 736)

What is the remedy if the pleading denying the actionable document is not under oath?

The genuineness and due execution of the actionable document is deemed impliedly
admitted, and hence the pleading does not pose any triable issue which is vulnerable for
the filing of a judgment on the pleading.

Rule on the manner of allegation in case of an official document or act (Sec. 9, Rule 8)

In pleading an official document or official act it is sufficient to aver:

1. That the document was issued; or
2. The act done in compliance with law.

Rule on specific denial of material allegations (Sec. 10, Rule 8)

1. By specifying each material allegation of the fact in the complaint, the truth of
which the defendant does not admit, and whenever practicable, setting forth the
substance of the matters of the matters which he will rely upon to support his
denial (Absolute denial);
2. By specifying so much of an averment in the complaint as is true and denying
only the remainder (Partial denial);
3. By stating that the defendant is without knowledge or information sufficient to
form a belief as to the truth of a material averment in the complaint, which has of
 a denial. (Disavowal of knowledge) (Philippine Bank of Communications vs.
Spouses Jose Co, G.R. No. 175514, February 14, 2011)

Three (3) ways of specific denial

Under Sec. 10, Rule 8 of the Rules of Court, a specific denial of an allegation of the
complaint may be made in any of the three ways: (a) a defendant specifies each material
allegation of the fact the truth of which he does not admit and, whenever practicable
sets forth the substance of the matters upon which he relies to support his denial; (b) a
defendant who desires to deny only a part of an averment specifies so much of it as is
true and material and denies only the remainder; and (c) a defendant who is without
knowledge or information sufficient to form a belief as to the truth of the material
averments made in the complaint states so, which has the effect of denial. (Republic of
the Philippines vs. Sandiganbayan, G.R. No. 166859, April 12, 2011)

Mere denial for lack of knowledge is insufficient

A person’s denial for lack of knowledge of things that by their nature he ought to know
in not an acceptable denial. An admission in the answer and due execution of the
plaintiff’s actionable document, can only contradicted by showing that defendant made
such admission through palpable mistake. (Equitable Cardnetwork, Inc. vs. Josefa
Borromeo Capistrano, G.R. No. 180157, February 8, 2012)

Rules in case an allegation was not specifically denied – deemed admitted (Sec. 11, Rule
8)

Material averment in the complaint, other than those as to the amount of unliquidated
damages if not specifically denied shall have the effect of:
1. It shall be deemed admitted when not specifically denied;
2. Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath.

Rule in case of striking out of the pleading or matters contained therein (Sec. 12, Rule 8)

Upon motion made by a party before responding to a pleading or, if no responsive

pleading is permitted by these Rules, upon motion made by a party within twenty (20)
days after the service of the pleading upon him, or upon the court’s own initiative at any
time, the court may:
1. Order any pleading to be stricken out; or
2. That any sham or false, redundant, immaterial, impertinent, or scandalous
matter be stricken out therefrom.

Effects if defenses or objections not pleaded

1. Defenses and objections not pleaded either in a motion to dismiss or in the
answer are deemed waived;
2. However, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss
the claim.

Defenses and objections though stated deemed not admitted – Exception to the rule

The averments that are not deemed admitted by the failure to deny the same. Among
them are immaterial allegations and incorrect conclusions drawn from facts set out in
the complaint. (Government Service Insurance System (GSIS) vs. Dinnah Villaviza, et. al.,
G.R. No. 180921, July 27, 2010)

Compulsory counterclaim or cross-claim not set up barred (Sec. 2, Rule 9)

RULES OF PROCEDURE FOR SMALL CLAIMS CASES, AS AMENDED

Purpose

The small claims process is designed to function quickly and informally. There are no
lawyers, no formal pleadings and no strict legal rules of evidence. Thus, the intention of
the law is clear when it provided a period of five(5) days from the receipt of the order of
re-assignment to hear and decide cases, if a motion for re-assignment of a case has been
granted by the Executive Judge. (Ernesto Z. Orbe vs. Judge Manolito Gumarang, A.M.
MTJ-11-1792, September 26, 2011)

Scope of the Application of the Rules on Small Claims cases (Sec. 2 of A.M. No. 08-8-7-
SC)

The rules of procedure for small claims cases shall govern the procedure in:

Actions before the Metropolitan Trial Courts, Municipal Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts for payment of money where the value of the
claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of
interest and costs.

The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall apply this Rule in the following instances: (Sec.
4 of A.M. No. 08-8-7-SC) All actions which are
1. Purely civil in nature where the claim or relief prayed for by the plaintiff is solely
for payment or reimbursement of sum of money;
2. The civil aspect of criminal actions, either filed before the institution of the
criminal action, or reserved upon the filing of the criminal action in court,
pursuant to Rule 111 of the Revised Rules of Criminal Procedure; and
3. The enforcement of a barangay amicable settlement or an arbitration award
involving a money claim covered by this Rule pursuant to Sec. 417 SC En Banc
Resolution dated October 27, 2009 in A.M. No. 08-8-7-SC of Republic Act 7160,
otherwise known as the Local Government of 1991.

Sources of the claims

For money owed under any of the following:

1. Contract of Lease
2. Contract of Loan
3. Contract of Services
4. Contract of Sale; or
5. Contract of Mortgage

For damages arising from any of the following:

1. Fault or negligence
2. Quasi-negligence; or
3. Contract

Commencement of a Small Claims Case (Sec. 5 of A.M. No. 08-8-7-SC)

A small claims action is commenced by filing with the court the following:
 1. An accomplished and verified Statement of Claim (Form 1-SSC) in duplicate;
2. The statement of claims must be accompanied by a Certification of Non-forum
Shopping (Form 1-A, SSC); and
3. Two (2) duly certified photocopies of the actionable document/s subject of the
claim, as well as the affidavits of witnesses and other evidence to support the
claim.

Effect if the evidence are not attached to the Statement of Claims

No evidence shall be allowed during the hearing which was not attached to or
submitted together with the Claim, unless good cause is shown for the admission of
additional evidence.

By express provision of Sec. 5 of the rules which states that “No formal pleading, other
than the Statement of Claims described in this Rule, is necessary to initiate a small
claims action.”

Joinder of claims be made in small claims action by express provision of Sec. 6 of the
rules. It states that “Plaintiff may join in a single statement of claim one or more
separate small claims against a defendant provided that the total amount claimed,
exclusive of interest and costs, does not exceed P100,000.00.”

Sec. 7 of A.M. No. 08-8-7-SC on Rules of Procedure for Small Claims Cases

The affidavits submitted under this Rule shall state only facts of direct personal
knowledge of the affiants which are admissible in evidence.

A violation of this above requirement shall have the effect of:

1. Subject the party, and the counsel who assisted the party in the preparation of
the affidavits, if any, to appropriate disciplinary action; and
2. The inadmissible affidavit(s) or portion(s) thereof shall be expunged from the
record.

Sec. 8 of A.M. No. 08-8-7-SC provides for the rules on the payment of corresponding
docket and other legal fees, unless declared to be indigent.

A claim filed with a motion to sue as indigent (Form 6-SSC) shall be referred to the
Executive Judge for immediate action in case of multi-sala courts, or to the Presiding
Judge of the court hearing the small claims case.

If the motion is granted by the Executive Judge, the case shall be raffled off or assigned
to the court designated to hear small claims cases.

If the motion is denied, the plaintiff shall be given five (5) days within which to pay the
docket fees, otherwise, the case shall be dismissed without prejudice. In no case shall a
party, even if declared an indigent, be exempt from the payment of P1,000.00 fee for
service and processes in civil cases.

Sec. 9 of A.M. No. 08-8-7-SC provides for the rules on the motu propio dismissal of the
action based on the grounds for the dismissal of civil action.

If no ground for dismissal is found, the court shall forthwith:

1. Issue summons (Form 2-SCC) on the day of receipt of the Statement of Claim,
directing the defendant to submit a verified Response;
 2. The court shall also issue a Notice (Form 4-SCC) to both parties, directing them
to appear before it on a specific date and time for hearing, with a warning that no
unjustified postponement shall be allowed, as provided in Sec. 19 of this Rule.

The summons and notice to be served on the defendant shall be accompanied by: (Sec.
10 of A.M. No. 08-8-7-SC)
1. A copy of the Statement of Claim and documents submitted by plaintiff, and
2. A copy of the Response (Form 3-SCC) to be accomplished by the defendant.

The Notice shall contain an express prohibition against the filing of a motion to dismiss
under Sec. 14 of this Rule

Filing of Response (Sec. 11 of A.M. of 08-8-7-SC)

The defendant shall file with the court and serve on the plaintiff a duly accomplished
and verified Response within a non-extendible period of ten (10) days from receipt of
summons.

The response to be filed by the defendant before the court shall be accompanied by:
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Other evidence in support thereof
4. No evidence shall be allowed during the hearing which was not attached to or
submitted together with the Response, unless a good cause is shown for the
admission of additional evidence.

Effect of failure to file a response (Sec. 12 of A.M. No. 08-8-7-SC)

Should the defendant fail to file his Response within the required period, and likewise
fail to appear at the date set for hearing, the court shall:
1. Render judgment on the same day, as may be warranted by the facts;
2. Should the defendant fail to file his Response within the required period but
appears at the date set for hearing, the court shall ascertain what defense he has
to offer and proceed to hear, mediate or adjudicate the case on the same day as if
a Response has been filed.

Counterclaims (Sec. 13 of A.M. No. 08-8-7-SC)

If at the time the action is commenced, the defendant possesses a claim against the
plaintiff that: (a) is within the coverage of this Rule, exclusive of interest and cost; (b)
arises out of the same transaction or event that is the subject matter of the plaintiff’s
claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not
the subject of another pending action, the claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be barred from suit on the counterclaim

What is the remedy in case the defendant has a permissive counterclaim?

The defendant may also elect to file a counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence, provided that the amount and nature
thereof are within the coverage of this Rule and the prescribed docket and other legal
fees are paid.

Prohibited pleadings and motion (Sec. 14 of A.M. No. 08-8-7-SC)

1. Motion to dismiss the complaint
2. Motion for Bill of Particulars
 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings, affidavits, or any other prayer;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints; and
12. Interventions

The Clerk of Court or other court personnel shall perform the following duties:

Provide such assistance as may be requested by a plaintiff or a defendant regarding the

availability of forms and other information about the coverage, requirements as well as
procedure for small claims cases.

Rules on the appearances of the parties during the hearing (Sec. 16 of A.M. No. 08-8-7-
SC)

The parties to the small claims action must observed the following rules on
appearances during the hearing:
1. They shall appear at the designated date of hearing personally;
2. Appearance through a representative must be for a valid cause;
3. The representative of an individual-party must not be a lawyer, and must be
related to or next-of-kin of the individual party;
4. Juridical entities shall not be represented by a lawyer in any capacity;
5. The representative must be authorized under a Special Power of Attorney (Form
5-SCC) to enter into an amicable settlement of the dispute and to enter into
stipulations or admissions of facts and of documentary exhibits.

Rule on case of appearances of lawyer (Sec. 17 of A.M. No. 08-8-7-SC)

As a general rule no attorney shall appear in behalf of or represent a party at the

hearing, unless on the following instances, to wit:
1. The attorney is the plaintiff or defendant;
2. If the court determines that a party cannot properly his/her claim or defense
and needed assistance, the court may, in its discretion, allow another individual
who is not an attorney to assist that party upon the latter’s consent.

Effect in case the plaintiff failed to appear during the hearing (Sec. 18 of A.M. No. 08-8-
7-SC)
1. Cause for dismissal of the claim without prejudice
2. The defendant who appears shall be entitled to judgment on a permissive
counterclaim.

Failure of the defendant to appear during the hearing shall have the same effect as
failure to file a Response under Sec. 12 of this Rule. However, this shall not apply where
one of two or more defendants who are sued under a common cause of action and have
pleaded a common defense appears at the hearing.

Failure of both parties to appear shall cause the dismissal with prejudice of both the
claim and counterclaim.
Postponement when allowed (Sec. 19 of A.M. No. 08-8-7-SC)

A request for postponement of a hearing may be granted by the court on the following:
1. Upon proof of the physical inability of the party to appear before the court on the
scheduled date and time;
2. A party may avail of only (1) postponement.

Duty of the court at the inception of the hearing (Sec. 20 of A.M. 08-8-7-SC)

At the beginning of the court session, the judge shall read aloud a short statement
explaining the nature, purpose and the rule of procedure of small claims cases.

Hearing (Sec. 21 of A.M. No. 08-8-7-SC)

At the hearing, the judge shall have the duty to subject to the following mandates, to
wit:
1. Exert efforts to bring the parties to an amicable settlement of their dispute;
2. Any settlement (Form 7-SCC) or resolution (Form 8-SCC) of the dispute shall be
reduced into writing, signed by the parties and submitted to the court for
approval (Form 12-SCC)
3. Settlement discussions shall be strictly confidential and any reference made in
the course of such discussions shall be punishable by contempt.

Failure of settlement (Sec. 22 of A.M. No. 08-8-7-SC)

If efforts at settlement fail, the court shall proceed hearing in an informal and
expeditious manner and be terminated within one (1) day.

In case of failure to settle between the parties they may avail the following option
subject to the following mandates:
1. Either party may move in writing (Form 10-SCC) to have another judge to hear
and decide the case;
2. The reassignment of the case shall be done in accordance with existing
issuances.
3. The referral by the original judge to the Executive Judge shall be made within the
same day the motion is filed and granted, and by the Executive Judge to the
designated judge within the same day of the referral.
4. The new judge shall hear and decide the case within five (5) working days from
receipt of the order of reassignment.

Decision (Sec. 23 of A.M. No. 08-8-7-SC)

After the hearing, the court shall:

1. Render its decision on the same day, based on the facts established by the
evidence (Form 13-SCC)
2. The decision shall immediately be entered by the Clerk of Court in the court
docket for civil cases and a copy thereof forthwith served on the parties.

By express provision of Sec. 23, the decision shall be final and unappealable.

The aggrieved party may avail the remedy of Petition for certiorari since “There is no
appeal or any plain, speedy, and adequate remedy in the ordinary course of law. (Sps.
Antonio and Fe Yusay vs. Court of Appeals and City Council of Mandaluyong City, G.R.
No. 156684, April 6, 2011)

Execution (Sec. 24 of A.M. No. 08-8-7-SC)

If the decision is rendered in favor of the plaintiff, execution shall issue upon motion.
(Form 9-SCC)

Applicability of the Rules of Civil Procedure (Sec. 25 of A.M. No. 08-8-7-SC)

The Rules of Civil Procedure shall apply suppletorily insofar as they are not inconsistent
with this Rule.
CHAPTER VI

THIRD STAGE

FILING OF COMPLAINT/PETITION WITH THE CLERK OF COURT

OC-SC/CA/RTC/MTC/MCTC

RULES 1, 13, AND 141

BASIC CONCEPTS ON THE COMMENCEMENT OF CIVIL ACTION (Sec. 5, Rule 1)

An action is deemed commenced in court by:

1. The filing of the original complaint with the clerk of court and payment of
corresponding docket and other lawful fees;
2. If an additional defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such pleading,
irrespective of whether a motion for its admission, if necessary, is denied by the
court.

Failure to attach all pleadings and documents not a ground to dismiss the petition

Failure to attach all pleadings and documents, by itself, is not a sufficient ground to
dismiss the petition. In appropriate cases, the courts may liberally construe procedural
rules in order to meet and advance the cause of substantial justice. Lapses in the literal
observation of a procedural rule will be overlooked when they do not involve public
policy, when they arose from an honest mistake or unforeseen accident, and when they
have not prejudiced the adverse party or deprived the court of its authority. (Leandro
M. Alcantara vs. The Philippine Commercial and International Bank, G.R. No. 151349,
October 20, 2010)

In small claims cases, it can be commenced by filing with the court the following: (Sec. 5
of A.M. No. 08-8-7-SC)
1. An accomplished and verified Settlement of Claim (Form 1-SCC) in duplicate;
2. A Certificate of Non-Forum Shopping (Form 1-A SCC); and
3. Two duly certified photocopies of the actionable document/s as well as the
affidavits of witnesses and other evidence to support the claim.

Meaning of filing (Sec. 2, Rule 13)

Filing of complaint is the act of presenting the same to the clerk of court.

PAYMENT OF DOCKET FEES (Sec. 1, Rule 141)

Upon filing of the pleading or other application which initiates an action or proceeding,
the fees prescribed therefore shall be paid in full.

Docket fees must be paid in full at the time of the filing of the pleading

Consistent with Sec. 1, Rule 141 of the Revised Rules of Court which provides that the
prescribed fees shall be paid full “upon filing of the pleading or other application which
initiates an action or proceeding,” the well-entrenched rule is to the effect that a court
acquires jurisdiction over a case only upon the payment of the prescribed filing and
docket fees. (Home Guaranty Corporation vs. R-II Builders, Inc., and National Housing
Authority, G.R. No. 192649, March 9, 2011)
The payment in full of the docket fees within the prescribed period is mandatory (The
Heirs of the Late Rube Reinoso, Jr. vs. Court of Appeals, G.R. No. 116121, July 18, 2011)

Payment of docket fees vest the court with jurisdiction over the subject matter or
nature of the action.

It is settled rule in this jurisdiction that when an action is filed in court, the complaint
must be accompanied by the payment of the requisite docket and filing fees. It is not
simply the filing of the complaint or appropriate initiatory pleading, but the payment of
the prescribed docket fee that vests a trial court with jurisdiction over the subject
matter or nature of the action. (Ceferina De Ungria vs. The Honorable Court of Appeals,
G.R. No. 165777, July 25, 2011)

Payment of Filing/Docket Fees – Jurisdictional

It is not simply the filing of the complaint that vests the court with jurisdiction over the
action filed but also by the payment of the prescribed docket fee. The Supreme Court, in
several cases, has held that a court acquires jurisdiction over the case only upon the
payment of the said fees. (Manchester Development Corporation vs. Court of Appeals,
G.R. No. 75919, May 19, 1987; Nestle Philippines, Inc. vs. FY Sons, Inc., G.R. No. 150789,
May 5, 2006)

Ruling in Manchester case relaxed by the Supreme Court: Unpaid legal fees considered
as a lien on the judgment
1. This ruling was relaxed in Sun Insurance vs. Court of Appeals (149 SCRA 562),
when the Court made a liberal interpretation of the rule by allowing a late
payment of the docket fee as along as it should not be made beyond the action’s
prescriptive period. It also declared in the same case that any unpaid fees should
be considered a lien on the judgment. In this case, there is no evidence that the
plaintiff tried to evade the payment of the docket fees.
2. It should be noted that the pronouncements of the Court on the matter of docket
fees have always been influenced by the peculiar legal and equitable
circumstances surrounding each case. The rule is not as simple, as rigid or as
uncomplicated as the Manchester case makes it appear. There are other
circumstances equally important. While the timely payment of docket fees is
jurisdictional, considerations of equity also come into the picture. (Yuchengco vs.
Republic, 333 SCRA 368)

Damages must be specifically alleged for proper assessment and payment of docket fees

In Siapno (505 Phil 430 [2005]) the complaint alleged in its body the aggregate sum of
P4,500,000 in moral and exemplary damages and attorney’s fees, by the prayer portion
did not mention these claims, nor did it even pray for the payment of damages. This
Court held that such a complaint should be dismissed outright; or if already admitted,
should be expunged from the records. The Court explained that the rule – requiring the
amount of damages claimed to be specified not only in the body of the pleading but also
in its prayer portion – was intended to put an end to the then prevailing practice of
lawyers where the damages prayed for were recited only in the body of the complaint,
but not in the prayer, in order to evade payment of the correct filing fees. As held by the
Court in Manchester.

“To put a stop to this irregularity, henceforth all complaints, petitions, answer and other
similar pleadings should specify the amount of damages being prayed for not only in the
body of the pleading but also in the prayer, and said damages shall be considered in the
assessment of the filing fees in any case. Any pleading that fails to comply with this
requirement shall not be accepted nor admitted, or shall otherwise be expunged from
the record.”

In Sun Insurance Office Ltd. vs. Judge Asuncion, the Court laid down the following rules
as regards the payment of filing fees:
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but
the payment of the prescribed docket fee that vests a trial court with jurisdiction
over the subject matter or nature of the action. Where the filing of the initiatory
pleading is not accompanied by payment of the docket fee, the court may allow
the payment of the fee within a reasonable time but in no case beyond the
applicable prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third-party claims and
similar pleadings, which shall not be considered filed until and unless the filing
fee prescribed therefor is paid. The court may also allow payment of said fee
within a reasonable time but also in no case beyond its applicable prescriptive or
reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but, subsequently,
the judgment awards a claim not specified in the pleading, or, if specified [but]
the same has been left for determination by the court, the additional filing fee
therefor shall constitute a lien on the judgment. It shall be the responsibility of
the Clerk of Court or his duly authorized deputy to enforce said lien and assess
the collect the additional fee.

It cannot be gainsaid from the above guidelines that, with the exception of
pauper litigants (Sec. 16, Rule 141 of the Rules of Court states that “the legal fees
shall be a lien on the monetary or property judgment in favor of the pauper-
litigant) without the payment of the correct docket or filing fees within the
reglementary period, jurisdiction over the subject-matter or nature of the action
will not vest in the trial court. In fact, a pauper litigant may still have to pay the
docket fees later, by way of a lien on the monetary or property judgment that
may accrue to him. Clearly, the flexibility or liberality of the rules sought by the
petitioners cannot apply in the instant case. (Ricardo Rizal, Potenciana Rizal,
Saturnina Rizal, Elena Rizal, and Benjamin Rizal vs. Leoncia Naredo, Anastacio
Lirio, Edilberto Cantavieja, Gloria Cantavieja, Celso Cantavieja, and the Heirs of
Melanie Cantavieja, G.R. No. 151898, March 14, 2012)

Payment of docket fees not required in case of supplemental complaint

In Do-All Metal Industries, Inc. Sps. Domingo Lim and Lely Kung Lim vs. Security Bank
Corporation, Titolaido E. Payongayong, Evylene C. Sison, Phil. Industrial Security
Agency Corp. and Gil Silos, G.R. No. 176339, January 10, 2011, it was held that: “On the
issue of jurisdiction, respondent Bank argues that plaintiffs’ failure to pay the filing fees
on their supplemental complaints is fatal to their action. But what the plaintiffs failed to
pay was merely the filing fees for their Supplemental Complaint. The RTC acquired
jurisdiction over plaintiff’s action from the moment they filed their original complaint
accompanied by the payment of the filing fees due on the same. The plaintiffs’ non-
payment of the additional filing fees due on their additional claims did not divest the
RTC of the jurisdiction it already had over the case.”

A supplemental complaint is like any complaint and the rule is that the filing fees due on
a complaint need to be paid upon its filing. The rules do not require the court to make
special assessments in cases of supplemental complaints. (Do-All Metal Industries, Inc.
Sps. Domingo Lim and Lely Kung Lim vs. Security Bank Corporation, Titolaido E.
Payongayong, Evylene C. Sison, Phil. Industrial Security Agency Corp. and Gil Silos, G.R.
No. 176339, January 10, 2011)
Rules on pauper litigant (Sec. 21, Rule 3)

For purposes of a suit in forma pauperis, an indigent litigant is not really a pauper, but
is properly a person who is an indigent although not a public charge, meaning that he
has no property or income sufficient for his support aside from his labor, even if he is
self-supporting when able to work and in employment. The term “immediate family”
includes those members of the same household who are bound together by ties of
relationship but does not include those who are living apart from the particular
household of which the individual is a member. (Tokyo Marine Malayan Insurance Co.,
Inc. vs. Jorge Valdez, G.R. No. 150107, January 20, 2008)

Effect of being declared indigent party/coverage of exemption

A party allowed to prosecute as an indigent party shall be exempted from the payment
of docket and other lawful fees, and of the transcript of stenographic notes, and the
amount of docket and other lawful fees which the indigent was exempted from paying
shall constitute as a lien on any judgment favorable to the said indigent.

Guidelines in the determination of indigent litigants (Sec. 19, Rule 141)

1. Whose gross income and that of their immediate family do not exceed an amount
double the monthly minimum wage of an employee; and
2. Who do not own real property with a fair market value as stated in the current
tax declaration of more than three thousand pesos (P300,000.00) shall be
exempt from the payment of legal fees.

The legal fees shall be a lien on any judgment rendered in the case favorable to the
indigent unless the court otherwise provides.

To be entitled to the exemption herein provided, the litigant shall execute an affidavit
that the and his immediate family do not earn a gross income abovementioned nor they
own any real property with the fair value aforementioned, supported by an affidavit of a
disinterested person attesting to the truth of the litigant’s affidavit. The current tax
declaration, if any, shall be attached to the litigant’s affidavit.

Any falsity in the affidavit of the litigant or disinterested person shall be sufficient cause
to dismiss the complaint or action or to strike out the pleading of that party, without
prejudice to whatever criminal liability may have been incurred.

The litigant alone who shall execute the affidavit. The Rule does not require that all
memebers of the litigant’s immediate family must likewise execute sworn statements in
support of the petition. Expressio unius est exclusion alterius. (Tokyo Marine Malayan
Insurance Co., Inc, vs. Jorge Valdez, G.R. No. 150107, January 28, 2008)

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
MANILA, BRANCH _____________

MR. X,

Plaintiff,

- versus – CIVIL CASE NO. ____________

 For: Sum of Money with Damages
MR. Y,

Defendant.

X ------------------------------ X

MOTION TO PROSECUTE AS PAUPER LITIGANT

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most respectfully avers:

1. That at present plaintiff is jobless and has no means of livelihood and cannot
afford to pay the required docket fee;
2. That plaintiff through counsel most respectfully moved that he be allowed to
prosecute as pauper litigant and be exempted from the payment of the required
docket fees and other lawful fees;

WHEREFORE, plaintiff prays that the plaintiff be allowed to prosecute as pauper

litigant and be exempted from the payment of the required docket fees and other lawful
fees based on the above reasons.

Such other relief as may be deemed just and equitable under the premises are
likewise prayed for.

Manila, _____________, 20_____

Attorney details

NOTICE OF HEARING

TO: EXECUTIVE JUDGE

REGIONAL TRIAL COURT OF ________________

GREETINGS:

Please submit the foregoing motion for the consideration and approval of the
Honorable Court immediately upon receipt hereof.

BENJAMIN V. ESCOLANO JR.

CC: MR. Y
Address

EXPLANATION OF SERVICE

Copy of the Motion to litigate as pauper litigant was served to defendant by

registered mail due to time and distance constraints, and for lack of the undersigned’s
staff who can serve the same in person.

BENJAMIN V. ESCOLANO JR.

Remedy of the adverse party (3rd par, Sec. 21, Rule 3)

The grant of authority to prosecute as an indigent may be contested before judgment by
the adverse party upon showing that the party has a sufficient income or property.

If the court should determine after hearing that the party declared as an indigent is in
fact a person with sufficient income or property:
1. The proper docket fee and other lawful fees shall be assessed; and
2. Collected by the clerk of court

What is the effect if payment was not made?

If payment is not made within the time fixed by the court, execution shall issue for the
payment thereof, without prejudice to such other sanctions as the court may impose

Cooperatives – not exempt from payment of docket fees

Since the payment of legal fees is a vital component of the rules promulgated by this
Court concerning pleading, practice and procedure, it cannot be validly annulled,
changed or modified by Congress. As one of the safeguards of this Court’s institutional
independence, the power to promulgate rules of pleading, practice and procedure is
now the Court’s exclusive domain. That power is no longer shared by this Court with
Congress, much less with the Executive.

With the foregoing categorical pronouncements of the Supreme Court (Supreme Court
En Banc Resolution in A.M. No. 08-2-01-0, which denied the petition of the GSIS for
recognition of its exemption from payment of legal fees imposed under Section 22 of
Rule 141 of the Rules of Court, February 11, 2010; Baguio Market Vendors Multi-
Purpose Cooperative [BAMARVEMPCO] vs. Cabato-Cortes, February 26, 2010), it is
evident that the exemption of cooperatives from payment of court and sheriff’s fees no
longer stands. Cooperatives can no longer invoke Republic Act No. 6938, as amended by
Republic Act No. 9520, as basis for exemption from the payment of legal fees. (Re: In the
Matter of Clarification of Exemption from payment of all court and sheriff’s fees of
Cooperatives duly registered in accordance with Republic Act No. 9520 otherwise
known as the Philippine Cooperative code of 2008, Perpetual Help Community
Cooperative [PHCCI], A.M. No. 12-2-03-0, March 13, 2012)

No docket fees in a petition of Writ of Kalikasan (Sec. 4, Rule 7, Part III of A.M. No. 09-6-
08 on Rules of Procedure for Environmental Cases

No payment of docket fees in a petition for a writ of continuing mandamus (Sec. 3, Rule
8, Rule III of A.M. No. 09-6-08 on Rules of Procedure)

RAFFLE OF CASE (RULE 20)

Basic concepts (Sec. 2, Rule 20 of the 1997 Rules of Civil Procedure)

The 1997 Rules of Civil Procedure has expressly made the raffle the exclusive method of
assigning cases among several branches of a court in a judicial station.

Purpose of raffle of cases

The avowed purpose of instituting raffles as the exclusive method of assigning cases
among several branches of a court in the same station is two-fold: one, to equalize the
distribution of the cases among several branches, and thereby foster the Court’s policy
of promoting speedy and efficient disposition of cases; and, two, to ensure the impartial
adjudication of cases and thereby obviate any suspicion regarding assignment of cases
to predetermined judges. (Government Service Insurance System, By Atty. Lucio L. Yu,
Jr. vs. Executive Judge Maria A. Cancino-Erum, Regional Trial Court, Branch 210,
Mandaluyong City, and Judge Carlos A. Valenzuela, Regional Trial Court, Branch 213,
Mandaluyong City, A.M. No. RTJ-09-2182, September 5, 2012 [Formerly A.M. No. 08-
3007-RTJ])

Raffle of cases – not mandatory at all times

Despite not strictly following the procedure under Circular No. 7 in assigning Civil Case
No. MC08-3660 to Branch 213, the respondents as members of the Raffle Committee
could not be held to have violated the rule on the exclusivity of the raffle because ther
were obviously less TRO or injunction cases, each of them had to be immediately
attended to. This peculiarity must have led to the adoption of the practice of raffling
such cases despite of their number being less than the number of Branches in
Mandaluyong City. The practice did not absolutely contravene Circular No. 7 in view of
the circular itself expressly excepting under its fourth paragraph, any incidental or
interlocutory matter of such urgent nature (like a TRO application) that might not wait
for the regular raffle. (Government Service Insurance System, By Atty. Lucio L. Yu, Jr. vs.
Executive Judge Maria A. Cancino-Erum, Regional Trial Court, Branch 210, Mandaluyong
City, and Judge Carlos A. Valenzuela, Regional Trial Court, Branch 213, Mandaluyong
City, A.M. No. RTJ-09-2182, September 5, 2012 [Formerly A.M. No. 08-3007-RTJ])

Immediate raffle of the case if there is a prayer for Temporary Restraining Order

The urgent nature of an injunction or TRO case demands prompt action and immediate
attention, thereby compelling the filing of the case in the proper court without delay. To
assume that a party desiring to file an injunction or TRO case will just stand idly by and
mark time until his favored Branch is the only Branch left without an assigned
injunction or TRO case is obviously speculative. Moreover, the “anomalous situation” is
highly unlikely in view of the uncertainty of having the favored Branch remain the only
Branch without an injunction or TRO case following the series of raffle. (Government
Service Insurance System, By Atty. Lucio L. Yu, Jr. vs. Executive Judge Maria A. Cancino-
Erum, Regional Trial Court, Branch 210, Mandaluyong City, and Judge Carlos A.
Valenzuela, Regional Trial Court, Branch 213, Mandaluyong City, A.M. No. RTJ-09-2182,
September 5, 2012 [Formerly A.M. No. 08-3007-RTJ])

EFFICIENT USE OF PAPER RULE (A.M. 11-9-4-SC, effective January 1, 2013)

This rule shall apply to all courts and quasi-judicial bodies under the administrative
supervision of the Supreme Court.

Format and Style (Sec. 3 of A.M. 11-9-4-SC)

All pleadings, motions, and similar papers intended for the court and quasi-judicial
body’s consideration and action (court-bound papers) shall be written in single space
with a one and-a-half space between paragraphs, using an easily readable font style of
the party’s choice, of 14-size font, and on a 13-inch by 8.5-inch white bond paper.

Margins and prints (Sec. 4 of A.M. 11-9-4-SC)

The parties shall maintain the following margins on all court-bound papers: a left hand
margin of 1.5 inches from the edge; and upper margin of 1.2 inches from the edge; a
right hand margin of 1.0 inch from the edge; and lower margin of 1.0 inch from the
edge. Every page must be consecutively numbered.

Copies to be filed (Sec. 5 of A.M. 11-9-4-SC)

Unless otherwise directed by the court, the number of court-bound papers that a party
is required or desires to file shall be as follows:

1. In the Supreme Court, one original (properly marked) and four copies, unless the
case is referred to the Court En Banc, in which event, the parties shall file ten
additional copies. For the En Banc, the parties need to submit only two sets of
annexes, one attached to the original and an extra copy. For the Division, the
parties need to submit also two sets of annexes, one attached to the original and
an extra copy. All members of the Court shall share the extra copies of annexes in
the interest of economy of paper.

Parties to cases before the Supreme Court are further required, on voluntary basis for
the first six months following the effectivity of this Rule and compulsorily afterwards
unless the period is extended, to submit, simultaneously with their court-bound papers,
soft copies of the same and their annexes (the latter in PDF format) either by email to
the Court’s email address or by compact disc (CD). This requirement is in preparation
for the eventual establishment of an e-filing paperless system in the judiciary.

How may copies shall be filed with Court of Appeals?

In the Court of Appeals, one original (properly marked) and two copies with annexes.
On appeal to the En Banc, one original (properly marked) and eight copies with
annexes.

How many copies shall be filed in other courts?

In other courts, one original (properly marked) with the stated annexes attached to it.

Annexes served on the adverse party (Sec. 6 of A.M. 11-9-4-SC)

A party required by the rules to serve a copy of this court-bound papers on the adverse
party need not enclose copies of those annexes that based on the record of the court
such party already has in his possession. In the event a party requests a set of the
annexes actually filed with the court, the party who filed the paper shall comply with
the request within five days from receipt.
CHAPTER VII

FOURTH STAGE

SUMMONS (RULE 14)

Basic Concepts

Summons is a writ which the defendant is notified of the action brought against him or
her. In a civil action, service of summons is the means by which the court acquires
jurisdiction over the person of the defendant. Any judgment without such service, in the
absence of a valid waiver, is null and void. (Remelita M. Robinson vs. Celita B. Millares,
G.R. No. 163584, December 12, 2006)

Summons is a writ by which the defendant is notified of the action brought against him.
(Ang vs. Navarro, 81 SCRA 458, 461 [1978])

Kinds of Summons

1. Original summons is the writ issued by the clerk of court upon receipt of the
complaint and the payment of the requisite docket and other lawful fees by
which the defendant is notified of the action brought against him and requiring
him to file his responsive pleading within the period prescribed by the rules.
2. Alias summons is a writ issued by the clerk of court when the original summons
has been lost or not duly served without fault on the part of the plaintiff.

Distinctions between summons (Rule 14) and subpoena (Rule 21)

1. Summons – is a writ by the clerk of court which the defendant is notified of the
action brought against him; while subpoena is a writ issued by the judge by
which a person is required to appear and testify before the court or in an
investigation or to bring documents or books to the court.
2. There are two kinds of summons which are original and alias summons, while
there are two subpoenas which are subpoena duces tecum and ad testificandum;
3. The purpose of the summons is to acquire jurisdiction over the person of the
defendant or the res, while the purpose of subpoena to require the person to
appear and testify before the court or in an investigation or to bring documents
or books to the court;
4. Remedy in case of defective service of summons is to file a motion to dismiss for
lack of jurisdiction over the person of the defending party under Rule 16, while
in subpoena, the remedy is a motion to quash subpoena;
5. Summons is issued upon receipt by the clerk of court of the complaint and the
corresponding payment of docket and other lawful fees or when the original
summons has not been served or was lost without fault of the plaintiff, while in
subpoena it is issued during trial.

Jurisdiction over the person of the defendant or respondent

1. By the voluntary appearance or submission by the defendant or respondent to
the court; or
2. By a coercive process issued by the court to him, generally by a valid service of
summons (Sharuff vs. Bubla, L-17029, September 30, 1964; Aban vs. Enage, L-
30666, February 25, 1983; Ofelia Herrera-Felix vs. CA, G.R. No. 143736, August
11, 2004)

The fundamental rule is that jurisdiction over a defendant in a civil case is acquired
either through service of summons or through voluntary appearance in court and
submission to its authority. If a defendant has not properly summoned, the court
acquires no jurisdiction over its person, and a judgment rendered against it is null and
void. (Planters Development Bank vs. Julie Chandumal, G.R. No. 195619, September 5,
2012)

In civil case, jurisdiction over the person of the defendant may be acquired either by
service of summons or by the defendant’s voluntary appearance in court and
submission to its authority. (Optima Realty Corporation vs. Hertz Phil., Exclusive, Inc.,
G.R. No. 183035, January 9, 2013)

Effects of invalid service of summons

As a rule, if defendants have not been validly summoned, the court acquires no
jurisdiction over their person, and the judgment against them shall be null and void.
(Sagana vs. Francisco, G.R. No. 161952, October 2, 2009)

When can summons be issued? (Sec. 1, Rule 14)

Summons can be issued to the defendant by the clerk of court upon the filing of the
complaint and the payment of the requisite legal fees.

Contents of summons (Sec. 2, Rule 14)

The summons shall be directed to the defendant, signed by the clerk of court under seal,
and contain the following:
1. The name of the court and the names of the parties to the action;
2. A direction that the defendant answer within the time fixed by these rules;
3. A notice that unless the defendant so answers, plaintiff will take judgment by
default and may be granted relief applied for;
4. A copy of the complaint and order for appointment of guardian ad litem, if any,
shall be attached to the original and each copy of the summons.

Purpose of Service of Summons

1. The service of summons is the means by which the court acquires jurisdiction
over his person. This process is for the benefit of the defendant, and is intended
to afford the latter an opportunity to be heard on the claim against him. (Vda. De
Macoy vs. Court of Appeals, 299 SCRA 733, 741, 742)
2. The purpose of summons is two-fold: to acquire jurisdiction over the person of
the defendant and to notify the defendant that an action has been commenced so
that he may be given an opportunity to be heard in the claim against him. Under
the circumstances of this case, we find that respondent was duly apprised of the
action against him and had every opportunity to answer the charges made by the
petitioner. However, since respondent refused to disclose his true address, it
was impossible to personally serve summon upon him. Considering that
respondent could not have received summons because of his own pretenses, and
has failed to provide an explanation of his purported “new” residence, he must
now bear the consequences. (Arnel Sagana vs. Richard A. Francisco, G.R. No.
161952, October 2, 2009)

By whom summons shall be served (Sec. 3, Rule 14)

The summons issued by the clerk of court may be served by:

1. The sheriff;
2. His deputy;
3. Other proper court officer; or
 4. For justifiable reasons by any suitable person authorized by the court issuing
the summons.

Return (Sec. 4, Rule 14)

When the service has been completed, the server shall, within five (5) days therefrom
shall have the duty to:
1. Serve a copy of the return, personally or by registered mail, to the plaintiff’s
counsel; and
2. He shall return the summons to the clerk who issued it, accompanied by proof of
service.

Issuance of alias summons

An alias summons may be issued after the server has served a copy of the return to the
plaintiff’s counsel stating the reason of the failure of service, on the following instances:
1. If a summons is returned without being served on any or all of the defendants,
or;
2. If the summons has been lost.

Sample Form of Summons

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITL JUDICIAL REGION
MANILA, BRANCH _______

MR. X,

Plaintiff,

- versus - CIVIL CASE NO. _____________

For: Sum of Money with Damages

MR. Y,

Defendant.

x --------------------------- x

SUMMONS

TO: MR Y
GREETINGS

You are hereby required within five (5) days after service of this summons upon
you, to file with this Court and serve on the plaintiff your answer to the complaint, copy
of which is attached together with annexes. You are reminded of the provision of the
IBP-COA Memorandum on Policy Guidelines dated March 12, 2002 to observe restraint
in filing a motion to dismiss and instead allege the grounds thereof as defenses in the
Answer. If you fail to answer within the time fixed, the plaintiff will take judgment by
default and may be granted the relief applied for in the complaint.

WITNESS my hand under the seal of the Court, this _____ day of ________, 20____.
 _______________________________
Clerk of Court

Modes of Service of Summons (Sec. 6, 7 and 15 of Rule 14)

1. Personal service;
2. Substituted service;
3. Extra-territorial service

SERVICE TO THE PERSON OF THE DEFENDANT (Sec. 6, Rule 14)

Whenever practicable, the summons shall be served upon the person of the defendant
by:
1. Handing a copy thereof to the defendant in person; or
2. If he refuses to receive and sign for it, by tendering it to him.

Purpose of personal service: Preferred mode

Personal service of summons most effectively ensures that the notice desired under the
constitutional requirement of due process is accomplished – the essence of personal
service is the handling or tendering of a copy of the summons to the defendant himself,
wherever he may be found, that is, wherever he may be, provided he is in the
Philippines.

Service of summons in the persons of the defendant is generally preferred over

substituted service – substituted service derogates the regular method of personal
service – it is an extraordinary method, since it seeks to bind the respondent or the
defendant to the consequences of a suit, even though notice of such action is served not
upon him but upon another whom the law could only presume would notify him of the
pending proceedings.

For substituted service to be justified, the following circumstances must be clearly

established: (a) personal service of summons within a reasonable time was impossible;
(b) efforts were exerted to locate the party; and (c) the summons was served upon a
person of sufficient age and discretion residing at the party’s residence upon a
competent person in charge of the party’s office or place of business. (Sansio Phil., Inc.
vs. Mogul 592 SCRA 652)

In case of an action in personam and the defendant is in the Philippines, personal

service is required

Where the action is in personam and the defendant is in the Philippines, service of
summons may be made through personal service, that is, summons shall be served by
handing to the defendant in person a copy thereof, or if he refuses to receive and sign
for it, by tendering it to him. If the defendant cannot be personally served with
summons within a reasonable time, it is then that substituted service may be made.
Personal service of summons should and always be the first option, and it is only when
the said summons cannot be served within a reasonable time can the process server
resort to substituted service. (Planters Development Bank vs. Julie Chandumal, G.R. No.
195619, September 5, 2012)

In an action in personam personal service is a preferred mode: How?

In an action strictly in personam, personal service on the defendant is the preferred

mode of service, that is, by handling a copy of the summons to the defendant in person,
and if defendant, for excusable reasons, cannot be served with the summons within the
reasonable period, then substituted service can be resorted to. (Collado-Lacorte vs.
Rabena 595 SCRA 15)

The modes of service of summons must be strictly followed in an action in personam in

order for the court to acquire jurisdiction over the defendant.

Service of summons is the means of acquiring jurisdiction over the person of the
defendant in action in personam and a means by which the due process requirement of
notice of the Constitution is complied with. The rules require not just a mere service of
summons. The modes of service must be strictly followed in order that the court may
acquire jurisdiction over the person of the defendant. (Umandap vs. Sabio, Jr. 339 SCRA
243; Gan Hock vs. Court of Appeals, 197 SCRA 223)

An action in personam is one which seeks to enforce personal rights and obligations
against the defendant and is based on the jurisdiction of the person, although it may
involve his right to, or the exercise of ownership of, specific property, or seek to compel
him to control or dispose of it in accordance with the mandate of the court. (Belen vs.
Chavez, G.R. No. 175334, March 26, 2008, 549 SCRA 479, 481)

SUBSTITUTED SERVICE OF SUMMONS (Sec. 7, Rule 14)

If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected by:
1. Leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein; or
2. Leaving the copies at defendant’s office or regular place of business with some
competent person in charge thereof.

When can a substituted service of summons be resorted to?

Substituted service may be resorted to only when service of summons within a

reasonable time is impossible – impossibility of prompt service should appear in the
return of service. (Galura vs. Math-Agro Corporation, 596 SCRA 205)

Requisites for a valid service of summons

In this case, the sheriff resorted to substituted service of summons to his failure to serve
it personally. In Manotoc vs. Court of Appeals, the Court detailed the requisites for a
valid substituted service of summons, summed up as follows: (1) impossibility of
prompt personal service – the party relying on substituted service or the sheriff must
show that the defendant cannot be served promptly or there is impossibility of prompt
service; (2) specific details in the return – the sheriff must describe in the Return of
Summons the facts and circumstances surrounding the attempted personal service; (3)
a person of suitable age and discretion – the sheriff must determine if the person found
in the alleged dwelling or residence of defendant is of legal age, what the recipient’s
relationship with the defendant is, and whether said person comprehends the
significance of the receipt of summons and his duty to immediately deliver it to the
defendant or at least notify the defendant of said receipt of summons, which matters
must be clearly and specifically described in the Return of Summons; and (4) a
competent person in charge, who must have sufficient knowledge to understand the
obligation of the defendant in the summons, its importance, and the prejudicial effects
arising from inaction on the summons. (Planters Development Bank vs. Julie
Chandumal, G.R. No. 195619, September 5, 2012)

Statutory requirements of substituted service of summons must be strictly followed

As a rule, if defendants have not been validly summoned, the court acquires no
jurisdiction over their person, and a judgment rendered against them is null and void.

As a rule, summons should be personally served on the defendant, and in case of a

domestic private juridical entity, the service of summons must be made upon an officer
who is named in the statute (i.e., the president, managing partner, general-manager,
corporate secretary, treasurer, or in house counsel), otherwise, the service is
insufficient.

The statutory requirements of substituted service must be followed strictly, faithfully,

and fully, and any substituted service other than that authorized by statute is
considered ineffective. (B.D. Long Span Builders, Inc. vs. R.S. Ampelaquio Realty
Development, Inc. 599 SCRA 468)

Person to whom the summons was served must be in charge of the place of business of
the defendant in case of substituted service.

It is not necessary that the person in charge of the defendant’s place of business be
specifically authorized to receive the summons. It is enough that he appears to be in
charge. (Gentle Supreme Philippines, Inc., vs. Ricardo F. Consulta, G.R. No. 183182,
September 1, 2010)

Presumptions in case of substituted service of summons

The rule presupposes that such a relation of confidence exist 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. (Leah Palma
vs. Hon. Danilo P. Galvez, G.R. No. 165273, March 10, 2010)

Liberal application on the rule on Substituted Service of Summons

In view of the foregoing, the Court found that substituted service of summons was
validly made upon respondent through his brother. The Court does not intend this
ruling to overturn jurisprudence to the effect that statutory requirements of substituted
service must be followed strictly, faithfully, and fully, and that any substituted service
other than that authorized by the rules is considered ineffective. However, an overly
strict application of the Rules is not warranted in this case, as it would clearly frustrate
the spirit of the law as well as do injustice to the parties, who have been waiting for
almost 15 years for a resolution of this case. The Court is not heedless of the
widespread and flagrant practice whereby defendants actively attempt to frustrate the
proper service of summons by refusing to give their names, rebuffing requests to sign
for or receive documents, or eluding officers of the court. Of course, it is to be expected
that to declare that, “the sheriff must be resourceful, perservering, canny and diligent in
serving the process on the defendant.” However, sheriffs are not expected to be sleuths,
and cannot be faulted where the defendants themselves engage in deception to thwart
the orderly administration of justice. (Arnel Sagana vs. Richard A. Francisco, G.R. No.
161952, October 2, 2009)

Refusal of the defendant to reveal his whereabouts justify substituted service of

summons

There was proper substituted service of summons when the personal service of
summons was made impossible by the acts of the respondent in refusing to reveal his
whereabouts, and by the act of his brother in claiming that respondents no longer lived
at No. 36 Sampaguita Street, yet failing to disclose his brother’s location. (Sagana vs.
Francisco, G.R. No. 161952, October 2, 2009)
Service of summons upon the security guard upon strict instruction of the defendant is
valid

There is valid substituted service of summons on Consulta at his place of business with
some competent person in charge thereof. According to the sheriff’s return, which is
prima facie evidence of the facts its states, he served a copy of the complaint on Canave,
an authorized representative of both Consulta and Sarrayba. Besides Consulta’s bare
allegations, he did not present evidence to rebut the presumption of regularity on the
manner that the sheriff performed his official duty. Nor did Consulta present clear and
convincing evidence that Canave was not competent to receive the summons and the
attached documents for him.

Further, this Court has ruled that “it is not necessary that the person in charge of the
defendant’s regular place of business be specifically authorized to receive the summons.
It is enough that he appears to be in charge.” In this case Canave, a secretary whose job
description necessarily includes receiving documents and other correspondence, would
have the semblance of authority to accept the court documents.

It is true that this Court emphasized the importance of strict and faithful compliance in
effecting substituted service. It must, however, be reiterated that when the rigid
application of rules becomes a conduit for escaping one’s responsibility, the Court will
intervene to set things right according to the rules. (Gentle Supreme Philippines, Inc. vs.
Ricardo F. Consulta, G.R. No. 183182, September 1, 2010)

Duty of the sheriff in case personal service is not available

Service in person on the defendant is the preferred mode of Service. (Sec. 6, Rule 14) If
the defendant refuses the service, the server should not resort to substituted service. He
must tender it to him. Tendering is a part of service in person (formerly called
“personal service”). If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 of Rule 14 be availed of.

The sheriff or server must first exert all efforts to serve the defendant in person. If this
effort fails, then substituted service can be made. This effort must be stated in the proof
of service. This is required because substituted service of summons is in derogation of
the usual mode of service. (Laus vs. Court of Appeals, 219 SCRA 688; Umandap vs.
Sabio, Jr., 339 SCRA 243; Samartino vs. Raon, 383 SCRA 664, 670 [2002] It is only when
the defendant cannot be served personally that substituted service may be made. It is,
however, necessary that the pertinent facts attendant to the service of summons must
be stated in the proof of service, otherwise substituted service in lieu of personal
service cannot be upheld. (Hamilton vs. Levy, 334 SCRA 278)

Effect of failure to comply with the requirements of substituted service

Failure to faithfully comply with the requirements of substituted service renders the
service ineffective. (Miranda vs. Court of Appeals, 326 SCRA 278)

Sample Form of Motion to Serve Summons by Substituted Service (Sec. 7, Rule 7)

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITL JUDICIAL REGION
MANILA, BRANCH _______
MR. X,

Plaintiff,

- versus - CIVIL CASE NO. _____________

For: Sum of Money with Damages

MR. Y,

Defendant.

x --------------------------- x

MOTION TO SERVE SUMMONS BY SUBSTITUTED SERVICE

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most respectfully avers:

1. That on ________________ 20 _____, copy of the summons was served by the process
server of this Honorable Court, but it cannot be served to the defendant
personally as evidenced by the Report of the process server;
2. That considering that personal service cannot be effected, it is most respectfully
moved that summons be served through substituted service.

WHEREFORE, plaintiff prays that the summons be served by substituted based on

the above reasons.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Manila, ________________ 20 ______

Counsel

NOTICE OF HEARING

TO: MR. Y
Defendant

GREETINGS:

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on _______________, 20 ______ at ______________

Counsel

CC: MR. Y
#41 Maceda Street
Sampaloc, Manila

EXPLANATION OF SERVICE

Copy of the Motion to Serve Summons by Substituted Service was served to

defendant by registered mail due to time and distance constraints, and for lack of the
undersigned’s staff who can serve the same in person.
 Counsel

EXTRA-TERRITORIAL SERVICE OF SUMMONS/BY PUBLICATION (Sec. 15, Rule 14)

Extra-territorial service of summons can be made in the following instances, to wit:

1. When the defendant does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff or relates to; or
2. The subject of which is, property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any
interest therein; or
3. The property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines.

How can extra-territorial service of summons be done?

1. By personal service as under Sec. 6; or
2. By publication in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the summons and order of
the court shall be sent by registered mail to the last known address of the
defendant; or
3. In any other manner, the court may deem sufficient. Any order granting such
leave shall specify a reasonable time, which shall not be less than sixty (60) days
notice, within which the defendant must answer.

In an action in rem service of summon is through publication

An in rem proceeding is validated essentially through publication. Publication is notice

to the whole world that the proceeding has for its object to bar indefinitely all who
might be minded to make an objection of any sort to the right sought to be established.
Through publication, all interested parties are deemed notified of the petition. (Jesse U.
Lucas vs. Jesus S. Lucas, G.R. No. 190710, June 6, 2011)

Service of summons of a non-resident defendant – purpose

Service of summons on a non-resident defendant who is not found in the country is

required, not for purposes of physically acquiring jurisdiction over his person but
simply in pursuance of the requirements of fair play, so that he may be informed of the
pendency of the action against him and the possibility that the property in the
Philippines belonging to him or in which he has an interest may be subjected to a
judgment in favor or a resident, and that he may thereby be accorded an opportunity to
defend in the action, if he be so minded. The only relief that may be granted in such an
action such a non-resident defendant, who does not choose to submit to the jurisdiction
of the Philippine court, is limited to the res. (Rosalino P. Acance, et. al. vs. CA, G.R. No.
159699, March 16, 2005, citing Sahagun vs. Court of Appeals, 198 SCRA 44 [1991])

In case of a non-resident defendant and the case is an action in personam court cannot
acquire jurisdiction

Since the action involved in the case is in personam and since the defendant, petitioner
Rothschild/Investec, does not reside and is not found in the Philippines, the Philippine
courts cannot try any case against it because of the impossibility of acquiring
jurisdiction over its person unless it voluntarily appears in court. (NM Rothschild and
Sons [Australia] Limited vs. Lepanto Consolidated Mining Company, G.R. No. 175799,
November 28, 2011)
Resident defendant temporarily out of the Philippines can be served with summons by
extra-territorial service

If defendant cannot be served with summons because he is temporarily abroad, but

otherwise he is a Philippine resident, service of summons may, by leave of court, be
effected out of the Philippines under Rule 14, Sec. 15. In all of these cases, it should be
noted, defendant must be a resident of the Philippines, otherwise an action in personam
cannot be brought because jurisdiction over his person is essential to make a binding
decision. (Sps. Domingo M. Belen and Dominga P. Belen, G.R. No. 175334, March 26,
2008)

Strict compliance with the requirements in case of service by publication: Effect of

defective service of summons by mail and publication.

1. The failure to strictly comply correctly with the requirements of the rules
regarding the e-mailing of copies of the summons and the order for its
publication is a fatal defect in the service of summons. (Rosalino P. Acance, et. al.
vs. CA, G.R. No. 159699, March 16, 2005)
2. It is the duty of the court to require the fullest compliance with all the
requirements of the statute permitting service by publication. Where service is
obtained by publication, the entire proceeding should be closely scrutinized by
the courts and a strict compliance with every condition of law should be exacted.
Otherwise, great abuses may occur, and the rights of persons and property may
be made to depend upon the elastic conscience of interested parties rather than
the enlightened judgment of the court or judge. (Rosalino P. Acance, et. al. vs. CA,
G.R. No. 159699, March 16, 2005, citing Dulap vs. Court of Appeals, 42 SCRA 537
[1971])

Sample Form of Motion for Leave of Court to Serve Summons by Publication (Sec. 15,
Rule 14)

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITL JUDICIAL REGION
MANILA, BRANCH _______

MR. X,

Plaintiff,

- versus - CIVIL CASE NO. _____________

For: Sum of Money with Damages

MR. Y,

Defendant.

x --------------------------- x

MOTION FOR LEAVE OF COURT TO SERVE SUMMONS BY PUBLICATION

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most respectfully avers:
 1. That on ________________ 20 _____, copy of the summons was served by the process
server of this Honorable Court to the defendant on his given address, but
defendant is no longer residing on his given address;

2. The considering that the whereabouts of the defendant is unknown and this case
affects the property of the defendant, plaintiff most respectfully move with leave
of court to serve summons by publication.

WHEREFORE, plaintiff prays that the summons be served by publication based on

the above reasons.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Manila, ________________ 20 ______

Counsel

NOTICE OF HEARING

TO: MR. Y
Defendant

GREETINGS:

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on _______________, 20 ______ at ______________

Counsel

CC: MR. Y
#41 Maceda Street
Sampaloc, Manila

EXPLANATION OF SERVICE

Copy of the Motion to Serve Summons by Substituted Service was served to

defendant by registered mail due to time and distance constraints, and for lack of the
undersigned’s staff who can serve the same in person.

Counsel

Sec. 8, Rule 14

To whom summons shall be served in case of an entity without juridical personality?

When persons associated in an entity without juridical personality are sued under the
name by which they are generally or commonly know, service may be effected upon:
1. All the defendants by serving upon any one of them; or
2. Upon the person in charge of the office or place of business maintained in such
name.

What is the effect of the service of summons to an entity without juridical personality if
a person is no longer connected with it?
Such service shall not bind individually any person whose connection with the entity
has, upon due notice, been severed before the action was brought.

Sec. 9, Rule 14

Service upon prisoners

When the defendant is a prisoner confined in a jail or institution, service shall be

effected upon him by the officer having the management of such jail or institution who
is deemed deputized as a special sheriff for said purpose.

Sec. 10, Rule 14

Service upon minors and incompetents

When the defendant is a minor, insane or otherwise an incompetent, service shall be

made:
1. Upon him personally and on his legal guardians if he has one; or
2. If none, upon his guardian ad litem whose appointment shall be applied for by
the plaintiff;
3. In the case of a minor, service may also be made on his father or mother.

Sec. 11, Rule 14

Service upon domestic juridical entity

When the defendant is a corporation, partnership or association organized under the

laws of the Philippines with a juridical personality, service may be made on the
following:
1. President;
2. Managing Partner;
3. General Manager;
4. Corporate Secretary;
5. Treasurer; or
6. In-house counsel

In case of a domestic juridical entity, the service of summons must be made upon the
officer who is named in the statute (i.e., the president, managing partner, general
manager, corporate secretary, treasurer, or in-house counsel), otherwise, the service is
insufficient. (B.D. Long-span Builders, Inc., R.S. Ampeloquio Realty Development, Inc.,
G.R. No. 169919, September 11, 2009)

Enumeration under Sec. 11 to whom summons shall be served are exclusive

True, when the defendant is a domestic corporation, service of summons may be made
only upon the persons enumerated in Sec. 11, Rule 14 of the Rules of Court. However,
jurisdiction over the person of the defendant can be acquired not only by proper service
of summons but also by defendant’s voluntary appearance without expressly objecting
to the court’s jurisdiction, as embodied in Sec. 20, Rule 14 of the Rules of Court. (Atiko
Trans, Inc. and Cheng Lie Navigation Co., Ltd vs. Prudential Guarantee and Assurance,
Inc., G.R. No. 167545, August 17, 2011)

Service of summons in case of a domestic corporation must be those persons mentioned

under Sec. 11, Rule 14
As to domestic corporations, the rule is: Summons must be served only upon persons
enumerated in Sec. 11 of Rule 14 (president, general manager, managing partner,
corporate secretary, treasurer, and in-house counsel). The enumeration is exclusive.
Service upon any other person will not enable the court to acquire jurisdiction over
person of the defendant. (E.B. Villarosa vs. Benito, 312 SCRA 7; Mason vs CA, G.R. No.
144662, October 13, 2003; Paramount Insurance Corporation vs A.C. Ordonez
Corporation, G.R. No. 175409, August 6, 2008)

What is the remedy of the plaintiff in case of service of summons cannot be made to the
officers of the corporation in an action in personam?

The remedy of the plaintiff in case of service of summons to the officers of a domestic
corporation in an action in personam is to amend his complaint and asked for the
issuance of a writ of preliminary attachment thereby converting the action into an
action quasi-in-rem where service of summons by publication is allowed in order to
acquire jurisdiction over the res and the acquisition of jurisdiction is merely for
observance of due process.

Sec. 1, Rule 57 of the 1997 Rules of Civil Procedure allows service of summons by
publication in case of attachment.

Sec. 12, Rule 14

Service upon foreign private juridical entity

When the defendant is a foreign private entity which has transacted business in the
Philippines, service may be made on:
1. Its resident agent designated in accordance with law for that purpose; or
2. If there be no such agent, on the government official designated by law to that
effect or
3. On any of its officers or agents within the Philippines.

Amendment to Sec. 12, Rule 14 on the service of summons on a foreign private juridical
entity under the New Rules on Service of Summons on Foreign Juridical Entities (A.M.
11-3-6, March 15, 2011)

When the defendant is a foreign private juridical entity which has transacted business
in the Philippines, service may be made on its resident agent designated in accordance
with law for that purpose; or if there is no such agent on the government official
designated by law to that effect, or on any of its officers or agents within the Philippines.
x x x if the foreign juridical entity is not registered in the Philippines or has no resident
agent, service may, by leave of court be effected out of the Philippines through any of
the following means (1) By personal service coursed through the appropriate court in
the foreign country with the assistance of the Department of Foreign Affairs; (2) by
publication once in a newspaper of general circulation in the country where the
defendant may be found and by serving a copy of the summons and the court order by
registered mail at the last known address of the defendant; (3) by facsimile or any
recognized electronic means that could generate proof of service.

On this score we find for the petitioners. Before it was amended by A.M. No. 11-3-6-SC,
Sec. 12 of Rule 14 of the Rules of Court.

Elucidating on the above provision of the Rules of Court, this Court declared in Pioneer
International Ltd. vs Guadiz, Jr., that when the defendant is a foreign jurdicial entity,
service of summons may be made upon:
1. Its resident agent designated in accordance with law for that purpose;
 2. The government official designated by law to receive summons if the
corporation does not have a resident agent; or
3. Any of the corporation’s officers or agents within the Philippines

In order for the court to acquire jurisdiction over the person of the defendant foreign
private juridical entity under Section 12, Rule 14 of the Rules of Court, there must be
prior valid service of summons upon the agent of such defendant. (Atiko Trans. Inc., and
Cheng Lie Navigation Co., Ltd. vs Prudential Guarantee and Assurance, Inc., G.R. No.
167545, August 17, 2011)

Service of summons to private foreign corporation must be to a person designated by

the corporation

With respect to foreign corporation, when a foreign corporation has designated a

person to receive summons in its behalf pursuant to the Corporation Code, that
designation is exclusive and service of summons on any other person is inefficacious.
(H.B. Zachry Company International vs Court of Appeals, 232 SCRA 329)

Sec. 13 Rule 14

Service upon Republic of the Philippines or public corporation

When the defendant is the Republic of the Philippines, service may be effected on the
following:
1. Solicitor General; in case of a province, city or municipality; or
2. Like public corporations, service may be effected on its effected on its executive
head, or on such other officer or officers as the law or the court may direct.

Where the defendant is the Republic of the Philippines, service of summons must be
made on the Solicitor General. (Republic of the Philippines vs Alfredo Domingo, G.R. No.
175299, September 14, 2011)

Sec. 14, Rule 14

Service upon the defendant whose identity or whereabouts are unknown

How can the summons be served in case defendant’s identity or whereabouts are
unknown?

In any action where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication in a newspaper of
general circulation and in such places and for such time as the court may order.

Can service of summons by publication allowed in case the action is one in personam?
Yes, because Sec. 14 specifically used the word “In any action.”

Service of summons by publication is allowed in an action in personam if the

defendant’s whereabouts is unknown.

In Santos, Jr. PNOC Exploration Corporation, the Court authorized resort to service of
summons by publication even in actions in personam, considering that the provision
itself allow this mode in any action, i.e., whether the actions is in personam, in rem, or
quasi in rem. The ruling, notwithstanding, there must be prior resort to service in
person on the defendant and substituted service, and proof of service by these modes
were ineffective before service by publication may be allowed for defendants whose
whereabouts are unknown, considering that Sec. 14 Rule 14 of the Rules of Court
requires a diligent inquiry of the defendant’s whereabouts. (Pablo Pua vs Lourdes L.
Deyto, Doing Business Under the Name of “JD Grains Center”, and Jennelita Deyto Ang
A.K.A. “Janet Ang”, G.R. No. 173336, November 26, 2012)

Sec. 16 Rule 14

Service upon residents temporarily out of the Philippines

When an action is commenced against a defendant who ordinarily resides in the

Philippines, but who is temporarily out of it, service may, by leave of court, be also
effected out of the Philippine, as under the preceding section.

Sec. 17 Rule 14

Leave of Court

Any application to the court under this Rule for leave to effect service in any manner for
which leave of court is necessary shall be made with the following requirements:
1. Motion in writing
2. Supported by affidavit of the plaintiff or some person on his behalf setting forth
the grounds for the application.

Sec. 18 Rule 14

Proof of Service

The proof of service of a summon shall be made in writing by the server and shall set
forth the following:
1. The manner, place, and date of service;
2. He shall specify any papers which have been served with the process;
3. The name of the person who received the same; and
4. It shall be sworn to when made by a person other than a sheriff or his deputy.

Sec. 19 Rule 14

Proof of service by publication

If the service has been made by publication, service may be proved by:
1. The affidavit of the printer, his foreman or principal clerk, or of the editor,
business or advertising manager, to which affidavit a copy of the publication
shall be attached, and
2. By an affidavit, showing the deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address.

Sec. 20 Rule 14

Voluntary appearance

The defendant’s voluntary appearance in the action shall be equivalent to service of

summons.

The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a voluntary appearance.
Exceptions to the submission to the jurisdiction of the court

In Philippine Commercial International Bank vs. Spouses Dy, we had occasion to state:

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 court’s
jurisdiction. This, however, is tempered by the concept of conditional appearance, such
that a party who makes special appearance to challenge, among others, the court’s
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; (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.
(Optima Realty Corporation vs Hertz Phil. Exclusive Cars, Inc., G.R. No. 183035, January
9, 2013)

Participation in the proceedings by filing of opposition amounts to voluntary

appearance

If at all, service of summons or notice is made to the defendant, it is not for the purpose
of vesting the court with jurisdiction, but merely for satisfying the due process
requirements. This is proper in order to afford the person concerned the opportunity to
protect his interest if he so chooses. Hence, failure to serve summons will not deprive
the court of its jurisdiction to try and decide the case. In such a case, the lack of
summons may be excused where it is determined that the adverse party had, in fact, the
opportunity to file his opposition, as in this case. We find that the due process
requirement with respect to respondent has been satisfied, considering that he has
participated in the proceedings in this case and he has the opportunity to file his
opposition to the petition to establish filiation. (Jesse U. Lucas vs Jesus S. Lucas, G.R. No.
190710, June 6, 2011)

Acquisition of jurisdiction over the person of the defendant by voluntary appearance

A voluntary appearance is a waiver of the necessity of a formal notice. An appearance in

whatever form, without explicitly objecting to the jurisdiction of the court over the
person, is a submission of the court over the person. While the formal method of
entering an appearance in a cause pending in the courts is to deliver to the clerk a
written direction ordering him to enter the appearance of the person who subscribes it,
an appearance may be made by simply filing a formal motion, or plea or answer. This
formal method of appearance is not necessary. He may appear without such formal
appearance and thus submit himself to the jurisdiction of the court. He may appear by
presenting a motion, for example, and unless by such appearance he specifically objects
to the jurisdiction of the court, he thereby gives his assent to the jurisdiction of the
court over his person. When the appearance is by motion objecting to the jurisdiction of
the court over his person, it must be for the sole and separate purpose of objecting to
the jurisdiction of the court. If his motion is for any other purpose than to object to the
jurisdiction of the court over his person, he thereby submits himself to the jurisdiction
of the court. (Ofelia Herrera-Felix vs Court of Appeals, et. al., G.R. No. 143736, August 11,
2004, citing Busuego vs Court of Appeal, 151 SCRA 376 [1987], citing Flores vs Zurbito,
37 Phil 746 [1918])

Filling a motion to set aside order of default and motion to admit answer is tantamount
to the submission to the jurisdiction of the court.

When Chandumal filed an Urgent Motion to Set Aside Order of Default and to Admit
Attached Answer, she effectively submitted her person to the jurisdiction of the trial
court as the filing of a pleading where one seeks an affirmative relief is equivalent to
service of summons and vests the trial court with jurisdiction over the defendant’s
person. Thus, it was ruled 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 trial court’s
jurisdiction. The Court notes that aside from the allegation that she did not receive any
summons, Chandumal’s motion to set aside order of default and to admit attached
answer failed to positively assert the trial court’s lack of jurisdiction. In fact, what was
set forth therein was the substantial claim that PDB failed to comply with the
requirements of R.A. 6552 on payment of cash surrender value, which already delves
into the merits of PDB’s cause of action. In addition, Chandumal even appealed the RTC
decision to the CA, an act which demonstrates her recognition of the trial court’s
jurisdiction to render said judgment. (Planters Development Bank vs Julie Chandumal,
G.R. No. 195619, September 5, 2012)

Active participation in the proceedings amounts to acquisition of jurisdiction of the

court by voluntary submission

The Supreme Court, in Meat Packing Corporation of the Philippines vs Sandiganbayan,

held that jurisdiction over the person of the defendant in civil cases is acquired either
by his voluntary appearance in court and his submission to its authority or by service of
summons. Furthermore, the active participation of a party in the proceedings is
tantamount to an invocation of the court’s jurisdiction and a willingness to abide by the
resolution of the case, and will bar said party from later on impugning the court or
body’s jurisdiction. (Bernabe L. Navida, et. al., vs Hon. Teodoro A. Dizon, Jr., G.R. No.
125078, May 30, 2011)

Filing of a motion to dismiss assailing the jurisdiction of the court over his person is not
equivalent to the submission to the jurisdiction of the court

A defendant who files a motion to dismiss, assailing the jurisdiction of the court over his
person, together with other grounds raised therein, is not deemed to have appeared
voluntarily before the court. What the rule on voluntary appearance – the first sentence
of the above-quoted rule – means is that the voluntary appearance of the defendant in
court is without qualification, in which case he is deemed to have waived his defense of
lack of jurisdiction over his person due to improper service of summons. (Edna Diago
Lhuillier vs British Airways, G.R. No. 171092, March 15, 2010)

Voluntary appearance before the NLRC is submission to the jurisdiction of the tribunal

The NLRC acquires jurisdiction over parties in cases before it either by summons
served on them or by their voluntary appearance before the Labor Arbiter. Here, while
the Union insists that summons were not properly served on the impleaded Union
members with respect to the Company’s amended petition that sought to declare the
strike illegal, the records show that they were so served. The Return of Service of
summons indicated that 74 out of the 81 impleaded Union members were served with
summons. But they refused to accept the summons or to acknowledge receipt of the
same. Such refusal cannot of course frustrate the NLRC’s acquisition of jurisdiction over
them. Besides, the affected Union members voluntarily entered their appearance in the
case when they sought affirmative relief in the course of the proceedings like an award
of damages in their favor. (C. Alcantara & Sons, Inc. vs Court of Appeals, G.R. No.
155109, September 29, 2010)

Special appearance to challenge jurisdiction of the court is not voluntary appearance

1. When the defendant appearance is made precisely to object to the jurisdiction of
the court over his person, it cannot be considered as appearance in court.
(French Oil Machinery Inc. vs Court of Appeals, G.R. No. 126477, September 11,
1998 as cited in JAPRL Development Corp. vs Security Bank Corporation, G.R. No.
190107, June 6, 2011)
2. A party who makes a special appearance in court challenging the jurisdiction of
said court based on the ground of invalid service of summons is not deemed to
have submitted himself to the jurisdiction of the court. (Allan C. Go vs Mortimer
F. Cordero, G.R. No. 164703, May 4, 2010)

Service of summons in case of domestic private juridical entity coursed through a co-
defendant agent is not submission to the jurisdiction of the court

Where the service of summons upon the defendant principal is coursed thru its co-
defendant agent, and the latter happens to be a domestic corporation, the rules on
service of summons upon a domestic private juridical entity must be strictly complied
with. Otherwise, the court cannot be said to have acquired jurisdiction over the person
of both defendants. And insofar as the principal is concerned, such jurisdictional flaw
cannot be cured by the agent’s subsequent voluntary appearance. (Atiko Trans, Inc. and
Cheng Lie Navigation Co., Ltd. vs Prudential Guarantee and Assurance, Inc., G.R. No.
167545, August 17, 2011)

Objection to the jurisdiction of the court must be explicit: Motion seeking affirmative
relief from the court is submission to the jurisdiction of the court

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 court’s
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 court’s
jurisdiction over his person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

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

appearance;

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

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. (Rapid City Realty and Development Corporation
vs Orlando Villa and Lourdes Paez Villa, G.R. No. 184197, February 11 ,2010)

Special appearance challenging the jurisdiction of the court is not voluntary submission
A party who makes a special appearance in court challenging the jurisdiction of the said
court based on the ground of invalid service of summons is not deemed to have
submitted himself to the jurisdiction of the court. (United Coconut Planters Bank vs
Ongpin, G.R. No. 146593, October 26, 2001) In this case, however, although the Motion
to Dismiss filed specifically stated as one of the grounds for lack of “personal
jurisdiction.” It must be noted that defendant had earlier filed a Motion for Time to file
an appropriate responsive pleading even beyond the time provided in the summons by
publication. Such motion did not state that it was a conditional appearance entered to
question the regularity of the service of summons, but an appearance submitting to the
jurisdiction of the court by acknowledging the summons by publication issued by the
court and praying for additional time to file a responsive pleading. Consequently,
defendant having acknowledged the summons by publication and also having invoked
the jurisdiction of the court to secure affirmative relief in his motion for additional time,
he effectively submitted voluntarily to the trial court’s jurisdiction. He is now stopped
from asserting otherwise even before this Court. (Allan C. Go vs Mortimer F. Cordero,
G.R. No. 164703, May 4, 2010)

Objections to jurisdiction over the person of the defendant may be made initially either
in a motion to dismiss or in the answer as an affirmative defense. (Calimlim vs Ramirez,
118 SCRA 399; Francel Realty vs Sycip, 469 SCRA 430)

Motion to dismiss questioning jurisdiction over the person of the defendant together
with other grounds is not voluntary appearance

A defendant who files a motion to dismiss, assailing the jurisdiction of the court over his
person, together with other grounds raised therein, is not deemed to have appeared
voluntarily before the court. When the rule on voluntary appearance means is that the
voluntary appearance of the defendant in court is without qualification, in which case
he is deemed to have waived his defense of lack of jurisdiction over his person due to
improper service of summons. (Edna Diago Lhuillier vs British Airways, G.R. No.
171092, March 15, 2010)

Lack of jurisdiction over the person of the defending party is a ground for a dismissal of
the action under Rule 16(a)

Motu propio dismissal of the action in summary proceedings.

Sec. 4 of the Rules on Summary Procedure provides for the outright dismissal of the
action on any of the grounds for the dismissal of the action which includes lack of
jurisdiction over the person of the defendant.

Dismissal on the ground of lack of jurisdiction over the person of the defending party –
remedy is refilling of the case. (Sec. 4, Rule 16)

The dismissal of the case due to lack of jurisdiction over the person of the defendant of
the action is not considered a judgment on the merits that completely disposes of the
case, and the order of dismissal is considered as “without prejudice” to the re-filing of
the case with the proper forum and cannot be subject to appeal. (Sec. 1 of Rule 41)

Lack of jurisdiction over the person of the defending party can be raised in an answer as
an affirmative defense if no motion to dismiss is filed. (Sec. 6, Rule 16)

If no motion to dismiss has been filed by the defending party, he may:

1. Any of the grounds for dismissal provided for in this Rule may be pleaded as an
affirmative defense in the answer; and
 2. In the discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.

Test to determine whether service of summons is required in case of amended pleading

If the old pleading is superseded, is a new summons required to be served upon the
defendant? Answer: Although it is well-settled that an amended pleading supersedes
the original one, and is no longer considered part of the record, it does not follow that
new summons should be served. Where the defendant has already before the court by
virtue of the summons in the original complaint (as when defendant had filed a motion
to dismiss or an answer), the amended complaint may be served upon him without the
need of another summons if new causes of action are alleged in the amendment.
Conversely, a defendant who has not yet appeared must be served with summons.
(Vlason Enterprises Corporation vs Court of Appeals, 310 SCRA 26)

Issuance of summons in Small Claims Case (Sec. 10 of A.M. No. 08-8-7-SC)

What are the courses of action of the court if there is no ground for the dismissal of the
action?

If no ground for dismissal is found, the court shall forthwith:

1. Issue Summons (Form 2-SSC) on the day of receipt of the Statement of Claim,
directing the defendant to submit a verified Response;
2. The court shall also issue a Notice (Form 4-SCC) to both parties, directing them
to appear before it on a specific date and time for hearing, with a warning that no
unjustified postponement shall be allowed, as provided in Section 19 of this
Rule.

The summons and notice to be served on the defendant shall be accompanied by:
1. A copy of the Statement of Claim and documents submitted by plaintiff; and
2. A copy of the Response (Form 3-SCC) to be accomplished by the defendant

The Notice shall contain an express prohibition against the filing of a motion to dismiss
or any other motion under Sec. 14 of this Rule

Service of summons, order, and other processes in Environmental Cases (Sec. 13, Rule
2, Part II of the Rules of Procedure on Environmental Cases, A.M. No. 09-6-8)

The summons, order and other court processes in environmental cases may be served
by:
1. The sheriff;
2. His deputy; or
3. Other court officer; or
4. For justifiable reasons, by the counsel or representative of the plaintiff or any
suitable person authorized or deputized by the court issuing the summons.

Rules of procedure on the service of summons in quasi-judicial proceedings not strictly

construed

It bears noting that, in quasi-judicial proceedings, procedural rules governing service of

summons are not strictly construed – substantial compliance therewith is sufficient.
(Duenas, Jr. vs House of Representatives Electoral Tribunal, 593 SCRA, G.R. No. 185401,
July 21, 2009)

Service of summons under the Rules on Declaration of Absolute Nullity of Void

Marriages and Annulment of Voidable Marriages (Sec. 6 A.M. No. 02-11-10-SC)
Service of summons under the Rules on Legal Separation (Sec. 3)

Service of Notices under the Rules of Procedure in cases of Civil forfeiture, Asset
Preservation, and Freezing of monetary instrument, property or proceeds representing,
involving, or relating to an unlawful activity or money laundering offense under
Republic Act No. 9160, As amended (Sec. 8 A.M. No. 05-11-04-SC)
CHAPTER VIII 5th stage

MOTION IN GENERAL (RULE 15)

Motion – It is an application for a relief other than by a pleading. (Sec. 1, Rule 15)

Motion means a party’s request, written or oral to the court for an order or other action.
It shall include an informal written request to the court such as letter. (Sec. 3(d) of A.M.
No. 08-8-7 Rules of Procedure on Small Claims)

Kinds of motion
1. Motion ex parte – is a motion made without the presence or a notification to the
other party because the question generally presented is not debatable. Example:
Motion to set the case for pre-trial conference; motion for extension of time to
file pleadings.
2. Motion of course – it is a motion where the movant is entitled to the relief or
remedy sought as a matter of discretion on the part of the court.
3. Litigated motion – it is a motion which is made with notice to the adverse party
to give an opportunity to oppose. (i.e., motion to dismiss)
4. Non-litigated motion – it is a motion where notice to adverse party and hearing
is not required.
5. Special motion – It is a motion which is addressed to the sound discretion of the
court.
6. Oral motion – it is a motion which is made in open court.
7. Written motion – it is a motion which is formally placed in writing.

General Rule: Motion must be in writing: Exceptions (Sec. 2, Rule 15)

As a rule all motions shall be in writing except in the following instances, to wit:
1. Those made in open court; or
2. Those made in the course of a hearing or trial.

Contents of a motion (Sec .3, Rule 15)

A motion shall state the following, to wit:

1. The relief sought to be obtained;
2. The grounds upon which it is based; and
3. If required by these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers.

Requirements on written motion (Secs. 4, 5, 6 Rule 15)

Except for motions which the court may act upon without prejudicing the rights of the
adverse party, every written motion shall comply with the following requirements:
1. It must be set for hearing by the applicant
2. It is required to be heard;
3. The notice of the hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at least three (3) days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice;
4. The notice of hearing shall be addressed to all parties concerned;
5. It shall specify the time and date of the hearing which must not be later than ten
(10) days after filing of the motion; and
6. No written motion set for hearing shall be acted upon the court without proof of
service thereof.
Proof of service is mandatory

Indeed, while an affidavit of service is required merely as proof that service has been
made on the other party, it is nonetheless essential to due process and the orderly
administration of justice. (Salvador O. Mojar, Edgar B. Begonia, Heirs of the Late Jose M.
Cortez, Restituto Gaddi, Virgilio M. Monana, Freddie Rances, and Edson D. Tomas vs
Agro Commercial Security Agency, Inc. et. al., G.R. No. 187188, June 27, 2012)

Effects if non-compliance with the above rules

1. Elementary is the rule that every motion must contain the mandatory
requirements of notice and hearing and that there must be proof of service
thereof. The Court has consistently held that a motion fails to comply with the
above requirements is considered a worthless piece of paper which should not
be acted upon. The rule, however, is not absolute. There are motions that can be
acted upon by the court ex parte if these would not cause prejudice to the other
party. They are not strictly covered by the rigid requirement of the rules on
notice and hearing of motions. (Douglas F. Anama vs Philippine Savings Bank,
G.R. No. 187021, January 25, 2012)
2. A motion that does not meet the requirements of Secs. 4 and 5 of Rule 15 of the
Rules of Court is a worthless piece of paper which the clerk has no right to
receive and the court has no authority to act upon. (Manila Electric Company vs
La Campaña Food Products, Inc., 247 SCRA 77)
3. In Balagtas vs Sarmiento, the Court found the respondent therein grossly
ignorant of the law in granting the Urgent Ex-Parte Motion to Leave for Abroad
in violation of due process. Thus:

Considering the litigious nature of Peith’s motion and the fact that the criminal
and civil aspects of the case were simultaneously instituted, the public
prosecutor and the private offended party should have been notified, failing
which, the respondent judge should not have acted upon the motion.

The Rules of Court is explicit on this point. A motion without notice of hearing is
pro forma, a mere scrap of paper. It presents no question which the court could
decide. The court has no reason to consider it and the clerk has no right to
receive it. The rationale behind the rule is plain: unless the movant sets the time
and place for hearing, the court will be unable to determine whether the adverse
party agrees or objects to the motion, and if he objects, to hear him on his
objection. The objective of the rule is to avoid a capricious change of mind in
order to provide due process to both parties and to ensure impartiality in the
trial.

In granting Peith’s Urgent Ex-ParteMotion to Leave for Abroad, the respondent

judge violated a basic and fundamental constitutional principle: due process.
When the law is elementary, not to be aware of it constitutes gross ignorance
thereof. After all, judges are expected to have more than just a modicum of
acquaintance with the statutes and procedural rules. Hence, the respondent
judge is guilty of gross ignorance of the law.

Exceptions to the rigid application of Secs. 4, 5, 6 of Rule 15 on motion

1. Where the rigid application will result in a manifest failure or miscarriage of

justice especially if a party successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent on its face or from the
recitals contained therein;
 2. Where the interest of substantial justice will be served;
3. Where the resolution of the motion is addressed solely to the sound and
judicious discretion of the court; and
4. Where the injustice to the adverse party is not commensurate with the degree of
his thoughtfulness in not complying with the procedure prescribed (KKK
Foundation, Inc. vs. Hon. Adelina Calderon-Bargas, et. al., G.R. No. 163785,
December 27, 2007)

Summary on the effects of failure to comply with Secs. 4, 5, 6 of Rule 15

1. It is considered as a mere worthless piece of paper;
2. The clerk of court has no right to receive;
3. The court has no right to act upon;
4. It is considered as a mere pro-forma motion;
5. It is considered as not filed;
6. It produces no legal effect;
7. It is a ground for the denial of the motion;
8. It presents no question which the court could decide;
9. It will not toll the running of prescriptive period to appeal or file pleadings.

Three (3) day notice rule is not absolute

The three-day notice rule is not absolute. A liberal construction of the procedural rules
is proper where the lapse in the literal observance of a rule of procedure has not
prejudiced the adverse party and has not deprived the court of its authority. (Fausto R.
Preysler, Jr. vs. Manila Southcoast Development Corp., G.R. 171872, June 28, 2010)

Purpose of the three (3) day notice: Test to be followed

As an integral component of the procedural due process, the three-day notice required
by the Rules is not intended of the movant. Rather, the requirement is for the purpose of
avoiding surprises that may be sprung upon the adverse party, who must be given time
to study and meet the arguments in the motion before a resolution of the court.
Principles of natural justice demand that the right of a party should not be affected
without giving it an opportunity to be heard. The test is the presence of opportunity to
be heard, as well as to have time to study the motion and meaningfully oppose or
controvert the grounds upon which it is based. (Douglas F. Anama vs. Philippine Savings
Bank, G.R. No. 187021, January 25, 2012)

In execution of a judgment, notice to the debtor is not necessary

It is evident that Sec. 1 of Rule 39 of the Revised Rules of Court does not prescribe that a
copy of the motion for the execution of a final and executor judgment be served on the
defeated party, like litigated motions such as a motion to dismiss, or motion for new
trial, or a motion for execution of judgment pending appeal, in all of which instances a
written notice thereof is required to be served by the movant on the adverse party in
order to afford the latter an opportunity to resist the application.

In Pamintuan vs. Muñoz, the Court ruled that once a judgment becomes final and
executory, the prevailing party can have it executed as a matter of right, and the
judgment debtor need not be given advance notice of the application for execution.

Also of the same stature is the rule that once a judgment becomes final and executor,
the prevailing party can have it executed as a matter of right and the granting of
execution becomes a ministerial duty of the court. Otherwise stated, once sought by the
prevailing party, execution of a final judgment will just follow as a matter or course.
Hence, the judgment debtor need not be given advance notice of the application for
execution nor be afforded prior hearing.

Absence of such advance notice to the judgment debtor does not constitute an
infringement of the constitutional guarantee of due process. (Douglas F. Anama vs.
Philippine Savings Bank, G.R. No. 187021, January 25, 2012)

Prohibition on pro forma motion applies only to a final order and not to interlocutory
order

There is no rule which prohibits the filing of a pro forma motion against an
interlocutory order as the prohibition applies only to a final resolution or order of the
court. (San Juan, Jr. vs. Cruz, G.R. No. 167321, July31, 2006; Philippine National Bank vs.
The Intestate Estate of Francisco De Guzman, et. al., G.R. No. 182507, June 16, 2010)

SAMPLE FORM: NOTICE OF HEARING/PROOF OF SERVICE (SECS. 4, 5, AND 6 of Rule

15)

Litigated Motion – One which is set for hearing

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Non-litigated motion – one which is not set for hearing

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court immediately upon receipt hereof.
 HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Motion Day (Sec. 7, Rule 15 of 1997 Rules)

When can the motion be set for hearing?

Except for motions requiring immediate action, all motions shall be scheduled for
hearing on:
1. Friday afternoons, or
2. If Friday is a non-working day, in the afternoon of the next working day.

Omnibus Motion Rule (Sec. 8 Rule 15)

A motion attacking a pleading, order, judgment, or proceeding shall include all

objections then available, and all objections not so included shall be deemed waived,
except those grounds mentioned under Sec. 1, Rule 9.

Under the Omnibus Motion Rule embodied in Sec. 8 of Rule 15 of the Rules of Court, all
available objections that are not included in a party’s motion shall be deemed waived.
(HDMF vs. Sps. Fidel & Florinda R. See & Sheriff Manuel L. Aramado, G.R. No. 170292,
June 22, 2011)

An example of an omnibus motions under the rules are as follows, to wit:

1. Motion to dismiss (Rule 16)
2. Motion to quash complaint or information (Rule 117)

Grounds not waived under Sec. 1, Rule 9

The following grounds are not deemed waived if not raised in a motion to dismiss or
answer:
1. That the court has no jurisdiction over the subject matter;
2. That there is no another action pending between the same parties for the same
cause;
3. That the action is barred by a prior judgment; or
4. That the action is barred by the statute of limitations.

Sec. 8, Rule 15 of the Rules of Court defines an omnibus motion as a motion attacking a
pleading, judgment or proceeding. A motion to dismiss is an omnibus motion because it
attacks a pleading, that is, the complaint. For this reason, a motion to dismiss, like any
other omnibus motion, must raise and include all objections available at the time of the
filing of the motion because under Sec. 8: all objections not so included shall be deemed
waived.

As inferred from the provision, only the following defenses under Sec. 1, Rule 9, are
exempted from its application:
1. Lack of jurisdiction over the subject matter;
2. There is another action pending between the same parties for the same cause
(litis pendentia);
3. The action is barred by prior judgment (res judicata)
4. The action is barred by the statute of limitations or prescription. (League of
Cities of the Philippines [LCP], et. al. vs Commission on Elections, et. al., G.R. No.
176951, April 12, 2011)

Motion for leave (Sec. 9, Rule 15)

A motion for leave to file a pleading or motion shall be accompanied by:

1. The pleading sought to be admitted; or
2. The motion sought to be admitted.

REMEDIES AFTER SERVICE OF SUMMONS AND BEFORE THE FILING OF A RESPONSIVE

PLEADING

After the service of summons in accordance with Rule 14, parties to a civil action may
avail of the following remedies under the pertinent provisions of the Rules of Court, as
follows:
1. Amendment of the pleadings (Rule 10);
2. Motion for extension of time to file pleadings (Rule 11);
3. Motion for bill of particulars (Rule 12);
4. Motion to dismiss (Rule 16);
5. Dismissal by the Plaintiff (Rule 17);
6. Intervention (Rule 19);
7. Modes of Discoveries (Rules 23-28);
8. Summary Judgment (Rule 35)

AMMENDMENT OF THE PLEADINGS (RULE 10)

Amendment is an act of adding, changing, substituting, or omitting something from a

pleading, or instrument. (Cuenco vs. Laya, L-31252, December 22, 1969, 30 SCRA 756)

Amendment is the correction of an error committed in any process, pleading, or

proceeding law, or in equity, and which is done either as of course, or by the consent of
parties, or upon motion to the court in which the proceeding is pending. Under Fer. R.
Civil P., any change in pleadings, though not necessarily a correction, which a party may
accomplish once as a matter of course at any time before a responsive pleading has
been served. Such amendment may be necessary to cause pleadings to conform to
evidence. Rule 15(a), (b). The amendment relates back to the original pleading. If the
subject of it arose out of the transaction set forth in the original pleading.

Kinds of pleading
1. Formal amendment;
2. Substantial amendment;
3. Amendment as a matter of right;
4. Amendment as a matter of discretion;
5. Amendment to confer jurisdiction; and
6. Amendment to conform to evidence.
Amendment in general (Sec. 1, Rule 10)

Pleadings may be amended in the following manner:

1. By adding or striking out an allegation or the name of any party; or
2. By correcting a mistake in the name of a party; or
3. By correcting a mistaken or inadequate allegations or description in any other
respect, so that the actual merits of the controversy may be speedily be
determined, without regard to technicalities, and the most expeditious and
inexpensive manner.

Manner of making an amendment

Under Sec. 1, Rule 10 of the Rules of Court, an amendment is done by adding or striking
out an allegation or the name of any party, or by correcting a mistake in the name of a
party or a mistaken or inadequate allegation or description in any other respect. (Air
Aids Incorporated vs Tagum Agricultural Development Corporation [TADECO], G.R. No.
160736, March 23, 2011)

Prescription of action tolled upon the submission of the amended pleading

1. The settled rule is that the filing of an amended pleading does not retroact to the
date of the filing of the original; hence, that statute of limitation runs until the
submission of the amendment. It is true that, as an exception, this Court has held
that an amendment which merely supplements and amplifies facts originally
alleged in the complaint relates back to the date of the commencement of the
action and is not barred by the statute of limitations which expired after the
service of the original complaint. The exception, however, would not apply to the
party impleaded for the first time in the amended complaint. (Wallem
Philippines Shipping, Inc. vs S.R. Farms, Inc., G.R. No. 161849, July 9, 2010)
2. An amended complaint that changes the plaintiff’s cause of action is technically a
new complaint, consequently, the action is deemed filed on the date of the filing
of its original version. Thus, the statute of limitation resumes its run until it is
arrested by the filing of the amended pleading. (Spouses Vicente Dionisio and
Anita Dionisio vs Wilfredo Linsangan, G.R. No. 178159, March 2, 2011)

Amendment as a matter of right (Sec. 2, Rule 10)

A party may amend his pleading once as a matter of right at any time:
1. Before a responsive pleading is served; or
2. In the case of reply, at any time within ten(10) days after it is served.

Amendment as a matter of right: Motion to dismiss is not a responsive pleading

The plaintiff may amend his complaint once as a matter of right before any responsive
pleading before any responsive pleading is filed and served. Responsive pleading are
those which seeks affirmative relief and/or set up defenses, like an answer. A motion to
dismiss is not a responsive pleading. Thus, the court did not err in admitting
petitioner’s amended complaint, respondents not having answered yet the original
complaints when the amended complaint was filed. (Irene Marcos Araneta vs Court of
Appeals, et. al., G.R. No. 154096, August 22, 2008)

Amendment to confer jurisdiction

While it is basic jurisprudential principle than an amendment cannot be allowed when

the court has no jurisdiction over the original complaint except when the purpose of the
amendment is to confer jurisdiction on the court (Siasoco vs Court of Appeals, G.R. No.
132753, February 15, 1999, 303 SCRA 186, 196), the RTC in the case clearly had
jurisdiction over the original complaint and the amendment of the complaint was then
still a matter of right under Sec. 2, Rule 10 of the Rules of Court. (Irene Sante and
Reynaldo Sante vs Hon. Edilberto Claravall, G.R. No. 173915, February 22, 2010)

What is the remedy in case of denial of the motion to amend as a matter of right?

The proper remedy in case of denial of the motion to amend as a matter of right is to file
a petition for mandamus under Sec. 4, Rule 65, since it is a ministerial duty on the part
of the court to allow amendment on the pleading before the filing of a responsive
pleading.

Amendment is still available even if a motion to dismiss is filed or submitted for

decision

Even after the motion to dismiss has been filed by defendant (Paeste vs Jaurigue, 94 Phil
179) or such motion has been submitted for decision (Republic vs Ilao, L-16667,
January 30, 1962), the plaintiff can still amend his complaint as a matter of right, since a
motion to dismiss is not a responsive pleading within this rule.

Amendment is available even if the order of dismissal has been issued provided it is not
yet final.

Amendment of the complaint maybe allowed even if an order for its dismissal has been
issued as long as the motion to amend is filed before the dismissal order became final.
(Constantino vs Reyes, L-16853, June 29, 1963) An amended answer may also be
allowed even after the case had been set for trial on the merits if the purpose of the
amendment is to submit the real matter in dispute without intent to delay the action.
(Paman vs Diaz, et. al., G.R. No. 59582, August 26, 1982)

Amendment by leave of court (Sec. 3, Rule 10)

Substantial amendments may be made only upon leave of court. Such leave may be
refused if it appears to the court was made with intent to delay.

Orders of the court upon matters provided in this Section shall be made upon:
1. A motion filed in court;
2. After notice to the adverse party; and
3. An opportunity to be heard.

Amendment after the filing of a responsive pleading: Limitation

The granting of leave to file amended pleading is a matter particularly addressed to the
sound discretion of the trial court; and that discretion is broad, subject only to the
limitations that the amendments should not substantially change the cause of action or
alter the theory of the case; or it was made to delay the action. Nevertheless, as
enunciated in Valenzuela vs Court of Appeals, 416 Phil 289 (2001), even if the
amendment substantially alters the cause of action or defense, such amendment could
still be allowed when it is sought to serve the higher interest of substantial justice;
prevent delay; and secure a just, speedy and inexpensive disposition of action or
proceedings. (Henry Ching Tiu vs Philippine Bank of Communications, G.R. No. 151932,
August 19, 2009)

Substantial change or alteration in the cause of action or defense allowed under Sec. 3,
Rule 10 if based on substantial justice and to prevent delay
The Court has emphasized the import of Sec. 3, Rule 10 of the 1997 Rules of Civil
Procedure in Valenzuela vs Court of Appeals, thus:

Interestingly, Sec. 3, Rule 10 of the 1997 FRules of Civil Procedure amended the former
rule in such manner that the phrase or that the cause of action or defense is
substantially altered was stricken-off and not retained in the new rules. The clear
import of such amendment in Sec. 3, Rule 10 is that under the new rules, the
amendment may (now) substantially alter the cause of action or defense. This should
only be true, however, when despite a substantial change or alteration in the cause of
action or defense, the amendments sought to be made shall serve the higher interests of
substantial justice, and prevent delay and equally promote the laudable objective of the
rules which is to secure a just, speedy and inexpensive disposition of every action or
proceeding. (Philippine Ports Authority vs William Gothong & Aboitiz [WG&A], Inc., G.R.
No. 158401, January 28, 2008)

What is the remedy in case of denial of the motion for leave to amend?

The proper remedy in case of denial of the motion for leave to file an amendment to a
pleading is petition for certiorari under Rule 65, since the grant of the same is merely
discretionary and for being interlocutory which is not appealable under Sec. 1(b) of
Rule 41, and it is tainted with grave abuse of discretion.

Formal amendment (Sec. 4, Rule 10)

A formal amendment can be made in the pleadings involving:

1. A defect in the designation of the parties;
2. Other clearly clerical or typographical errors.

How will formal amendment be made?

Formal amendment may be summarily corrected by the court at any stage of the action
by:
1. At its initiative; or
2. Upon motion of any party, provided no prejudice is caused thereby to the
adverse party.

Amendment to conform or authorize presentation of evidence (Sec. 5, Rule 10)

When is amendment to conform or authorize the presentation of evidence available?

When issues not raised by the pleadings are tried with the express or implied consent of
the parties, they shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to amend does not affect the result of
the trial of these issues.

What is the course of action of the court if evidence is objected on the ground that it is
not within the issue in the pleadings?

If evidence is objected to at the trial on the ground that it is not within the issues made
by the pleadings, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial
justice will be served thereby. The court may grant a continuance to enable the
amendment to be made.
Supplemental pleading (Sec. 6, Rule 10)

Upon motion of a party the court may, upon reasonable notice and upon such terms are
just, permit him to serve a supplemental pleading setting forth the following:
1. Transactions;
2. Occurrences; or
3. Events which have happened since the date of the pleading sought to be
supplemented.

Office of a supplemental pleading

As a general rule, leave will be granted to a party who desires to file a supplemental
pleading that alleges any material fact which happened or came within the party’s
knowledge after the original pleading was filed, such being the office of a supplemental
pleading. (Penta Capital Investment Corp vs Makilito B. Mahinay, G.R. No. 171736, July
5, 2010)

Admission of supplemental pleading discretionary to the court

Under Sec. 6, Rule 10 of the 1997 Rules of Civil Procedure, as amended, governing
supplemental pleadings, the court may admit supplemental pleadings, such as the
supplemental petition filed by respondent before the appellate court, but the admission
of these pleadings remains in the sound discretion of the court. Nevertheless, we have
already found no credence in respondent’s claim that petitioner is a corporate officer,
consequently, the alleged lack of jurisdiction asserted by respondent in the
supplemental petition is bereft of merit. (Ma. Mercedes L. Barba vs Liceo De Cagayan
University, G.R. No. 193857, November 28, 2012)

Period to file a responsive pleading to a supplemental pleading?

The adverse party may plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading.

Distinctions between amended pleading and supplemental pleading

The following are the distinctions between amended pleading and supplemental
pleading, as follows, to wit:

1. The filing of an amended pleading may either be as a matter of right or with

leave of court; the filing of a supplemental pleading is always with leave of court;
2. Amended pleading alleges facts that occurred before the filing of the original
pleading; supplemental pleading alleges facts occurred after filing of the original
pleading;
3. Amended pleading supersedes the original pleading; supplemental pleading
does not supersedes the original pleading but assumes that the original pleading
is to stand. (Rule 10, Secs. 2, 3 and 6; Delbros Hotel Corp. vs IAC, et. al., G.R. No. L-
72566, April 12, 1988)

Filing of an amended pleading (Sec. 7, Rule 10)

When any pleading is amended it shall be filed with:

1. A new copy of the entire pleading; and
2. Incorporating the amendments, which shall be indicated by appropriate marks,
shall be filed.
Effects of amended pleading (Sec. 8, Rule 10)

An amended pleading shall have the following effects, to wit:

1. It supersedes the pleading that it amends;
2. The admissions in the superseded pleadings may be received in evidence against
the pleader;
3. Claims or defenses alleged therein not incorporated in the amended pleading
shall be deemed waived;
4. The admissions made in the original pleading shall be treated as an extra-judicial
admission which shall be alleged and proved;
5. Any ancilliary order/remedy issued in the original pleading shall be deemed
vacated or lifted;
6. It requires another certification of non-forum shopping if it is substantial
amendment of the original complaint; and
7. In case the complaint is amended, it requires the service of summons if the
defendant has not yet appeared before the court and submitted to its
jurisdiction.

Test to determine whether service of summons is required in case of amended pleading

If the old pleading is superseded, is a new summons required to be served upon the
defendant? Answer: Although it is well-settled that an amended pleading supersedes
the original one, and is no longer considered part of the record, it does not follow that
new summons should be served. Where the defendant has already appeared before the
court by virtue of the summons in the original complaint (as when defendant had filed a
motion to dismiss or an answer), the amended complaint may be served upon him
without the need for another summons if new causes of action are alleged in the
amendment. Conversely, a defendant who has not yet appeared must be served with
summons. It is not therefore, the change of the cause of action that gives rise to the need
to serve new summons. (Vlason Enterprises Corporation vs. Court of Appeals, 310 SCRA
26)

Motion to amend Complaint (Sec. 2, Rule 10)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION TO AMEND COMPLAINT

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most avers:
 1. That through inadvertence, plaintiff failed to include in his Complaint the
allegations of damages, attorney’s fees and interest based on the agreement
between him and the defendant;
2. That, to the end that the real matter in dispute and all matters in the action in
dispute between the parties may, as far as possible, be completely determined in
this proceeding, it is necessary and expedient that plaintiff be allowed to amend
his Complaint, including therein the aforementioned allegations.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the amended Complaint attached herewith as Annex “A” of this motion be
admitted.

Other relief and remedies as may be deemed just and equitable under the premises
are likewise prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Motion for Leave of Court to Amend Complaint (Sec. 3, Rule 10)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
 Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION FOR LEAVE OF COURT TO AMEND COMPLAINT

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most avers:

1. That through inadvertence, plaintiff failed to include in his Complaint the

allegations of damages, attorney’s fees and interest based on the agreement
between him and the defendant;
2. That copy of the complaint was already served to the defendant, and the latter
has already filed his answer;
3. That, to the end that the real matter in dispute and all matters in the action in
dispute between the parties may, as far as possible, be completely determined in
this proceeding, it is necessary and expedient that plaintiff with proper leave
from this Court that he be allowed to amend his Complaint, including therein the
aforementioned allegations. Copy of the Amended Complaint is hereto attached
as Annex “A” hereof.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the amended Complaint attached herewith as Annex “A” of this motion be
admitted.

Other relief and remedies as may be deemed just and equitable under the premises
are likewise prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

 EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

MOTION FOR EXTENSION OF TIME TO PLEAD (Sec. 11, Rule 11)

The court in its sound discretion and based on justifiable reasons may grant additional
time to the defendant to file his answer or responsive pleading in accordance with Sec.
11, Rule 11 of the 1997 Rules of Civil Procedure.

What are the courses of action of the court in case of a motion for an extension of time
to file pleading is filed?

Upon motion and on such terms as may be just, the court may:
1. Extend the time to plead provided in these Rules.
2. The court may also, upon like terms, allow an answer or other pleading to be
filed after the time fixed by these Rules.

Motion for extension of time to file pleading must be filed before the expiration of the
period sought to be extended

A motion for extension of time to file a pleading must be filed before the expiration of
the period sought to be extended. The courts discretion to grant a motion for extension
is conditioned upon such motion’s timeliness, the passing of which renders the court
powerless to entertain or grant it. Since the motion for extension was filed after the
lapse of the prescribed period, there was no more period to extend. (Reynaldo Posiquit
vs People, G.R. No. 193943, January 12, 2012)

Filing of motion for extension of time is tantamount to the submission to the

jurisdiction of the court. (Allan C. Go vs Mortimer F. Cordero, G.R. No. 164703, May 4,
2010)

Motion for extension of time a prohibited motion under the Rules on Summary
Procedure (Sec. 19[e]); on small claims cases (Sec. 14, A.M. No. 08-8-7, effective
October 27, 2009); in environmental cases (Sec. 2[c], Rule 2, Part II of A.M. 09-6-08-SC)

Motion for extension of time and admission of late answer not allowed in summary
proceedings

Rules on summary procedure: if the extension of time to file pleadings, affidavits or any
other paper cannot be allowed, it is illogical and incongruous to admit a pleading that is
already filed late. To admit a late answer is to put a premium on dilatory measures, the
very mischief that the rules seek to redress. (Teraña vs De Sagun, G.R. No. 152131, April
29, 2009 cited in Heirs of Antonio Feraren, et. al., vs Court of Appeals and Cecilia Tadiar,
G.R. No. 159328, October 5, 2011)

MOTION FOR EXTENSION OF TIME TO FILE ANSWER/RESPONSIVE PLEADING (Sec. 11,

Rule 11)
 REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION FOR EXTENSION OF TIME TO FILE ANSWER/RESPONSIVE PLEADING

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most avers:

1. That on February _____, 2012, defendant received a copy of the Summons issued
by this Honorable Court with attached Complaint and annexes, requiring him to
file his Answer to the said complaint;
2. That defendant only secured the services of the undersigned counsel only today
February _____, 2012, and he need time to familiarize himself of the facts of the
case, and needs additional time of fifteen (15) days to file said
answer/responsive pleading.

WHEREFORE, defendant prays that they be granted an additional time of fifteen

(15) days from February ___, 2012 within which to file his answer /responsive
pleading based on the above reasons.

Other relief and remedies as may be deemed just and equitable under the premises
are likewise prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila
Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

MOTION FOR BILL OF PARTICULARS (RULE 12)

Bill of particulars

It is an application before the court for a more definite statement of the facts and
material allegations in the pleading.

A motion for bill of particulars is a formal and litigated motion which must be in writing
and requires notice to the adverse party and hearing.

When to apply and purpose?

Under Sec. 1, Rule 12 of the 1997 Rules of Civil Procedure, a party may before
responding to a pleading, move for a definite statement or for a bill of particular of any
matter which is not averred with sufficient definiteness or particularity to enable him to
properly prepare his responsive pleading.

When can a party apply for a bill of particulars?

Before responding to a pleading, a party may move for a more definite statement or for
a bill of particulars of any matter which is not averred with sufficient definiteness or
particularity to enable him to prepare his responsive pleading.

When to file a bill of particulars in case of a reply?

If the pleading is a reply, the motion must be filed within ten (10) days from service
thereof

What will motion for bill of particulars contain?

A motion for bill of particulars shall point out the following:

1. The defects complained of;
2. The paragraphs wherein they are contained; and
3. The details desired.

Action by the court

Under Sec. 2, Rule 12 of the 1997 Rules of Civil Procedure, it provides for the action of
the court on the motion filed. It states that:

Upon filing of the motion, the clerk of court must immediately bring it to the attention
of the court which may:
1. Deny; or
2. Grant it outright; or
 3. Allow the parties the opportunity to be heard.

Compliance order

If the motion is granted, either in whole or in part, the compliance therewith must be
effected within:
1. Ten (10) days from notice of the order;
2. Unless a different period is fixed by the court.

How to file a bill of particulars?

The bill of particulars or a more definite statement ordered by the court may be filed
either:
1. In a separate pleading; or
2. In an amended pleading, serving a copy thereof on the adverse party.

Effect of non-compliance

Sec. 4, Rule 12 of the 1997 Rules of Civil Procedure provided for the effect on non-
compliance in case the party was ordered by the court to file a bill of particulars or a
more definite statement failed to file the same within ten (10) days from notice, the
court may order the striking out of the pleading or the portion thereof to which the
order is directed.

What is the effect of non-compliance or partial compliance of the order?

If the order is not obeyed, or in case of insufficient compliance therewith, the court may:
1. Order the striking out of the pleading;
2. Order the striking the portions thereof to which the order was directed; or
3. Make such other order as it deems just.

What is the effect of service of a more definite statements or the denial of the motion?

After service of the bill of particulars or of a more definite pleading, or after notice of
denial of his motion, the moving party may file his responsive pleading within the
period to which he was entitled at the time of filing in his motion, which shall not be less
than five (5) days in any event.

Distinctions between bill of particulars in civil cases (Rule 12) and bill of particulars in
criminal cases (Rule 116)

1. Bill of particulars under Rule 12 must be filed before the filing of a responsive
pleading or in case of a reply within ten (10) days from receipt thereof; while Bill
of Particulars under Rule 116 must be filed before arraignment;
2. Bill of particulars under Rule 12 is directed against a pleading; while Bill of
Particulars under Rule 116 is directed against a criminal complaint or
information;
3. In case of denial of the motion for bill of particulars under Rule 12, the moving
party may file his responsive pleading within the period he is entitled to but in
no case less than five (5) days, unless the denial is tainted with grave abuse of
discretion, hence, petition for certiorari; while in case of denial of the motion for
bill of particulars under Rule 116, the accused may proceed with the
arraignment and enter his plea, unless the denial is tainted with grave abuse of
discretion, party may file a petition for certiorari.

Bills of particulars prohibited in intra-corporate controversies

In ordinary cases, the failure to specifically allege the fraudulent acts does not
constitute a ground for dismissal since such a defect can be cured by a bill of particulars.
Thus:

Failure to allege fraud or mistake with as much particularity as is desirable is not fatal if
the general purport of the claim or defense is clear, since all pleadings should be so
construed as to do substantial justice. Doubt as to the meaning of the pleading may be
resolved by seeking a bill of particulars. A bill of particulars may be ordered as to a
defense of fraud or mistake if the circumstances constituting fraud or mistake are not
stated with the particularity required by the rule.

The above-stated rule, however, does not apply to intra-corporate controversies. In

Reyes, we pronounced that in cases governed by the Interim Rules of Procedure on
Intra-Corporate Controversies a bill of particulars is a prohibited pleading, It is
essential, therefore, for the complaint to show on its face what are claimed to be the
fraudulent corporate acts if the complainant wishes to invoke the court’s special
commercial jurisdiction. This is because fraud in intra-corporate controversies must be
based on devises and schemes employed by, or any act of, the board of directors,
business associates, officers or partners, amounting to fraud or misrepresentation
which may be detrimental to the interest of the public and/or the stockholders,
partners, or members of any corporation, partnership, or association, as stated under
Rule 1, Sec 1(a)(1) of the Interim Rules. The act of fraud or misrepresentation
complained of becomes a criterion in determining whether the complaint on its face has
merits, or within the jurisdiction of special commercial court, or merely nuisance suit.
(Sinny G. Uy, Geraldine G. Uy, Gladys G. Yao, and the Heirs of the late Grace G. Cheu vs
Gilbert G. Uy, G.R. No. 189486, September 5, 2012)

Motion for Bill of Particulars prohibited under the Rules on Summary Procedure (Sec.
19 of the Revised Rules on Summary Procedure)

Motion for Bill of Particulars a prohibited motion under the Rules on Small Claims Cases
(Sec. 14 of the Rules on Smaill Claims)

Motion for Bill of Particulars a prohibited pleading for Environmental cases (Sec. 2, Rule
2, Part II of A.M. 09-6-08-SC)

MOTION FOR BILL OF PARTICULARS (RULE 12)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x
 MOTION FOR BILL OF PARTICULARS

COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most respectfully move for a bill of particular on the following
grounds and avers:

1. That the plaintiff, in his complaint, seeks to recover damages allegedly suffered
by him, in the amount of P1,000,000.00
2. That plaintiff failed to allege the nature of said damages, the manner in which he
suffered the same, and what computation he used to arrive at the alleged
amount, with sufficient definiteness, and/or particularly to enable defendant to
properly prepare his responsive pleading and/or trial.

WHEREFORE, defendant prays that plaintiff be ordered to amend the complaint or

to complaint or to submit a Bill of Particular, stating with definiteness the nature of
said damages, the manner in which he suffered the same, and what computation he
used to arrive at the alleged amount, with sufficient definiteness.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

MOTION TO DISMISS (SEC. 1, RULE 16)

Sec.8, Rule 15 of the Rules of Court defines an omnibus motion as a motion attacking a
pleading, judgment or proceeding. A motion to dismiss is an omnibus motion because it
attacks a pleading, that is, the complaint. For this reason, a motion to dismiss, like any
other omnibus motion, must raise and include all objections available at the time of the
filling of the motion because under Sec. 8: “all objections not so included shall be
deemed waived, and at the same time a litigated motion which requires notice to the
adverse giving him the opportunity to file his comment and a hearing to be conducted.

What are the exceptions to the omnibus motion rule?

As inferred from the provision, only the following defenses under Sec. 1, Rule 9, are
excepted from its application:
1. Lack of jurisdiction over the subject matter;
2. There is another action pending between the same parties for the same cause
(litis pendentia)
3. The action is barred by prior judgment (res judicata);
4. The action is barred by the statute of limitations or prescription. (League of
Cities of the Philippines [LCP], et. al., vs. Commission of Elections, et. al., G.R. No.
176951, April 12, 2011)

Defenses and objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject matter, that there is another
pending between the same parties for the same cause, or that the action is barred by a
prior judgment or by stature of limitations, the court shall dismiss the claim. (Catalina
Balais-Mabanag, Assisted by her husband, Eleuterio Mabanag vs. The Register of Deeds
of Quezon City, et. al., G.R. No. 153142, March 29, 2010)

Hypothetical Admission Rule: Coverage

When a motion to dismiss is filed, the material allegations of the complaint are deemed
to be hypothetically admitted. This hypothetical admission, extends not only from the
relevant and material facts well pleaded in the complaint, but also to inferences that
may be fairly deduced to them. (Municipality of Hagonoy, Bulacan, et. al., vs. Hon.
Simeon Dumdum, Jr., G.R. No. 168289, March 22, 2010)

Grounds for a motion to dismiss (Sec. 1, Rule 16)

Within the time for but before filing the answer to the complaint or pleading asserting
the claim, a motion to dismiss may be made on any of the following grounds:
1. That the court has no jurisdiction over the person of the defending party;
2. That the court has no jurisdiction over the subject matter of the claim;
3. That the venue is improperly laid;
4. That the plaintiff has no legal capacity to sue;
5. That there is another action pending between the same parties for the same
cause;
6. That the cause of action is barred by a prior judgment or by the statute of
limitations;
7. That the pleading asserting the claim states no cause of action;
8. That the claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished;
9. That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds; and
10. That a condition precedent for filling a claim has not been complied with.

Grounds for dismissal under Sec. 1, Rule 16, are exclusive

The grounds for dismissal are exclusive to those specifically mentioned in Sec. 1, Rule
16 of the Rules of Court. (Robern Development Corporation vs. Court of Appeals; City of
Manila vs Melba Tan, G.R. No. 169263, September 21, 2011)

First Ground: “That the court has no jurisdiction over the person of the defending
party.”

How can the court acquire jurisdiction over the person of the defendant?
1. The fundamental rule is that jurisdiction over a defendant in a civil case is
acquired either through service of summons or through voluntary appearance in
court and submission to its authority. If a defendant has not been properly
summoned, the court acquires no jurisdiction over its person, and a judgment
rendered against it is null and void. (Planters Development Bank vs. Julie
Chandumal, G.R. No. 195619, September 5, 2012)
2. In civil cases, jurisdiction over the person of the defendant may be acquired
either by service of summons or by the defendant’s voluntary appearance in
court and submission to its authority. (Optima Realty Corporation vs. Hertz Phil.,
Exclusive., G.R. No. 183035, January 9, 2013)

What are effects of invalid service of summons?

As a rule, if defendants have not been validly summoned, the court acquires no
jurisdiction over their person, and the judgment against them shall be null and void.
(Sagana vs .Francisco, G.R. No. 161952, October 2, 2009)

Participation in all stages of proceedings – Estoppel will set in

1. Estoppel sets in when a party participates in all stages of a case before

challenging the jurisdiction of the lower court. One cannot belatedly reject or
repudiate its decision after voluntarily submitting to its jurisdiction, just to
secure affirmative relief against one’s opponent or after failing to obtain such
relief. The Court has, time and again, frowned upon the undesirable practice of a
party submitting a case for decision and then accepting the judgment, only if
favorable, and attacking it for lack of jurisdiction when adverse. (Honorio
Bernardo vs. Heirs of Eusebio Vilegas, G.R. No. 183357, March 15, 2010)
2. The ruling of the Court of Appeals that a party may be estopped from raising
such [jurisdictional] question if he has actively taken part in the very proceeding
which he questions, belatedly objecting to the court’s jurisdiction in the event
that the judgment or order subsequently rendered is adverse to him is based on
the doctrine of estoppel by laches. We are aware of that doctrine first enunciated
by this Court in Tijam vs. Sibonghanoy. In Tijam, the party-litigant actively
participated in the proceedings before the lower court and filed pleadings
therein. Only 15 years thereafter, and after receiving an adverse decision on the
merits from the appellate court, did the party-litigant question the lower court’s
jurisdiction. Considering the unique facts in that case, we held that estoppel by
laches had already precluded the party-litigant from raising the question of lack
of jurisdiction on appeal. In Figueroa vs. People, we cautioned that Tijam must
be construed as an exception to the general rule and applied only in the most
exceptional cases whose factual milieu is similar to that in the latter case.
(Republic of the Philippines vs. Bantigue Point Development Corporation, G.R.
No. 162322, March 14, 2012)

Objection to the jurisdiction may be raised in a motion to dismiss or as an affirmative

defense in the answer
Objections to jurisdiction over the person of the defendant may be made initially either
in a motion to dismiss or in the answer as an affirmative defense. (Calimlim vs. Ramirez,
118 SCRA 399; Francel Realty vs. Sycip, 469 SCRA 430)

Motion to dismiss questioning jurisdiction over the person of the defendant together
with other grounds is not voluntary appearance

A defendant who files a motion to dismiss, assailing the jurisdiction of the court over his
person, together with other grounds raised therein, is not deemed to have appeared
voluntarily before the court. When the rule on voluntary appearance means is that the
voluntary appearance of the defendant in court is without qualification, in which case
he is deemed to have waived his defense of lack of jurisdiction over his person due to
improper service of summons. (Edna Diago Lhuillier vs. British Airways, G.R. No.
171092, March 15, 2010)

Second ground: “That the court has no jurisdiction over the subject matter of the claim.”

Lack of jurisdiction over the subject matter can be raised at anytime

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 evidence
in a full-blown trial before the Balayan RTC which had, in fact, decided petitioner’s
complaint (about two years before the appellate court rendered the assailed decision)
would be an exercise in futility and would unjustly burden petitioners. (Atty. Restituto
G. Cudiamat vs. Batangas Savings and Loan Bank, Inc., G.R. No. 182403, March 9, 2010)

Lack of jurisdiction over the subject matter may be invoked at any time, even on appeal

1. Jurisdiction over the subject matter is conferred only by the Constitution or the
law. It cannot be acquired though a waiver or enlarged by the omission of the
parties or conferred by the acquiescence of the court. Consequently, question of
jurisdiction may be cognizable even if raised for the first time on appeal.
(Republic of the Philippines vs. Bantigue Point Development Corporation, G.R.
No. 162322, March 14, 2012)
2. Objections to jurisdiction over the subject matter may, as a rule, be made at any
stage of proceedings, even for the first time an appeal as long as estoppel by
laches does not set in. (Calimlim vs. Ramirez, 118 SCRA 399; Francel Realty vs.
Sycip, 469 SCRA 430) Being estopped to question jurisdiction is the exception
rather than the rule.

Lack of jurisdiction us a ground for a motion to dismiss an action under the Rules on
Summary Procedure

Under the Rules on Summary Procedure, a motion to dismiss is a prohibited pleading,

except when the ground is lack of jurisdiction over the subject matter, as well as failure
to comply with barangay conciliation. (Sec. 19[a] of the Rules on Summary Procedure)

Sec. 4 of the Rules on Summary Procedure provides for the motu proprio dismissal of
the case based on any grounds for the dismissal of the action under the rules including
lack of jurisdiction over the subject matter.

Third ground: “that venue is improperly laid.”

No motu proprio dismissal on the ground of improper venue: Waivable

A court cannot motu proprio dismiss a complaint on the ground of improper venue
since improper venue may be waived for failure to object it. (Dacoycoy vs. IAC, 195
SCRA 641 [1941])

Motu Proprio dismissal based on improper venue in cases under the Rules on Summary
Procedure (Sec. 4 on the Rule of Summary Procedure)

Dismissal on the ground of improper venue – remedy is refilling of the case (Sec. 5, Rule
16 of the 1997 Rules of Civil Procedure)

Dismissal on the ground of improper venue is without prejudice: Re-filing of the case

The dismissal of the case due to improper venue of the action is not considered a
judgment on the merits that completely disposes of the case, and the order of dismissal
is considered as “without prejudice” to the re-filling of the case with the proper forum
and cannot be subject to appeal. (Sec. 1[g], Rule 41 of Rules of Civil Procedure)

Improper venue can be raised in an answer as affirmative defense if no motion to

dismiss is filed

In case no motion to dismiss has been filed the ground of improper venue can be raised
as an affirmative defense in the answer under Sec. 6, Rule 16.

Remedy in case no motion to dismiss is filed

1. Any of the grounds for dismissal provided for in this Rule may be pleaded as an
affirmative defense in the answer; and
2. In the discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss has been filed

Remedy in case in case of denial of a motion to dismiss based on improper venue

An order denying a motion to dismiss is merely interlocutory. It is not a final order.

Only final orders or judgments may be appealed from. The normal answer and
interpose the ground as an affirmative defense, go to trial and appeal from the adverse
decision. However, if the denial is tainted with grave abuse of discretion amounting to
lack or in excess of jurisdiction, the remedy is certiorari and prohibition. (Emergency
Loan Pawnshop vs. Court of Appeals, 353 SCRA 89)

Fourth ground: “The plaintiff has no legal capacity to sue.”

The following persons have no legal capacity to sue, to wit:

1. When the plaintiff is not in full exercise of his civil rights (i.e., those suffering
from civil interdiction);
2. If the plaintiff does not have the character or representation that he claims;
3. Foreign corporation doing business in the Philippines without securing a license;
4. Minority;
5. Insanity;
6. Lack of judicial personality;
7. Incompetence.

Fifth ground: “That there is another action pending between the same parties for the
same cause”
Litis pendentia – meaning

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.
(Goodland Company, Inc. vs. Asia United Bank, Abraham Co, Atty. Joel T. Pelicano and
the Register of Deeds of Makati City, G.R. No. 195561, March 14, 2012)

Requisites of Litis Pendentia

1. Litis pendentia requires the concurrence of the following elements: (1) identity
of the parties, or at least their representation of the same interests in both
actions; (2) identity of rights asserted and reliefs prayed for, the relief being
founded on the same facts; and (3) identity with respect to the two preceding
particulars in the two cases, such that any judgment that may be rendered in the
pending case, regardless of which party is successful, would amount to res
judicata in the other case. (Optima Realty Corporation vs . Hertz Phil. Exclusive
Cars, Inc., G.R. No. 183035, January 9, 2013; Goodland Company, Inc. vs. Asia
United Bank, Abraham Co, Atty. Joel T. Pelicano and the Register of Deeds of
Makati City, G.R. No. 195561, March 14, 2012; Philippine National Bank vs.
Gateway Property Holdings, Inc., G.R. No. 181, February 15, 2012)
2. As we held in Dotmatrix Trading vs. Legaspi, “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.

Litis Pendentia – ground for the dismissal of the action

As a ground for the dismissal of a civil action, litis pendentia refers to a 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. Litis pendentia exists when the
following requisites are present: identity of the parties in the two actions; substantial
identity in the causes of action and in the reliefs sought by the parties; and the identity
between the two actions 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.
(George Leonard S. Umale vs Canoga Park Development Corporation, G.R. No. 167246,
July 20, 2011)

Litis pendentia in intervention

As to the presence of intervenors, litis pendentia does not require a literal identity of
parties. It is sufficient that there is identity of interest represented. (St. Catherine Realty
Corp vs Ferdinand Y. Pineda, G.R. No. 171525, July 23, 2010)

Sixth Ground: “That the cause of action is barred by prior judgment or by the statute of
limitations”

Barred by prior judgment

Two grounds of res judicata

The doctrine of res judicata is a rule that pervades every well-regulated system of
jurisprudence and is founded upon two (2) grounds: (1) public policy and necessity,
which makes it in the interest of the State that there should be an end to litigation,
interest reipublicae ut sit finis litium; and (2) the hardship of the individual that he
should be vexed for the same cause, nemo debet bis vexari pro eadem causa. (Joanie
Surposa Uy vs. Jose Ngo Chua, G.R. No. 183965, September 18, 2009)

Requisites of res judicata

For res judicata to serve as an absolute bar to a subsequent action, the following
requisites must concur:
1. There must be a final judgment or order;
2. The court rendering it must have jurisdiction over the subject matter and the
parties;
3. It must be a judgment or order on the merits; and
4. There must be, between the two cases, identity of parties, subject matter, and
cause of action. (Joanie Surposa Uy vs. Jose Ngo Chua, G.R. No. 183965,
September 18, 2009; Spouses Morris Carpo and Socorro Carpo vs. Ayala Land,
Incorporated, G.R. No. 166577, February 3, 2010)

Basis of the principle of res judicata

Under the doctrine of res judicata, therefore, a final judgment or decree on the merits
rendered by a court of competent jurisdiction is conclusive of the rights of the parties or
their privies in all later suits and on all points and matters determined in the previous
suit. The foundation principle upon which the doctrine rests is that the parties ought
not to be permitted to litigate the same issue more than once; that when a right or fact
has been judicially tried and determined by a court of competent jurisdiction, so long as
it remains unreserved, should be conclusive upon the parties and those in privity with
them in law or estate. (Catalina Balais-Mabanag vs. The Register of Deeds of Quezon
City, G.R. No. 153142, March 29, 2010)

Absolute identity of cause of action not required in res judicata

As to identity of causes of action, it is hornbook rule that identity of causes of action

does not mean absolute identity, otherwise, a party could easily escape the operation of
res judicata by changing the form of the action or the relief sought. (Teresita de Mesa
Reforzado vs Spouses Nazario C. Lopez and Precila Lopez, G.R. No. 148306, February 24,
2010)

Is the doctrine of res judicata applicable in case of exercise of administrative powers?

Exceptions?

While it is true that the Court has declared that the doctrine of res judicata applies only
judicial and quasi-judicial proceedings, and not to the exercise of administrative
powers, the Court also limited the latter to proceedings purely administrative in nature.
Therefore, when the administrative proceedings take on an adversary character, the
doctrine of res judicata certainly applies. (Heirs of Maximo Derla vs. Heirs of Catalina
Derla Vda. De Hipolito and the Register of Deeds of Tagum, Davao Del Norte, G.R. No.
157717, April 13, 2011)

Res Judicata a ground for the dismissal of the action

When it appears from the pleadings or the evidence on record that the action is already
barred by the statute of limitations, the court shall dismiss the claim. (Philippine
National Bank vs. Merelo Aznar, et. al., G.R. No. 171805, May 30, 2011)
Effects of Res Judicata rule

The res judicata rule bars the re-litigation of facts or issues that have once been settled
by a court of law upon a final judgment on the merits. (Pacifico R. Cruz vs. The
Sandiganbayan, G.R. No. 174599-609, February 12, 2010, Abad. J.)

Distinctions between litis pendentia and res judicata

In litis pendentia, both cases have identical parties, subject matter and cause of action
which are still pending; whereas in res judicata, one of the case has already been
decided with finality on the merits.

In res judicata, the first case which was decided bars the filing of a second case and the
motion to dismiss can be filed in the subsequent case; while in litis pendentia, the
motion to dismiss can be filed in either of the two (2) suits pending.

Barred by statute of limitation

Requirements of a motion to dismiss based on prescription

A motion to dismiss on the ground of prescription will be given due course only of the
complaint shows on its face that the action has already prescribed. (Francrisco, et. al. vs.
Robles, 24 Phil 1035; National Irrigation Administration [NIA] vs. Court of Appeals, 318
SCRA 255 [1999])

When is prescription of actions interrupted?

Prescription of action is interrupted in the following instances, to wit:

1. When the action is filed in court;
2. When there is an extra-judicial demand;
3. When there is a written acknowledgement of the debt by the debtor.

Effect of the filing of complaint in court tolls the running of the prescriptive period

The filling of the action before the court shall toll the running of the period of
prescription of actions, as stated in Art. 1155 of the New Civil Code as follows:

Art. 1155. The prescription of actions is interrupted when they are filed before the cour,
when there is a written extrajudicial demand by the creditors, and when there is any
written acknowledgement of the debt by the debtor.

Seventh ground: “That the pleading asserting the claim states no cause of action.”

Test to determine the sufficiency of the motion to dismiss the material allegations in the
pleading

1. When a defendant seeks the dismissal of the complaint through a motion to

dismiss, the sufficiency of the motion should be tested on the strength of the
allegations of facts contained in the complaint and on no other basis. The issue of
whether or not the complaint failed to state a cause of action, warranting its
dismissal, must be passed upon on the basis of the allegations stated therein
assuming them to be true and the court cannot 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. (Philippine Daily Inquirer vs.
Hon. Elmo Alameda and Luz Cortez Babarn, G.R. No. 160604, March 28, 2008)
 2. Nothing is more settled than the rule that in a motion to dismiss for failure to
state a cause of action, the inquiry is into the sufficiency, not the veracity of the
material allegations. If the motion assails directly or indirectly, the veracity of
the allegations in the complaint, it is improper to grant the motion upon the
assumption that the averments in the motion are true and those in the complaint
are not. The sufficiency of the motion should be tested on the strength of the
allegations of fact contained in the complaint and no other. If the allegations of
the complaint are sufficient in form and substance but their veracity and
correctness assailed, it is incumbent upon the court to deny the motion to
dismiss and require the defendant to answer and go to trial to prove his defense.
The veracity of the assertions of the parties can be ascertained at the trial of the
case on the merits. (Philippine National Bank vs. Sps. Wilfredo and Estela Encina,
G.R. No. 174055, February 12, 2008)
3. In a motion to dismiss a complaint based on lack of cause of action, the question
submitted to the court for determination is the sufficiency of the allegations
made in the complaint to constitute a cause of action and not whether those
allegations of fact are true, for said motion must hypothetically admit the truth
of the facts alleged in the complaint. The inquiry is confined to the four corners
of the complaint, and no other. The test of the sufficiency of the facts alleged in
the complaint is whether or not, admitting the facts alleged, the court could
render a valid judgment upon the same in accordance with the prayer of the
complaint. If the allegations of the complaint are sufficient in form and substance
but their veracity and correctness are assailed, it is incumbent upon the court to
deny the motion to dismiss and require the defendant to answer and go to trial ti
prove his defense. The veracity of the assertions of the parties can be ascertained
at the trial of the case on the merits. (Jesse U. Lucas vs. Jesus S. Lucas, G.R. No.
190710, June 6, 2011)

Essential elements to determine whether the complaint states no cause of action

A complaint states a cause of action when it contains three essentials elements: (1) a
right in favor of the plaintiff by whatever means and whatever law it arises; (2) the
correlative obligation of the defendant to respect such right; and (3) the act or omission
of the defendant violates the right of the plaintiff. If any of these elements is absent, the
complaint becomes vulnerable to a motion to dismiss on the ground of failure to state a
cause of action. (Development Bank of the Philippines vs. Hon. Silverio Q. Castillo and
Cristina Trinidad Zarate Romero, G.R. No. 163827, August 17, 2011)

Documents attached to the complaint may be considered in determining the sufficiency

of the material allegations contained therein

To determine whether the complaint states a cause of action, all documents attached
thereto may, in fact, be considered, particularly when referred to in the complaint. We
emphasize, however, that the inquiry is into the sufficiency, not the veracity of the
material allegations in the complaint. Thus, consideration of the annexed documents
should only be taken in the context of ascertaining the sufficiency of the allegations in
the complaint. (Victorina Alice Lim Lazaro vs. Brewmaster International, Inc., G.R. No.
182779, August 23, 2010)

Nature of the motion to dismiss if the ground is that “the complaint states no cause of
action”

1. When the ground for dismissal is that the complaint states no cause of action
under Sec. 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 plaintiff’s
 complaint or 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 lack of cause of action, the complaint must show that the claim for
relief does not exist. (Heirs of Antonio Santos vs Heirs of Crispulo Beramo, G.R.
No. 151454, August 8, 2010)
2. No other principle in remedial law is more settled than that when a motion to
dismiss is filed, the material allegations of the complaint are deemed to be
hypothetically admitted. This hypothetical admission, according to Viewmaster
Construction Corporation vs. Roxas and Navoa vs. Court of Appeals, extends not
only to the relevant and material facts well pleaded in the complaint, but also to
inferences that may be fairly deduced from them. Thus, where it appears that the
allegations in the complaint furnish sufficient basis on which the complaint can
be maintained, the same should not be dismissed regardless of the defenses that
may be raised by the defendants. Stated differently, where the motion to dismiss
is predicated on grounds that are not indubitable, the better policy is to deny the
motion without prejudice to taking such measures as may be proper to assure
that the ends of justice may be served. (The Municipality of Hagonoy, Bulacan vs.
Hon. Simeon P. Dumdum, Jr., G.R. No. 168289, March 22, 2010)

Absence of cause of action vs. Failure to state a cause of action

Alleged absence of a cause of action (as opposed to the failure to state a cause of action),
the alleged estoppel on the part of the petitioner, and the argument that respondent is
in pari delicto in the execution of the challenged contracts, are not grounds in a motion
to dismiss as enumerated in Section 1, Rule 16 of the Rules of Court. Rather, such
defenses raise evidentiary issues closely related to the validity and/or existence of
respondent’s alleged cause of action of action and should therefore be threshed out
during the trial (NM Rothschild and Sons [Australia] Limited vs. Lepanto Consolidated
Mining Company, G.R. No. 175799, November 28, 2011)

What are the instances where a motion to dismiss can be availed of on the ground that
the complaint asserting a claim fails to state a cause of action?

A motion to dismiss can be filed on the ground that the complaint asserting a claim fails
to state a cause of action on the following instances:

1. When the complaint does not contain all the facts constituting plaintiff’s cause of
action;
2. When the plaintiff filing the case is not the real party in interest;
3. When the plaintiff has not exhausted all administrative remedies and the
complaint fails to allege the fact of such exhaustion.

Eight ground: “That the claim or demand set forth in the Plaintiff’s pleading has been
paid, waived, abandoned, or otherwise extinguished.”

What are the modes of extinguishment of obligation?

The modes of extinguishment of obligation under Article 1231 of the New Civil Code are
as follows, to wit:

1. Payment or performance;
2. By the loss of the thing due;
3. By the condonation or remission of the debt;
 4. By the confusion or merger of rights or debtor and creditor;
5. By novation.

What is laches?

While the general rule is, that to charge a party with laches in the assertion of an alleged
right, it is essential that he should have knowledge of the facts upon which he bases his
claim, yet if the circumstances were such as should have induced inquiry, and the
means of ascertaining the truth were readily available upon inquiry, but the party
neglects to make it, he will be chargeable with laches, the same as if he had known the
facts. (Barcellano vs Bañas, G.R. No. 165287, September 14, 2011)

Laches means the failure or neglect for an unreasonable and unexplained length of time
to do that which, by observance of due diligence, could or should have been done
earlier. It is negligence or omission to assert a right within a reasonable time,
warranting the presumption that the party entitled to assert his right either has
abandoned or declined to assert it. Laches this operates as a bar in equity. The essential
elements of laches are: (a) conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation complained of; (b) delay in asserting
complainant’s rights after he had knowledge of defendant’s acts and after he has had
the opportunity to sue; (c) lack of knowledge or notice by defendant that the
complainant will assert the right on which he bases his suit; and (d) injury or prejudice
to the defendant in the event the relief is accorded to the complainant. (Fernando, et. al.
vs Acuna., G.R. No. 161030, September 14, 2011)

Ninth ground: “That the claim on which the action is founded is unenforceable under
the provisions of statute of frauds.”

Contracts which are unenforceable under the Statute of Frauds, unless ratified by the
parties, to wit:
1. An agreement that by its terms is not to be performed within a year from the
making thereof;
2. A special promise to answer for the debt, default, or miscarriage of another;
3. An agreement made in the consideration of marriage other than a mutual
promise to marry;
4. An agreement for the sale of goods, chattels or things in action, at a price not less
than Five hundred pesos, unless the buyer accept and receive part of such goods
and chattels, or the evidences, or some of them, of such things in action, or pay at
the time some part of the purchase money; but when a sale is made by auction
and entry is made by auctioneer in his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale, price, names of the purchasers
and persons on whose account the sale is made, it is a sufficient memorandum;
5. An agreement for the leasing for a longer period than one year, or for the sale of
real property or of an interest therein;
6. A representation as to the credit of a third person. (Art 1403 of NCC)

Tenth ground: “That a condition precedent for filing the claim has not been complied
with.”

What are the condition precedents that must be complied with before the filing of the
case before the court?

1. Referral of the case before the barangay for purposes of conciliation

a. Lack of barangay conciliation must be raised in a motion to dismiss,
otherwise waived:
 It is well-settled that the non-referral of a case for barangay conciliation
when so required under the law is not jurisdictional in nature and may
therefore be deemed waived if not raised seasonably in a motion to
dismiss. The court notes that although petitioners could have invoked the
ground of prematurity of the causes of action against them due to the
failure to submit the dispute to Lupon prior to the filing of the cases as
soon as they received the complaints against them, petitioners raised the
said ground only after their arraignment. (Fidel M. Bañares Li , et. al. vs .
Elizabeth Balising, et. al., G.R. No. 132624, March 13, 2000)

b. Non-referral of the case before the barangay is a ground for a motion to

dismiss an action under the Rules of Summary Procedure

Under the Rules on Summary Procedure, a motion to dismiss is a

prohibited pleading, except when the ground is lack of jurisdiction over
the subject matter, as well as failure to comply with barangay
conciliation, Sec. 19(e) of the Rules of Summary Procedure.

2. Exhaustion of administrative remedies

The thrust of the rule on exhaustion of administrative remedies is that court

must allow administrative agencies to carry out their functions and discharge
their responsibilities within the specialized areas of their respective
competence. To this end, administrative agencies are afforded a chance to
correct any previous error committed in its forum. Furthermore, reasons of law,
comity, and convenience prevent the courts from entertaining cases proper for
determination by administrative agencies. (Pio Delos Reyes [Deceased],
Represented by Heirs Fidel Delos Reyes, et. al. vs. Honorable Waldo Q Flores, G.R.
No. 168726, March 5, 2010)

Procedural requirements on exhaustion of administrative remedies

We do not agree with respondents’ appreciation of the applicability of the rule

on exhaustion of administrative remedies in this case. We are reminded of our
ruling in Pagara vs. Court of Appeals, which summarized our earlier decisions on
the procedural requirement of exhaustion of administrative remedies, to wit:

The rule regarding exhaustion of administrative remedies is not a hard and fast
rule. It is not applicable: (1) where the question in dispute is purely a legal one,
or (2) where the controverted act is patently illegal or was performed without
jurisdiction or in excess of jurisdiction; or (3) where the respondent is a
department secretary, whose acts as an alter ego of the President bear the
implied or assumed approval of the latter, unless actually disapproved by him, or
(4) where there are circumstances indicating the urgency of judicial
intervention. (Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230;
Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-
21691, September 15, 1967, 21 SCRA 127)

Said principle may also be disregarded when it does not provide a plain, speedy
and adequate remedy (Cipriano vs. Marcelino, 43 SCRA 291), when there is no
due process observed (Villanos vs. Subido, 45 SCRA 299), or where the
protestant has no other recourse. (Sta. Maria vs. Lopez, 31 SCRA 637) (Boracay
Foundation, Inc. vs. The Province of Aklan, Represented by Governor Carlito S.
Marquez, The Philippine Reclamation Authority, and the DENR-EMB [Region VI],
G.R. No. 196870, June 26, 2012)
3. Earnest efforts towards amicable settlement between members of the same
family under Art. 151 of the Family Code

Art 151 of the Family Code provides for the requirement of earnest efforts
towards a compromise between members of the same family.

Referral of the case before the barangay in compliance with under Art. 151 of the
Family Code

The petitioners were able to comply with the requirements of Art .151 of the
Family Code because they alleged in their complaint that they had initiated a
proceeding against the respondent for unlawful detainer in the Katarungang
Pambarangay, in compliance with P.D. 1508; and that, after due proceedings, no
amicable settlement was arrived at, resulting in the barangay chairman’s
issuance of a certificate to file action. The Court rules that such allegation in the
complaint, as well as the certification to file action by the barangay chairman, is
sufficient compliance with Art. 151 of the Family Code. It bears stressing that
under Sec. 412(a) of R.A. No. 7160, no complaint involving any matter within
authority of the Lupon shall be instituted or filed directly in court for
adjudication unless there has been a confrontation between the parties and no
settlement was reached. (April Martinez, Fritz Daniel Martinez and Maria Olivia
Martinez vs. Rodolfo G. Martinez, G.R. No. 162084, June 28, 2005)

Instances where no compromise is allowed

Art. 2035 of the New Civil Code provides that “No compromise upon the
following questions shall be valid”:

1. The civil status of persons;

2. The validity of marriage or legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of the court;
6. Future legitime;

4. Certification of non-forum shopping

Requirement of certification of non-forum shopping

The need to abide by the Rules of Court and the procedural requirements it
imposes has been constantly underscored by this Court. One of these procedural
requirements is the certificate of non-forum shopping which, time and again, has
been declared as basic, necessary and mandatory for procedural orderliness.
(Mary Louise R. Anderson vs. Enrique Ho, G.R. No. 172590, January 7, 2013)

Non-compliance is a ground for the dismissal of the action

The Rules of Court provide that a petition for certiorari must be verified and
accompanied by a sworn certification of non-forum shopping. Failure to comply
with these mandatory requirements shall be sufficient ground for the dismissal
of the petition. Considering that only 3 of 228 named petitioners signed the
requirement, the CA dismissed the case against them, as they did not execute a
Verification and Certification against forum shopping. (Vivian T. Ramirez, et. al.
vs. Mar Fishing Co., Inc., Miramar Fishing Co., Inc., Robert Buehs and Jerome
Spitz, G.R. No. 168208, June 13, 2012)
5. Payment of docket fees

Payment of docket fees vest the court with jurisdiction over the subject matter
or nature of the action.

It is a settled rule in this jurisdiction that when an action is filed in court, the
complaint must be accompanied by the payment of the requisite docket and
filing fees. It is not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee that vests a trial court
with jurisdiction over the subject matter or nature of the action. (Ceferina De
Ungria vs. The Honorable Court of Appeals, G.R. No. 165777, July 25, 2011)

Payment of Filing/Docket Fees – Jurisdictional

It is not simply the filing of the complaint that vests the court with jurisdiction
over the action filed but also by the payment of the prescribed docket fee. The
Supreme Court, in several cases, has held that a court acquires jurisdiction over
the case ONLY upon the payment of the said fees. (Manchester Development
Corporation vs. Court of Appeals, G.R. No. 75919, May 7, 1987; Nestle
Philippines, Inc. vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006)

Requirement of payment of docket fees

In Sun Insurance Office Ltd. vs. Judge Asuncion, the Court laid down the
following rules as regards the payment of filing fees:

1. It is not simply the filing of the complaint or appropriate initiatory pleading,

but the payment of the prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the action. Where the filing
of the initiatory pleading is not accompanied by payment of the docket fee,
the court may allow payment of the fee within a reasonable time but in no
case beyond the applicable prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third-party claims and
similar pleadings, which shall not be considered filed until and unless the
filing fee prescribed therefor is paid. The court may also allow payment of
said fee within a reasonable time but also in no case beyond its applicable
prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not specified in the pleading, or,
if specified [but] the same has been left for the determination by the court,
the additional filing fee therefor shall constitute a lien on the judgment. It
shall be the responsibility of the Clerk of Court or his duly authorized deputy
authorized deputy to enforce said lien and assess and collect the additional
fee.

It cannot be gainsaid from the above guidelines that, with the exception of
pauper litigants (Sec. 16, Rule 141 of the Rules of Court states that the legal
fees shall be a lien on the monetary or property judgment in favor of the
pauper litigant) without the payment of the correct docket or filing fees
within the reglementary period, jurisdiction over the subject-matter or
nature of the action will not vest in the trial court. In fact, a pauper litigant
may still have to pay the docket fee later, by way of a lien on the monetary or
property judgment that may accrue to him. Clearly, the flexibility or liberality
of the rules sought by the petitioners cannot apply in the instant case.
(Ricardo Rizal, Potenciana Rizal, Saturnina Rizal, Elena Rizal, and Benjamin
 Rizal vs. Leoncia Naredo, Anastacio Lirio, Edilberto Cantavieja, Gloria
Cantavieja, Celso Cantavieja, and the Heirs of Melanie Cantavieja, G.R. No.
151898, March 14, 2012)

6. Tender of payment in case of consignation

What is the effect of tender of payment

IF the creditor to whom tender of payment has been made refuses without just
cause to accept it, the debtor shall be released from responsibility by the
consignation of the thing or sum.

7. Demand to vacate and payment of rentals or reasonable compensation for the

use and occupation of the property

Sec. 2, Rule 70 of the 1997 Rules of Civil Procedure provides for the rule on the
requirement on the lessor of giving demand to pay and vacate before proceeding
against the lessee.

8. Prior resort to an alternative dispute resolution

In case of an express stipulation in a written agreement that the action shall be

referred to an alternative dispute resolution, the same must be complied with
otherwise it will cause the dismissal of the action.

Hearing of motion

Section 6, Rule 16 of the 1997 Rules of Civil Procedure provides for the rule on the
hearing on the motion to dismiss.

At the hearing of the motion to dismiss, the parties shall:

1. Submit their arguments on the question of law;

2. Submit their evidence on the questions of fact involved except those not
available at that time; and
3. Should the case go to trial, the evidence presented during the hearing shal
automatically be part of the evidence of the party presenting the same.

Resolution of the motion

Sec. 3, Rule 16 of the 1997 Rules of Civil Procedure provides for the rule on the
resolution on the motion to dimiss.

After the hearing, the court may resolve the motion by:

1. Dismissing the action or claim;

2. Deny the motion;
3. Order the amendment of the pleading.

What is the limitation in the resolution of the motion?

1. The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable.
2. In every case, the resolution shall state clearly and distinctly the reasons
therefor.
Time to plead

Sec. 4, Rule 16 of the 1997 Rules of Civil Procedure provides for the rule on the period
to file an answer.

If the motion to dismiss is denied by the court, the movant shall

1. File his answer within the balance of the period prescribed by Rule 11 to which
he was entitled at the time of serving his motion;
2. Such period shall not be less than five (5) days in any event, computed from his
receipt of the notice of the denial.

When to file answer in case amendment of the pleading is ordered?

If the pleading is ordered to be amended, he shall file his answer within the period
prescribed by Rule 11 counted from service of the amended pleading, unless the court
provides a longer period.

Remedies in case of denial of the motion to dismiss: Nature of the order.

1. The ordinary procedure, as a general rule, is that after the denial of a Motion to
Dismiss, the defendant should file an Answer, go to trial and, if the decision is
adverse, reiterate the issues on appeal. The exception is when the court denying
the Motion to Dismiss acted without or in excess of jurisdiction or with grave
abuse of discretion in which case certiorari under Rule 65 of the Rules of Court
may be availed of. (Chang Ik Jin and Korean Christian Businessmen Association,
Inc. vs. Choi Sung Bong, G.R. No. 166358, September 8, 2010)
2. An order denying a motion to dismiss is an interlocutory order which neither
terminates the case not finally disposes of it, as it leaves something to be done by
the court before the case is finally decided on the merits. As such, the general
rule is that the denial of a motion to dismiss cannot be questioned in a special
action for certiorari which is a remedy designed to correct errors of jurisdiction
and not errors of judgment. Therefore, an order denying a motion to dismiss
may only be reviewed in the ordinary course of law by an appeal from the
judgment after trial. The ordinary procedure to be followed in such cases is to
file an answer, go to trial, and if the decision is adverse, reiterate the issue on
appeal from the final judgment. (Sps. Francisco, Jr. and Amapro De Guzman vs.
Ochoa and Ochoa, G.R. No. 169292, April 13, 2011)
3. An order denying a motion to dismiss is interlocutory because it does not finally
dispose of the case, and, in effect, direct the case to proceed until final
adjudication by the court. x x x The appropriate remedy is for the party to wait
fro the final judgment or order and assign such interlocutory order as an error of
the court on appeal. (Marmo vs. Anacay, G.R. No. 182585, November 27, 2009)

General rule an order denying a motion to dismiss cannot be questioned by certiorari:

Exception

1. The general rule, therefore, is that the denial of a Motion to Dismiss cannot be
questioned in a special civil action for Certiorari which is a remedy designed to
correct errors of jurisdiction and not errors of judgment. However, we have
likewise held that when the denial of the Motion to Dismiss is tainted with grave
abuse of discretion, the grant of the extraordinary remedy of Certiorari may be
justified. (NM Rothschild and Sons [Australia] Limited vs. Lepanto Consolidated
Mining Company, G.R. No. 175799, November 28, 2011)
2. The trial court’s denial of a motion to dismiss cannot be questioned in a
certiorari proceeding under Rule 65 of the 1997 Rules of Civil Procedure. The
 only exception to this rule is when the trial court gravely abused its discretion in
denying the motion. This exception is, nevertheless applied sparingly, and only
in instances when there is a clear showing that the trial court exercised its
judicial power in an arbitrary or despotic manner by reason of passion or
personal hostility. Further, the abuse of the court’s discretion must be so patent
and gross as to amount to an evasive of a positive duty or a virtual refusal to
perform the duty enjoined by, or to act at all in contemplation of law. (Roman
Catholic Archbishop of San Fernando Pampanga vs. Fernando Soriano, Jr., et al.,
G.R. No. 153829, August 17, 2011)

Remedy in case of denial of the motion to dismiss

An order denying a motion to dismiss is an interlocutory order which neither

terminates nor finally dispose of a case as it leaves something to be done by the court
before the case is finally decided on the merits. Thus, as a general rule, the denial of a
motion to dismiss cannot be questioned in a special civil action for certiorari which is a
remedy designed to correct errors of jurisdiction and not errors of judgment. However,
when the denial of the motion to dismiss is tainted with grave abuse of discretion, the
grant of the extraordinary remedy of certiorari may be justified. By grave abuse of
discretion is meant such capricious and whimsical exercise of judgment that is
equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and gross as to amount to an evasion of positive duty or
to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of
law. (Republic of the Philippines, rep. by the Regional Executive Director of the
Department of Environment and Natural Resources, Regional Office No. 3 vs. Roman
Catholic Archbishop of Manila Samahang Kabuhayan ng San Lorenzo KKK, rep. by its
Vice President Zenaida Turla vs. Roman Catholic Archbishop of Manila, G.R. No.
192975/G.R. No. 192994, November 12, 2012)

Not petition for review on certiorari under Rule 45 in case of denial of the motion to
dismiss, but rather petition for certiorari under Rule 65

An order denying a motion to dismiss is interlocutory and not appealable. An order

denying a motion to dismiss does not finally dispose of the case, and in effect, allows the
case to proceed until the final adjudication thereof by the court. As such, it is merely
interlocutory in nature and thus, not appealable. Clearly no appeal, under Rule 45 of the
Rules of Court, may be taken from an interlocutory order. In case of denial of an
interlocutory order, the immediate remedy available to the aggrieved party is to file a
special civil action for certiorari under Rule 65 of the Rules of Court. (Orlando vs. Rayos,
et. al. vs. The City of Manila, G.R. No. 196063, December 14, 2011)

What are the effects of dismissal of the action?

Subject to the right of appeal, an order granting a motion to dismiss based on

paragraphs (f), (h), and (i) of Sec. 1 hereof shall bar refilling of the same action or claim.

What is the remedy in case of dismissal of the action?

In case the grounds for the dismissal of the action under Sec. 1, Rule 16 are:
1. The cause of action is barred by prior judgment or by statute of limitation;
2. That the claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished;
3. That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.
The remedy is appeal since the order of dismissal is a final order and an adjudication on
the merits which bars the refilling of the action.

What is the remedy in case of dismissal of the action on the grounds other than
paragraphs (f), (h), (i)?

In case the grounds for the dismissal of the action under Sec. 1, Rule 16 are:
1. That the court has no jurisdiction over the person of the defending party;
2. That the court has no jurisdiction over the subject matter of the claim;
3. That venue is improperly laid;
4. That the plaintiff has legal capacity to sue;
5. That there is another action pending between the same parties for the same
cause;
6. That the pleading asserting the claim states no cause of action;
7. That a condition precedent for filing the claim has not been complied with.

The proper remedy in case of dismissal of the action on grounds other than
paragaraphs (g), (h), and (i) of Rule 16 is the refilling of the action or amendment of the
pleading depending on the grounds.

An order of dismissal, whether correct or not, is a final order. (Heirs of Placido Miranda
vs. Court of Appeals, 325 Phil 674, 685, March 29, 1996; Marahay vs Melicor, 181 SCRA
811, 814, February 6, 1990; Santos vs. Pecson, 79 Phil 261, 263, September 17, 1947)

Nature/remedy in case of dismissal under Rule 16/remedy in case of denial of the

motion to dismiss

An order granting a motion to dismiss is not interlocutory because the proceedings are
terminated; it leaves nothing more to be done by the lower court. Therefore, the
remedy of the plaintiff is to appeal the order. (Ricardo J. Francisco, Civil Procedure [1st
ed., 2001], Vol. 1, pg. 571)

As opposed to an order denying a motion to dismiss, which is deemed interlocutory.

The remedy of the aggrieved party in a denied motion to dismiss is to file an answer and
to interpose, as defenses, the objections raised by him or her in the said motion;
proceed to trial; and in case of an adverse decision, to elevate the entire case by appeal
in due course. However, if the denial of the motion to dismiss constitutes grave abuse of
discretion or was issued without or in excess of jurisdiction, this error is correctable by
certiorari. (Far East Bank and Trust Company vs. Court of Appeals, 341 SCRA 485, 491,
September 29, 2000; Conjuanco vs. Romillo, Jr. 167 SCRA 751, 757, November 24, 1988;
Occeña vs. Jabson, 73 SCRA 637, 641, October 29, 1976; Madrigal Transport, Inc.,
petitioner vs. Lapanday Holdings Corporation, et. al., G.R. No. 156067, August 11, 2004)

Pleading on the grounds as affirmative defense (Sec. 6, Rule 16 of the 1997 Rules of Civil
Procedure)

What is the remedy in case that there is no motion to dismiss filed?

If no motion to dismiss has been filed, any of the grounds for dismissal provided for in
this Rule may be:
1. Pleaded as a affirmative defense in the answer; and
2. In the discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.

What is the effect of the dismissal of the action?

The dismissal of the complaint under this Section shall be without prejudice to the
prosecution in the same or separate action of a counterclaim pleaded in the answer.

Hearing on the affirmative defense should be made in order to avoid tedious trial

When a defendant seeks the dismissal of the complaint through a motion to dismiss, the
sufficiency of the motion should be tested on the strength of the allegations of facts
contained in the complaint and on no other basis. The issue of whether or not the
complaint failed to state a cause of action, warranting its dismissal, must be passed
upon on the basis of the allegations stated therein assuming them to be true and the
court cannot 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.

Hence, the trial court should have granted petitioner’s motion for a preliminary hearing
on the affirmative defenses raised in the answer based on failure to state a cause of
action. This procedure is designed to prevent a tedious, if not traumatic, trial in case the
complaint falls short of sufficiently alleging a cause of action. (Philippine Daily Inquirer
vs. Hon. Elmo M. Almeda, G.R. No. 160604, March 28, 2008)

Distinctions between motion to dismiss (Rule 16) and demurrer to evidence (Rule 33)

1. A motion to dismiss under Rule 16, is an omnibus motion and a litigated motion;
while a motion for demurrer to evidence under Rule 33 is a litigated motion;
2. A motion to dismiss has ten (10) grounds mentioned under Sec. 1, Rule 16;
while a motion for demurrer to evidence the ground us that upon the facts and
the law the plaintiff has shown no right of relief;
3. A motion to dismiss shall be filed before the filing of the responsive pleading;
while a motion for demurrer to evidence shall be filed after the plaintiff has
rested its case;
4. The remedy in case of denial of the motion to dismiss is to file an answer within
the balance of the period in which he is entitled but in no case less than five (5)
days, raised the same as an affirmative defense in the answer, proceed to trial,
and in case of adverse decision appeal the decision and raised the denial as
assignment of error, unless the denial is tainted with grave abuse of discretion
hence, certiorari is a remedy; while the remedy in case of denial of the motion
for demurrer to evidence, the remedy for the defendant is to proceed with the
trial, and in case of adverse decision appeal the same;
5. In case of granting of the motion to dismiss, the order of dismissal is either with
or without prejudice; while in case of granting of the motion for demurrer to
evidence the order of dismissal is a final order since it is an adjudication on the
merits;
6. In case of granting of the motion to dismiss, the remedy of the plaintiff is either,
re-file the case if the order of dismissal is without prejudice, and appeal if the
order of dismissal is with prejudice; while the remedy of the plaintiff in case of
granting of demurrer to evidence is appeal the order being the final order and an
adjudication upon the merits.

Motion to dismiss not allowed in Summary Proceedings: Exceptions – lack of

jurisdiction over the subject matter or failure to comply with the preceeding section
(Sec. 19[a] of the Rules of Summary Procedure)

Motion to dismiss is a prohibited motion under the Rules on Small Claims cases (Sec
14[a] of the Rules of Small Claims cases A.M. No. 08-8-7, effective October 27, 2009)

Motion to dismiss the complaint prohibited pleading under environmental cases (Sec
2[d], Rule 2, Part II of A.M. 09-6-08-SC Rules of Procedure for Environmental Cases)
Motion to dismiss in interpleader (Sec. 4, Rule 62)

Grounds for issuance for the issuance of a motion to dismiss

Within the time for filing an answer, each claimant may file a motion to dismiss on the
ground of:

1. Impropriety of the interpleader action;

2. On other appropriate grounds specified in Rule 16

The period to file an answer shall be tolled.

If the motion is denied, the movant may file his answer within the remaining period, but
which shall not be less than five (5) days in any event, reckoned from notice of denial.

MOTION TO DISMISS (SEC. 1 RULE 16)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION TO DISMISS

COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most respectfully move for a bill of particular on the following
grounds and avers:

1. That the court has no jurisdiction of the person of the defendant and/or of the
subject matter of the action and/or over the nature of the action or suit; and/or
2. The venue is improperly laid; and/or
3. That the plaintiff has no legal capacity to sue; and/or
4. There is another action pending between the same parties for the same cause of
action, namely (state title of the other case, its number, and the Court before
which it is pending); and/or
5. The cause of action is barred by prior judgment, the same cause of action having
been finally decided between the same parties in Civil Case No. _________ of the
Regional Trial Court of ____________ entitled (title of case); and/or
6. The cause of action is barred by statute of limitations; and/or
7. The complaint states no cause of action; and/or
8. The claim or demand set forth in plaintiff’s pleading has been paid, waived,
abandoned or otherwise extinguished; and/or
 9. The claim on which the action or suit is founded is unenforceable under the
provisions of the statute of frauds;
10. That the suit is between members of the same family and not earnest efforts
towards a compromise have been made.

ARGUMENT

(State factual grounds and arguments together with the citation of authorities)

WHEREFORE, defendant prays that the complaint be dismissed, with cost against
plaintiff.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

DISMISSAL OF ACTION BY THE PLAINTIFF (RULE 17)

Basic Concepts

Test to determine the doctrine of “Non-Prosequitur” as a ground for dismissal

The fundamental test for non prosequitur is whether, under the circumstances, the
plaintiff is chargeable with want of due diligence in failing to proceed with reasonable
promptitude. There must be unwillingness on the part of the plaintiff to prosecute.
(Shimizu Philippines Contractors, Inc. vs Mrs. Leticia B. Magsalin, Doing Business Under
the Trade Name “Karen’s Trading,” FGU Insurance Corporation, Godofredo Garcia,
Concordia Garcia, and Reynaldo Baetiong, G.R. No. 170026, June 20, 2012)

Manner of dismissal of the action by the plaintiff

Rule 17 of the 1997 Rules of Civil Procedure provides for the dismissal of the action
upon the instance of the plaintiff in the following manner, to wit:
1. Dismissal upon notice of the plaintiff (Sec. 1, Rule 17)
2. Dismissal upon the motion of the plaintiff (Sec. 1, Rule 17)
3. Dismissal due to the fault of the plaintiff (Sec. 1, Rule 17)

Dismissal upon notice of plaintiff (Sec 1, Rule 17)

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for summary judgment/

What is the action of the court on the notice filed?

Upon such notice being filed, the court shall issue an order confirming the dismissal.

What is the nature of the dismissal?

Unless otherwise stated in the notice, the dismissal is without prejudice.

Exception to the dismissal without prejudice “two (2) dismissal rule”

When the notice operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in a competent court an action based on or including the same
claim.

NOTICE OF DISMISSAL (SEC. 1, RULE 17)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

NOTICE OF DISMISSAL

TO: THE BRANCH CLERK OF COURT

GREETINGS:
 Please take notice that the plaintiff is hereby moving for the dismissal of the
above-entitled case due to his health reason that he cannot meantime prosecute the
above.

Wherefore, plaintiff prays that the complaint be dismissed, without prejudice.

Such other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.
Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Dismissal upon motion of plaintiff (Sec. 2, Rule 17)

What are the requirements of dismissal upon motion of the plaintiff

Except as provided in the preceding section, a complaint shall not be dismissed at the
plaintiff’s instance save:
1. Upon approval of the court;
2. Upon such terms and conditions as the court deems proper.

What are the effects of the service of the motion for dismissal upon the defendant?

If a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiff’s motion for dismissal it has the following effects:
1. The dismissal shall be limited to the complaint;
2. The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen (15) days
from notice of the motion he manifests his presence to have his counterclaim
resolved in the same action.
Nature of dismissal under this rule?

Unless otherwise specified in the order, a dismissal under this paragraph shall be
without prejudice.

What is the requirement in case of dismissal of class suit or compromise?

A class suit shall not be dismissed or compromised without the approval of the court.

MOTION TO DISMISS (SEC. 2, RULE 17)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION TO DISMISS

COMES NOW, the plaintiff, through the undersigned counsel and unto this
Honorable Court, most avers:

1. That on January 30, 2013, plaintiff filed this instant complaint or Collection of
Sum of Money with damages against the defendant;
2. That due to the continuous deterioration of the health condition of the plaintiff
he cannot for the meantime prosecute the above-entitled case;

WHEREFORE, premises considered, plaintiff respectfully prays that the complaint

be dismissed without prejudice based on the above reason.

Such other relief and remedies as may be deemed just and equitable under the
premises prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS
 Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Dismissal due to the fault of the plaintiff (Sec. 3, Rule 17)

What are the instances of dismissal due to the fault of the plaintiff?

If, for no justifiable cause, the complaint may be dismissed upon motion of the
defendant or upon the court’s own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a separate action.
1. The plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint; or
2. To prosecute his action for an unreasonable length of time; or
3. To comply with these Rules or any order of the court.

What is the nature of the dismissal under the Rules?

This dismissal under this rule shall have the effect of:
1. An adjudication upon the merits;
2. Unless otherwise declared by the court.

Dismissal due to fault of plaintiff; Failure to prosecute.

1. Under Sec. 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, the
failure on the part of the plaintiff, without any justifiable cause, to comply with
any order of the court or the Rules, or to prosecute his action for an
unreasonable length of time, may result in the dismissal of the complaint either
motu propio or on motion by the defendant. 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 to obtain
from the court the relief prayed for in his complaint; hence, the court is
authorized to order the dismissal of the complaint on its own motion or on
motion of the defendants. The presumption is not, by any means, conclusive
because the plaintiff, on a motion for reconsideration of the order of dismissal,
may allege and establish a justifiable cause for such that would make the
dismissal of the case unjustified is on the petitioners. (Eloisa Merchandising, Inc.
and Trebel International, Inc. vs. Banco De Oro Universal Bank and Engracio M.
Escasinas, Jr., In his capacity Ex-Officio Sheriff of the RTC Makati City, G.R. No.
192716, June 13, 2012)
 2. Instances for the dismissal of the action under Sec. 3, Rule 17:
a. If he fails to appear on the date for the presentation of his evidence in
chief on the complaint;
b. If he fails to prosecute his action for an unreasonable length of time; or
c. If he fails to comply with the rules or any order of the court.

The dismissal of a case for failure to prosecute has the effect of adjudication on
the merits, and is necessarily understood to be with prejudice to the filing of
another action, unless otherwise provided in the order of dismissal. Stated
differently, the general rule is that dismissal of a case for failure to prosecute is
to be regarded as an adjudication on the merits and with prejudice to the filing of
another action, and the only exception is when the order of dismissal expressly
contains a qualification that the dismissal is without prejudice, (PCI Leasing and
Finance, Inc. vs. Antonio C. Milan, doing business under the name and style of A.
Milan Trading, and Laura M. Milan, G.R. No. 151215, April 5, 2010)

Grounds for the dismissal

The instances when a complaint may be dismissed due to the plaintiff’s fault are: (1) if
he fails to appear on the date for the presentation of his evidence in chief on the
complaint; (2) if he fails to prosecute his action for an unreasonable length of time; or
(3) if he fails to comply with the Rules or any other order of the court. The dismissal of a
case for failure to prosecute has the effect of adjudication on the merits, and is
necessarily understood to be with prejudice to the filing of another action, unless
otherwise provided in the order of dismissal. x x x (Gomez vs. Alcantara, G.R. No.
179556, February 13, 2009)

Nature of the dismissal

1. Dismissals of actions for failure of the plaintiff to prosecute is authorized under

Sec. 3, Rule 17 of the Rules of Court. A plain examination of the December 16,
2003 dismissal order shows that it is an unqualified order and, as such, is
deemed to be a dismissal with prejudice. “Dismissals of actions (under Sec. 3)
which do not expressly state whether they are with or without prejudice are
held to be with prejudice.” As a prejudicial dismissal, the December 16, 2003
dismissal order is also deemed to be a judgment on the merits so that the
petitioner’s complaint in Civil Case No. 02-488 can no longer be refilled on the
principle of res judicata. Procedurally, when the complaint is dismissed for
failure to prosecute and the dismissal is unqualified, the dismissal has the effect
of an adjudication on the merits. (Shimizu Philippines Contractors, Inc. vs. Leticia
B. Magsalin, Doing Business Under the Trade Name “Karen’s Trading,” FGU
Insurance Corporation, Godofredo Garcia, Concordia Garcia, and Reynaldo
Baetiong, G.R. No. 170026, June 20, 2012)
2. On appeal, the Court upheld the dismissal of the petition on the ground that it
amounted to an adjudication upon the merits pursuant to Sec. 3, Rule 17 of the
Rules of Court, which provides that failure to comply with the rules shall result
in the dismissal that ahs the effect of an adjudication upon the merits. The lack of
any qualification that the dismissal of the petition was without prejudice
rendered the dismissal an adjudication on the merits. (Air Ads Incorporated vs.
Tagum Agricultural Development Corporation (TADECO), G.R. No. 160736,
March 23, 2011)
3. Dismissal for failure to comply with an order of the court shall have the effect of
adjudication upon the merits. (Sec. 3 of Rule 17 of the Rules of Court) Unless the
court states that the dismissal is without prejudice, the dismissal should be
understood as adjudication on the merit and is with prejudice. (Philippine
 National Bank vs. The Intestate Estate of Francisco De Guzman, et. al., G.R. No.
182507, June 16, 2010)

Dismissal of counterclaim, cross-claim or third party complaint (Sec. 4, Rule 17)

A voluntary dismissal by the claimant by notice as in Sec. 1 of this Rule, shall be made:
1. Before a responsive pleading; or
2. Before a motion for summary judgment is served; or
3. If there is none, before the introduction of evidence at the trial or hearing.
INTERVENTION (RULE 19)

Defined

Intervention is defined as an act or proceeding by which a third person is permitted to

become a party to an action or proceeding between other persons, and which results
merely in the addition of a new party or parties to an original action, for the purpose of
hearing and determining at the same time all conflicting claims may be made to the
subject matter of litigation. In greater detail, it has been defined as the admission by
leave of court, of a person not an original to pending legal proceedings, by which such
person becomes a party thereto for the protection of some right or interest alleged by
him to be affected by such proceedings, and as a proceeding in a suit or action by which
a third person is permitted by the court to make himself a party, either joining plaintiff
in claiming what is sought by the complaint, or uniting with defendant in resisting the
claim of plaintiff, or demanding something adversely to both of them. (Jose Agaton
Sibal, Philippine Legal Encyclopedia, 1986 Edition, pg. 454)

Purpose of intervention

The purpose of intervention is to enable a stranger to an action to become a party in

order for him to protect his interest and for the court to settle all conflicting claims.
Intervention is allowed to avoid multiplicity of suits more than on due process
considerations. (Metropolitan Bank and Trust Company, Substituted by Meridian [SPV-
AMCI] Corporation vs. International Exchange Bank, G.R. No. 176008, August 10, 2011;
Virra Mall Tenants Association, Inc. vs. Virra Mall Greenhills Association, Inc., G.R. No.
182902, October 5, 2011)

Option of the intervenor

The intervenor can choose not to participate in the case and he will not be bound by the
judgment. (Heirs of Francisca Medrano vs. Estanislao de Vera, G.R. No. 165770, August
9, 2010)

Granting or denial of intervention discretionary upon the court

It should be stressed that the allowance or disallowance of a motion for intervention is

addressed to the sound discretion of the courts. The permissive tenor of the Rules of
Court shows the intention to give the courts the full measure of discretion in allowing or
disallowing the intervention. Once the courts have exercise this discretion, it could not
be reviewed by certiorari or controlled by mandamus unless it could be shown that the
discretion was exercised in an arbitrary or capricious manner. (Carbonilla, et. al., vs.
Board of Airlines Representatives, G.R. No. 193247, September 14, 2011)

Intervention allowed even beyond the period

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, when the petition for review of the
judgment has already been submitted for decision before the Supreme Court, and even
where the assailed order has already become final and executory. In Lim vs. Pacquing,
the motion for intervention filed by the Republic of the Philippines was allowed by this
Court to avoid grave injustice and injury and to settle once and for all the substantive
issues raised by the parties. (Eleazar P. Quinto and Gerino A. Tolentino, Jr. COMELEC,
G.R. No. 189698, February 22, 2010)
When can an intervention be allowed?

Intervention is not a matter of right but it may be permitted by the courts when the
applicant shows facts which satisfy the requirements authorizing intervention.
(Carbonilla, et. al., vs. Board of Airlines Representatives, supra.)

Guide in determining grant of intervention

As a general guide in determining whether a party may intervene, the court shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the intervenor’s
rights may be fully protected in a separate proceeding. (Sec. 2[b], Rule 12; Sec. 1, Rule
19; Virra Mall Tenants Association, Inc. vs. Virra Mall Greenhills Association, Inc., et. al.,
G.R. No. 182902, October 5, 2011)

Who may intervene? (Sec. 1, Rule 19)

A person may by leave of court intervene if he has a legal interest over:

1. In the matter in litigation;
2. In the success of either of the parties; or
3. An interest against both, or is so situated as to be adversely affected by a
disposition of property in the custody of the court or of an officer thereof may,
by leave of court, be allowed to intervene in the action.

What are the duties of the court in case of intervention?

The court shall consider the following matters in the determination of intervention:
1. Whether or not the intervention will unduly delay or prejudice the adjudication
of the rights of the original parties; and
2. Whether or not the intervenor’s rights may be fully protected in a separate
proceeding.

Nature of the interest: It must be actual, substantial, material, direct and immediate.

The interest contemplated by law must be actual, substantial, material, direct and
immediate, and not simply contingent or expectant. It must be, if such direct and
immediate character that the intervenor will either gain or lose by the direct legal
operation and effect of judgment. (Asia’s Emerging Dragon Corp. vs. Department of
Transportation and Communication, G.R. No. 169914, March 14, 2008)

Essential requisites of intervention

1. To warrant intervention under Rule 19 of the Rules of Court, two requisites must
occur: (a) the movant has a legal interest on the matter in litigation; and (b)
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. (Metropolitan Bank and Trust Company,
Substituted by Meridian [SPV-AMCI] Corporation vs. International Exchange
Bank, G.R. No. 176008, August 10, 2011)
2. To warrant intervention under Rule 19 of the Rules of Court, two requisites must
occur: (a) the movant has a legal interest in the matter in litigation; and (b)
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. x x x The motion to intervene may be filed at
any time before rendition of judgment by the trial court. (Office of the
Ombudsman vs. Sison, G.R. No. 185954, February 16, 2010, Velasco, Jr., J.)
Differences between Intervention (Rule 19) and Interpleader (Rule 62)

Intervention and Interpleader should be distinguished in the following manner as

follows, to wit:
1. Intervention is an ancillary action, while interpleader is an original action;
2. Intervention is proper in any of the four situations mentioned in this Rule, while
interpleader presupposes that the plaintiff has no interest in the subject matter
of the action or has an interest therein which, in whole or in part, is not disputed
by the other parties to the action; and
3. In a complaint in intervention, the defendants are already original parties to the
pending suit, while in interpleader, the defendants are being sued precisely to
implead them;
4. Intervention can be filed where the original action is pending, while interpleader
can be filed at the first instance with the Regional Trial Court or Metropolitan
Trial Court, Municipal Trial Court depending on the nature of the property and
its value/assessed;
5. The remedy in case of denial of intervention is to appeal the denial being a final
order or file a separate action, while the remedy in interpleader is to appeal the
judgment.

Time to intervene (Sec. 2, Rule 19)

When to file a motion to intervene?

The motion to intervene may be filed at any time before the rendition of judgment by
the trial court.

What must be attached to the motion to intervene?

A copy of the pleading-in-intervention shall be attached to the motion and served on the
original parties.

Pleadings-in-intervention (Sec. 3, Rule 19)

What is the rule on the pleadings-in-intervention?

Parties in intervention shall comply with the necessary pleadings:

1. The intervenor shall file a complaint-in-intervention if he asserts a claim against
either or all of the original parties; or
2. An answer-in-intervention if he unites with the defending party in resisting a
claim against the latter.

Answer to complaint-in-intervention (Sec. 4, Rule 19)

When to file a responsive pleading

The answer to the complaint-in-intervention shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a different period is fixed by the court.

Failure to file an answer-in-intervention; default.

Lim points out that an answer-in-intervention cannot give rise to default since the filing
of such an answer is only permissive. But Sec. 4, Rule 19 of the 1997 Rules of Civil
Procedure requires the original parties to file an answer to the complaint-in-
intervention within 15 days from notice of the order admitting the same, unless a
different period is fixed by the court. This changes the procedure under the former rule
where such an answer was regarded as optional. Thus, Lim’s failure to file the required
answer can give rise to default. (Natividad Lim vs. National Power Corporation, Sps.
Roberto Ll. Arcinue and Arabela Arcinue, G.R. No. 178789, November 14, 2012)

Intervention a prohibited pleading under the Rules on Summary Procedure (Sec. 19 of

the Rules of Summary Procedure)

Intervention a prohibited pleading under the Rules on Small Claims Cases (Sec. 14 of
the Rules of the Small Claims Cases)

What are the pleadings are not allowed in a petition for writ of Amparo and habeas
data?

The pleadings which are not allowed under the Rules on the Writ of Amparo and Rules
on Habeas Data are as follows, to wit:
1. Counterclaim;
2. Cross-claim;
3. Third-party complaint;
4. Reply; and
5. Pleadings in intervention.

Motion for intervention allowed in environmental cases (Sec. 1, Rule 2, Part II of A.M.
09-6-08-SC otherwise known as the Rules of Procedure for Environmental Cases allows
the filing of motion for intervention in environmental cases.

MOTION FOR LEAVE OF COURT TO FILE INTERVENTION (SEC. 1, RULE 19)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION FOR LEAVE OF COURT TO FILE INTERVENTION

COMES NOW, the Intervenor, through the undersigned counsel and unto this
Honorable Court, and with prior leave of court, most respectfully avers:

1. That he has legal interest in the matter in litigation in the above-entitled action
for accounting between plaintiff and defendant;
2. That he has been, for the last seven (7) years, and still is, the caretaker of the
commercial apartment for which accounting is being asked, and it was the
contract between him, on the one hand and plaintiff and defendant, former co-
 owners of said premises, on the other that the movant would receive a monthly
salary of P10,000.00, plus 10% of the yearly net proceeds of the said commercial
premises, as his compensation as caretaker thereof, which yearly net proceeds
amounts to P100,000.00 more or less. Copy of the Complaint in Intervention is
hereto attached as Annex “1” hereof;
3. That, for the last seven (7) years, the Intervenor had not been given a single
centavo corresponding to his 10% share in said net proceeds.

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that the instant motion for intervention be granted and the attached Complaint in
Intervention be admitted.

Such other relief and remedies as may be deemed just and equitable under the
premises prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO
MODES OF DISCOVERIES (RULES 23-29)

What is a mode of discovery?

It is a device to obtain information about relevant matters on the case from the adverse
party in preparation of trial.

What are the purposes of modes of discovery?

Modes of discovery are intended for the following purposes, to wit:

1. It is used as a device to narrow and clarify basic issues between the parties;
2. Is is used as a device for ascertaining facts relative to the issue of the case;
3. To obtain full knowledge of the issues and facts of the case;
4. To avoid perjury and detection of false and fraudulent claims and defenses;
5. To expedite the proceedings; and
6. To simplify issues of the case;

What is the nature of the modes of discovery?

The application of the rules on modes of discovery rests upon the sound discretion of
the court. In the same vein, the determination of the sanction to be imposed upon a
party who fails to comply with the modes of discovery rest on the same judicial
discretion. It is the duty of the courts to examine thoroughly the circumstances of each
case and to determine the applicability of the modes of discovery, bearing always in
mind the aim to attain an expeditious administration of justice. (Lanada vs. Court of
Appeals, G.R. No. 102390, February 1, 2002, 375 SCRA 543; Limos vs. Sps. Odones, G.R.
No. 188979, August 11, 2011)

It is cumulative which means that in case the party has already resorted to a particular
mode of discovery it will not bar him from resorting to other modes available.

What are modes of discoveries under the Rules?

The modes of discoveries are enumerated under Rules 23-29 as follows, to wit:
1. Deposition pending action (Rule 23);
2. Deposition before action or Pending Appeal (Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or Inspection of documents or things (Rule 27); and
6. Physical and Mental Examination of persons (Rule 28)

DEPOSITION BY ORAL EXAMINATION OR WRITTEN INTERROGATORIES (RULE 23)

Deposition defined

Deposition – It is the taking of the testimony of any person upon oral or written
interrogatories whether a party or not, at the instance of any party.

A deposition is the testimony of a witness, put or taken in writing, under oath or

affirmation, before a commissioner, examiner of other judicial officer, in answer to
interrogatory or cross-interrogatory, and usually subscribed by the witness (Ayala
Land, Inc., vs. Tagle, et. al., G.R. No. 153667, August 11, 2005)

Kinds of deposition

As to nature
 1. Deposition de bene esse – testimony of a witness or a party pending action;
2. Deposition in perpetuam rei memoriam – testimony of a witness or party before
action;
3. Deposition of minor child witness by videotape. (Sec. 27, A.M. No. 00-4-07,
effective December 15, 2000)

As to the manner of taking:

1. Deposition by oral examination;
2. Deposition by written interrogatories

Purpose of taking deposition

The purpose of taking deposition as explained in the case of People vs Webb (312 SCRA
573 [1993]) are the following:
1. Assist the parties in ascertaining the truth and in checking and preventing
perjury;
2. Provide an effective means of detecting and exposing false, fraudulent claims and
defenses;
3. Make available in a simple, convenient and inexpensive way, facts which
otherwise could not be proved except with greater difficulty;
4. Educate the parties in advance of trial as to the real value of their claims and
defenses thereby encouraging settlement;
5. Expedite litigation;
6. Prevent delay;
7. Simplify and narrow down issues;
8. Expedite and facilitate both preparation and trial.

Deposition pending action (Sec. 1, Rule 23)

Deposition of any person whether a party or not may at the instance of any party upon
oral examination or written interrogatories be taken in the following manner:
1. By leave of court after jurisdiction has been obtained over any defendant or over
property which is the subject of the action; or
2. Without such leave after an answer been served.

Deposition with leave of court: Functions

A deposition may be taken with leave of court after jurisdiction has been obtained over
any defendant or over the property that is the subject of the action; or, without such
leave, after an answer has been served. (Sec. 1, Rule 23).

Deposition is chiefly a mode of discovery, the primary function of which is to

supplement the pleadings for the purpose of disclosing the real points of dispute
between parties and affording an adequate factual basis during the preparation for trial.
(Jonathan Landoil International Co., Inc. vs. Sps. Suharto Mangudadatu, G.R. No. 155010,
August 16, 2004, citing Fortune Corporation vs. CA, 229 SCRA 362, January 19, 1994)

What is the available remedy to compel attendance of a witness?

The attendance of witnesses may be compelled by the use of subpoena as provided in

Rule 21.

What is the limitation on the taking of deposition?

Deposition shall be taken only in accordance with these Rules.

Effect of deposition does not conform to the requirements of law.

When a deposition does not conform to the essential requirements of law and may
reasonably cause material injury to the adverse party, its taking should not be allowed.
This was the primary concern in Northwest Airlines vs. Cruz. In that case, the ends of
justice would be better served if the witness was to be brought to the trial to testify. The
locus of the oral deposition therein was not within the reach of ordinary citizen as there
were time constraints; and the trip required a travel visa , bookings, and a substantial
travel fare. In People vs. Webb (371 Phil 491, August 17, 1999), the taking of
depositions was unnecessary, since the trial court had already admitted the Exhibits on
which the witnesses would have testified. (Jonathan Landoil International Co., Inc. vs.
Sps. Suharto Mangudadatu and Miriam Sangki Mangudadatu, supra; People vs Webb,
supra; see also Separate Opinions f Chief Justice Davide and Justice Puno)

How can the deposition of a person in prison be taken?

The deposition of a person confined in prison may be taken only by leave of court on
such terms as the court prescribes.

Depositions may be applied by a non-resident party

While herein petitioner prays that the CA be ordered to give due course to the petition
for certiorari filed before it and to remand the case to the CA for proper disposition, the
court opts to resolve the sole issue raised in the present petition which is a pure
question of law, i.e., whether Sec. 1, Rule 23 of the Rules of Court allows a non-resident
foreign corporation the privilege of having all its witnesses, all of whom are foreigners,
to testify through deposition upon written interrogatories taken outside the Philippines
to prove an oral contract, in order to avoid further delay.

Unequivocally, the rule does not make any distinction or restriction as to who can avail
of deposition. The fact that private respondent is a non-resident foreign corporation is
immaterial. The rule clearly provides that the testimony of any person may be taken by
deposition upon oral examination or written interrogatories, at the instance of any
party. Depositions serve as a device for ascertaining the facts relative to the issues of
the case. The evident purpose is to enable the parties, consistent with recognized
principles, to obtain the fullest possible knowledge of the issues and facts before civil
trials and thus prevent the said trials from being carried out in the dark. (Ramon
Gerardo B. San Luis vs. Hon. Pablito M. Rojas, G.R. No. 159127, March 3, 2008)

Deposition may be taken even after trial has commenced

1. The Rules of Court (See Rule 134) and jurisprudence, however, do not restrict a
deposition to the sole function of being a mode of discovery before trial. Under
certain conditions and for certain limited purposes, it may be taken even after
trial has commenced and may be used without the deponent being actually
called to the witness stand. In Dasmariñas Garments vs Reyes (225 SCRA 622,
August 24, 1993), the Supreme Court allowed the taking of the witnesses’
testimonies through deposition, in lieu of their actual presence at the trial.
(Jonathan Landoil International Co., Inc. vs. Sps. Suharto Mangudadatu and
Miriam Sangki Mangudadatu, supra, citing East Asiatic Co., Ltd. vs. CIR, 148-B
Phil. 401, 425, August 31, 1971)
2. Thus, “depositions may be taken at any time after the institution of any action,
whenever necessary or convenient. There is no rule that limits deposition-taking
only to the period of pre-trial or before it; no prohibition against taking of
depositions after pre-trial.” (Id., pg. 634, per Narvasa C.J.) There can be no valid
objection to allowing them during the process of executing final and executor
 judgments, when the material issues of fact have become numerous or
complicated. (Jonathan Landoil International Co., Inc. vs. Sps. Suharto
Mangudadatu and Miriam Sangki Mangudadatu, supra, citing East Asiatic Co.,
Ltd. vs. CIR, 148-B Phil. 401, 425, August 31, 1971)
3. In keeping with the principle of promoting the just, speedy and inexpensive
disposition of every action and proceeding (Sec. 6, Rule 1) depositions are
allowed as a “departure from the accepted and usual judicial proceedings of
examining witnesses in open court where their demeanor could be observed by
the trial judge.” (Dasmariñas Garments, Incc vs. Reyes, supra, pg. 635)
Depositions are allowed, provided they are taken in accordance with the
provisions of the Rules of Court (that is, with leave of court if the summons have
been served, without leave of court if an answer has been submitted); And
provided, further, that a circumstance for their admissibility exists. (Sec. 4, Rule
23)

Deposition discretionary to court

The Rules of Court vests in the trial court the discretion to order whether a deposition
may be taken or not under specified circumstances that may even differ from those the
proponents have intended. (Sec. 16, Rule 23) However, it is well-settled that this
discretion is not unlimited. It must be exercised – not arbitrarily , capriciously or
oppressively – but in a reasonable manner and in consonance with the spirit of the law,
to the end that its purpose may be attained. (Jonatahn Landoil International Co., Inc. vs.
Sps. Suharto Mangudadatu and Miriam Sangki Mangudadatu, supra, citing Northwest
Airlines, Inc. vs. Cruz, 376 Phil. 96, 111, November 3, 1999; Lopez vs. Maceren, 95 Phil
753, 756, August 31, 1954)

Limitations on the taking of deposition

Limitations would arise, though, if the examination is conducted in bad faith; or in such
a manner as to annoy, embarrass, or oppress the person who is the subject of the
inquiry; or when the inquiry touches upon the irrelevant or encroaches upon the
recognized domains of privilege. (Jonathan Landoil International Co., Inc. vs. Sps.
Suharto Mangudadatu and Miriam Sangki Mangudadatu, supra.)

MOTION FOR LEAVE OF COURT TO TAKE DEPOSITION (SEC. 1, RULE 23)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x
 MOTION FOR LEAVE OF TO TAKE DEPOSITION

Plaintiff, by counsel and to this Honorable Court, respectfully alleges:

1. This Honorable Court has already acquired jurisdiction over person of the
defendant by valid service of summons upon him on September 12, 2012;
2. That pursuant to Sec. 1 of Rule 23 of the 1997 Rules of Civil Procedure
deposition may be taken by leave of court after the trial court shall have
acquired jurisdiction over the person of the defendant but before he files his
answer.

WHEREFORE, plaintiff respectfully preays that he be given leave of ocurt to take the
deposition of Mr. Juan Dela Cruz, with address at ____________, at such time and place
before a notary public, to be taken after leave of court shall have been granted.

Such other relief and remedies as may be deemed just and equitable under the
premises prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Scope of Deposition (Sec. 2, Rule 23)

Unless otherwise ordered by the court as provided by Sec. 16 or 18 of this Rule, the
deponent may be examined regarding:

Any matter, not privileged, which is relevant to the subject of the pending action,
whether relating to the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books, documents, or other
tangible things and the identity and location of persons having knowledge of relevant
facts.

What is the limitation in the taking of deposition?

The examination should not cover matters which are otherwise priviledged in
character.

Examination and cross-examination (Se.c 3, Rule 23 of the 1997 Rules on Civil

Procedure)

How will examination in the taking of deposition be done?

Examination and cross-examination of deponents may proceed as permitted at the trial

under Secs. 3 to 18 of Rule 132.

What does Secs. 3-18 of Rule 132 covers for purposes of taking deposition?

1. Rights and obligations of a witness (Sec. 3)

2. Order of examination of an individual witness (Sec. 4)
3. Direct examination (Sec. 5)
4. Cross-examination (Sec. 6)
5. Re-direct examination (Sec. 7)
6. Re-cross examination (Sec. 8)
7. Recalling witness (Sec. 9)
8. Leading and misleading questions (Sec. 10)
9. Impeachment of adverse party’s witness (Sec. 11)
10. Party may not impeach his own witness (Sec. 12)
11. How witness impeached by evidence of inconsistent statements (Sec. 13)
12. Evidence of good character of a witness (Sec. 14)
13. Exclusions and separation of witnesses (Sec. 15)
14. When a witness may refer to memorandum (Sec. 16)
15. When part of transaction, writing or record given in evidence, the remainder
admissible. (Sec. 17)
16. Right to inspect writing shown to witness (Sec. 18)

Use and purpose of deposition (Sec. 4, Rule 23)

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or
all of a deposition, so far as admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of the deposition or who had
due notice thereof, in accordance with any one of the following provisions:

1. Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;
2. The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for
any purpose;
3. The deposition of a witness, whether or not a party, may be used by any party
for any purpose if the court finds:
a. That the witness is dead; or
b. That the witness resides at a distance more than one hundred (100)
kilometers from the place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by the party offering the
deposition; or
 c. That the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or
d. That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
e. Upon the application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due regard
to the importance of presenting the testimony of witness orally in open
court, to allow the deposition to be used; and
4. If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced,
and any party may introduce any other parts.

Deposition as evidence

While deposition may be used as evidence in court proceedings, they are generally not
meant to be a substitute for the actual testimony in open court of a party or witness.
Stated differently, a deposition is not to be used when the deponent is at hand. Indeed,
any deposition offered during trial to prove the facts stated therein set out, in lieu of
actual oral testimony of the deponent in court, may be opposed and excluded on the
ground of hearsay evidence. However, depositions may be used without the deponent
being called to the witness stand by the proponent, provided the existence of certain
conditions is first satisfactorily established. Five (5) exceptions for the admissibility of a
deposition are listed in Sec. 4. (Sales vs Sabino, G.R. No. 133154, December 9, 2005)

Deposition at a former proceeding may be used as evidence: Exception to the hearsay

evidence rule (Sec. 47 of Rule 130)

Requirements under Sec. 47, Rule 130 must be present in order that deposition may be
used as an evidence and an exception to hearsay evidence rule.

Petitioners objection to the admission in admission in evidence of the testimony of the

notary public who supposedly notarized the deed of sale take in another case in which
petitioners were not parties is persuasive. Such testimony does not qualify as an
exception to the hearsay evidence rule under Sec. 47, Rule 130 of the Rules of Court.
None of the circumstances for the admission of the testimony given at a former
proceeding obtains in this case. Not only were the petitioners not parties to a former
proceeding and hence without opportunity to cross-examine the notary public, there
was also no proof that the notary public was already deceased or unable to testify.
Hence, the testimony should not have been accorded any probative weight. (Ilao-
Quianay vs. Mapile, G.R. No. 154087, October 25, 2005)

Deposition for the hearing of a motion for an interlocutory order

The present case involved a circumstance that fell under the above-cited Sec. 4(c)(2) of
Rule 23 – the witness of petitioner in Metro Manila resided beyond 100 kilometers from
Sultan Kudarat, the place of hearing. Petitioner offered the deposition in support of the
Motion to Quash (the writ of execution) and for the purpose of proving that the trial
court’s decision was not yet final. As previously explained, despite the fact that trial has
already been terminated, a deposition can still be properly taken. (Jonathan Landoil Co.,
vs. Spouses Mangudadatu, G.R. No. 155010, August 16, 2004)

Deposition in case witness is aged or infirm

If the witness is aged or infirm, or about to leave the court’s jurisdiction, or is

temporarily out of the Philippines, leave of court may be granted. (Republic vs.
Sandiganbayan, G.R. No. 112710, May 30, 2001, 358 SCRA 284)
Advantages of Deposition

As a mode of discovery being resorted to before trial, deposition has the following
advantages, as follows, to wit:

1. It is of great assistance in ascertaining the truth and in checking and preventing

perjury;
2. It is an effective means of detecting and exposing false, fraudulent, and sham
claims and defenses;
3. It makes available in a simple, convenient, and often inexpensive way of facts
which otherwise could not have been proved, except with great difficulty and
sometimes not at all;
4. It educates the parties in advance of trial as to the real value of their claims and
defenses, thereby encouraging settlements out of court;
5. It expedites the disposal of litigation, saves the time of the courts, and clears the
docket of many cases by settlements and dismissals which otherwise would have
to be tried;
6. It safeguards against surprises at the trial, prevent delays, and narrows and
simplifies the issues to be tried, thereby expediting the trial;
7. It facilitates both the presentation and the trial of cases. (Id., pp. 366-367;
Jonathan Landoil International Co., Inc. vs. Spouses Suharto Mangudadatu and
Miriam Sangki Mangudadatu, supra, citing Moore’s Federal Practice, 2nd ed., Sec.
6.02[2])

Effect of substitution of parties (Sec. 5, Rule 23 of the 1997 Rules of Civil Procedure)

In case of substitution of parties to a deposition a taken, it has the following effects:

1. It does not affect the right to use depositions previously taken; and
2. When an action has been dismissed and another action involving the same
subject is afterward brought between the parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken therefor.

Objections to admissibility (Sec. 6, Rule 23)

Subject ot the provisions of Sec. 29 of this Rule, objection may be made on the following
occasions:

1. At the trial; or
2. Hearing to receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were then
present and testifying.

Effect of taking deposition (Sec. 7, Rule 23)

Under Sec. 7 of Rule 23, a party shall not be deemed to make a person his own witness
for any purpose by taking his deposition.

Effect of using a deposition (Sec. 8, Rule 23)

The effects of using a deposition in a proceeding are as follows:

 1. The introduction in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the deponent makes the
deponent the witness of the party introducing the deposition;
2. This shall not apply to the use by an adverse party of a deposition as described in
paragraph (b) of Sec. 4 of this Rule.

Rebutting deposition (Sec. 9, Rule 23)

At the trial or hearing, any party may rebut any relevant evidence contained in a
deposition whether introduced by him or by any other party.

Person who may take deposition (Sec. 10, 11, and 14, Rule 23 of the 1997 Rules on Civil
Procedure)

Within the Philippines, depositions may be taken before:

1. Any judge;
2. Notary public; or
3. If the parties so stipulate in writing, depositions may be taken before any person
authorized to administer oaths, at any time or place, in accordance with these
Rules, and when so taken may be used like other depositions.

If outside the Philippines

In a foreign state or country, depositions may be taken:

1. On notice before a secretary of embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines;
2. Before such person or officer as may be appointed by commission or under
letters rogatory; or
3. If the parties so stipulate in writing, depositions may be taken before any person
authorized to administer oaths, at any time or place, in accordance with these
Rules, and when so taken may be used like other depositions.

Letters commission or rogatory (Sec. 12, Rule 23)

A letters commission or rogatory shall be issued only when:

1. Necessary or convenient, on application and notice; and
2. On such terms and with such direction as are just and appropriate;
3. Officers may be designated in notices or commissions either by name or
descriptive title; and
4. Letters rogatory may be addressed to the appropriate judicial authority in the
foreign country.

What is a commission?

It is an instrument issued by a court of justice, or other competent tribunal to authorize

a person to take depositions, or do any other act by authority of such court or tribunal.

What is a letter rogatory?

It is an instrument whereby a foreign court is informed of the pendency of a case and

the name of the foreign witness, and is requested to cause their depositions to be taken
in due course of law for the furtherance of justice, with an offer on the part of the court
making the request, to do the like for the other, in a similar case. (Ballentine’s Law
Dictionary, 2nd ed., pg. 744)

Distinctions between commission and letters rogatory

 1. Commission is an instrument issued by a court of justice, or other competent
tribunal to authorize a person to take depositions, or do any other act by
authority of such court or tribunal; while letter rogatory – is an instrument
whereby a foreign court is informed of the pendency of a case and the name of
the foreign witness, and is requested to cause their depositions to be taken in
due course of law for the furtherance of justice, with an offer on the part of the
court making the request, to do like for the other, in a similar case;
2. Commission is addressed to a non-judicial foreign officer who will take the
deposition; while letters rogatory, it is addressed to a judicial officer of a foreign
country who will direct the taking of the deposition;
3. In commission, the rules which are applicable are those of the requesting court,
while in letters rogatory the procedure applicable will that be of the foreign
country;
4. In commission, it is allowed if the permission of the foreign country is given;
while in letters rogatory, it is allowed if commission was disallowed by the
foreign country;
5. Lastly, in commission leave of court is not necessary; while in letters rogatory,
leave of court is necessary.

Distinctions between deposition and affidavit

Deposition and affidavit may be distinguished as follows to wit:

1. In deposition taking of the testimony requires notice to the other party; while in
affidavit, it may be taken ex parte;
2. In deposition, it may be taken in the form of a question and answer based on oral
examination or written interrogatories before authorized person; while being
exp parte need not be in such form;
3. Deposition may be used as evidence in a pending case; while affidavit may or
may not be used in a proceeding.

PETITION FOR ISSUANCE OF LETTERS ROGATORY (Sec. 12, Rule 23)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

PETITION FOR ISSUANCE OF LETTER ROGATORY

COMES NOW, plaintiff, by counsel and to this Honorable Court respectfully alleges:
 1. That for the purpose of completing plaintiff’s evidence, so that a just and fair
decision may be rendered in the instant case, it is proper and fair decision may
be rendered in the instant case, it is proper and necessary that the testimony
of Juan Dela Cruz, who is at present residing in the United States at New
Jersey, U.S.A., be taken by means of deposition upon written interrogatories,
attached herewith as Annex “A”, at the Philippine Consulate at its offices in
42nd Street, New York, U.S. before any Philippine Consular representative
thereat, at such date and time as the latter may fix.
2. That if the adverse party desires, he may serve cross-interrogatories to be
filed in court, so that the direct interrogatories and cross-interrogatories may
both be sent to the Philippine Consular at the above-indicated address.

WHEREFORE plaintiff respectfully prays that an order issue directing the

adverse party, the defendant, to submit his written cross-interrogatories within ten
(10) days from notice, requiring the clerk of court to issue letters rogatory directed to
the Philippine consular representative in the Philippine Consular Office at _________
U.S.A. to take the examination upon interrogatories (both direct and cross) attached
herewith, at such date and time as the consular representative may schedule, with
notice to the witness ________ to appear and testify therein; and thereafter, to submit the
record of deposition to the Court which issued this order, with notice both parties.

Such other relief and remedies as may be deemed just and equitable under the
premises prayed for.

Manila, for Pasig City, February 13, 2012.

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Disqualification by interest (Sec. 13, Rule 23)

Who are the persons disqualified to take deposition?

1. A person who is a relative within the sixth degree of consanguinity or affinity; or

2. Employee or counsel of any of the parties;
3. A relative within the same degree, of employee or such counsel; or
4. Person who is financially interested in the action

Deposition upon oral examination; notice, time and place (Sec. 15, Rule 23)

A party desiring to take the deposition of any person upon oral examination shall:

1. Give reasonable notice in writing to every other party to the action;

2. The notice shall state the time and place for taking the deposition and the name
and address of each person to be examined, if known, and if the name is not
known, a general description sufficient to identify him or the particular class or
group to which he belongs;
3. On motion of any party upon whom the notice is served, the court may for cause
shown enlarge or shorten the time.

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION (SEC. 15, RULE 23)

Atty. Hector A. Yulo

Counsel for defendant/plaintiff
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

Sir:

Please take notice that on December 4, 2012, the undersigned counsel for Mr. X
in Civil Case No. _________, entitled “Mr. X vs. Mr. Y, RTC Manila, will take the deposition of
Mr. Juan Dela Cruz, with address at 1136-A A. Maceda St., Sampaloc, Manila, before
Notary Public Gemy Lito L. Festin at the latter’s address at 1081 Remedios, Malate
Manila at 10:00 am, upon oral examination. The oral examination will continue from
day to day at the same time and place until oral examination is completed.

Manila, November 4, 2012

Counsel for the plaintiffs

CC:

Counsel for the defendant

Defendant

Notary Public

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.
 HECTOR A. YULO

Orders for the protection of parties and deponents (Sec. 16, Rule 23)

After notice is served for taking a deposition by oral examination, upon motion
seasonably made by any party or by the person to be examined and for good cause
shown, the court in which the action is pending may issue the following orders:

1. An order that the deposition shall not be taken;

2. That it may be taken only at some designated place other than that stated in the
notice;
3. That it may be taken only on written interrogatories; or
4. That certain matters shall not be inquired into; or
5. That the scope of examination shall be held with no one present except the
parties to the action and their officers or counsel; or
6. That after being sealed, the deposition shall be opened only by order of the
court; or
7. That secret processes, developments, or research need not be disclosed;
8. That the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court; or
9. The court may make any other order which justice requires to protect the party
or witness from annoyance, embarrassment, or oppression.

Record of examination; oath; objections (Sec. 17, Rule 23)

What are the duties of the officer during the taking of deposition?

1. Put the witness on oath;

2. Shall personally, or by someone acting under his direction and in his presence,
record the testimony of the witness;
3. The testimony shall be taken stenographically unless the parties agree
otherwise;
4. All objections made at the time of the examination to the qualification of the
officer taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, any other objection to the proceeding,
shall be noted by the officer upon the deposition;
5. Evidence objected to shall be taken subject to the objections;
6. In lieu of participating in the oral examination served with notice of taking a
deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.

RECORD OF DEPOSITION

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages
MR. Y,
Defendant.

x--------------------------------------x

DEPOSITION OF JUAN DELA CRUZ

Records of the deposition upon oral examination (upon written interrogatories,

as the case may be). Taken before Notary Public Atty. Gemylito L. Festin for and in the
City of Manila, Philippines, this 22nd day of November 2012 at 10:00 am., pursuant to
the attached notice to take deposition on behalf of plaintiff (or defendant, as the case
may be) in the above-entitled action.

Appearances:
(Copy)

Testimonies:

Juan Dela Cruz, after having been duly sworn, testified orally (or based upon
written interrogatories) as follows:

Direct examination:
(Copy)

Cross examination:
(Copy)

Re-direct examination:
(Copy)

The above deposition was signed by ________ who gave said deposition, and the
same is hereby certified by the undersigned notary public to be faithful reproduction
thereof.

NOTARY PUBLIC

CERTIFICATION

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA )S.S.

The undersigned, notary public for and in the City of Manila, Philippines, hereby
certifies that witness ____________ was duly sworn to by the undersigned before taking
the above deposition and that the deposition and the record thereof of witness _______,
as above-stated, are true and correct.

Manila, November 29, 2012

NOTARY PUBLIC

CC:

Counsel for the defendant

Defendant
Notary Public

Motion to terminate or limit examination (Sec. 18, Rule 23)

When can a party file a motion to terminate or limit examination?

At any time during the taking of the deposition, on motion or petition of any party or of
the deponent the court in which the action is pending or the Regional Trial Court in
which the action is pending or the Regional Trial Court of the place where the
deposition is being tkane may order the officer conducting the examination to cease
forthwith from taking the deposition, or may limit the scope and manner of the taking
of the deposition, as provided in Sec. 16 of this Rule:

1. Upon a showing that the examination is being conducted in bad faith;

2. In such manner as unreasonably to annoy, embarrass, or oppress the deponent
or party.

What does the order of the court includes?

If the order made terminates the examination, it has the effect that:

1. It shall be resumed thereafter only upon the order of the court in which the
action is pending;
2. Upon demand of the objecting party or deponent, the taking of the deposition
shall be suspended for the time necessary to make a notice for an order;
3. In granting or refusing such order, the court may impose upon either party or
upon the witness the requirement to pay such costs or expenses as the court
may deem reasonable.

MOTION TO TERMINATE TAKINGOF DEPOSITION (SEC. 18, RULE 23)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _______

MR. X,
Plaintiff,

- versus - CIVIL CASE NO. ___________________________

For: Sum of Money with Damages

MR. Y,
Defendant.

x--------------------------------------x

MOTION TO TERMINATE TAKING OF DEPOSITION

COMES NOW, plaintiff, by counsel and to this Honorable Court, most respectfully
alleges :
 1. That the deposition of the Juan Dela Cruz is now being taken before the Notary
Public Atty. Gemylito L. Festin at #818 Remedios Street, Malate, Manila;
2. That during the taking of the deposition counsel for the defendant profounded
question which are not only immaterial, baseless but tending to harass and
merely to disrepute said deponent which has no relation to the facts in issue to
the case, and pursuant to Sec. 18 of Rule 23 of the 1997 Rules of Civil Procedure,
deposition may be ordered terminated by the Honorable Court.

Wherefore, plaintiff respectfully prays that the taking of the deposition of Juan
Dela Cruz be terminated based on the above reasons.

Such other relief and remedies as may be just and equitable under the premises
are likewise prayed for.

Manila, November 12, 2012

HECTOR A. YULO

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Submission to witness; changes; signing (Sec. 19, Rule 23)

What are the duties of the officer after the taking of the deposition?

When the testimony is fully transcribed, the deposition shall be:

1. Submitted to the witness for examination;

2. It shall be read to or by him, unless such examination and reading are waived by
the witness and by the parties;
 3. Any changes in form or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement of the reasons given
by the witness for making them;
4. The deposition shall then be signed by the witness, unless the parties by
stipulation waive the signing or the witness is ill or cannot be found or refuses to
sign;
5. If the deposition is not signed by the witness, the officer shall sign it and state on
the record the fact of the waiver or of the illness or absence of the witness or the
fact of the refusal to sign together with the reason given therefor, if any, and the
deposition may then be used as fully as though signed, unless on a motion to
suppress under Sec. 29(f) of this Rule, the court holds that the reasons given for
the refusal to sign require refection of the deposition in whole or in part.

Certification and filing by officer (Sec. 20, Rule 23)

What are duties of the officer after signing of the deposition?

After the examination and signing of the deposition, the officer shall:

1. Certify on the deposition that the witness was duly sworn to by him; and
2. That the deposition is a true record of the testimony given by the witness;
3. He shall securely seal the deposition in an envelope indorsed with the title of the
action and marked “Deposition of (here insert the name of witness)”; and
4. Shall promptly file it with the court in which the action is pending or send it by
registered mail to the clerk thereof for filing.

Notice of filing (Sec. 21, Rule 23)

What is the duty of the officer after the filing of the deposition in court?

Sec. 21 requires that the officer taking the deposition shall give prompt notice of its
filing to all the parties.

Furnishing of copies (Sec. 22, Rule 23)

Sec. 22 provides that upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to the deponent.

Failure to attend of the party giving notice (Sec. 23, Rule 23)

What is the effect if the party giving the notice fails to attend and proceed therewith and
another attends in person or by counsel pursuant to the notice, the court may:

1. Order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorney’s fees.

Failure of the party giving notice to serve subpoena (Sec. 24, Rule 23)

What is the action of the court in case of failure of the party giving notice to serve
subpoena?

If the party giving the notice of the taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of such failure does not attend, and if
another party attends in person or by counsel because he expects the deposition of that
witness to be taken, the court may order:
 1. The party giving the notice to pay to such other party the amount of the
reasonable expenses incurred by him and his counsel so attending , including
reasonable attorney’s fees.

Deposition upon written interrogatories; service of notice and of interrogatories (Sec.

25, Rule 23)

How to take deposition by written interrogatories?

A party desiring to take the deposition of any person upon written interrogatories shall:

1. Serve them upon every other party with a notice stating the name and address of
the person who is to answer them and the name or descriptive title and address
of the officer before whom the deposition is to be taken;
2. Within five (5) days thereafter, a party so served may serve cross-
interrogatories upon a party proposing to take the deposition;
3. Within five (5) days thereafter, the latter may serve re-direct interrogatories
upon a party who has served interrogatories;
4. Within three (3) days after being served with re-direct interrogatories, a party
may serve recross-interrogatories upon the party proposing to take the
deposition.

NOTICE TO TAKE DEPOSITION UPON WRITTEN INTERROGATORIES

Atty. Hector Yulo

Counsel for defendant/plaintiff
Suite 305 Puzon Bldg.,
E. Rodriquez Avenue, Q.C.

Sir:

Please take notice that on December 4 ,2012, the undersigned counsel for Mr. X
in Civil Case No. _________, entitled “Mr. X vs. Mr. Y, RTC, Manila, will take the deposition
of Mr. Juan Dela Cruz, with address at 1136-A A. Maceda St., Sampaloc, Manila, before
Notary Public Gemy Lito L. Festin at the latter’s address at 1081 Remedios, Malate,
Manila at 10:00 a.m., upon written interrogatories. The written interrogatories will
continue from day to day at the same time and place until the written interrogatories
are completed.

Manila, November 3, 2012.

Counsel

CC:

Counsel for the defendant

Mr. Juan Dela Cruz

Atty. Gemy Lito L. Festin

EXPLANATION OF SERVICE
 Copy of the notice to take deposition upon written interrogatories was served to
the defendant by registered mail due to time and distance constraints, and for lack of
the undersigned’s staff who can serve the same in person.

Counsel

Officers to take responses and prepare record (Sec. 26, Rule 23)

What are the duties of the officer after the service of the notice and interrogatorie?

A copy of the notice and copies of all interrogatories served shall be delivered by the
party taking the deposition to the officer designated in the notice, who shall:
1. Proceed promptly, in the manner provided by Secs. 17, 19, and 20 of this Rule;
2. To take the testimony of the witness in response to the interrogatories; and
3. To prepare, certify, and file or mail the deposition, attaching thereto the copy of
the notice and interrogatories received by him.

Notice of filling and furnishing copies (Sec. 27, Rule 23)

What are the duties of the officer after being served with notice and copy of the
interrogatories?

When a deposition upon interrogatories is filed, the officer taking it shall:

1. Promptly give notice thereof to all the parties; and

2. May furnish copies to them or to the deponent upon payment of reasonable
charges therefor.

Orders for the protection of parties and deponents (Sec. 28, Rule 23)

What are the orders that may be issued by the court for the protection of the parties
and deponent?

After the service of the interrogatories and prior to the taking of the testimony of the
deponent, the court in which the action is pending, on motion promptly made by a party
or a deponent, and for good cause shown, make any order specified in Secs. 15, 16 and
18 of this Rule which is appropriate and just or an order that:
1. The deposition shall not be taken before the officer designated in the notice; or
2. That it shall not be taken except upon oral examination.

Effects of errors and irregularities in depositions (Sec. 29, Rule 23)

In case of errors or irregularities in the deposition, it has the following effects:

1. As to notice – All errors and irregularities in the notice for taking a deposition
are waived unless written objection is promptly served upon the party giving the
notice.
2. As to disqualification of officer – Objection to taking a deposition because of
disqualification of the officer before whom it is to be taken is waived unless
made before the taking of the deposition begins or as soon as thereafter the
disqualification becomes known or could be discovered with reasonable
diligence.
3. As to oral examination and other particulars – Errors and irregularities
occurring at the oral examination in the manner of taking the deposition, in the
form of the questions or answers, in the oath or affirmation, or in the conduct of
 the parties and errors of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection thereto is made at
the taking of the deposition.
4. As to form of written interrogatories – Objections to the form of written
interrogatories submitted under Secs. 25 and 26 of this Rule are waived unless
served in writing upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.
5. As to manner of preparation – Errors and irregularities in the manner in which
the testimony is transcribed or the deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under
Secs. 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after such
defect is, or with due diligence might have been ascertained.
DEPOSITION BEFORE ACTION (RULE 24)

Petition for deposition before action (Sec. 1, Rule 24)

How can deposition before action be commenced?

A person who desires to perpetuate his own testimony or that of another person may
file a petition regarding:
1. Any matter that may be cognizable in any court of the Philippines;
2. In the court of the place of the residence of any expected adverse party.

Contents of the petition (Sec. 2, Rule 24)

What are the contents of the petition for taking deposition before the action?

The petition for the taking of a deposition before the action shall be entitled in the name
of the petitioner and shall show the following:
1. That the petitioner expects to be a party to an action in a court of the Philippines
but is presently unable to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it;
4. The names or a description of the persons he expects will be adverse parties and
their addresses so far as known; and
5. The names and addresses of the persons to be examined and the substance and
the substance of the testimony which he expects to elicit from each, and shall ask
for an order authorizing the petitioner to take the depositions of the persons to
be examined named in the petition for the purpose of perpetuating their
testimony.

Notice and service (Sec. 3, Rule 24)

What are the duties of the petitioner after the filing of the petition?

After the filing, the petitioner shall:

1. Serve a notice upon each person named in the petition as an expected adverse
party;
2. Serve a copy of the petition, stating that the petitioner will apply to the court, at
a time and place named therein, for the order described in the petition.

What is the course of action of the court after the filing and service of notice and
petition?

At least twenty (20) days before the date of the hearing, the court shall cause notice
thereof to be served on the parties and prospective deponents in the manner provided
for service of summons.

Order and examination (Sec. 4, Rule 24)

What are the actions of the court on the petition?

If the court is satisfied that the perpetuation of the testimony may prevent a failure or
delay of justice, it shall:
1. Make an order designating or describing the persons whose deposition may be
taken and specifying the subject matter of the examination;
 2. Whether the depositions shall be taken upon oral examination or written
interrogatories;
3. The depositions may then be taken in accordance with Rule 23 before the
hearing.

Reference to court (Sec. 5, Rule 24)

What is the rule in case of reference to the court?

For the purpose of applying Rule 23 to depositions for perpetuating testimony, each
reference therein to the court in which the action is pending shall be deemed to refer to
the court in which the petition for such deposition was filed.

Use of deposition (Sec. 6, Rule 24)

What are the usages of deposition?

If a deposition to perpetuate testimony is taken under this Rule, or if, although not so
taken:
1. it would be admissible in evidence;
2. It may be used in any action involving the same subject matter subsequently
brought in accordance with the provisions of Secs. 4 and 5 of Rule 23.

VERIFIED PETITION TO PERPETUATE TESTIMONY BEFORE ACTION (SEC. 2, RULE 24)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

x-----------------------------x

PETITION TO PERPETUATE TESTIMONY

COMES NOW, petitioner, through the undersigned the undersigned counsel, and
unto this Honorable Court, respectfully avers:

Petitioner is of legal age and residing at _____________________

Petitioner expects to be a party to an action in court in the Philippines but he is

presently unable to bring it.

The subject matter of the expected action is for a recovery of possession of

property and damages, which Mr. Y with address at _______________ entrusted TCT
No.4586, issued by the Register of Deeds of Manila which petitioner entrusted to Mr. Y
which was not returned by the latter to the petitioner and he is in possession of the said
property. Mr. Y is expected to be the adverse party.
 The person who was present during the transaction was Juan Dela Cruz, with
address at _______________, and who knew the surrounding facts thereof.

Petitioner is very sick, as he suffered stroke, and his physical mobility has greatly
been affected.

The interest of justice would be served by perpetuating the testimonies of

herein-petitioner and of Juan Dela Cruz, as evidence in the expected action against Mr. Y
recovery of possession of property and damages.

WHEREFORE, petitioner respectfully prays that the court issue an order

authorizing him to take the deposition of herein petitioner and that of Juan Dela Cruz,
before such authorized person and at such time and place, as the court may require.

Manila, November 4, 2012

Counsel for the Plaintiff

VERIFICATION

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

I, MR. X , of legal age, Filipino citizen, married, and resident of _____________, after
having been duly sworn to in accordance with law do hereby depose and say:
1. That I am the petitioner in the above-entitled case;
2. That I have caused the preparation of the foregoing Petition and have read the
allegations contained therein;
3. The allegations in the said complaint are true and correct of my own knowledge
and authentic records;
4. I hereby certify that I have not commenced any other action or proceeding
involving the same issues in the Supreme Court, Court of Appeals, or any other
tribunal agency;
5. That if I should thereafter learned that a similar action or proceedings has been
filed or is pending before the Supreme Court, Court of Appeals, or any other
tribunal agency, I hereby undertake to report that fact within five (5) days
therefrom to the court or agency wherein the original pleading and sworn
certification contemplated herein have been filed;
6. I executed this verification/certification to attest to the truth of the foregoing
facts and to comply with the provisions of Adm. Circular No. 04-94 of the
Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____________,

2012, in the City of Manila.

MR. X

SUBSCRIBED AND SWORN to before me this _______ day of __________ 2017, in the
City of Manila, affiant exhibiting to me his ________. No. _____________, issued at
____________on ____________________.

Doc. No: ______

Page No: ______
Book No: _____
Series of 2017
CC: 1) MR. Y
Defendant

2) Mr. Juan Dela Cruz

Defendant

Petitioner hereby states that he will apply to the court, at a time and place
therein for an order described in the attached petition, at least 20 days before the date
of the hearing.

Counsel for the Plaintiff

EXPLANATION OF SERVICE

Copy of the Notice to take deposition upon written interrogatories was served to
the defendant by registered mail due to time and distance constraints, and for lack of
undersigned’s staff who can serve the same in person.

Counsel for the Plaintiff

Deposition pending appeal (Sec. 7, Rule 24)

How is deposition pending appeal being made?

If an appeal has been taken from a judgment of a court, including the Court of Appeals in
proper cases, or before the taking of an appeal if the time therefor has not expired, the
court in which the judgment was rendered may:
1. Allow the taking of depositions of witnesses to perpetuate their testimony for
use in the event of further proceedings in the said court.

What are the requirements in taking of deposition pending appeal?

In such case the party who desires to perpetuate the testimony may:
1. Make a motion in the said court for leave to take depositions;
2. Notice and service thereof as if the action was pending therein;

Contents of the motion for leave?

The motion shall state the following:

1. The names and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each; and
2. The reason for perpetuating their testimony.

What are the actions of the court on the motion?

If the court finds that the perpetuation of the testimony is proper to avoid a failure or
delay of justice, it may:
1. Make an order allowing the depositions to be taken; and
2. The depositions may be taken and used in the same manner and under the same
conditions as are prescribed in these Rules for depositions taken in pending
action.
INTERROGATORIES TO PARTIES (RULE 25)

How can interrogatories to parties be made (Sec. 1, Rule 25)

Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit
material and relevant facts from any adverse parties shall:
1. File and serve upon the latter written interrogatories to be answered by the
party served; or
2. If the party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf.

Remedy in case of denial of written interrogatories

The trial court’s order denying the written interrogatories is interlocutory in nature.
And the extraordinary remedy writ of certiorari is generally not an available remedy to
challenge an interlocutory order of a trial court, the proper remedy in such a case is
appeal from the adverse judgment where incorporated in said appeal are the grounds
for assailing the interlocutory order. Nonetheless, this by no means is an absolute rule.
This court finds that the order dismissing petitioner’s written interrogatories are
patently erroneous, hence, the resort to certiorari is warranted. (Ong vs. Mazo, G.R. No.
145542, June 4, 2004)

Answer to interrogatories (Sec. 2, Rule 25)

What are the requirements in case of a response to interrogatories?

The interrogatories shall be:

1. Answered fully in writing; and
2. Shall be signed and sworn to by the person making them.

When to file an answer to interrogatories?

The party upon whom the interrogatories have been served shall:
1. File and serve a copy of the answers on the party submitting the interrogatories
within fifteen (15) days after the service thereof;
2. Unless the court, on motion and for good cause shown, extends or shortens the
time.

Objections to interrogatories (Sec. 3, Rule 25)

When to file objections to interrogatories

Objections to any interrogatories may be presented to the court within ten (10) days
after the service thereof, with notice as in case of a motion.

What is the effect of the filing of objections?

Filing of the answers shall be deferred until the objections are resolved, which shall be
at as early a time as is practicable.

Number of interrogatories (Sec. 4, Rule 25)

How many interrogatories can be served?

Sec. 4, Rule 25 clearly states that no party may, without leave of court, serve more than
one set of interrogatories to be answered by the same party.

Scope and use of interrogatories (Sec. 5, Rule 25)

Interrogatories may relate to:

1. Any matter that can be inquired into under Sec. 2, Rule 23; and
2. The answers may be used for the same purposes provided in Sec. 4 of the same
rule.

Effect of failure to serve interrogatories (Sec. 6, Rule 25)

Unless thereafter allowed by the court for good cause shown and to prevent a failure of
justice, a party not served with written interrogatories may not be:
1. Compelled by the adverse party to give testimony in open court;
2. To give a deposition pending appeal.

Distinguish written interrogatories under Rule 23 and written interrogatories under

Rule 25
1. In written interrogatories under Rule 25, it is directly served to the adverse
party; whereas written interrogatories under Rule 23, the deponent is a third
person not necessarily a party.
2. In written interrogatories under Rule 25, no officer to take deposition is
required; whereas in written interrogatories under Rule 23, it is required that it
will be taken by a deposition officer.

Distinguish written interrogatories to parties (Rule 25) from bill of particulars (Rule
12)
1. Written interrogatories under Rule 25 seek to disclose all materials and relevant
facts from a party; whereas bill of particulars under Rule 12 is intended for the
purpose of clarifying ambiguities in a pleading or to state with sufficient
definiteness the allegations in the pleading;
2. Written interrogatories under Rule 25 is not directed to a pleadings; but to the
material and relevant facts within the knowledge of the adverse party; while bill
of particulars under Rule 12, it is directed to the pleadings with ambiguous
allegations.

ADMISSIONS BY ADVERSE PARTY (RULE 26)

An admission is any statement of fact made by a party against his interest or

unfavorable to the conclusion for which he contends or is inconsistent with the facts
alleged by him. (Lacbayan vs. Samoy, G.R. No. 165427, March 21, 2011)

What are the requirements in order that admission be admissible?

To be admissible, an admission must:

1. Involve matters of fact, and not of law;
2. Be categorical and definite;
3. Be knowingly and voluntarily made; and
4. Be adverse to the admitter’s interests, otherwise it would be self-serving and
inadmissible. (Lacbayan vs. Samoy, G.R. No. 165427, March 21, 2011)

Request for admission (Sec. 1, Rule 26)

At any time after the issues have been joined, a party may file and serve upon other
party a written request for:
 1. The admission by the latter of the genuineness if any material and relevant
document described in and exhibited with the request;
2. The truth of any material and relevant matter of fact set forth in the request; or
3. Copies of the documents shall be delivered with the request unless copies have
already been furnished.

Purpose of admission

Every alleged admission is taken as an entirety of the fact which makes for the one side
with the qualifications which limit, modify or destroy its effect on the other side. The
reason for this is, where part of a statement of a party is used against him as an
admission, the court should weigh any other portion connected with the statement,
which tends to neutralize or explain the portion which is against interest. In other
words, while the admission is admissible in evidence, its probative value is to be
determined from the whole statement and others intimately related or connected
therewith as an integrated unit. Although acts or facts admitted do not require proof
and cannot be contradicted, however, evidence aliunde can be presented to show that
the admission was made through palpable mistake. The rule is always in favor of
liberality in construction of pleadings so that the real matter in dispute may be
submitted to the judgment of the court. (Republic of the Philippines vs. Cojuangco, et.
al., G.R. No. 180702, April 12, 2011)

Implied admission (Sec. 2, Rule 26)

Each of the matters of which an admission is requested shall be deemed admitted

unless, within a period designated in the request, the party will:
1. File and serve upon the party requesting the admission a sworn statement either
denying specifically the matters of which an admission is requested or setting
forth in detail the reasons why he cannot truthfully either admit or deny those
matters which shall not be less than fifteen (15) days after service thereof; or
2. Within such further time as the court may allow on motion.

What is the rule in case of the filing of objection?

Objections to any request for admission shall be:

1. Submitted to the court by the party requested within the period for and prior to
the filing of his sworn statement as contemplated in the preceding paragraph;
and
2. His compliance therewith shall be deferred until such objections are resolved,
which resolution shall be made as early as practicable.

“Implied admission rule”

Each matter must be denied specifically under oath setting forth in detail the reason
why he cannot truthfully admit or deny. The silence of defendant on the plaintiff’s
request for admission amounts to an implied acceptance of the facts set forth therein
with the effect that plaintiff’s claim stood undisputed. (Manzano vs. Despabiladeras, G.R.
No. 148786, December 16, 2004)

Limitations on the “Implied Admission Rule”

In this case, the redundant and unnecessarily vexatious nature of petitioner’s request
for admission rendered it ineffectual, futile, and irrelevant so as to proscribe the
operation of the implied admission rule in Sec. 2, Rule 26 of the Rules of Court. There
being no implied admission attributable to respondent’s failure to respond, the
argument that a preliminary hearing is imperative loses its point. (Limos vs. Spouses
Odones, G.R. No. 186979, August 11, 2010)

Remedy of the person making an implied admission

A party making an implied admission can file before the court a Motion to be Relieved
of Implied Admission.

Effect of admission (Sec. 3, Rule 26)

Any admission made by a party pursuant to such request shall have the following
effects:
1. It is only for the purpose of the pending action;
2. It shall not constitute an admission by him for any other purpose;
3. Nor said admission be used him in any other proceeding.

Withdrawal of admission (Sec. 4, Rule 26)

The court may allow the party making an admission under this Rule, whether express
or implied to:
1. To withdraw such admission; or
2. Amend it upon such terms as may be just.

Effect of failure to file and serve request for admission (Sec. 5, Rule 26)

Unless otherwise allowed by the court for good cause shown and to prevent a failure of
justice, a party who fails to file and serve a request for admission on the adverse party
of material and relevant facts at issue which are, or ought to be, within the personal
knowledge of the latter, shall not be permitted to present evidence on such facts.

REQUEST FOR ADMISSION OF DOCUMENTS OR MATERIAL FACTS (RULE 26)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

x-----------------------------x

RE: REQUEST FOR ADMISSION

Mr. Y
Defendant
914 Dapitan Streen
Sampaloc, Manila

Pursuant to Sections 1 and 2 of Rule 26 of the Rules of Court, request is hereby

made upon you, within fifteen (15) days from your receipt hereof, to admit the due
execution and genuineness of the documents, herein listed below, and the truth of the
facts below enumerated, as follows:

The due execution and authenticity of the following documents, namely:

- Transfer Certificate of Title No. 4568 issued by the Register of Deeds of Manila;
- Kasunduan sa Pagbebenta sa Lupa;
- Acknowledgment Receipt.

Manila, November 12, 2012

Counsel

CC:

Branch Clerk of Court

Defendant
PRODUCTION AND INSPECTION OF DOCUMENTS AND THINGS (RULE 27)

What are the two motions available under Rule 27?

1. Motion for production and inspection of documents and things; and
2. Motion to allow entry upon a designated place for purposes of inspection,
measuring, and surveying of property.

Motion for production and inspection order (Sec. 1, Rule 27)

What are the course of action on the motion for production and inspection of
documents and things?

Upon motion of any party showing good cause therefor, the court in which an action is
pending may:
1. Order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or control;
or
2. Order any party to permit entry upon designated land or other property in his
possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation
thereon. The order shall specify the time, place and manner of making the
inspection and taking copies and photographs, and ma prescribe such terms and
conditions as are just.

Remedy of production and inspection of documents and things

The provision shows that the production or inspection of documents or things as a

mode of discovery sanctioned by the Rules of Court may be availed of by any party upon
showing of a good cause therefor before the court in which the action is pending. The
court may order any party: a) to produce and permit the inspection and copying or
photographing of any designated documents, papers, books, accounts, letters,
photographs, objects, or tangible things, which are not privileged; which constitute or
contain evidence material to any matter involved in the action; and in his possession,
custody or control; or b) to permit entry upon designated land or other property in his
possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant objet or operation thereon. (Air
Philippines Corporation vs. Penswell, Inc., G.R. No. 172835, December 13, 2007)

Documents, papers, objects, accounts, letters, photographs, objects and other tangible
things which are privileged in character and cannot be the subject of Rule 27
1. Privileged communication between the husband and wife (Sec. 24[a], Rule 130)
2. Privileged communication between attorney and client (Sec. 24[b], Rule 130)
3. Privileged communication between the physician and patient (Sec. 24[c], Rule
130)
4. Privileged communication between priest and penitent (Sec. 24[d], Rule 130)
5. Privileged communication of public officers and public interest (Sec. 24[e], Rule
130)
6. Editors may not be compelled to disclose source of published news;
7. Voters may not be compelled to disclose for whom they voted;
8. Trade secrets;
9. Information contained in tax census returns;
10. Bank deposits.
Limitations on the remedy of production and inspection of documents and things

A motion for production and inspection of documents should not demand a roving
inspection of a promiscuous mass of documents. The inspection should be limited to
those documents designated with sufficient particularity in the motion, such that the
adverse party can easily identify the documents he is required to produce. Rule 27
permits “fishing for evidence.” The lament against fishing expedition no longer
precludes a party from prying into the facts underlying his opponent’s case. Mutual
knowledge of all relevant facts gathered by both parties is essential to proper litigation.
To that end, either party may compel the other disclose whatever facts he has in his
possession. However, fishing for evidence is allowed under the rules is not without
limitations. (Solidbank Corporation, now known as Metropolitan Bank and Trust
Company vs. Gateway Electronics Corporation., et. al., G.R. No. 164805, April 30, 2008)

Distinctions between Production and inspection of documents and things under Rule 27
and Subpoena Duces Tecum under Rule 21
1. In production and inspection of documents and things under Rule 27, it is a
mode of discovery; while subpoena duces tecum under Rule 21 is a writ or a
process of compelling production of evidence;
2. In production and inspection of documents and things under Rule 27, it is
directed to a party litigants; whereas subpoena duces tecum under Rule 21, it is
directed against any person which includes litigants;
3. In production and inspection of documents and things under Rule 27 it can be
availed of by any motion; whereas in subpoena duces tecum under Rule 21, it is
by means of a request which is issued ex-parte.

Distinctions between Production and inspection of documents and things under Rule 27
and Exception to the Best Evidence Rule when the original is in the possession of the
adverse party under Sec. 3(b) Rule 130.
1. In production and inspection of documents and things under Rule 27, it is a
mode of discovery; while when the original is in the possession of the adverse
party under Sec. 3(b), Rule 130 it is an exception to the Best Evidence Rule;
2. Under Rule 27 it can be availed of through motion; while under Sec 3(b), Rule
130 it can be done by notice;
3. Under Rule 27 the movant has no prior knowledge on the contents of the
documents to be produced; while under Sec. 3(b), Rule 130, has knowledge of
the contents of the documents to be produced.

MOTION FOR PRODUCTION AND INSPECTION (RULE 27)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION FOR PRODUCTION AND INSPECTION

 COMES NOW plaintiff, by counsel and to this Honorable Court respectfully
alleges:
1. Plaintiff has filed an action for Recovery of possession and damages against
defendant;
2. Defendant has entrusted the Title to the subject lot and occupied the said
property and despite demand to turn over the possession of the said lot he
refused and continuously refusing the same which is evidenced by the written
agreement between them which material to the cause of action of the plaintiff;
3. Plaintiff needs such documents to prove its claims, which are in the custody and
control of the defendant;
4. The records and documents mentioned are not privileged nor confidential.

WHEREFORE, plaintiff prays that an order be issued, authorizing plaintiff’s

accountants and lawyers entry to defendant’s office, making available to them all
records pertaining the subject lots and allowing them to photographing said documents
deem material and relevant to the issues in the pending action.

Such other relief as may be deemed just and equitable under the premises are
likewise prayed for.

Manila, November 12, 2012.

Counsel for the Plaintiff

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

PHYSICAL AND MENTAL EXAMINATION OF PARTIES (RULE 28)

In an action in which the mental or physical condition of a party is in controversy, the

court in which the action is pending may in its discretion order him to submit to a
physical or mental examination by a physician.
Order of examination (Sec. 2, Rule 28)

The order for examination to be issued by the court may be made only:
1. On motion for good cause shown; and
2. Upon notice to the party to be examined and to all other parties; and
3. It shall specify the time, place, manner, conditions and scope of the examination
and the person or persons by whom it is to be made.

Report of findings (Sec. 3, Rule 28)

The rules on the findings of the physician on the examination conducted on the physical
or mental examination of the party shall be as follows:
1. If requested by the party examined, the party causing the examination to be
made shall deliver to him a copy of a detailed written report of the examining
physician setting out his findings and conclusions;
2. After such request and delivery, the party causing the examination to be made
shall be entitled upon request to receive from the party examined a like report of
any examination, previously or thereafter made, of the same mental or physical
condition.

What are the effects in case of refusal to deliver report of the examination?

If the party examined refuses to deliver such report, the court on motion and notice
make an order:
1. Requiring delivery on such terms as are just; and
2. If a physician fails or refuses to make such a report, the court may exclude his
testimony if offered at the trial.

Waiver of privilege (Sec. 4, Rule 28)

By requesting and obtaining a report of the examination so ordered or by taking the

deposition of the examiner:
1. The party examined waives any privilege he may have in that action; or
2. He also waived any privilege in any other involving the same controversy,
regarding the testimony of every other person who has examined or may
thereafter examine him in respect of the same mental or physical examination.

MOTION FOR PHYSICAL AND MENTAL EXAMINATION

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION FOR PHYSICAL AND MENTAL EXAMINATION

 PLAINTIFF, by counsel and to this Honorable Court, respectfully alleges:

1. One of the issues raised by the defendant in this case is that he did not
voluntarily agree to, and execute, the deed of sale of a parcel of land, subject
matter of the pending case, because he allegedly was insane at the time of the
execution of said deed of sale.
2. To determine defendant’s claim of insanity, it is necessary that a physical and
mental examination of defendant be conducted by a government physician at the
Philippine General Hospital, specifying the time, place, manner, conditions and
scope of the examination of said person and directing the examining physician to
render a written report thereon.

Manila, November 12, 2012.

Counsel for the Plaintiff

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion for Production and Inspection of Documents was served to
defendants by registered mail due to time and distance constraints, and for lack of the
undersigned’s staff who can serve the same in person.

HECTOR A. YULO

REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY (RULE 29)

What is the nature of the determination of the sanctions to be imposed upon a party?

1. The application of the rules on modes of discovery rests upon the sound
discretion of the court. In the same vein, the determination of the sanction to be
imposed upon a party who fails to comply with the modes of discovery rest on
the same sound judicial discretion. It is the duty of the courts to examine
thoroughly the circumstances of each case and to determine the applicability of
the modes of discovery, bearing always in mind the aim to attain an expeditious
administration of justice. (Lanada vs. Court of Appeals, G.R. No. 102390,
February 1, 2002, 375 SCRA 543; Limos vs. Spouses Odones, G.R. No. 188979,
August 11, 2011)
 2. The determination of the sanction a court should impose for failure of a party to
comply with the modes of discovery rest on sound judicial discretion, taking into
account the overriding interest of justice and the circumstances of each case.
(Lanada vs Court of Appeals, G.R. No. 102390, February 1, 2002; Nestle Phils.,
Inc. vs. Court of Appeals, G.R. No. 102404, February 1, 2002)

Refusal to comply with the modes of discovery (Sec. 1-6, Rule 29)

Refusal to Answer (Sec. 1, Rule 29)

If a party or other deponent refuses to answer any question upon oral examination the
court may:
1. The examination may be completed on other matters or adjourned as the
proponent of the question prefer;
2. The proponent may thereafter apply to the proper court of the place where the
deposition is being taken, for an order to compel an answer;
3. The same procedure may be availed of when a party or a witness refuses to
answer any interrogatory submitted under Rule 23 or 25.

Contempt of Court (Sec. 2, Rule 29)

What is the effect of refusal to be sworn or to answer any question after being directed
to do so by the court of the place in which the deposition is being taken, the refusal may
be considered a contempt of that court.

Other consequences (Sec. 3, Rule 29)

What are the effects in case of refusal to comply with Sec. 1, Rule 29, Rule 27 or Rule
28?

If any party or an officer or managing agent of a party refuses to obey an order made
under Sec. 1 of this Rule requiring him to answer designated questions, or an order
under Rule 27 to produce any document or other thing for inspection, copying, or
photocopying or to permit it to be done, or to permit entry upon land or other property,
or an order made under Rule 28 requiring him to submit to a physical or mental
examination, the court may make such orders in regard to the refusal as are just, and
among others the following:
1. An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be
taken to be established for the purpose of the action in accordance with the
claim of the party obtaining the order;
2. An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence
designated documents or things or items of testimony, or from introducing
evidence of physical or mental condition;
3. An order striking out pleading or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party; and
4. In lieu of any of the foregoing orders or in addition thereto, an order directing
the arrest of any party or agent of a party for disobeying any of such orders
except an order to submit to a physical or mental examination.

Judgment by default
According to former Justice Florenz D. Regalado, failure to file a responsive pleading
within the reglementary period, and not failure to appear at the hearing, is the sole
ground for an order of default (Rosario, et al. vs Alonzo, et al., L-17320, June 29, 1963),
except for failureto appear at yhe pre-trial conference wherein the effects of a default
on the part of the defendant are followed, that is, the plaintiff shall be allowed to
present evidence ex-parte and a judgment based thereon may be rendered against the
defendant. (Sec. 5, Rule 18) Also, a default judgment may be rendered, even if the
defendant had filed his answer, under the circumstances in Sec. 3(c), Rule 29. (Monzon
vs Sps Relova, G.R. No. 171827, September 17, 2008)

Expenses on refusal to admit (Sec. 4, Rule 29)

What are the effects in case of refusal to make an admission under Rule 26

If a party after being served with a request under Rule 26 to admit the genuineness of
any document or the truth of any matter of fact, serves a sworn denial thereof and if the
party requesting the admissions thereafter proves the genuineness of such document or
the truth of any such matter of fact he may:
1. Apply to the court for an order requiring the other party to pay him the
reasonable expenses incurred in making such proof, including attorney’s fees.
2. Unless the court finds that there were good reasons for the denial or that
admission sought were of no substantial importance, such other shall be issued.

Failure to attend or serve answers (Sec. 5, Rule 29)

What are the effects in case failure to appear on the taking of deposition or serve
answer to interrogatories?

If a party or an officer or managing agent of a party willfully fails to appear before the
officer who is to take his deposition, after being served with a proper notice, or fails to
serve his answers to interrogatories submitted under Rule 25, after proper service of
such interrogatories, the court on motion and notice:
1. May strike out all or any part of any pleading of that party; or
2. Dismiss the action or proceeding or any part thereof; or
3. Enter a judgment by default against that party; and
4. In its discretion, order him to pay reasonable expenses incurred by the other.
Including attorney’s fees.

Judgment by default for failure to file answer to interrogatories

The CA rightly held that the court a quo erred in rendering judgment by default against
the defendants for refusal or failure to answer written interrogatories, without first
requiring an application by the proponent to compel an answer. This is the requisite
procedure under Section 1 of Rule 29 of the 1997 Rules of Civil Procedure. (Jaravata vs
Karolus, G.R. No. 154988, June 21, 2007)

Expenses against the Republic of the Philippines (Sec. 6, Rule 29)

What is the rule in case of expenses against the Republic?

Sec. 6 of the above rule states that expenses and attorney’s fees are not to be imposed
upon the Republic of this Rule.
MODES OF DISCOVERY IN CRIMINAL CASES

Production or inspection of material evidence in possession of the prosecution (Sec. 10,

Rule 116)

When is the mode of discovery of production and inspection of prosecution’s evidence

available?

Upon motion of the accused showing good cause and with notice to the parties, the
court in order to prevent surprise, suppression, or alteration, may:
1. Order the prosecution to produce and permit the inspection and copying and
photographing of any written statement given by the complainant and other
witnesses in any investigation of the offense conducted by the prosecution or
other investigating officers;
2. As well as any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things not otherwise privileged which
constitute or contain evidence material to any matter involved in the case and
which are in the possession or under the control of the prosecution, police or
other law investigating agencies.

Application for examination of witness for accused before trial (Sec. 12, Rule 119)

When and how can an examination of a witness for the accused before trial be done?

When the accused has been held to answer for an offense, he may upon motion with
notice to the other parties have witnesses conditionally examined in his behalf. The
motion shall state:
1. The name and residence of the witnesses;
2. The substance of his testimony; and
3. That the witness is sick or infirm as to afford reasonable ground for believing
that he will not be able to attend the trial;
4. Resides more than one hundred (100) kilometers from the place of trial and has
no means to attend the same;
5. Other similar circumstances exist that would make him unavailable or prevent
him from attending the trial.

The motion shall be supported by affidavit of the accused and such other evidence as
the court may require.

Examination of defense witness; how made (Sec. 13, Rule 119)

How can the examination of defense witness be done?

If the court is satisfied that the examination of a witness for the accused is necessary, an
order shall be made:
1. Directing that the witness be examined at a specific date, time and place;
2. That a copy of the order be served on the prosecutor at least three (3) days
before the scheduled examination;

Who may take the testimony of the defense witness?

The examination of the defense witness shall be taken before:

1. A judge in the order; or
2. If not practicable, a member of the Bar of good standing so designated by the
judge in the order; or
 3. If the order be made by the court of superior jurisdiction, before the inferior
court designated therein.

What is the effect of the absence of the prosecutor?

The examination shall proceed notwithstanding the absence of the prosecutor provided
he was duly notified of the hearing. A written record of testimony shall be taken.

Examination of witness for the prosecution (Sec. 5, Rule 119)

How can the examination for the prosecution witness be done?

When it satisfactorily appears that a witness for prosecution is too sick or infirm to
appear at the trial as directed by the court, or has to leave the Philippines with no
definite date of returning:
1. He may fortwith be conditionally be examined before the court where the case is
pending;
2. Such examination, in the presence of the accused, or in his absence after
reasonable notice to attend the examination has been served on him, shall be
conducted in the same manner as an examination at the trial.

What is the effect of failure or refusal of the accused to attend the examination?

Failure or refusal of the accused to attend the examination after notice shall be
considered a waiver. The statement taken may be admitted in behalf or against the
accused.

Will Sec. 3, Rule 1 of the Rules of Court applicable to the above rules?

It is true that Sec. 3, Rule 1 of the Rules of Court provides that the rules of civil
procedure apply to all actions, civil, criminal and special proceedings. In effect, it says
that the rules of procedure have suppletory applicationto criminal cases. However, it is
likewise true that the criminal proceedings are primarily governed by the Revised Rules
of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the
situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or
otherwise. (Cuenco vs. Risos, G.R. No. 152643, August 28, 2008)
MODES OF DISCOVERY IN ENVIRONMENTAL CASES

Discovery measures (Sec. 12, Rule 7, Part III of A.M. No. 09-6-08 on Rules of Procedure
for Environmental Cases)

What are the modes of discovery available in environmental cases?

The modes of discovery available under the rules on environmental cases are as
follows, to wit:
1. Ocular inspections; and
2. Production and inspection of documents and things.

How can a party avail the mode of discovery of Ocular inspection?

A party may file a verified motion for the issuance of an ocular inspection order subject
to the following requirements:
1. The motion must show that an ocular inspection order is necessary to establish
the magnitude of the violation or the threat as to prejudice life, health or
property of inhabitants in two or more cities or province;
2. It shall state in detail the place or places to be inspected;
3. It shall be supported by affidavits of witnesses having personal knowledge of the
violation or threatened violation of environmental law.

What is the effect of the issuance of the Ocular inspection order?

After hearing, the court may order any person in possession or control of a designated
land or other property to:
1. Permit entry for the purpose of inspecting or photographing the property or any
relevant object or operation thereon.

What are the contents of the Ocular Inspection Order?

The Ocular Inspection order issued shall contain the following, to wit:
1. Specify the person or persons authorized to make the inspection;
2. The date, time, place and manner of making the inspection; and
3. May prescribe other conditions to protect the constitutional rights of all parties.

How can the mode of discovery of Production and Inspection of documents and things
be availed of?

The motion for the issuance of an Order for the production and inspection of documents
and things must show that:
1. A production order is necessary to establish the magnitude of the violation or
the threat as to prejudice life, health or property of inhabitants in two or more
cities or provinces.

What is the effect of the issuance of the order?

After hearing, the court may order the following, to wit:

1. Any person in possession, custody of any designated documents, papers, books,

accounts, letters, photographs, objects or tangible things, or objects in digitized
or electronic form, which constitute or contain evidence relevant to the petition
of the return, to produce and permit their inspection, copying or photographing
by or on behalf of the movant.
What are the contents of the order for the production and inspection of documents and
things?

The production order issued by the court shall specify the following:
1. The person or persons authorized to make the production:
2. It shall state the date, time, place and manner of making the inspection or
production; and
3. May prescribe other conditions to protect the constitutional rights of all parties.
MOTION FOR SUMMARY JUDGMENT (RULE 35)

Summary judgment is a procedural device resorted to in order to avoid long drawn out
litigations and useless delays. Such judgment is generally based on the facts proven
summarily by affidavits, depositions, pleadings, or admissions of the parties. (Spouses
Ramon Villuga and Mercedita Villuga vs. Kelly Hardware and Construction Supply, Inc.,
Represented by Ernesto vs. Yu, Executive Vice-President and General Manager, G.R. No.
176570, July 18, 2012)

Summary judgment is a procedural device resorted to in order to avoid long drawn out
litigations and useless delays. When the pleadings to 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 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. (Manuel C.
Bungcayao, Sr. represented in this case by his Attorney-in-fact Romel R. Bungcayao vs.
Fort Ilocandia Property Holdings and Development Corp., G.R. No. 170483, April 19,
2010)

Genuine issue – meaning: Summary judgment not available if the facts are contested:
burden of proof
1. Summary judgment is a procedural device resorted to in order to avoid long
drawn out litigations and useless delays where the pleadings on file show that
there are no genuine issues of fact to be tried. A “genuine issue” is such issue of
fact which require the presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim. There can be no summary judgment where
questions of fact are in issue or where material allegations of the pleadings are in
dispute. A 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 so patently unsubstantial as not to constitute a genuine
issue for trial, and any doubt as to existence of such an issue is resolved against
the movant. (Maritime Industry Authority [Marina] vs. Marc Properties Corp,
G.R. No. 173128, February 15, 2012)
2. A genuine issue of fact is that which requires the presentation of evidence, as
distinguished from a sham, fictitious, contrived or false issue. When the facts as
pleaded appear uncontested or undisputed, then there is no real or genuine
issue. Summary judgment is proper in such a case. (Pilipino Telephone Corp vs
Radiomarine Network [Smartnet] Phil., Inc., G.R. No. 160322, August 24, 2011)

Nature and purpose of summary judgment

Summary judgment is a procedural devise 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 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. (Atty Pedro M. Ferrer vs.
Spouses Alfredo Diaz and Imelda Diaz, Reina Comandante and Spouses Bienvenido
Pangan and Elizabeth Pangan, G.R. No. 165300, April 23, 2010)

Function of the court in case of a motion for summary judgment

A summary judgment under Rule 35 of the Rules of Court is a procedural technique that
is proper only when there is no genuine issue as to the existence of a material fact and
the moving party is entitled to a judgment as a matter of law. It is a method intended to
expedite or promptly dispose of cases where the facts appear undisputed and certain
from the pleadings, depositions, admissions, and affidavits on record. Upon a motion
for summary judgment the court’s sole function is to determine whether there is an
issue of fact to be tried, and all doubts as to the existence of an issue of fact must be
resolved against the moving party. In other words, a party who moves for summary
judgment has the burden of demonstrating clearly the absence of any genuine issue of
fact, and any doubt as to the existence of a motion for summary judgment, the court
should take that view of the evidence most favorable to the party against whom it is
directed, giving that party the benefit of all favorable inferences. (Republic of the
Philippines vs. Conjuangco, et. al., G.R. No. 180702, April 12, 2011)

Requisites for summary judgment: when proper?

In this respect, the Court’s ruling in Nocom vs Camerino, is instructive, to wit:

When the pleadings on file show that there are no genuine issues of fact to be tried, the
Rules of Court 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. Sec. 3 of [Rule 35 of the Rules of Court] 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. (Spouses Ramon Villuga and Mercedita Villuga vs. Kelly Hardware and
Construction Supply, Inc., represented by Ernesto Yu, Executive Vice-President and
General Manager, G.R. No. 176570, July 18, 2012)

Limited power of the court to render summary judgment

It must be stressed that trial courts have limited authority to render summary
judgments and may do so 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. As already stated, the burden of
demonstrating clearly the absence of genuine issues of fact rests upon the movant, in
this case the respondent, and not upon petitioners who opposed the motion for
summary judgment. Any doubt as to the propriety of the rendition of a summary
judgment must thus be resolved against the respondent. But here, the partial summary
judgment was premised merely on the trial court’s hasty conclusion that respondent is
entitled to the reimbursement sought simply because petitioners failed to point out
what particular works were not done or implemented not in accordance with MARINA’s
specifications after demands were made by respondent and the filing of the complaint
in court. Precisely, a trial is conducted after the issues have been joined to enable herein
respondent to prove, first, that repair/renovation works were actually done and such
were in accordance with MARINA’s request, and second, that it actually advanced the
cost thereof by paying the contractors; and more importantly, to provide opportunity
for the petitioners to scrutinize respondent’s evidence, cross-examine its witnesses and
present rebuttal evidence. Moreover, the trial court should have been more circumspect
in ruling on the motion for summary judgment, taking into account petitioner’s concern
for judicious expenditure of public funds in settling its liabilities to respondent.
(Maritime Industry Authority [Marina] vs. Marc Properties Corp., G.R. No. 173128,
February 15, 2012)

Summary judgment for claimant (Sec. 1, Rule 35)

When can a summary judgment be filed by the claimant?

A party, 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 seeking to recover upon:
1. A claim;
2. Counterclaim;
3. Cross-claim; or
4. To obtain a declaratory relief.

Summary judgment for defending party (Sec. 2, Rule 35)

When can a summary judgment be filed for the defending party?

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory

relief is sought may, at any time, move with supporting affidavits, depositors or
admissions for a summary judgment in his favor as to all or any part thereof.

Motion and proceedings thereon (Sec. 3, Rule 35)

What are the requirements for a summary judgment?

The requirements for summary judgment are as follows, to wit:

1. The motion shall be served at least ten (10) days before the time specified for
the hearing;
2. The adverse party may serve opposing affidavits, depositions, or admissions at
least three (3) days before the hearing;
3. After the hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.

Concept of genuine issue: requisites for summary judgment

A “genuine issue” is such issue of fact which requires the presentation of evidence as
distinguished from a sham, fictitious, contrived or false claim. Sec. 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. (Manuel C. Bungcayao, Sr., represented in this case by his
Attorney-in-fact Romel R. Bungcayao vs. Fort Ilocandia Property Holdings and
Development Corp., G.R. No. 170483, April 19, 2010

Requirements for a summary judgment

 1. A summary judgment is granted to settle expeditiously a case if, on motion of
either party, there appears from the pleadings, depositions admissions, and
affidavits that no important issues of fact are involved, except the amount of
damages. The RTC judgment in this case fully determined the rights and
obligations of the parties relative to the case for quieting of title and left no other
issue unresolved, except the amount of damages. Hence, it is a final judgment.
(Manuel Ybiernas vs. Ester Tanco-Gabaldon, G.R. No. 178925, June 1, 2011)
2. A summary judgment is allowed only if, after hearing, the court finds that except
as to the amount of damages, the pleadings, affidavits, depositions and
admissions show no genuine issue as to any material fact and that the movant is
entitled to a judgment as a matter of law. The purpose of a summary judgment is
to avoid drawn out litigations and useless delays because the facts appear
undisputed to the mind of the court. Such judgment is generally based on the
facts proven summarily by affidavits, depositions, pleadings, or admissions of
the parties. For a full-blown trial to be dispensed with, the party who moves for
summary judgment has the burden of demonstrating clearly the absence of
genuine issues of fact, or that the issue posed is patently insubstantial as to
constitute a genuine issue. “Genuine issue” means an issue of fact which calls for
the presentation of evidence as distinguished from an issue which is fictitious or
contrived … As certain facts pleaded were being contested by the opposing
parties, such would not warrant a rendition of summary judgment. (Atty.
Mangontawar M. Gubat vs National Power Corporation, G.R. No. 167415,
February 26, 2010)
3. Summary judgment is a procedural device resorted to in order to avoid long
drawn out litigations and useless delays. Such judgment is generally based on
the facts proven summarily by affidavits, depositions, pleadings, or admissions
of the parties

In this respect, the Court’s ruling in Nocom vs. Camerino, is instructive, to wit:

x x x When the pleadings on file show that there are no genuine issues of fact to
be tried, the Rules of Court 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. Sec. 3 of [Rule 35 of the Rules of Court]
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
nay 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 (Spouses Ramon Villuga and Mercedita Villuga vs Kelly
Hardware and Construction Supply, Inc. Represented by Ernesto Yu, Executive Vice-
President and General Manager, G.R. No. 176570, July 18, 2012)

Even the pleading raised an issue but the affidavits shows that it has no genuine issue
summary judgment is available: factors to determine

Under the Rules of Court, a summary judgment may be rendered where, on motion of a
party and after hearing, the pleadings, supporting affidavits, depositions and
admissions on file show that, “except as to the amount of damages, there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. The Court explained the concept of summary judgment in Asian
Construction and Development Corporation vs Philippine Commercial International
Bank:

“Summary or accelerated judgment is a procedural technique aimed at weeding out

sham claims or defenses at an early stage of litigation thereby avoiding the expense and
loss of time involved in a trial. Under the Rules, summary judgment is appropriate when
there are no genuine issues of fact which call for the presentation of evidence in a full-
blown trial. Even if on their face the pleadings appear to raise issues, when the
affidavits, depositions and admissions show that such issues are not genuine, then
summary judgment as prescribed by the Rules must ensue as a matter of law. The
determinative factor, therefore, in a motion for summary judgment, is the presence or
absence of a genuine issue as to any material fact. (The Heirs of Nicolas S. Cabigas vs
Melba L. Limbaco, G.R. No. 175291, July 27, 2011)

Cases not fully adjudicated on motion (Sec. 4, Rule 35)

What are the courses of action of the court if the judgment cannot be rendered on the
whole case?

If on motion under this Rule, judgment is not rendered upon the whole case or for all
the reliefs sought and a trial is necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by interrogating counsel shall:
1. Ascertain what material facts exist without substantial controversy and what are
actually and in good faith controverted;
2. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or
other relief is not in controversy; and
3. Directing such further proceedings in the action as are just;
4. The facts so specified shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly.

Separate and Summary judgments

In any case, the Sandiganbayan rightly characterized their ruling on the 2004 Motion as
a separate judgment, which is allowed by the Rules of Court under Sec. 5 of Rule 36:

Separate judgments – When more than one claim for relief is presented in an action, the
court, at any stage, upon a determination of the issues material to a particular claim and
all counterclaims arising out of the transaction or occurrence which is the subject
matter of the claim, may render a separate judgment disposing of such claim. The
judgment shall terminate the action with respect to the claim so disposed of and the
action shall proceed as to the remaining claims. In case a separate judgment is
rendered, the court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose favor the judgment is
rendered.

Rule 35 on summary judgments, admits of a situation in which a case is not fully

adjudicated on motion, and judgment is not rendered upon all of the reliefs sought. In
Philippine Business Bank vs. Chua, we had occasion to rule that careful reading reading
of its Section4 reveals that a partial summary judgment was never intended to be
considered a “final judgment”, as it does not “[put] an end to an action at law by
declaring that the plaintiff either has or has not entitled himself to recover the remedy
he sues for.” In this case, there was never any final or complete adjudication of Civil
Case No. 0141, as the Sandiganbayan’s partial summary judgment in the Swiss Deposits
Decision made no mention of the Arelma account.
Sec. 4, Rule 35 pertains to a situation in which separate judgments were necessary
because some facts existed without controversy, while others were controverted.
However, there is nothing in this provision or in the Rules that prohibits a subsequent
separate judgment after a partial summary judgment on an entirely different subject
matter had earlier been rendered. There is no legal basis for petitioner’s contention that
a judgment over the Swiss accounts bars a motion for summary judgment over the
Arelma account. (Imelda Romualdez-Marcos vs Republic of the Philippines, G.R. No.
189505, April 25, 2012)

Forms of affidavit and supporting papers (Sec. 5, Rule 35)

What are the requirements for the filing of affidavits and supporting papers.
1. Personal knowledge;
2. It shall set forth such facts as would be admissible in evidence; and
3. It shall show affirmatively that the affiant is competent to testify to the matters
therein;
4. Certified true copies of all papers or parts thereof referred to in the affidavit
shall be attached thereto or served therewith.

Affidavit in bad faith (Sec. 6, Rule 35)

What is the effect of filing of affidavit in bad faith or for delay?

Should it appear to its satisfaction at any time that any of the affidavits presented
pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the
court may fortwith order the following, to wit:
1. Order the offending party or counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur,
including attorney’s fees;
2. It may, after hearing, further adjudge the offending party or counsel guilty of
contempt.

MOTION FOR SUMMARY JUDGMENT (RULE 35)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION FOR SUMMARY JUDGMENT

COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most avers:
 1. That upon the complaint, answer, Partial Compromise Agreement by defendants
and plaintiff assisted by their respective counsel, recognizing among others that
plaintiff is entitled to the one-third (1/3) portion of the subject lot as part of his
legitime over the estate of their deceased mother, Trinidad A. Reyes and as
indicated in the location Sketch prepared by the defendants and submitted
before this Honorable Court, there is no more genuine issue as to any material
fact of the case;
2. That with respect to the rentals collected by the defendants, it was also agreed
by the parties during the Pre-Trial Conference of the case, that the computation
shall be made from May 26, 1998 up to December 31, 2001 in order to simplify
the computation and the proceedings, and in which case being compulsory heir
of Trinidad A. Reyes, plaintiff is entitled to the one-third (1/3) portion of the
collected rentals of the defendants;
3. That plaintiff entitled to a judgment as a matter of law. This is but consonance
with Sections 1 and 3, Rule 35 of the 1997 Rules of Civil Procedure, and the
following rulings of the Honorable Court, to wit:

(Cite the rulings of the Supreme Court)

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that a summary judgment be rendered in the present case.

Other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Manila, November 12, 2012.

Counsel for the Plaintiff

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion for Summary Judgment was served to defendants by

registered mail due to time and distance constraints, and for lack of the undersigned’s
staff who can serve the same in person.

HECTOR A. YULO
PART III MODES OF SERVICE OF PLEADINGS , MOTIONS, JUDGMENT ORDERS AND
RESOLUTIONS (RULE 14)
CHAPTER IX

DEFENSES AND OBJECTION (RULE 9)

What is the effect in case of failure to raise the defenses or objections? (Sec. 1, Rule 9)

Deemed waived.

What are the defenses and objections not deemed waived even if not raised?

However, when it appears from the pleadings or the evidence on record the court shall
dismiss the case based on the following:
1. The court has no jurisdiction over the subject matter;
2. That there is another action pending between the same parties for the same
cause; or
3. That the action is barred by a prior judgment; or
4. That the action is barred by statute of limitations.

Compulsory counterclaim or cross-claim not set up barred. (Sec. 2, Rule 9)

ORDER OF DEFAULT (Sec. 3, Rule 9)

Basic concepts in order and judgment by default

What is an order of default?

A default order is issued by the court, on plaintiff’s motion and at the start of the
proceedings, for failure of the defendant to file his responsive pleading seasonably.

What is a judgment by default?

A judgment by default – is a judgment rendered by the court based on the presentation

of the plaintiff’s evidence ex-parte after the defendant has been declared in default, and
the award shall not exceed the amount or be different from the kind of prayer that the
plaintiff complained as the facts and evidence so warrant.

Declaration of default (Sec. 3, Rule 9)

When can the defendant be declared in default?

If the defending party fails to answer within the time allowed therefor, the court shall
declare him in default subject to the following requirements:
1. Upon motion of the claiming party;
2. With notice to the defending party; and
3. Proof of such failure, declare the defending party in default.

What are courses of action of the court on the motion?

The court upon motion of the plaintiff to declare the defendant in default shall:
1. Proceed to render judgment granting the claimant and such relief as his pleading
may warrant;
2. Unless the court in its discretion requires the claimant to submit evidence;
3. Such reception of evidence may be delegated to the clerk of court.

What are the effects of declaration of default?

A party declared in default shall be:
1. Entitled to notice of subsequent proceedings;
2. He cannot take part in the trial;
3. He can be a witness in the case;
4. He is entitled to receive judgment, order or resolution and substantially
amended pleading.

Effects of declaration of default

The petitioner’s default by their failure to file their answer led to certain consequences.
Where defendants before a trial court are declared in default, they thereby lose their
right to object to the reception of the plaintiff’s evidence establishing his cause of action.
This is akin to a failure to, despite due notice, attend in court hearings for the
presentation of the complainant’s evidence, which absence would amount to the waiver
of such defendant’s right to object to the evidence presented during such hearing, and
to cross-examine the witnesses presented therein. (Magdiwang Realty Corp, Renato P.
Dragon and Esperanza Tolentino vs. The Manila Banking Corp, Substituted by First
Sovereign Asset Management [SPV-AMC], Inc., G.R. No. 195592, September 5, 2012)

What is the remedy in case of declaration of default?

A party declared in default may at any time after notice thereof and before judgment
may file:
1. A motion under oath to set aside the order of default;
2. Upon proper showing that his failure to answer was due to fraud, accident,
mistake or excusable negligence;
3. That he has a meritorious defense; and
4. In such case, the order of default may be set aside on such terms and conditions
as the judge may impose in the interest of justice.

Remedy in case of denial of Motion to Lift Order of Default

It is a settled rule that in case of denial of the motion to lift order of default, the
defendant-movant may file a motion for reconsideration of the order of the denial of the
motion to lift order of default. In case of denial of the motion for reconsideration, then
petition for certiorari under Rule 65 is available on the ground of grave abuse of
discretion amounting lack or in excess of jurisdiction since the order is interlocutory in
character.

Liberality of the rules applied in setting aside of order of default to give chance to the
parties to litigate

Liberality is the rule in considering a motion for reconsideration. (Del Rosario vs.
Hamoy, 151 SCRA 719, 722, June 30, 1987; Tejero vs Rosete, 137 SCRA 69, 74-75, June
19, 1985; Flores vs Buencamino, 74 SCRA 332, 335-337, December 17, 1976) It is best
for the trial court to give both the plaintiff and the defendant a chance to litigate their
causes fairly and openly, without resort to technicality. (Zenith Insurance Corp vs. Judge
Purisima, 199 Phil 291, 294, May 31, 1982; Pineda vs. CA, 67 Phil 228, 234-235,
September 30, 1975) Unless the reopening of the case is clearly intended for delay,
courts should be liberal in setting aside orders barring defendants from presenting
evidence. Judgments based on an ex parte presentation of evidence are generally
frowned upon. (Zenith Insurance Corp vs. Judge Purisima, 199 Phil 291, 294, May 31,
1982; Sarmiento vs. Juan, 205 Phil 335, 341, January 28, 1983; Pineda vs. CA, 67 Phil
228, 234-235, September 30, 1975)

Certiorari is available in cases of declaration of default

Petition for certiorari is allowed when the default is improperly declared, or when it is
properly declared where grave abuse of discretion attended such declaration. (Pacita
vs. Cariaga, Jr., 231 SCRA 321)

Certiorari has been held as the proper remedy to question default order and judgment.
(Lina vs. Court of Appeals, 153 SCRA 637)

What are the effects of partial default?

When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall:
1. Try the case against all upon the answers thus filed; and
2. Render judgment upon the evidence presented.

What is the extent of relief that may be awarded?

A judgment rendered against a party in default shall:

1. Not exceed the amount; or
2. Be different in kind from that prayed for;
3. Nor award liquidated damages.

Judgment by default frowned upon

Judgment by default, not looked upon with favor, to prevent a positive and considerable
injustice to the defendant and considering that petitioner’s answer appears to have a
meritorious defense. (Continental Leaf Tobacco [Phil.], Inc. vs. IAC, 140 SCRA 269)

Certiorari available in case of judgment by default

1. If a default judgment was already rendered, he can also resort immediately to

certiorari as his challenge is on the nullity of both the order and the judgment by
default and not on the merits or correctness of the judgment. (Matute vs. CA, L-
26751, Jan. 3, 1969), especially where a writ of execution was already issued,
hence appeal would not be a speedy and adequate remedy. (Omico Mining & Ind.
Corp. vs. Vallejos, et. al., L-38974, March 25, 1975; Zenith Ins. Corp. vs. Purisima,
et. al., G.R. No. 57535, May 24, 1982)
2. It has also been held that while, as a general rule, certiorari may not be availed of
where an appeal is available and an appeal lies from a judgment by default,
nevertheless if there was grave abuse of discretion on the part of the trial court,
the party as this is an exception to said general rule. Certiorari would provide a
more speedy and adequate remedy since the aggrieved party in a default
judgment had no opportunity to adduce evidence in the courts, hence on appeal
only the self-serving evidence presented by the plaintiff in the ex parte reception
thereof would be considered. (Continenta Leaf Tobacco [Phil.], Inc. vs. CA, et. al.,
G.R. No. 69243, November 22, 1985)
3. Certiorari has been held as the proper remedy to question default order and
judgment. (Lina vs Court of Appeals, 153 SCRA 637)
4. Certiorari is often resorted to in order to correct errors of jurisdiction. (Sempio
vs. CA, G.R. No. 115953, October 28, 1996)
5. Where, however, the defendant was improperly declared in default, as where the
reglementary period to answer had not yet expired, he can if such default order
is not lifted, elevate the matter by certiorari without waiting for the default
judgment. (Viacrusis vs. Estenzo, L-18457, June 30, 1962; Pioneer Ins. & Surety
Corp. vs. Hontanosas, L-35951, August 31, 1977)
 6. Judgment by default is not looked upon with favor for they were made without
contest from the defendant. (Yellow Bell Freight Lines, Inc. vs. Bell Fast Surety
and Insurance Company, Inc., 119 SCRA 106)
7. Well settled is the principle that judgment by default are not looked upon with
favor to prevent a positive and considerable injustice to the defendant. (Republic
vs. CA, 173 SCRA 59)
8. Certiorari is the appropriate remedy against judgment or proceedings alleged to
have been rendered or had without valid service of summons. (Santiago Syjuco,
Inc. vs. Castro, 175 SCRA 171)
9. Certiorari may be availed of where an appeal would be slow, inadequate,
insufficient will not promptly relieve upon its face or the nullity of the judgment
is apparent from its recitals. (People vs. Pareja, 189 SCRA 143)
10. Manifestly, the firm was denied due process. The judgment by default was
rendered against it by reason of Villanueva’s negligence, if not collateral fraud,
which resulted in a depreciation of its substantial right to a hearing. (First
Integrated Bonding & Ins. Co. vs. Dizon, 125 SCRA 440)
11. When the lack of jurisdiction is patent from the face of the judgment or from the
judicial records, he may avail of the special civil action of certiorari under the
Rule 65. (Balangcad vs. Justice of the Court of Appeals, G.R. No. 84888, February
12, 1992)

What are the cases where there is no default?

In the following instances there will be no declaration of default even there is no

answer filed:
1. In an action for annulment of marriage; or
2. Declaration of nullity of marriage; or
3. Action for legal separation.

What are the actions of the court in case of failure to file answer in the above cases?

In case the defending party fails to answer, the court shall:

1. Order the prosecuting attorney to investigate whether or not a collusion
between the parties exists; and
2. If there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated.

Acts of counsel: conclusive upon the client

TA cannot escape these legal technicalities by simply invoking the negligence of its
counsel. This practice, if allowed, would defeat the purpose of the Rules on periods
since every party would merely lay the blame on its counsel to avoid any liability. The
rule is that a client is bound by the acts, even mistakes, of his counsel in the realm of
procedural technique, and unless such acts involve gross negligence that the claiming
party can prove, the acts of the counsel bind the client as if it had been the latter’s acts.
(Philippine Tourism Authority vs. Philippine Golf Development & Equipment, Inc., G.R.
No. 176628, March 19, 2012)

Acts of counsel: conclusive upon the client; exception: gross negligence

In LBC Express-Metro Manila, Inc. vs. Mateo, the Court held that “gross negligence by
want of even slight care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally with a conscious indifference to
consequences insofar as other persons may be affected.” This cannot be invoked in
cases where the counsel is merely negligent in submitting his required pleadings within
the period that the rules mandate. (Philippine Tourism Authority vs. Philippine Golf
Development & Equipment, Inc., G.R. No. 176628, March 19, 2012)

Extrinsic Fraud, meaning

Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which
is committed outside of the trial of the case, whereby the unsuccessful party has been
prevented from exhibiting fully his case, by fraud or deception practiced on him by his
opponent.

The records reveal that the judgment of default was sent via registered mail to PTA’s
counsel. However, PTA never availed of the remedy of a motion to lift the order of
default. Since the failure of PTA to present evidence was not a product of any fraudulent
acts committed outside trial, the RTC did not err in declaring PTA in default. (Philippine
Tourism Authority vs. Philippine Golf Development & Equipment, Inc., G.R. No. 176628,
March 19, 2012)

Reason for limiting the extent of award against a party in default

Notably, the Rules is even more strict in safeguarding the right to due process of a
defendant who was declared in default than of a defendant who participated in trial. For
instance, amendment to conform to the evidence presented during trial is allowed the
parties under the Rules. But the same is not feasible when the defendant is declared in
default because Sec. 3(d), Rule 9 of the Rules of Court comes into play and limits the
relief that may be granted by the courts to what has been prayed for in the Complaint.

(d) Extent of relief to be awarded – A judgment rendered against a party in default shall
not exceed the amount or be different in kind from that prayed for nor award
unliquidated damages.

The raison d’eftre in limiting the extent of relief that may be granted is that it cannot be
presumed that the defendant would not file an Answer and allow himself to be declared
in default had he known that the plaintiff will be accorded a relief greater than or
different in kind from that sought in the Complaint. No doubt, the reason behind Sec
3(d), Rule 9 of the Rules of Court is to safeguard defendant’s right to due process
against unforeseen and arbitrarily issued judgment. This, to the mind of this Court, is
akin to the very essence of due process. It embodies “the sporting idea of fair play” and
forbids the grant of relief on matters where the defendant was not given the
opportunity to be heard thereon. (Leticia Diona, represented by her Attorney-in-Fact,
Marcelina Diona vs. Romeo A. Balangue, Sonny Balangue, Reynaldo Balangue, and
Esteban A. Balangue, Jr., G.R. No. 173559, January 7, 2013)

Annulment of Judgment (Rule 47); not a remedy for Default

PTA’s appropriate remedy was only to appeal the RTC decision. “Annulment of
Judgment under Rule 47 of the Rules of Court is the recourse equitable in character and
allowed only in exceptional cases where the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available through no
fault of petitioner.

In this case, appeal was an available remedy. There was also no extraordinary reason
for a petition for annulment of judgment, nor was there any adequate explanation on
why the remedy for new trial or petition for relief could not be used. The Court is
actually at a loss why PTA had withdrawn a properly filed appeal and substituted it
with another petition, when PTA could have merely raised the same issues through an
ordinary appeal. (Philippine Tourism Authority vs. Philippine Golf Development &
Equipment, Inc., G.R. No. 176628, March 19, 2012)

Instances where order of default may be issued

An order of default may be issued by the court in case of failure of the defendant to file
an answer in the following instances:
1. Original complaint;
2. Permissive counter-claim;
3. Cross-claim;
4. Third/Fourth party complaint;
5. Complaint in intervention (Sec. 4, Rule 19)
6. Interrogatories to parties (Sec. 5, Rule 29); and
7. Complaint for interpleader (Sec. 5, Rule 62)

Default in complaint-in-intervention

Lim points out that an answer-in-intervention cannot give rise to default since the filing
of such an answer is only permissive. But Sec. 4, Rule 19 of the 1997 Rules of Civil
Procedure requires the original parties to file an answer to the complaint-in-
intervention within 15 days from notice of the order admitting the same, unless a
different period is fixed by the court. This changes the procedure under the former rule
where such an answer was regarded as optional. Thus, Lim’s failure to file the required
answer can give rise to default. (Natividad Lim vs. National Power Corp., Sps. Roberto
Ll. Arcinue and Arabela Arcinue, G.R. No. 178789, November 14, 2012)

Declaration of default in interpleader (Sec. 5, Rule 62)

What are the pleadings which may be filed by the claimants?

Each claimant who are parties in an action for interpleader shall file:
1. His answer setting forth his claim within fifteen (15) days from service of
summons upon him, serving a copy thereof upon each other conflicting
claimants;
2. Claimants served with an answer may file their reply thereto as provided by
these Rules.

What is the effect of failure to file an answer within the time allowed?

If any claimant fails to plead within the time herein fixed, the court may, on motion:
1. Declare him in default; and
2. Render judgment barring him from any claim in respect to the subject matter.

Failure to serve answers to interrogatories under Rule 25 (Sec. 5, Rule 29)

What are the effects in case of failure to serve answer to interrogatories?

If a party or an officer or managing agent of a party willfully fails to appear before the
officer who is to take his deposition, after being served with a proper notice, or fails to
serve answers to interrogatories submitted under Rule 25, after proper service of such
interrogatories, the court on motion and notice:
1. May strike out all or any part of the pleading of that party; or
2. Dismiss the action or proceeding or any part thereof;
3. Enter a judgment by default against that party; or
4. In its discretion, order him to pay reasonable expenses incurred by the other,
including attorney’s fees.
Application to compel answer should be applied first before judgment by default can be
availed of for failure to file answer to interrogatories

The CA rightly held that the court a quo erred in rendering judgment by default against
the defendants for refusal or failure to answer to written interrogatories, without first
requiring an application by the proponent to compel an answer. This is the requisite
procedure under Sec. 1 of Rule 29 of the 1997 Rules of Civil Procedure. (Jaravata vs.
Karobus, G.R. No. 154988, June 21, 2007)

Default discretionary with the court: May allow filing of the answer

It is within the sound discretion of the trial court to permit the defendant to file his
answer and to be heard on the merits after the reglementary period for filing the
answer expires. The Rules of Court provides for discretion on the part of the trial court
not only to extend the time for filing an answer but also to allow an answer to be filed
after the reglementary period. It is not correct to say that a trial court has no recourse
but to declare a defending party in default when he fails to file an answer within the
required period. In fact, the rule is that the answer should be admitted where it is filed
before a defending party is declared in default and no prejudice is caused to the other
party and that there is no showing that the defendant intends to delay the case. (Sablas
vs. Sablas, G.R. No. 144568, July 3, 2007). The hornbook rule is that default judgments
are generally disfavored. (Paramount Insurance Corp., G.R. No. 175109, August 6, 2008)

Non-applicability of Default Order in Summary Proceedings (Sec. 19[h])

Motion to declare defendant in default a prohibited motion under the Rules on Small
Claims cases (Sec. 14[h])

Effect of failure to file an answer in unlawful detainer and forcible entry (Sec. 7, Rule
70)

What are the courses of actions of the court in case of failure to file an answer?

Should the defendant fails to answer the complaint within the period above provided,
the court:
1. Motu propio or on motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is prayed for
therein;
2. The court may in its discretion reduce the amount of damages and attorney’s
fees claimed for being excessive or otherwise unconscionable, without prejudice
to the applicability of Sec. 3(c), Rule 9 if there are two or more defendants.

Motion to declare defendant in default a prohibited motion in environmental cases (Sec.

2(d), Rule 2, Part II of A.M. 09-6-08-SC

Flowchart

Order of declaration of default

Next

Motion to lift order of default Sec. 3(b), Rule 9 and/or filing of answer

Next
Motion for Reconsideration within fifteen (15) days from notice of denial of the motion
to lift order of default

Next

Petition for certiorari under Rule 65 within sixty (60) days from notice of the order of
default or from notice of the denial of motion for reconsideration

Next

Motion for reconsideration within fifteen (15) days

Next

Appeal by notice of appeal under Rule 41/Petition for Review on Certiorari under Rule
45

MOTION TO DECLARE DEFENDANT IN DEFAULT (SEC. 3, RULE 9)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION TO DECLARE DEFENDANT IN DEFAULT

COMES NOW plaintiff, by counsel and unto this Honorable Court, most avers:

1. That the summons in the above-entitled case was duly served on January 15,
2012 to the defendant;

2. That notwithstanding the lapse of more than fifteen (15) days, defendant failed
to file his answer or responsive pleadings.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the defendant be declared in default, and the plaintiff be allowed
to present his evidence ex-parte.

Such other relief as may be deemed just and equitable under the premises are
likewise prayed for.

Manila, November 12, 2012.

Counsel for the Plaintiff

 NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

MOTION TO LIFT ORDER OF DEFAULT (SEC. 3, RULE 9)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION TO LIFT ORDER OF DEFAULT

COMES NOW plaintiff, by counsel and unto this Honorable Court, most avers:

1. That the defendant received a copy of the Summons relative to the above-
entitled case;

2. That on February ___, 2012, plaintiff went to the house of the defendant and
informed him that he will no longer continue with the prosecution of the case,
and told him to just ignore the complaint he received, and not attend any hearing
of the said case;
 3. That through the representation of the plaintiff, defendant did not file any
answer anymore, and just ignored the notices he received, only to be surprised
that he was declared in default upon receipt of the Order of court.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the Order of Default be set aside/lifted based on the above
reasons.

Such other relief as may be deemed just and equitable under the premises are
likewise prayed for.

Manila, November 12, 2012.

Counsel for the Plaintiff

VERIFICATION

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

I, MR. Y, legal age, Filipino citizen, married, and resident of #1136-A A. Maceda
Street, Sampaloc, Manila, after having been duly sworn to in accordance with law do
hereby depose and say:

1. That I am the defendant in the above-entitled case;

2. That I have caused the preparation of the foregoing Motion to Lift Order of
Default and have read the allegations complained therein;

3. The allegations in the said complaint are true and correct of my own knowledge
and authentic records;

4. I hereby certify that I have not commenced any other action or proceeding
involving the same issues in the Supreme Court, Court of Appeals, or any tribunal
or agency;

5. That if I should thereafter learned that a similar action or proceedings has been
filed or is pending before the Supreme Court, Court of Appeals, or any other
tribunal agency, I hereby undertake to report that fact within fifteen (15) days
therefrom to the court or agency wherein the original pleading and sworn
certification contemplated herein have been filed;

6. I executed this verification/certification to attest to the truth of the foregoing

facts and to comply with the provisions of Adm. Circular No. 04-94 of the
Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ______ day of

February 2012, in the City of Manila.

Affiant
 SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the
City of Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

AFFIDAVIT OF MERIT

REPUBLIC OF THE PHILIPPINES )

IN THE CITY OF MANILA ) S.S.

I, MR. Y, of legal age, Filipino citizen, married, and resident of #41 A. Maceda
Street, Sampaloc, Manila, after having duly sworn to in accordance with law do hereby
depose and say:

1. That I am the defendant in the above-entitled case;

2. That on February ____, 2005, I received a copy of the Summons relative to the
above-entitled case;

3. That on February ____, 2005, plaintiff went to our house and informed me that he
will no longer continue with the prosecution of the case, and just ignore the
complaint I will receive, and not attend any hearing of the said case;
 4. That through the representation of the plaintiff, I did not file any answer
anymore, and just ignored the notices I received, only to be surprised that I was
declared in default upon receipt of the Order of the Court;

5. That said plaintiff is guilty of fraud and prevented me from defending myself in
the above case, and to submit the appropriate pleadings and evidence;

6. That I have executing this affidavit to attest to the truth of the foregoing
statements, and for whatever legal purposes it may serve.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of

February 2012, in the City of Manila

Affiant

SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the City of
Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

MOTION TO SET ASIDE JUDGMENT BY DEFAULT (SEC. 3, RULE 9)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION TO ASIDE JUDGMENT BY DEFAULT

COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most avers:

1. That the defendant received a copy of the copy of the Judgment by Default
relative to the above-entitled case;

2. That the said judgment by default was obtained by the plaintiff through FRAUD,
since the true facts of the case was that on February ____, 2005, plaintiff went to
the house of the defendant and informed him that he will no longer continue
with the prosecution of the case, and just ignore the complaint he received, and
not attend any hearing of the said case;
 3. That through the representation of the plaintiff, defendant did not file any
answer anymore, and just ignored the notices he received, only to be surprised
that he was declared in default upon receipt of the Order of the Court, and
subsequently received a Judgment by Default.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the Judgment by Default be set aside and reconsidered, and to re-
open the case, and to allow the defendant to present his evidence based on the above
reasons.

Such other relief as may be deemed just and equitable under the premises are
likewise prayed for.

Manila, November 12, 2012.

Counsel for the Plaintiff

VERIFICATION

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

I, MR. Y, legal age, Filipino citizen, married, and resident of #1136-A A. Maceda
Street, Sampaloc, Manila, after having been duly sworn to in accordance with law do
hereby depose and say:

7. That I am the defendant in the above-entitled case;

8. That I have caused the preparation of the foregoing Motion to Lift Order of
Default and have read the allegations complained therein;

9. The allegations in the said complaint are true and correct of my own knowledge
and authentic records;

10. I hereby certify that I have not commenced any other action or proceeding
involving the same issues in the Supreme Court, Court of Appeals, or any tribunal
or agency;

11. That if I should thereafter learned that a similar action or proceedings has been
filed or is pending before the Supreme Court, Court of Appeals, or any other
tribunal agency, I hereby undertake to report that fact within fifteen (15) days
therefrom to the court or agency wherein the original pleading and sworn
certification contemplated herein have been filed;

12. I executed this verification/certification to attest to the truth of the foregoing

facts and to comply with the provisions of Adm. Circular No. 04-94 of the
Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ______ day of

February 2012, in the City of Manila.

Affiant
 SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the
City of Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

AFFIDAVIT OF MERIT

REPUBLIC OF THE PHILIPPINES )

IN THE CITY OF MANILA ) S.S.

I, MR. Y, of legal age, Filipino citizen, married, and resident of #41 A. Maceda
Street, Sampaloc, Manila, after having duly sworn to in accordance with law do hereby
depose and say:

7. That I am the defendant in the above-entitled case;

8. That on February ____, 2005, I received a copy of the Summons relative to the
above-entitled case;

9. That on February ____, 2005, plaintiff went to our house and informed me that he
will no longer continue with the prosecution of the case, and just ignore the
complaint I will receive, and not attend any hearing of the said case;
 10. That through the representation of the plaintiff, I did not file any answer
anymore, and just ignored the notices I received, only to be surprised that I was
declared in default upon receipt of the Order of the Court;

11. That said plaintiff is guilty of fraud and prevented me from defending myself in
the above case, and to submit the appropriate pleadings and evidence;

12. That I have executing this affidavit to attest to the truth of the foregoing
statements, and for whatever legal purposes it may serve.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of

February 2012, in the City of Manila

Affiant

SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the City of
Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

PETITION FOR CERTIORARI (RULE 65)

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

MR. X,
Petitioner,

- versus- C.A. SP. G.R. NO. ______________________________

For: Petition for Certiorari (Civil Case No.
______) with prayer for the Issuance of
Temporary Restraining Order and/or
Preliminary Injunction.

HON. PRESIDING JUDGE R.

MR. X
Respondents.

x-----------------------------x

PETITION FOR CERTIORARI

COMES NOW, petitioner, through the undersigned counsel and unto this
Honorable Court, most respectfully states:

I. NATURE OF THE PETITION

1.1 This is a Petition for Certiorari with Prayer for the Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction under Sections 1&
 7, Rule 65 of the 1997 Rules of Civil Procedure seeking to set aside the Order
of Default promulgated on February 1, 2011, received on February 12,
2011, by petitioner, as well as the Resolution promulgated on April 18,
2012, and received by petitioner April 31, 2012, denying petitioner’s
Motion for Reconsideration. Copy of the questioned Order and Resolution
are hereto attached as Annexes “A” and “B” respectively;

Petitioner have until June 30, 2012, within which to file the instant petition
in accordance with the Rules and corresponding docket fees have been
already been paid.

1.2 fdsf
II. THE PARTIES
III. TIMELINES OF THE PETITION
IV. STATEMENT OF FACTS AND OF THE CASE
V. GROUNDS FOR THE ALLOWANCE OF THE PETITION (Cite the ground under
Rule 65 in relation to the Order of Default)
VI. ARGUMENTS AND DISCUSSIONS
VII. ALLEGATION IN SUPPORT OF THE PRAYER FOR THE ISSUANCE OF
TEMPORARY RESTRAINING ORDER AND/OR WRIT OF PRELIMINARY
INJUNCTION
VIII. PRAYER

WHEREFORE, the premises considered, it is most respectfully prayed of this Honorable

Court that the instant petition be given due course and pending resolution of this case,
and upon such bond as this Honorable Court may fix and approve, a restraining order
and/or writ of preliminary injunction be immediately issued restraining or prohibiting
the public respondent Judge from enforcing the questioned Order of Default dated
______, 2012, and from conducting further proceedings therein. Upon determination of
the merit of the case a writ of certiorari be issued by the Honorable Court.

a) Annulling and setting aside the questioned Decision dated ________ issued by the
public respondent Judge in Civil Case No. ___________

Such other relief as maybe deemed just and equitable under the premises considered.

Manila, Metro Manila, 4 March 2012

Counsel

CC:
Counsel

VERIFICATION/CERTIFICATION

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

I, MR. Y, legal age, Filipino citizen, married, and resident of #1136-A A. Maceda
Street, Sampaloc, Manila, after having been duly sworn to in accordance with law do
hereby depose and say:

1. That I am the petitioner in the above-entitled case;

 2. That I have caused the preparation of the foregoing Petition for Certiorari and
have read the allegations complained therein;

3. The allegations in the said complaint are true and correct of my own knowledge
and authentic records;

4. I hereby certify that I have not commenced any other action or proceeding
involving the same issues in the Supreme Court, Court of Appeals, or any tribunal
or agency;

5. That if I should thereafter learned that a similar action or proceedings has been
filed or is pending before the Supreme Court, Court of Appeals, or any other
tribunal agency, I hereby undertake to report that fact within five (5) days
therefrom to the court or agency wherein the original pleading and sworn
certification contemplated herein have been filed;

6. I executed this verification/certification to attest to the truth of the foregoing

facts and to comply with the provisions of Adm. Circular No. 04-94 of the
Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ______ day of

February 2012, in the City of Manila.

Affiant

SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the City of
Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

EXPLANATION OF SERVICE

Copy of the Petition for Certiorari was not served personally to

respondent/counsel for respondents and service by registered mail was resorted to due
to distance, and lack of the undersigned’s office personnel thereby rendering personal
service thereof inconvenient and impracticable.

HECTOR A. YULO

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

AFFIDAVIT OF SERVICE

I, MR. S., of legal age, Filipino citizen, and with office address at Room 306 Puzon
Bldg., E. Rodriguez Ave., Quezon City, after having been duly sworn to in accordance
with law do hereby depose and say that:

That I am the Liaison Officer of Yulo and Associates Law Office, counsel for the
petitioner;
 I have today served by registered mail with return card to:

HON. PRESIDING JUDGE R. REGISTRY RECEIPT NO. ___________

REGIONAL TRIAL COURT DATE: ___________________
BRANCH ____________ PLACE: ______________
Pasig City

REGISTRY RECEIPT NO. ___________

Counsel for the Plaintiff DATE: ___________________
Address PLACE: __________________

Copy of the Petition for Certiorari was served to the above-named parties as
evidenced by the Registry Receipt indicated opposite his name copy of which is
attached in the original copy of said pleading.

I am executing this Affidavit of Service to attest to the truth of the foregoing facts
and for any legal purposes it may serve.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ______ day of

March 2012, in the City of Manila.

Affiant

SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the City of
Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012
CHAPTER XXVI

REMEDIES BEFORE FINALITY OF JUDGMENT (RULES 37, 40, 41, 42, 43, 45, 52, 53)

The remedies available to the party after the judgment has been already rendered but
before its finality, are as follows, to wit:
1. Motion for new trial (Rules 37 and 53);
2. Motion for Reconsideration (Rules 37 and 52);
3. Appeal (Rules 40, 41, 42, 43 and 45)

MOTION FOR NEW TRIAL AND RECONSIDERATION (RULE 37)

What is a motion for new trial?

It is a complete retrial of the case after the judgment has been rendered based on the
grounds specified under Sec. 1 of Rule 37.

It is an application for a relief requesting that the judge set aside the judgment and
order a new trial on the basis that the trial was improper or unfair due to specified
prejudicial errors that occurred.

Constitutional mandate in making a ruling on a motion for reconsideration (Sec. 14, Art
VIII of the 1987 Constitution)

“No court shall render a decision without stating clearly and distinctly the facts and law
on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the legal basis therefor.”

Purpose of motion for reconsideration

The purpose of a motion for reconsideration is to point out the findings and conclusions
of the decision which, in the movant’s view, are not supported by law or evidence. The
movant is therefore, confined to the amplification or further discussion of the same
issues already passed upon by the court. (Sy v.s Court of Appeals, G.R. No. L-39778,
September 13, 1985, 138 SCRA 543)

Right of the defendant to file motion for new trial or reconsideration

The plaintiff or plaintiffs may not deprive the defendants or co-plaintiffs and neither
may the defendant or defendants deprive the plaintiff or co-defendants of the right to
file a motion for reconsideration or to move new trial or an execution pending appeal
by immediately filing a notice of appeal. (Associated Bank vs Gonong, 152 SCRA 478,
480 [1987]; Carlos D. Villamor vs National Power Corporation and the Court of Appeals,
G.R. No. 146735, October 25, 2004)

Grounds of and period for filing motion for new trial or reconsideration (Sec. 1, Rule 37)

When is the remedy of new trial available?

Within the period for taking an appeal, the aggrieved party may move the trial court to
set aside the judgment or final order and grant a new trial for one or more of the
following causes materially affecting the substantial rights of said party:
 1. Fraud, accident. Mistake or excusable negligence which ordinary prudence could
not have guarded against and by reason of which such aggrieved party has
probably been impaired in his rights; or
2. Newly discovered evidence, which he could not, with reasonable diligence, have
discovered and produced at the trial, and which if presented would probably
alter the result.

When is the remedy of reconsideration available?

Within the same period of perfecting an appeal, the aggrieved party may also move for
reconsideration upon the grounds that:
1. The damages awarded are excessive;
2. That the evidence is insufficient to justify the decision or final order; or
3. That the decision or final order is contrary to law.

Meaning of “within the period for taking an appeal” under the rules

Under the present procedure, an appeal is being taken by filing a notice of appeal, and it
is perfected upon the expiration of the last day of the period to appeal by any party. In
cases where a record on appeal is required, appeal is taken by filing a notice of appeal
and the record on appeal and the appeal is perfected upon the approval of the record on
appeal. (Distilleria Limtuaco & Co., vs CA, et. al., G.R. No. 63053, July 22, 1986)

Motion for extension of time to file motion for reconsideration does not toll the period
to appeal; Suspension of the rules.

The assailed CA resolution upheld the general rule that the filing of a motion for
reconsideration in the CA does not toll the fifteen-day period to appeal, citing Habaluyas
Enterprises, Inc. vs Japson. However, in previous cases [the Court] suspended this rule
in order to serve substantial justice.

In Barnes vs Padilla, [the Supreme Court] exempted from the operation of the general
rule that the petitioner whose motion for extension of time to file a motion for
reconsideration was denied by the CA. In the resolution denying the motion for
reconsideration of [the Court’s] Decision dated September 30, 2004, [the Court] held
that:

A suspension of the Rules is warranted in this case since the procedural infirmity was
not entirely attributable to the fault or negligence of the petitioner. Petitioner’s counsel
was understandably confused with the absence of an explicit prohibition in the 2002
Internal Rules of the Court of Appeals (IRCA) that the period of filing a motion for
reconsideration is non-extendible, which was expressly stated in the Revised Internal
Rules of the Court of Appeals that was in effect prior to the IRCA. The lawyer’s
negligence without any participatory negligence on the part of the petitioner is a
sufficient reason to set aside the resolution of the CA.

More significantly, a careful study of the merits of the case and the lack of any showing
that the review sought is merely frivolous and dilatory, dictated the setting aside of the
resolutions of the CA in CA-G.R. SP No. 69573 and Branch 215 in Civil Case No. Q-99-
37219, as both are patently erroneous. x x x

Furthermore, the private respondents will not be unjustly prejudiced by the suspension
of the rules. What is subject of the appeal is only a question of law, involving the issue of
forum shopping, and not a factual matter involving the merits of each party’s respective
claims and defenses relating to the enforcement of the MOA, wherein petitioner was
given the option to purchase the subject property. Litigations should, as much as
possible, be decided on their merits and not on mere technicalities. Every party-litigant
should be afforded the amplest opportunity for the proper and just disposition of his
cause, freed from the constraint of technicalities.

After a conscientious view, [the Court] holds[s] that a suspension of the Rules is
warranted in this case since the delay of one [1] week and two [2] days in the filing of
the motion for reconsideration was not occasioned by negligence on the part of
petitioner’s lawyer in charge of the case, the latter having a valid excuse to immediately
take leave of absence in view of her father’s sudden demise. There is likewise no
showing that review sought is merely frivolous and dilatory. (Winston F. Garcia, in his
capacity as President and General Manager of the GSIS vs Court of Appeals and Rudy C.
Tesoro, G.R. No. 169005, January 28, 2013)

Requisites of newly-discovered evidence: must be raised during the proceedings below

While the Rules of Court allows the introduction by parties of newly-discovered

evidence, as in motions for new trial under Rule 37, these are not to be presented for
the first time during an appeal. In addition, the term “newly-discovered evidence” has a
specific definition under the law. Under the Rules of Court, the requisites for newly
discovered are: (a) the evidence was discovered after trial; (b) such evidence could not
have been discovered and produced at the trial with reasonable diligence; and (c) it is
material, not merely cumulative, corroborative or impeaching, and is of such weight
that, if admitted, will probably change the judgment. (Heirs of Pacencia Racaza, namely,
Virginia Racaza Coscos, Angeles Racaza Miel, Rodrigo Racaza, Quirino Racaza, Rogelio
Racaza, Ernesta Racaza and Roland Racaza vs Spouses Florencio Abay-Abay, and
Eleuteria Abay-Abay, G.R. No. 198402, June 13, 2012)

Meaning of extrinsic fraud

Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which
is committed outside of the trial of the case, whereby the unsuccessful party has been
prevented from exhibiting fully his case, by fraud or deception practiced on him by his
opponent. (Philippine Tourism Authority vs Philippine Golf Development & Equipment,
Inc., G.R. No. 176628, March 19, 2012)

What is accident?

It is an event that takes place without one’s foresight or expectation. An event that
proceeded from an unknown cause; or is unusual effect of a known cause and therefore,
not expected. (Dela Cruz vs Capital Insurance & Surety Co., 123 Phil 1414)

What is mistake?

An error in action; a blunder. (Combos vs Santos, 4 Phil 446)

An incorrect belief held by some concerned about a fact involved in a transaction or a

proceeding, or an incorrect opinion about the law which governs the transaction of
proceedings. (Philippine Legal Encyclopedia, 1986 ed., pg. 579)

Client is bound by counsel’s mistakes; Exceptions

It bears stressing at this point then that the rule, which states that the mistakes of
counsel binds the client, may not be strictly followed where observance of it would
result in outright deprivation of the client’s liberty or property, or where the interest of
justice so requires. x x x
x x x Where reckless or gross negligence of counsel deprives the client of due process of
law, or when the interests of justice so require, relief is accorded to the client who
suffered by reason of the lawyer’s gross or palpable mistake or negligence. (CMTC
International Marketing Corporation vs Bhagis International Trading Corporation, G.R.
No. 170488, December 10, 2012)

It is, however, an oft-repeated ruling that the negligence and mistakes of counsel bind
the client. A departure from this rule would bring about never-ending suits, so long as
lawyers could allege their own fault or negligence to support the client’s case and
obtain remedies and reliefs already lost by the operation of law. The only exception
would be, where the lawyer’s gross negligence would result in the grave injustice of
depriving his client of the due process of law. (Building Care Corporation/Leopard
Security & Investigation Agency and/or Ruperto Protacio vs Myrna Macaraeg, G.R. No.
198357, December 10, 2012)

What is excusable negligence? When is negligence excusable?

Negligence is excusable where it is caused by failure to receive notice of the action or

trial, by a genuine and excusable mistake or miscalculation, by reliance upon assurance
given by those upon whom the party or counsel retained in the case, or a competent
adviser, that would be necessary for him to take an active part in the case, or that the
suit would not be prosecuted, by relying on another person promised to do so or was
chargeable with that duty, or by a well founded belief that the case would not reach for
trial as its was in fact reached, or by other circumstances not involving fault of the
moving party. (Corpus vs Belmonte, 32305-R, September 25, 1963)

Negligence of counsel binds the client; Exceptions.

[The Court] cannot consider counsel’s failure to familiarize himself with the Revised
Rules of Court as a persuasive reason to relax the application of the Rules. It is well-
settled that the negligence of counsel binds the client. This principle is based on the rule
that any act performed by lawyers within the scope of their general or implied
authority is regarded as an act of the client. Consequently, the mistake or negligence of
the counsel of petitioner may result in the rendition of an unfavorable judgment against
it. (Panay Railways, Inc., vs Heva Management and Development Corporation, Pamplona
Agro-Industrial Corporation, and Spouses Candelaria Dayot and Edmundo Dayot, G.R.
No. 154061, January 25, 2012)

TA cannot escape these legal technicalities by simply invoking the negligence of its
counsel. This practice, if allowed, would defeat the purpose of the Rules on periods
since every party would merely law the blame on its counsel to avoid any liability. The
rule is that “a client is bound by the acts, even mistakes, of his counsel in the realm of
procedural technique [,] and unless such acts involve gross negligence that the claiming
party can prove, the acts of a counsel bind the client as if it had been the latter’s acts.
(Philippine Tourism Authority vs Philippine Golf Development & Equipment, Inc., G.R.
No. 176628, March 19, 2012)

Contents of motion for new trial or reconsideration and notice (Sec. 2, Rule 37)

What are the requirements for the filing of a motion for new trial or reconsideration?

The motion for new trial or reconsideration shall comply with the following
requirements, to wit:
1. It must be in writing;
2. Stating the ground or grounds therefor; and
3. A written notice of which shall be served by the movant on the adverse party.
How to prove motion for new trial?

A motion for new trial shall be proved in the manner provided for proof of motions.

How to prove fraud, accident, mistake and excusable negligence?

A motion for the cause mentioned in paragraph (a) of the preceding section shall be
supported by affidavits of merits which may be rebutted by affidavits.

How to prove newly discovered evidence?

In proving the motion for the cause mentioned in paragraph (b) shall be:
1. Supported by affidavits of the witnesses by whom such evidence is expected to
be given; or
2. Supported by duly authenticated documents which are proposed to be
introduced in evidence.

What are the requirements for the filing of a motion for reconsideration?

A motion for reconsideration shall comply with the following:

1. Point out specifically the findings or conclusions of the judgment or final order
which are not supported by the evidence or which are contrary to law; and
2. Making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or conclusions.

What is the effect of a pro forma motion for new trial or reconsideration?

A pro forma motion for new trial or reconsideration shall not toll the reglementary
period of appeal.

Mere reiteration of the issues already passed upon does not make the motion pro
forma; requisites of pro forma motion for reconsideration.

The mere fact that a motion for reconsideration reiterates issues already passed upon
by the court does not, by itself, make it a pro forma motion. Among the ends to which a
motion for reconsideration is addressed is precisely to convince the court that its ruling
is erroneous and improper, contrary to the law or evidence; the movant has to dwell of
necessity on issues already passed upon. (First Lepanto-Taisho Insurance Corporation
[now known as FLT Prime Insurance Corporation] vs Chevron Philippines, Inc.
[formerly known as Caltex (Philippines), Inc.], G.R. No. 177839, January 18, 2012)

Mere reiteration of issues already passed upon by the court does not automatically
make a motion for reconsideration pro forma. What is essential is compliance with the
requisites of the Rules. Indeed, in the cases where a motion for reconsideration was
held to be pro forma, the motion was so held because (1) it was a second motion for
reconsideration, or (2) it did not comply with the rule that the motion must specify the
findings and conclusions alleged to be contrary to law or not supported by the evidence,
or (3) it failed to substantiate the alleged errors, or (4) it merely alleged that the
decision in question was contrary to law, or (5) the adverse party was not given notice
thereof. (Gonzalez vs Commission on Elections, et. al., G.R. No. 192856, March 8, 2011)

Prohibition on pro forma motion applies only to a final order and not to interlocutory
order
There is no rule which prohibits the filing of a pro forma motion against an
interlocutory order as the prohibition applies only to a final resolution or order of the
court. (San Juan Jr. vs Cruz, G.R. No. 167321, July 31, 2006; Philippine National Bank vs
Intestate Estate of Francisco De Guzman, et. al., G.R. No. 182507, June 16, 2010)

Effects of noncompliance of the motion for reconsideration or new trial with Rule 15 on
Motions

Elementary is the rule that every motion must contain the mandatory requirements of
notice and hearing and that there must be proof of service thereof. The Court has
consistently held that a motion that fails to comply with the above requirements is
considered a worthless piece of paper which should not be acted upon. The rule,
however, is not absolute. There are motions that can be acted upon by the court ex
parte if these would not cause prejudice to the other party. They are not strictly covered
by the rigid requirement of the rules on notice and hearing of motions. (Douglas F.
Anama vs Philippine Savings Bank, G.R. No. 187021, January 25, 2012)

“A motion that does not meet the requirements of Section 4 and 5 of Rule 15 of the
Rules of Court is a worthless piece of paper which the clerk has no right to receive and
the court has no authority to act upon. “ (Manila Electric Company vs La Campaña Food
Products, 247 SCRA 77)

What is an affidavit of merit?

An affidavit of merit is a sworn statement which states (a) the nature or character of the
fraud, accident, mistake or excusable negligence on which the motion for new trial is
based; (b) the facts constituting the movant’s good and substantial defense or valid
causes of action (Ferrer vs Sepeng, G.R. No. L-39373, September 30, 1974), and (c) the
evidence which he intends to present if his motion is granted. (Miranda vs Legaspi, et.
al., 92 Phil 920)

What is the effect of the filing a motion for new trial or reconsideration? (Sec. 2, Rule
40)

The period to appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new-trial or
reconsideration shall be allowed.

Actions upon motion for new trial or reconsideration (Sec. 3, Rule 37)

The court in case of a pending motion for new trial or reconsideration may:
1. Set aside the judgment or final order and grant a new trial, upon such terms as
may be just;
2. May deny the motion;
3. If the court finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it may amend such
judgment or final order accordingly.

Resolution of motion (Sec. 4, Rule 37)

A motion for new trial or reconsideration shall be resolved within thirty (30) days from
the time it is submitted for resolution.

Second motion for new trial (Sec. 5, Rule 37)

Is an omnibus motion rule applicable in a motion for new trial?

Yes, by express provision of Sec. 5, Rule 37, “A motion for new trial shall include all
grounds then available and those not so included shall be deemed waived.”

Can a second motion for new trial be filed?

Yes, the above rule provides that a second motion for new trial, based on the ground not
existing, not available when the first motion was made, may be file within-the time
herein provided excluding the time during which the first motion had been pending.

Is the filing of a second motion for reconsideration allowed?

The above rule provides that no party shall be allowed a second motion for
reconsideration of a judgment or final order.

A motion for reconsideration filed on the amended decision is not a second motion for
reconsideration; Period to appeal is from the receipt of the order denying the motion
for reconsideration on the amended decision.

Prefatorily, we first discuss the procedural matter raised by respondent that the
present petition is filed out of time. Respondent claims that petitioner’s motion for
reconsideration from the amended decision is a second motion for reconsideration
which is a prohibited pleading. Respondent’s assertion, however, is misplaced for it
should be noted that the CA’s amended decision totally reversed and set aside its
previous ruling. Section 2, Rule 52 of the 1997 Rules of Civil Procedure, as amended,
provides that no second motion for reconsideration of a judgment or final resolution by
the same party shall be entertained. This contemplates a situation where a second
motion for reconsideration is filed by the same party assailing the same judgment or
final resolution. Here, the motion for reconsideration of petitioner was filed after the
appellate court rendered an amended decision totally reversing and setting aside its
previous ruling. Hence, petitioner is not precluded from filing another motion for
reconsideration from the amended decision which held that the labor tribunals lacked
jurisdiction over petitioner’s complaint for constructive dismissal. The period to file an
appeal should be reckoned not from the denial of her motion for reconsideration of the
original decision, but from the date of petitioner’s receipt of the notice of denial of her
motion for reconsideration from the amended decision. And as petitioner received
notice of the denial of her motion for reconsideration from the amended decision on
September 23, 2010 and filed her petition on November 8, 2010, or within the
extension period granted by the Court to file the petition, her petition was filed on time.
(Ma. Mercedes L. Barba vs Liceo De Cagayan University, G.R. No. 193857, November 28,
2012)

No second motion for reconsideration in the Court of Appeals

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Sec

2, Rule 52 of the Rules of Civil Procedure which provides that: “No second motion for
reconsideration of a judgment or final resolution by the same party shall be entertained.
“Thus, a decision becomes final and executor after 15 days from receipt of the denial of
the first motion of reconsideration. However, when a motion for leave to file and admit
a second motion for reconsideration is granted by the Court, the Court therefore allows
the filing of the second motion for reconsideration. In such a case, the second motion for
reconsideration is no longer a prohibited pleading. (League of Cities of the Philippines
[lLCP], et. al., Commission on Elections, et. al., G.R. No. 176951, April 12, 2011)

Exceptions to the prohibition on the filing of second motion for reconsideration

A second motion for reconsideration is generally a prohibited pleading. The court,
however, does not discount instances when it may authorize the suspension of the rules
of procedure so as to allow the resolution of a second motion for reconsideration, in
cases of extraordinary persuasive reasons such as when the decision is a patent nullity.
(University of the East vs University of the East Employees Association, G.R. No.
179593, September 14, 2011)

When can a second motion for reconsideration be allowed? (Sec. 2, Rule 52 of the 1997
Rules of Civil Procedure; Sec 3, Rule 15 of the Internal Rules of the Supreme Court)

Sec. 3. Second motion for reconsideration. – The court shall not entertain a second
motion for reconsideration and any exception to this rule can only be granted in the
higher interest of justice by the Court en banc upon a vote of at least two-thirds of its
actual membership. There is reconsideration in the higher interest of justice when the
assailed decision is not only legally erroneous but is likewise patently unjust and
potentially capable of causing unwarranted and irremediable injury or damage to the
parties. A second motion for reconsideration can only be entertained before the ruling
sought to be reconsidered becomes final by operation of law or by the Court’s
declaration. (Joeb M. Aliviado vs Procter & Gamble Phils. Inc and Promm-Gem Inc., G.R.
No. 160506, June 6, 2011, Del Castillo, J.)

Effects of granting of motion for new trial (Sec. 6, Rule 37)

If a new trial is granted in accordance with the provisions of this Rule, it has the effects
of:
1. The original judgment or final order shall be vacated; and
2. The action shall stand for trial de novo; but
3. The recorded evidence taken upon the former trial in so far as the same is
material and competent to establish the issues, shall be used at the new trial
without retaking the same.

Partial new trial or reconsideration (Sec. 7, Rule 37)

If the grounds for a motion under this Rule appear to the court to affect the issues as to
only a part of less than all of the matter in controversy, or only one, or less than all, of
the parties to it, the court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or final order upon the rest.

Effects of order of partial new trial or reconsideration (Sec. 8, Rule 37)

When less than all of the issues are ordered retried, the court may either:
1. Enter a judgment or final order as to the rest; or
2. Stay the enforcement of such judgment or final order until after the new trial.

Remedy against an order denying a motion for new trial or reconsideration (Sec 9, Rule
37)

An order denying a motion for new trial or reconsideration is not appealable, the
remedy being an appeal from the judgment or final order.

Amendment on Sec. 1, Rule 41(a) under A.M. 07-7-12-SC

A.M. 07-7-12-SC (December 27, 2007), deleted from those judgment or orders which
are not appealable under Sec. 1, Rule 41, “an order denying a motion for new trial or a
motion for reconsideration.” The effect of the amendment will make the order as a final
order and therefore appealable, hence, the remedy is appeal from the judgment and the
order denying the motion for new trial or reconsideration.

Remedy against the denial of the motion for reconsideration

Indeed, the Court has held that an appeal from an order denying a motion for
reconsideration of a final order or judgment is effectively an appeal from the final order
or judgment; and has expressly clarified that the prohibition against appealing an order
denying a motion for reconsideration referred only to a denial of a motion for
reconsideration of an interlocutory order…” (Priscilla Alma Jose vs Ramon C. Javellana,
et. al., G.R. No. 158239, January 25, 2012)

The restriction against an appeal of a denial of a motion for reconsideration

independently of a judgment or final order is logical and reasonable. A motion for
reconsideration is not putting forward a new issue, or presenting a new evidence, or
changing the theory of the case, but is only seeking a reconsideration of the judgment or
final order based on the same issues, contentions, and evidence either because: (a) the
damages awarded are excessive; or (b) the evidence is insufficient to justify the decision
or final order; or (c) the decision or final order is contrary to law [Sec. 1, Rule 37]. By
denying a motion for reconsideration, or by granting it only partially, therefore, a trial
court finds no reason either to reverse or to modify its judgment or final order, and
leaves the judgment or final order to stand. The remedy from the denial is to assail the
denial in the course of an appeal of the judgment or final order itself. (Heirs of Spouses
Teofilo M. Reterta and Elisa Reterta vs Spouses Lorenzo Mores and Virginia Lopez, G.R.
No. 159941, August 17, 2011)

New trial under Rule 37 as distinguished from Rule 53

The distinctions between new trial under Rule 37 and new trial under Rule 53 are as
follows, to wit:
1. New trial under Rule 37 is available only in the trial courts (RTC/MTC/MCTC);
while the New trial under Rules 53 is available in appellate courts (Court of
Appeas);
2. New trial under Rule 37 provides for the grounds of fraud, accident, mistake and
excusable negligence and newly discovered evidence; while New trial under Rule
53 is grounded on newly discovered evidence;
3. New trial under Rule 37 shall be resolved within thirty (30) days from the time
the case is submitted for resolution; while New Trial under Rule 53 shall be
resolved within ninety (90) days when the court declares it submitted for
resoluation.

Reconsideration under Rule 37 as distinguished from Rule 52

The distinctions between reconsideration under Rule 37 and Rule 52 are as follows, it
wit:
1. Reconsideration under Rule 37 is available only in the trial courts
(RTC/MTC/MCTC); while Reconsideration under Rule 52 is available in the
appellate courts (Court of Appeals);
2. Reconsideration under Rule 37 provides for the following grounds that the
damages awarded are excessive, the evidence is insufficient to justify the
decision or final order; or the decision or final order is contrary to law; while
Reconsideration under Rule 52 does not provided for specific grounds;
3. Reconsideration under Rule 37 shall be resolved within thirty (30) days from the
time the case is submitted for resolution; while Reconsideration under Rule 52
shall be resolved within ninety (90) days when the court declares it submitted
for resolution.
Motion for Reconsideration or new trial of a judgment, a prohibited motion under the
Rules on Summary Procedure (Sec. 19 of the Rules on Summary Procedure)

Are motions for reconsideration or new trial allowed under the Rules on Summary
Procedure?

As a general rule, motion for new trial or reconsideration are prohibited motions under
the Rules on Summary Procedure it is against a judgment, but not to interlocutory
orders.

Motion for new trial and reconsideration prohibited under the Rules on Small Claims
cases (Sec. 14 of the Rules of Procedure on Small Claims [A.M. 08-8-7-SC, October 27,
2009)

Are motions fore reconsideration or new trial allowed under the Rules on Summary
Proceedings:

As a general rule, motion for new trial or reconsideration are prohibited motions under
the Rules on Summary Procedure it is a against a judgment, but not to interlocutory
orders.

Motion for reconsideration under Rule 37 versus motion for reconsideration of a

interlocutory order

Indeed, the Court has held that an appeal from a order denying a motion for
reconsideration of a final order or judgment is effectively an appeal from the final order
or judgment itself; and has expressly clarified that the prohibition against appealing an
order denying a motion for reconsideration referred only to a denial of a motion for
reconsideration of an interlocutory order. (Priscilla Alma Jose vs Ramon C. Javellano, et.
al., G.R. No. 158239, January 25, 2012)

Procedure in the Court of Appeals on motion for new trial or reconsideration

A motion for reconsideration may be filed within fifteen (15) days from receipt of notice
of judgment or resolution with proof of service on the adverse party. (Sec. 1, Rule 52) A
motion for new trial may be filed with the Court of Appeals at any time after the appeal
from the lower court has been perfected and before the Court of Appeals loses
jurisdiction over the case. (Sec. 1, Rule 53). In the Court of Appeals, motions for new
trial or reconsideration shall be resolved within ninety (90) days from the date when
the court declares it submitted for resolution. (Sec. 3, Rule 52; Sec. 3, Rule 53) The
pendency of a motion for reconsideration filed in time and by the proper party shall
stay the execution of the judgment or final resolution sought to be reconsidered unless
the court, for good reasons, shall otherwise direct. (Sec. 4, Rule 52)

MOTION FOR NEW TRIAL (RULE 37)

REPUBLIC OF THE PHLIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ______

MR. X,
Petitioner,
 - versus- CIVIL CASE NO. ______________________________
For: Recovery of possession with damages

MR. Y
x-----------------------------x

MOTION FOR NEW TRIAL

COMES NOW, the defendant, through the undersigned counsel and unto this
Honorable Court, most avers:

1. That the judgment of this court in the above-entitled case was served on him on
January 30, 2012, which was obtained by the plaintiff through FRAUD when he
told the defendant that he will not file a case against him, and if he learns of the
same he has just to ignore it;

2. That, since then, defendant discovered new evidence, which he could not with
reasonable diligence have discovered and produced at the trial and if considered
would alter the outcome of the case;

3. That the above-mentioned newly discovered evidence consists in the following,

to wit (here state briefly the nature of the newly discovered evidence);

4. That the affidavits of ____________ and __________ (and/or, the following documents)
are attached hereto as Annexes “A”, “B”, etc., to substantiate the aforementioned
newly discovered evidence;

5. That said newly discovered evidence, if presented this case.

WHEREFORE, defendant prays that the judgment in this case be set aside and a
new trial be ordered for the reception of the newly discovered evidence mentioned
above.

Such other relief as may be deemed just and equitable under the premises are
likewise prayed for.

Manila, November 12, 2012.

Counsel for the Plaintiff

VERIFICATION

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

I, MR. Y, legal age, Filipino citizen, married, and resident of #1136-A A. Maceda
Street, Sampaloc, Manila, after having been duly sworn to in accordance with law do
hereby depose and say:

1. That I am the defendant in the above-entitled case;

2. That I have caused the preparation of the foregoing Motion to Lift Order of
Default and have read the allegations complained therein;
 3. The allegations in the said complaint are true and correct of my own knowledge
and authentic records;.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ______ day of

February 2012, in the City of Manila.

Affiant

SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the
City of Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS

Please submit the foregoing motion for the consideration and approval of the
Honorable Court on __________, 2017 at 2:00 pm.

HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 506 Don Santiago Bldg.,
1344 Taft Avenue, Ermita, Manila

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

AFFIDAVIT OF MERIT

REPUBLIC OF THE PHILIPPINES )

IN THE CITY OF MANILA ) S.S.

I, MR. Y, of legal age, Filipino citizen, married, and resident of #41 A. Maceda
Street, Sampaloc, Manila, after having duly sworn to in accordance with law do hereby
depose and say:

1. That I am the defendant in the above-entitled case;

 2. That on February ____, 2005, I received a copy of the Summons relative to the
above-entitled case;

3. That on February ____, 2005, plaintiff went to our house and informed me that he
will no longer continue with the prosecution of the case, and just ignore the
complaint I will receive, and not attend any hearing of the said case;

4. That through the representation of the plaintiff, I did not file any answer
anymore, and just ignored the notices I received, only to be surprised that I was
declared in default upon receipt of the Order of the Court;

5. That said plaintiff is guilty of fraud and prevented me from defending myself in
the above case, and to submit the appropriate pleadings and evidence;

6. That I have a good and meritorious defense against the plaintiff, and have
already paid all my obligations to him, and if considered would alter the outcome
of the case;

7. That I have executing this affidavit to attest to the truth of the foregoing
statements, and for whatever legal purposes it may serve.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of

February 2012, in the City of Manila

Affiant

SUBSRIBED AND SWORN to before me this _______ day of February 2012, in the City of
Manila, affiant exhibiting to me his Passport No. __________ issued at ___________ on
______________.

Doc. No._______;
Page No. _______;
Book No. _______;
Series of 2012

APPEAL IN GENERAL

What is an appeal?

A civil law procedure whose office is to remove the entire cause and subjects the
transcript to a scrutiny of fact and law and is in substance a new trial. (US vs
Tamparong, 31 Phil 327)

When can appeal be taken? (Sec 1, Rule 41)

Under the rules, an appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by the rules to be
appealable.

Nature of the right to appeal

The right to appeal is not a natural right and is not part of due process. It is merely a
statutory privilege, and may be exercised only in accordance with the law. The party
who seeks to avail of the same must comply with the requirements of the Rules. Failing
to do so, the right to appeal is lost. (Spouses David Bergonia and Luzviminda Castillo vs.
Court of Appeals, G.R. No. 189151, January 25, 2012)

It is well-established that the right to appeal is a statutory privilege and must be

exercised only in the manner and in accordance with the provisions of the law. Thus,
one who seeks to avail of the right to appeal must strictly comply with the requirements
of the rules, and failure to do so leads to the loss of the right to appeal. (Samuel Julian
vs. Development Bank of the Philippines and the City Sheriff, G.R. No. 174193,
December 7, 2011)

The right to appeal is not a natural right or a part of due process but 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
requirements of the rules, failing in which the right to appeal is lost. (Heris of Agapatio
T. Olarte and Angela A. Olarte, et. al., vs. Office of the President of the Philippines, et. al.,
G.R. No. 177995, June 15, 2011)

Right to appeal is a statutory right; Duty of the appellant

The right to appeal is a statutory right and the party who seeks to avail of the same
must comply with the requirements of the Rules. Failing to do so, the right to appeal is
lost. More so, as in this case, where petitioner not only neglected to file its brief within
the stipulated time but also failed to seek a extension of time for a cogent ground before
the expiration of the time sought to be extended. (Asian Spirit Airlines [Airline
Employees Cooperative] vs Spouses Benjamin and Anna Marie Bautista, supra, citing
Ozaeta vs Court of Appeals, 179 SCRA 800 [1989]; see also Augustus Gonzales and
Spouses Nestor Victor and Ma. Lourdes Rodriquez vs Quirico Pe, G.R. No. 167398,
August 9, 2011)

The statutory nature of the right to appeal requires the one who avails himself of it to
strictly comply with the statutes or rules that are considered indispensable
interdictions against needless delays and for an orderly discharge of judicial business.
In the absence of highly exceptional circumstances warranting their relaxation, like
when the loftier demands of substantial justice and equity require the relaxation, or
when there are other special and meritorious circumstances and issues, such statutes or
rules should remain inviolable. (Sps. Elbe and Erlinda Lebin vs Mirasol and Regional
Trial Court of Iloilo, G.R. No. 164255, September 7, 2011; Sps. Heber & Charita Edillo vs
Sps. Norberto & Desideria Dulpina, G.R. No. 188360, January 21, 2010)

Purpose of Appeal

The remedy to obtain reversal or modification of the judgment on the merits is appeal.
This is true even if the error, or one of the errors, ascribed to the court rendering the
judgment is its lack of jurisdiction over the subject matter, or the exercise of power in
excess thereof, or grave abuse of discretion in the findings of fact or of law set out in the
decision. The availability of the right to appeal precludes recourse to the special civil
action for certiorari. (Benedicta M. Samson and Marcial M. Samson vs Hon. Judge
Geraldine C. Fiel-MAcaraig, G.R. No. 166356, February 2, 2010)

Right to appeal not part of due process

It should be stressed that the right to appeal is neither a natural right nor a part of due
process. (Neplum, Inc. vs Orbeso, 384 SCRA 466, July 11, 2002) It is merely a procedural
remedy of statutory origin, a remedy that may be exercised only in the manner
prescribed by the provisions of law authorizing such exercise. (Oro vs Judge Diaz, 361
SCRA 108, July 11, 2011; Mercury Drug Corp. vs CA, 390 Phil 902, July 13, 2000; Ortiz vs
CA, 299 SCRA 708, December 4, 1998) Hence, the legal requirements must be strictly
complied with. (Pedrosa vs Hill, 257 SCRA 373, Jun3 14, 1996; Del Rosario vs CA, 241
SCRA 553, February 22, 1995) It would be incorrect to consider the requirements of the
rules on appeal as merely harmless and trivial technicalities that can be discarded.
(Casim vs Flordeliza, 374 SCRA 386, January 23, 2002) Indeed, deviations from the
rules cannot be tolerated. (People vs Marong. 119 SCRA 430, December 27, 1982) In
these times when court dockets are clogged with numerous litigations, such rules have
to be followed by parties with greater fidelity, so as to facilitate the orderly disposition
of those cases. (Del Rosario vs CA, 241 SCRA 553, February 22, 1995; Philippine Rabbit
Bus Lines, Inc. vs People of the Philippines, G.R. No. 147703, April 14, 2004)

Administrative case against the erring judge, not a remedy if available is available

It also bears reiteration that a party’s remedy, if prejudiced by the orders of a

magistrate lies with the proper reviewing court, not with the Office of the Court
Administrator by means of an administrative complaint. It is axiomatic that, where
some other judicial means is available, an administrative complaint is not the
appropriate remedy for every act of a judge deemed aberrant or irregular. (The Law
firm of Chavez Miranda Aseoche vs Justice Isaias P. Dicdican, A.M. No. CA-09-48-J, March
13, 2009)

It is elementary that not every error or mistake that a judge commits in the
performance of his duties renders him liable, unless he is shown to have acted in bad
faith and absence of malice, corrupt motives or improper considerations are sufficient
defenses in which a judge charged with ignorance of the law can find refuge. In
Maquiran vs Grageda, the Court held that alleged error committed by judges in the
exercise of their adjudicative functions cannot be corrected through administrative
proceedings but should instead be assailed through judicial means. Thus:

Now, the established doctrine and policy is that disciplinary proceedings and criminal
actions against judges are not complementary or supplementary of, nor substitute for,
these judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of
these judicial remedies, as well as the entry of judgment in the corresponding action or
proceeding, are prerequisites for the taking of other measures against the persons of
the judges concerned, whether of civil, administrative, or criminal nature. It is only after
the available judicial remedies have been exhausted and the appellate tribunals have
spoken with finality, that the door to an inquiry into his criminal, civil, or administrative
liability be said to opened, or closed.

Law and logic decree that “administrative” or criminal remedies and neither alternative
nor cumulative to judicial review where such review is available, and must wait on the
result thereof. Indeed, since judges must be free to judge, without pressure or influence
from external forces or factors, they should not be subject to intimidation, the fear of
civil, criminal, or administrative sanctions for acts they may do or dispositions they may
make in the performance of their duties and functions; and it is sound rule, which must
be recognized independently of statute, that judges are not generally liable for acts
done within the scope of their jurisdiction and in good faith; and that exceptionally,
prosecution of a judge can be had only if “there be a final declaration by a competent
court in some appropriate proceeding of the manifestly unjust character o the
challenged judgment or order, and ** also evidence of malice or bad faith, ignorance or
inexcusable negligence on the part of the judge in rendering said judgment or order” or
under the stringent circumstances set out in Article 32 of the Civil Code. (Atty. Norlinda
R. Amante-Descallar vs Judge Reinerio Abraham B. Ramas, A.M. No. RTJ-08-2142 OCA-
IPI No. 08-2779-RTJ, March 20, 2009)

Regional Trial Court has the power to deny a notice of appeal not the Court of Appeals
When this court accordingly amended Sec. 13 of Rule 41 through A.M. No. 00-2-10-SC,
the RTC’s dismissal of the action may be considered to have had the imprimatur of the
Court. Thus, the CA committed no reversible error when it sustained the dismissal of
the appeal, taking note of its directive on the matter prior to the promulgation of its
Decision. (Panay Railways, Inc. vs Heva Management and Development Corporation,
Pamplona Agro-Industrial Corporation, and Spouses Candelaria Dayot and Edmundo
Dayot, G.R. No. 154061, January 25, 2012)

Perfection of appeal mandatory and jurisdictional

The perfection of an appeal in the manner and within the period prescribed by law is
not only mandatory but also jurisdictional and failure of a party to conform to the rules
regarding appeal will render the judgment final and executor. Once a decision attains
finality, it becomes the law of the case irrespective of whether the decision is erroneous
or not and no court – not even the Supreme Court – has the power to revise, review,
change or alter the same. The basic rule of finality of judgment is grounded on the
fundamental principle of public policy and sound practice that, at the risk of occasional
error, the judgment of courts and the award of quasi-judicial agencies must become
final at some definite date fixed by law. (Zamboanga Forest Managers Corp. vs New
Pacific Timber and Supply Co., et. al., G.R. No. 173342, October 13, 2010)

The requirement of an appeal fee is not a mere technicality of law or procedure but an
essential requirement without which the decision appealed from would become final
and executor as if no appeal was filed at all. (Samuel Julian vs Development Bank of the
Philippines and City Sheriff, G.R. No. 174193, December 7, 2011)

Corollarily, the right to appeal is merely a statutory privilege and may be exercised only
in the manner prescribed by, and in accordance with, the provision of the law. The
failure to perfect an appeal within the prescribed period is not only mandatory but also
jurisdictional and failure to do so renders the questioned decision final and executor,
and deprives the appellate court of jurisdiction to alter the final judgment much less to
entertain the appeal. (Meatmasters International Corporation vs Lelis Integrated
Development Corporation, supra, citing Acda vs The Minister of Labor, et. al., 204 Phil
646, 651-652 [1982])

The perfection of an appeal in the manner and within the period prescribed by law is
not only mandatory but jurisdictional as well and failure to perfect an appeal has the
effect of rendering the judgment or resolution final and executor. (Manipor vs Ricafort,
407 SCRA 298 [2003])

Effects of failure to comply with the rules on appeal

Failure to conform to the rules regarding appeal will render the judgment final and
executor and beyond the power of the Court’s review. Jurisprudence mandates that
when a decision becomes final and executor, it becomes valid and binding upon the
parties and their successors-in-interest. Such decision or order can no longer be
disturbed or re-opened no matter how erroneous it may have been. (Clarita J. Carbonel
vs Civil Service Commission, G.R. No. 187689, September 7, 2010)

Negligence not an excuse to perfect an appeal

Relief cannot be granted on the flimsy excuse that the failure to appeal was due to the
neglect of the petitioner’s counsel. Otherwise, “all that a defeated party would have to
do to salvage the case,” observed by the Court in one case (Philhouse Development
Corporation vs Consolidated Orix Leasing and Finace Corp., 356 SCRA 281 [2001]),
citing Aguila vs CFI of Batangas, 160 SCRA 352 [1988]), would be to “claim neglect or
mistake on the part of his counsel as a ground for reversing the adverse judgment,” and
there would then be “no end to litigation … as every shortcoming of counsel could be
the subject of challenge by his client through another counsel by who, if he (were) also
found wanting, (could) … be disowned by the same client through another counsel, and
so on ad infinitum, thereby rendering the court proceedings indefinite …” (Insular Life
Savings and Trust Company vs Spouses Felix Mateo Runes. Jr and Trinidad Runes, G.R.
No. 152530, August 12, 2004)

Negligence of the counsel to perfect an appeal binds the client

The failure of petitioner’s counsel to perfect the appeal binds petitioners. It is settled
that client are bound by the mistakes, negligence and omission of their counsel. While,
exceptionally, the client may be excused from the failure of counsel, the factual
circumstances in the present case do not give us sufficient reason to suspend the rules
of the most mandatory character. Petitioners themselves may not be said to be entirely
faultless. (Dominga Ruiz vs. Cirila Delos Santos, G.R. No. 166386, January 27, 2009)

Negligence when excusable

Negligence is excusable where it is caused by failure to receive notice of the action or

the trial, by a genuine and excusable mistake or miscalculation, by reliance upon
assurance given by those upon whom the party had a right to depend, as the adverse
party or counsel retained in the case, or a competent adviser, that it would not be
necessary for him to take an active part in the case, or that the suit would not be
prosecuted, by relying on another person to attend the case for him, when such other
person promised to do so, or was chargeable with that duty or by a well-founded belief
that the case would not be reached for trial as it was in fact reached, or by other
circumstances not involving fault of the moving party. (34 C.J. 303, Cited in I [Part II]
Francisco, Rules of Court in the Philippines, 1957 Ed., pp. 774-775)

Remedy in case of failure to appeal due to mistake or excusable negligence

Further, the proper remedy for allegations of mistake or inexcusable negligence of

counsel, which prevented a party from taking an appeal, is a petition for relief under
Rule 38 of the Rules of Court. The petition must be filed within 60 days after the
petitioner learns of the judgment, final order, or other proceeding to be set aside, and
not more than six (6) months after such judgment or final order was entered. It must be
filed within the reglementary period, which is reckoned from the time the party’s
counsel receives notice of the decision for notice to counsel of the decision is notice to
the party. (Jaime T. Torres vs. China Banking Corporation, supra)

Effect of absence of the ground for petition for relief

Such party is not entitled to relief under Sec. 2, Rule 38 of the Rules of Court if he was
not prevented from filing his notice of appeal by fraud, accident, mistake or excusable
negligence. Such relief will not be granted to a party who seeks to be relieved from the
effects of the judgment when the loss of the remedy of law was due to his own
negligence, or a mistaken mode of procedure for that matter; 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 of procedure by counsel.
(Ibabao vs. Intermediate Appellate Court, 150 SCRA 76 [1987])

Remedy in case of denial of petition for relief

If petition for relief is denied by the trial court, the remedy of the petitioner is to file a
petition for certiorari under Sec. 1, Rule 41 of the 1997 Rules of Civil Procedure.

Purpose of limiting the period to appeal

The purpose in limiting the period to appeal is to forestall or avoid an unreasonable

delay in the administration of justice and to put an end to controversies. Where no
element of intent to delay the administration of justice could be attributed to
petitioners, a one [1]-day delay does not justify their petition’s dismissal. (Heirs of
Rodolfo Crisostomo vs. Rudex International Development Corporation, G.R. No. 176129,
August 24, 2011)

Effect of failure to appeal

Failure to perfect the appeal renders the judgment of the court final and executor. Just
as a losing party has the privilege to file an appeal within the prescribed period, so does
the winner also have the correlative right to enjoy the finality of the decision. (Elpidio
Calipay vs. NLRC, G.R. No. 166411, August 3, 2010)

In Department of Justice Secretary Raul M. Gonzales vs. Pennisi, the Supreme Court
elucidated on the rules on reglementary periods, to wit: “The general rule is that the
perfection of an appeal in the manner and within the period prescribed by law is, not
only mandatory, but jurisdictional, and failure to conform the rules will render the
judgment sought to be reviewed final and unappealable.”

The failure to file an appeal from the decision rendering it final and executory is not a
denial of due process. The right to appeal is not a natural right or 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. (Jaime T. Torres vs. China Banking
Corporation, G.R. No. 165408, January 15, 2010)

It is well-settled that a party who has not appealed from a decision cannot seek relief
other than what is provided in the judgment appealed from. An appellee who has
himself not appealed may not obtain from the appellate court any affirmative relief
other than the ones granted in the decision of the court below. The appellee can only
advance any argument that he may deem necessary to defeat the appellant’s claim or to
uphold the decision that is being disputed, and he can assign errors in his brief if such is
required to strengthen the views expressed by the court a quo. These assigned errors in
turn may be considered by the appellate court solely to maintain the appealed decision
on other grounds, but not for the purpose of reversing or modifying the judgment in the
appellee’s favor and giving him othe reliefs. (Catmon Sales International Corporation vs
Atty Manuel D. Yngson, Jr., as liquidator of Catmon Sales International Corporation, G.R.
No. 179761, January 15, 2010)

A party who did not appeal from a decision of a court cannot obtain affirmative relief
other than that granted in the appealed decision. (Radiowealth Finance Company vs.
Del Rosario, 335 SCRA 288 [2000]) This applies also to decisions of administrative or
quasi-judicial tribunals. (Pison-Arceo Agricultural and Development Corporation vs.
National Labor Relations Commission, 279 SCRA 312 [1997]; Angelito Cabatulan vs
Hon. Musib M. Buat, et. al., G.R. No. 147142, February 14, 2005)

At the outset it should be stressed that after a judgment has become final, vested rights
are acquired by the winning party. If the proper losing party has the right to file an
appeal within the prescribed period, then the formerhas the correlative right to enjoy
the finalityof the resolution of the case. (Philippine Rabbit Bus Lines, Inc vs People of
the Philippines, G.R. No. 147703, April 14, 2004, citing Videogram Regulatory Board vs
CA, 265 SCRA 50, November 28, 1996)

Parties cannot change his theory of the case on appeal

A party cannot, on appeal, change fundamentally the nature of the issue of the case.
When a party deliberately adopts a certain theory and the case is decided upon that
theory in the court below, he will not be permitted to change the same on appeal,
because to permit him to do so would be unfair to the adverse party. (Quezon City vs.
RCBC, G.R. No. 171033, August 3, 2010)

Points of law, theories, issues and arguments not brought to the attention of the lower
court, administrative agency or quasi-judicial body, need not be considered by a
reviewing court, as they cannot be raised for the first time at that late stage. Basic
considerations of fairness and due process impel this rule. Any issue raised for the first
time on appeal is barred by estoppel. (Job Y. Besana vs Rodson F. Mayor, G.R. No.
153837, July 21, 2010)

The general rule is that appeals can only raise questions of law or fact that (a) were
raised in the court below, and (b) are within the issues framed by the parties therein.
An issue which was neither averred in the pleadings nor raised during trial in the court
below cannot be raised for the first time on appeal. (CIR vs. Eastern
Telecommunications Philippines, Inc., G.R. No. 163835, July 7, 2010)

The Supreme Court has previously held that “courts of justice have no jurisdiction or
power to decide a question not in issue.” (Bernas vs. Court of Appeals, G.R. No. 85041,
August 5, 1993, 225 SCRA 119) A judgment that goes outside the issues and purports to
adjudicate something on which the court did not the parties, is not only irregular but
also extrajudicial and invalid. The rule rests on the fundamental tenets of fair play.
(Henry L. Mon vs Court of Appeals, et. al., G.R. No. 118292, April 14, 2004)

Issues not raised before the lower court cannot be raised for the first time on appeal

A party who deliberately adopts a certain theory upon which the case was decided by
the lower court will not be permitted to change [it] on appeal. (Rodolfo Morla vs.
Corazon Nisperos Belmonte, et. al., G.R. No. 171146, December 7, 2011)

As a rule, no issue may be raised on appeal unless it has been brought before the lower
tribunal for its consideration. (Sesbreño vs. Central Board of Assessment Appeals, G.R.
No. 106588, March 24, 1997, 270 SCRA 360, 371; Manila Bay Club Corporation vs. Court
of Appeals, G.R. No. 110015, October 13, 1995, 249 SCRA 303, 307) Higher courts are
precluded from entertaining matter neither alleged in the pleadings nor raised during
the proceedings below, but ventilated for the first time only in a motion for
reconsideration or on appeal. (DBP vs. West Negros College, Inc., G.R. No. 152359, May
21, 2004; Solid Homes, Inc. vs. Court of Appeals, G.R. No., 117501, July 8, 1997, 275
SCRA 267, 282; People vs. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682,
689)

Exceptions

Some instances where the Supreme Court reviewed the matters raised for the first time
on appeal involved the presence of at least one (1) of the following circumstances:
a. That the issues are closely related to one properly assigned. (PCIB vs. CA,
G.R. No. L-34931, March 18, 1988, 159 SCRA 24)
b. That the determination of an issue properly assigned is dependent upon
one being raised for the first time. (Procopio Villanueva, et. al., vs. Court of
 Appeals, et. al., G.R. No. 143286, April 14, 2004, citing Ortigas, Jr. vs.
Lufthansa German Airlines, G.R. No. L-28773, June 30, 1975, 64 SCRA
610)
c. It is settled rule that the issue of jurisdiction may be raised at any time,
even on appeal, provided that its application does not result in a mockery
of the tenets of fair play. (Ramona Ramos, et. al., vs. Philippine National
Bank, et. al., G.R. No. 178218, December 14, 2011)
d. In the interest of justice and within the sound discretion of the appellate
court, a party may change his legal theory on appeal only when the factual
bases thereof would not require presentation of any further evidence by
the adverse party in order to enable it to properly meet the issue raised in
the new theory. Ramona Ramos, et. al., vs. Philippine National Bank, et. al.,
G.R. No. 178218, December 14, 2011)

Lack of jurisdiction may be raised for the first time on appeal

At the outset, [the Court] rule[s] that petitioner Republic is not estopped from
questioning the jurisdiction of the lower court, even if the former raised the
jurisdictional question only on appeal. The rule is settled that lack of jurisdiction over
the subject matter may be raised at any stage of the proceedings. Jurisdiction over the
subject matter is conferred only by the Constitution or the law. It cannot be acquired
through a waiver or enlarged by the omission of the parties or conferred by the
acquiescence of the court. Consequently, questions of jurisdiction may be cognizable
even if raised for the first time on appeal. (Republic of the Philippines vs. Bantique Point
Development Corporation, G.R. No. 162322, March 14, 2012)

Limitation on the power to review only to errors assigned and properly argued in the
appeal brief or memorandum (Sec. 8, Rule 51 of the 1997 Rules of Civil Procedure)

Grounds where the Court can review issues not assigned

Indeed, our rules recognize the broad discretionary power of an appellate court to
waive the lack of proper assignment of errors and to consider errors not assigned. Thus,
an appellate court is clothed with ample authority to review rulings even if they are not
assigned as errors in the appeal in these instances:
1. Grounds not assigned as errors but affecting jurisdiction over the subject matter;
2. Matters not assigned as errors on appeal but are evidently plain or clerical
errors within contemplation of law;
3. Matters not assigned as errors on appeal but consideration of which is necessary
in arriving at a just decision and complete resolution of the case or to serve the
interest of justice or to avoid dispensing piece-meal justice;
4. Matters not specifically assigned as errors on appeal but raised in the trial court
and are matters of record having some bearing on the issue submitted which the
parties failed to raise or which the lower court ignored;
5. Matters not assigned as errors on appeal but closely related to an error assigned;
and
6. Matters not assigned as errors on appeal but upon which the determination of a
question properly assigned, is dependent. (Sumipat vs. Banga, G.R. No. 155810,
August 13, 2004; Catholic Bishop of Balanga vs. Court of Appeals, G.R. No.
112519, November 14, 1996, 264 SCRA 181, 191-192; Soledad Mendoza and
Spouses Philip and Ma. Caridad Casino vs .Purita Bautista, G.R. No. 143666,
March 18, 2005; Dolores Adora Macaslang vs. Renato and Melbazamora, G.R. No.
156375, May 30, 2011; Carbonilla, et. al., vs. Board of Airlines Representatives,
G.R. No. 193247, September 14, 2011)
[The] Court has the power to correct any error, even if unassigned, if such is necessary
in arriving at a just decision, especially when the transcendental matter of life and
liberty is at stake. While it is true that rules of procedure are intended to promote
rather than frustrate the ends of justice, they nevertheless must not be met at the
expense of substantial justice. Time and again, [the] Court has reiterated the doctrine
that the rules of procedure are mere tools intended to facilitate the attainment of
justice, rather than frustrate it. Technicalities should never be used to defeat
substantive rights. (People of the Philippines vs. Arnold Martinez y Angeles, et. al., G.R.
No. 191366, December 13, 2010)

Factual findings of the trial court accorded with respect

Thus the question of whether petitioners were able to adduce proof to overthrow the
presumption is a factual issue best addressed by the trial court. As a matter of long and
sound practice, factual determinations of the trial courts, especially when confirmed by
the appellate court, are accorded great weight by the Court and, as a rule, will not be
disturbed on appeal, except for the most compelling reasons. (Sps. Lita De Leon and
Felix Rio Tarrosa vs. Anita B. De Leon, Danilo B. De Leon and Vilma B. De Leon, G.R. No.
185063, July 23, 2009)

Instances when remanding of the case cannot be made

As a rule, remand is avoided in the following instances: (a) when the ends of justice
would not be subserved by a remand; or (b) where public interest demands an early
disposition of the case; or (c) where the trial court had already received all the evidence
presented by both parties, and the Supreme Court is in a position, based upon said
evidence, to decide the case on its merits. (Annabelle Dela Peña vs. CA, G.R. No. 177828,
February 13, 2009)

Sanctions for frivolous appeals (Sec. 3, Rule 142 of the Rules of Court)

Notwithstanding the rule’s objective and clear mandate, losing litigants and their
lawyers are determined to stall execution by misusing judicial remedies, putting forth
arguments that, by simple logic, can easily be resolved by a basic reading of the
applicable laws and rules. When judicial remedies are misused to delay the resolution
of cases, the Rules of Court authorizes the imposition of sanctions.

Sec. 3. Costs when appeal is frivolous. – Where an action or an appeal is found to be

frivolous, double or treble costs may be imposed on the plaintiff or appellant, which
shall be paid by his attorney, if so ordered by the court.

MODES OF APPEAL (RULE 40-45)

BASIC CONCEPTS

Modes of Appeal

The first mode of appeal, is the ordinary appeal under Rule 41 of the Rules of Court, is
brought to the CA from the RTC, in the exercise of its original jurisdiction, and resolves
questions of fact or mixed questions of fact and law. The second mode of appeal, the
petition for review under Rule 42 of the Rules of Court, is brought to the CA from the
RTC, acting in the exercise of its appellate jurisdiction, and resolves questions of fact or
mixed questions of fact and law. The third mode of appeal, the appeal by certiorari
under Rule 45 of the Rules of Court, is brought to the Supreme Court and resolves only
questions of law. (Heirs of Nicolas S. Cabigas vs. Melba L. Limbaco, et. al., G.R. No.
175291, July 27, 2011)
Wrong or inappropriate mode of appeal will cause a dismissal

An appeal taken to either the Supreme Court or the Court of Appeals by the wrong or
inappropriate mode shall be dismissed. (Nemesio Goco, et. al., Hon. Court of Appeals,
G.R. No. 157449, April 6, 2010)

Summary on the rules modes of appeal

In Macawiwili Gold Mining and Development Co., Inc. vs. Court of Appeals, the Supreme
Court summarized the rule on appeals as follows:
1. In all cases decided by the RTC in the exercise of its original jurisdiction, appeal
may be made to the Court of Appeals by mere notice of appeal where the
appellant raises questions of fact or mixed questions of fact and law;
2. In all cases decided by the RTC in the exercise of its original jurisdiction where
the appellant raises only questions of law, the appeal must be taken to the
Supreme Court on a petition for review on certiorari under Rule 45;
3. All appeals from judgments rendered by the RTC in the exercise of its appellate
jurisdiction, regardless of whether the appellant raises questions of fact,
questions of law, or mixed questions of fact and law, shall be brought to the
Court of Appeals by filing a petition for review under Rule 42.

A question of law arises when there is doubt as to what the law is on a certain state of
fact, while there is a question of fact when the doubt arises as to the truth or falsity of
the alleged facts. For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by the litigants or any of
them. The resolution of the issue must rest solely on what the law provides on the given
set of circumstances. Once it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact. Thus, the test of whether a question is one
of law or of fact is not the appellation given to such question by the party raising the
same; rather, it is whether the appellate court can determine the issue raised without
reviewing or evaluating the evidence, in which case, it is a question of law otherwise it
is question of fact. (Land Bank of the Philippines vs. Crispin D. Ramos and Department
of Public Works and Highways, G.R. No. 181664, November 14, 2012)

IV. APPEAL FROM THE METROPOLITAN/MUNICIPAL TRIAL COURTS TO THE

REGIONAL TRIAL COURT (RULE 40)

Where to appeal (Sec. 1, Rule 40 of the 1997 Rules on Civil Procedure

What is the rule on appeal from the Municipal Trial Court to the Regional Trial Court?

An appeal from a judgment or final order of a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over the area to which the former pertains.

What are the rules regarding the contents of the title of the case and name of parties?

The title of the case shall remain as its was in the court of origin, but the party appealing
the case shall be further referred to as the appellant and the adverse party as the
appellee.

When to appeal (Sec. 2, Rule 40 of the 1997 Rules on Civil Proecdure)

An appeal may be taken within the period of:

1. Fifteen (15) days after the notice to the appellant of the judgment or final order
appealed from; or
 2. Where a record on appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days after notice of the judgment or
final order.

What is the effect of the filing of the motion for new trial or reconsideration on the
period to appeal?

The period to appeal shall be interrupted by a timely motion for new trial or
reconsideration.

What is the limitation on the filing a motion of a new trial or reconsideration?

No motion for extension of time to file a motion for new trial or reconsideration shall be
allowed.

Motion for extension of time to file motion for reconsideration does not toll the period
to appeal; Suspension of the rules.

The assailed CA resolution upheld the general rule that the filing of a motion for
reconsideration in the CA does not toll the fifteen-day period to appeal, citing Habaluyas
Enterprises, Inc. vs. Japson. However, in previous cases we suspended this in order to
serve substantial justice.

In Barnes vs. Padilla, [the Supreme Court] exempted from the operation of the general
rule the petitioner whose motion for extension of time to file a motion for
reconsideration was denied by the CA. In the resolution denying the motion for
reconsideration of [the Court’s] Decision dated September 30, 2004, [the Court] held
that:

A suspension of the Rules is warranted in this case since the procedural infirmity was
not entirely attributable to the fault or negligence of the petitioner. Petitioner’s counsel
was understandably confused with the absence of an explicit prohibition in the 2002
Internal Rules of the Court of Appeals (IRCA) that the period of filing a motion for
reconsideration is non-extendible, which was expressly stated in the Revised Internal
Rules of the Court of Appeals that was in effect prior to the IRCA. The lawyer’s
negligence without any participatory negligence on the part of the petitioner is a
sufficient reason to set aside the resolution of the CA.

More significantly, a careful study of the merits of the case and the lack of any showing
that the review sought is merely frivolous and dilatory, dictated the setting aside of the
resolutions of the CA in CA-G.R. SP No. 69573 and branch 215 in Civil Case No. Q-99-
37219, as both are patently erroneous. x x x

Furthermore, the private respondents will not be unjustly prejudiced by the suspension
of the rules. What is subject of the appeal is only a question of law, involving the issue of
forum shopping, and not a factual matter involving the merits of each party’s respective
claims and defenses relating to the enforcement of the MOA, wherein petitioner was
given an option to purchase the subject property. Litigations should, as much as
possible, be decided on their merits and not on mere technicalities. Every party-litigant
should be afforded the amplest opportunity for the proper and just disposition of his
cause, free from the constraint of technicalities.

After a conscientious view, we hold that a suspension of the Rules is warranted in this
case since the delay of one week and two days in the filing of the motion for
reconsideration was not occasioned by negligence on the part of petitioner’s lawyer in
charge of the case, the latter having a valid excuse to immediately take leave of absence
in view of her father’s sudden demise. There is likewise no showing that the review
sought is merely frivolous and dilatory.” (Winston F. Garcia, in his capacity as President
and General Manager of the GSIS vs. Court of Appeals and Rudy Tesoro, G.R. No. 169005,
January 28, 2013)

“Neypes doctrine” or “Fresh period rule”

The “Neypes Doctrine” or what our current rules of procedure refer to now as the
“Fresh Period Rule” has stemmed from the 2005 decision of the Supreme Court in
Domingo Neypes vs. Court of Appeals (G.R. No. 141524). “To standardize the appeal
periods provided in the Rules and to afford litigants fair opportunity to appeal their
cases,” the Court has deemed it practical to allow a fresh period of fifteen (15) days
within which to file the notice of appeal, to be counted from the receipt of the order
denying the motion for new trial, motion for reconsideration (whether full or partial) or
any final order or resolution.

Retroactive application of the “fresh period rule”

The “fresh period rule” is a procedural law as it prescribes a fresh period of 15 days
within which an appeal may be made in the event that the motion for reconsideration is
denied by the lower court. Following the rule on retroactivity of procedural laws, the
“fresh period rule” should be applied to pending actions, such as the present case.

Also, to deny herein petitioners the benefit of the “fresh period rule” will amount to
injustice, if not absurdity, since the subject notice of judgment and final order were
issued two years later or in the year 2000, as compared to the notice of judgment and
final order in Neypes which were issued in 1998. It will be incongruous and illogical
that parties receiving notices of judgment and final orders issued in the year 1998 will
enjoy the benefit of the “fresh period rule” while those later rulings of the lower courts
such as in the instant case, will not. (Priscilla Alma Jose vs. Ramon Javellana, et. al., G.R.
No. 158239, January 25, 2012)

Reckoning period in the application of the “fresh period rule.”

Accordingly, an ordinary appeal from the RTC to the Court of Appeals, under Sec. 3 of
Rule 41 of the Rules of Court, shall be taken within fifteen (15) days from receipt of the
original judgment of the trial court or from receipt of the final order of the trial court
dismissing or denying the motion for new trial or motion for reconsideration. The Court
is allowing a fresh period of 15 days within which to file a notice of appeal in the RTC,
counted from receipt of the order dismissing or denying a motion for new trial or
motion for reconsideration. (Ermelinda Manaloto et. al., vs. Ismael Veloso III, G.R. No.
171365, October 6, 2010)

Application of the “fresh period rule.”

To standardize the appeal periods and afford litigants fair opportunity to appeal, the
Supreme Court rules in Neypes vs. Court of Appeals, the litigants must be given a fresh
period of 15 days within which to file appeal, counted from receipt of the order
dismissing a motion for a new trial or motion for reconsideration under Rules 40, 41,
42, 43 and 45 of the Rules of Court. This ruling, as the Supreme Court said in Fil-Estate
Properties, Inc., vs. Homena Valencia, retroactively applies even to cases pending prior
to the promulgation of the Neypes Ruling on September 14, 2005, there being no vested
rights in the rules of procedure. (Elena Jane Duarte vs. Miguel Samuel A.E. Duran, G.R.
No. 173038, September 14, 2011)
The fresh period rule shall apply to Rule 40 (appeals from the Municipal Trial Courts to
the Regional Trial Courts); Rule 41 (appeals from the Regional Trial Courts to the Court
of Appeals or Supreme Court); Rule 42 (appeals from the Regional Trial Courts to the
Court of Appeals); Rule 43 (appeals from quasi-judicial agencies to the Court of
Appeals); and Rule 45 (appeals by certiorari to the Supreme Court). Obviously, these
Rules cover judicial proceedings under the 1997 Rules of Civil Procedure. (Julieta A.
Panolino vs. Josephine L. Tajala, G.R. No. 183616, June 29, 2010)

Aim of the fresh period rule

The new rule aims to regiment or make the appeal period uniform, to be counted from
receipt of the order denying the motion for new trial, motion for reconsideration
(whether full or partial) or any final order or resolution. (PCI Leasing and Finance, Inc.,
vs. Antonio C. Milan, doing business under the name and style of “A. Milan Trading,” and
Laura M. Milan, G.R. No. 151215, April 5, 2010)

Relaxation of the rule on the mandatory period for filing an appeal

Indeed, the perfection of an appeal in the manner and the period prescribed by law is
mandatory and jurisdictional. Necessarily, the failure to conform to the rules will
render the judgment for review final and unappealable. By way of exception, however,
minor lapses are at times disregarded in order to give due course to appeals filed
beyond the reglementary period on the basis of strong and compelling reasons, such as
serving the ends of justice and preventing a grave miscarriage thereof. The period for
appeal is set in order to avoid or prevent undue delay in the administration of justice
and to put an end to controversies. It is there not to hinder the very ends of justice itself.
The Court cannot have purely technical and procedural imperfections as the basis of its
decisions. In several cases, the Court held that cases should be decided only after giving
all parties the chance to argue their causes and defenses.

x x x Considering further that the party who failed to meet the exacting limits of an
appeal by a mere seven days and was an old farmer who was not only unlearned and
unskilled in the ways of the law but was actually an illiterate who only knew how to
affix his signature, certainly, to rule based on technicality would not only be unwise, but
would be inequitable and unjust. (Anita C. Vianzon, Heir of the late Lucila Candelaria
Gonzales vs. Minople Macaraig, G.R. No. 171107, September 5, 2012)

A one-day delay does not justify the appeal’s dismissal where no element of intent to
delay the administration of justice could be attributed to the petitioner. The Court has
ruled: “The general rule is that the perfection of an appeal in the manner and within the
period prescribed by law is, not only mandatory, but jurisdictional, and failure to
conform to the rules will render the judgment sought to be reviewed final and
unappealable. By way of exception, unintended lapses are disregarded so as to give due
course to appeals filed beyond the reglementary period on the basis of strong and
compelling reasons, such as serving the ends of justice and preventing a grave
miscarriage thereof. The purpose behind the limitation of the period of appeal is to
avoid an unreasonable delay in the administration of justice and to put an end to
controversies.” (Department of Justice Secretary Raul M. Gonzalez vs. Micheal Alfio
Pennisi, G.R. No. 169958, March 5, 2010)

The Court has the discretion to dismiss or not to dismiss an appellant’s appeal. It is
power conferred on the court, not a duty. The discretion must be a sound one, to be
exercised in accordance with the tenets of justice and fair play, having in mind the
circumstances obtaining in each case. Technicalities, however, must be avoided. The
law abhors technicalities that impede the cause of justice. The court’s primary duty is to
render or dispense justice. (Voltaire I. Rovira vs. Heirs of Jose C. Deleste, Jose Ray L.
Deleste, Raul Hector L. Deleste and Ruben Alex L. Deleste, G.R. No. 160825, March 26,
2010)

In many instances in the past, the Court allowed appeals filed out of time where the
delay was not due to the fault of negligence of the appellant as long as the appeals were
impressed with merit. (Siguenza vs. Court of Appeals, 137 SCRA 570)

How to appeal (Sec. 3, Rule 40)

The appeal is taken by a party by:

1. Filing a notice of appeal with the court that rendered the judgment or final order
appealed from. The notice of appeal shall indicate the parties to the appeal, the
judgment or final order or part thereof appealed from, and state the material
dates showing the timeliness of the appeal;
2. A record on appeal shall be required only in special proceedings and in other
cases of multiple or separate appeals.

Strict application of the rules on the manner of appeal

[The] Court emphasizes that provisions with respect to the rules on the manner and
periods for perfecting appeals are strictly applied and are only relaxed in very
exceptional circumstances on equitable considerations. (Aurora Go vs. Elmer Sunbanun,
G.R. No. 168240, February 9, 2011)

What are the forms and contents of a record on appeal?

The form and contents of the record on appeal shall be as provided in Sec. 6, Rule 41
which shall contain and comply with the following, to wit:
1. The full names of all the parties to the proceedings shall be stated in the caption
of the record on appeal;
2. It shall include the judgment or final order from which the appeal is taken;
3. In chronological order, copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed judgment or final order for
the proper understanding of the issue involved;
4. Together with such data as will show that the appeal was perfected on time;
5. If an issue of fact is to be raised on appeal, the record on appeal shall include by
reference all the evidence, testimonial and documentary, taken upon the issue
involved;
6. The reference shall specify the documentary evidence by the exhibit numbers or
letters by which it was identified when admitted or offered at the hearing, and
the testimonial evidence by the names of the corresponding witnesses. If the
whole testimonial and documentary evidence in the case is to be included, a
statement to that effect will be sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits. Every record on appeal
exceeding twenty (20) pages must obtain a subject index;
7. Copies of the notice of appeal, and the record on appeal when required, shall be
served on the adverse party.

Designation of the wrong court does not affect the validity of the notice of appeal.

The designation of the wrong court does not necessarily affect the validity of the notice
of appeal. However, the designation of the proper court should be made within the 15-
day period to appeal. Once made within the said period, the designation of the correct
appellate court may be allowed if the records of the case are forwarded to the Court of
Appeals. (Jesus Torres vs. People of the Philippines, G.R. No. 175074, August 31, 2011)
Perfection of appeal; Effect thereof (Sec. 4, Rule 40)

When is an appeal deemed perfected?

Appeal is deemed perfected when:

1. As party’s appeal by notice of appeal is deemed perfected as to him upon filing of
the notice of appeal in due time.
2. A party’s appeal by record on appeal is deemed perfected as to him with respect
to the subject matter thereof upon the approval of the record on appeal filed in
due time.

What is the effect of perfection of appeal?

Perfection of appeal shall have the following effects:

1. In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to
appeal of the other parties.
2. In appeals by record on appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and
the expiration of the time to appeal of the other parties.

What are the residual powers of the court?

Prior to the transmittal of the original record or the record on appeal, the court may
issue:
1. Orders for the protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal;
2. Approve compromises;
3. Permit appeals of indigent litigants;
4. Order execution pending appeal in accordance with Sec. 2 of Rule 39;
5. Allow withdrawal of the appeal.

Mere filing of a notice of appeal does not divest the trial court of its power to resolve
pending incidents

As long as any parties may still file his, her, or its appeal, the court does not lose
jurisdiction over the case. The mere filing by one party of a notice of appeal does not
divest the trial court of its jurisdiction over a case and to resolve pending incidents.
(Valencia vs. Court of Appeals, 352 SCRA 72, 79 [2001]; Asmala vs. Commission on
Elections, 289 SCRA 746, 752 [1998]; Edding vs. Commission on Elections, 246 SCRA
546, 550 [1992]) like a motion for execution pending appeal filed by the party within
the reglementary period for perfecting an appeal because the court must hear and
resolve such motion for it would become part of the records to be elevated on appeal.
(Asmala vs. Commission on Elections, 289 SCRA 746, 752 [1998]; Edding vs.
Commission on Elections, 246 SCRA 502, 509 [1995])

Period for perfecting an appeal must be strictly followed

On the plea for application for the liberality rule, it must be stressed that there are
certain procedural rule that must remain inviolable, like those setting the period for
perfecting an appeal. Doctrinally entrenched is that the right of appeal must comply
with the statute or rules. The Rules, particularly the requirements for perfecting an
appeal within the reglementary period specified in the law, must be strictly followed as
they are considered indispensable interdictions against needless delats and appeal in
the manner and within the period permitted by law is not only mandatory but also
jurisdictional and the failure to perfect an appeal renders the judgment of the court
final and executor. Just as a losing party has the right to file an appeal within the
prescribed period, the winning party has also the correlative right to enjoy the finality
of the resolution of his or her case. (Videogram Regulatory Board vs. Court of Appeals,
265 SCRA 373 [1996]; Cabellan vs. Court of Appeals 304 SCRA 119 [1999]; Demata vs.
Court of Appeals, 303 SCRA 690 [1999]; Marcos V. Prieto vs. The Hon. Court of Appeals
[former Ninth Division], Hon. Rose Mary R. Molina-Alim, in her capacity as Pairing Judge
of Branch 67 of the RTC, First Judicial Region, Bauang, La Union, Far East Bank & Trust
Company, now the Bank of the Philippine Islands, through Atty. Edilberto B.
Tenefrancia, and Spouses Antonio and Monette Prieto, G.R. No. 158597, June 18, 2012)

Indeed, the perfection of an appeal in the manner and the period prescribed by lawis
mandatory and jurisdictional. Necessarily, the failure to conform to the rules will
render the judgment for review final and unappealable. By way of exception, however,
minor lapses are at times disregarded in order to give due course to appeals filed
beyond the reglementary period on the basis of strong and compelling reasons, such as
serving the ends of justice and preventing a grave miscarriage thereof. The period for
appeal is set in order to avoid or prevent undue delay in the administration of justice
and to put an end to controversies. It is there not to hinder the very ends of justice itself.
The Court cannot have purely technical and procedural imperfections as the basis of its
decisions. (Anita C. Vianzon, Heir of the Late Lucila Candelaria Gonzales vs. Minople
Macaraeg, G.R. No. 171107, September 5, 2012)

Appellate Court and other Lawful fees (Sec. 4, Rule 40)

What is the rule on the payment of appeal docket and other lawful fees?

Within the period for taking an appeal, the appellant shall:

1. Pay to the clerk of court which rendered the judgment or final order appealed
from the full amount of the appellate court docket and other lawful fee;
2. Proof of payment thereof shall be transmitted to the appellate court together
with the original record or the record on appeal as the case may be.

Payment of appeal docket fee – mandatory and jurisdictional

Payment of docket fee and other fees within this period is mandatory for the perfection
of appeal. Otherwise, the right to appeal is lost. (D.M. Wenceslao and Associates, Inc. vs.
City of Parañaque, G.R. No. 170728, August 31, 2011)

Payment of docket fees within the prescribed period is mandatory for the perfection of
an appeal. Without such payment, the appellate court does not acquire jurisdiction over
the subject matter of the action and the decision sought to be appealed from becomes
final and executor. (Province of Camarines Sur vs. Heirs of Augustin Pato, G.R. No.
151084, July 2, 2010; Jose vs. Court of Appeals, 399 SCRA 83 [2003]; Insular Life
Savings and Trust Company vs. Spouses Feliz Mateo Runes, Jr. and Trinidad Runes, G.R.
No. 152530, August 12, 2004)

In the case of Meatmasters International Corporation vs. Lelis Intergrated Development

Corporation, G.R. No. 163022, February 28, 2005, the Supreme Court held that it is well-
established that the payment of docket fees within the prescribed period is mandatory
for the perfection of an appeal. This is so because a court acquires jurisdiction over the
subject matter of the action only upon payment of the correct amount of docket fees
regardless of the actual date of filing of the case in court. (Barangay 24 of Legaspi City
vs. Elias Imperial, 393 Phil 357, 363 [2000]) The payment of the full amount of the
docket fee is sine qua non requirement for the perfection of an appeal. The court
acquires jurisdiction over the case only upon the payment of the prescribed docket fees.
Mere filing of notice of appeal not enough to perfect an appeal – payment of docket fees
required

It is a well-settled rule that the mere filing of the notice of appeal is not enough, for it
must be accompanied by the payment of the correct appellate docket fees. Payment in
full of docket fees within the prescribed period is mandatory. It is an essential
requirement without which the decision appealed from would become final and
executor as if no appeal has been filed. Failure to perfect an appeal within the
prescribed period is not a mere technicality but jurisdictional, and failure to perfect an
appeal tenders judgment final and executor. (Dominga Ruiz vs. Cirila Delos Santos, G.R.
No. 166386, January 27, 2009)

Cases where the Supreme Court relaxed the rule on payment of appeal fee

In the same case of Meatmasters International Corporation vs. Lelis Integrated

Development Corporation, supra, the Supreme Court held that: “We recognize that
certain peculiar circumstances attendant in a case may warrant the relaxation of the
strict application of the rules on the payment of docket fees. Thus, in La Salette College
vs. Pilotin, G.R. No. 149227, December 11, 2003, 418 SCRA 380, 387, we held that the
said rules may be qualified by the following: first, failure to pay those fees within
reglementary period allows only discretionary, not automatic, dismissal: second, such
power should be used by the court in conjunction with its exercise of sound discretion
in accordance with the tenets of justice and fair play, as well as with a great deal of
circumspection in consideration of all attendant circumstances. Our pronouncements
on the matter are always influenced by the peculiar legal and equitable surroundings of
each case. While the Rules of Procedure must be faithfully followed, same Rules may be
relaxed for persuasive and weighty reasons to relieve a litigant of an injustice
commensurate wit his failure to comply with the prescribed procedure.” (Navarro vs.
Metropolitan Bank and Trust Co., G.R. No. 138031, May 27, 2004; see also Samuel Julian
vs. Development Bank of the Philippines and the City Sheriff, G.R. No. 174193,
December 7, 2011)

In Mactan Cebu International Airport Authority vs. Mangubat (371 Phil 393, 398
[1999]) the payment of the docket fees was delayed by six (6) days, but the late
payment was accepted not only because the new Rules took effect only two (2) weeks
prior but also because the party showed willingness to abide by the Rules by
immediately paying those fees as soon as it became aware thereof.

In Yambao vs. Court of Appeals (G.R. No. 140894, November 27, 2000, 346 SCRA 141,
147), [the Court] declared therein that the appellate court may extend the time for the
payment of the docket fees if appellant is able to show that there is a justifiable reason
for … the failure to pay the correct amount of docket fees within the prescribed period,
like fraud, accident, mistake, excusable negligence, or a similar supervening casualty,
without fault on the part of the appellant. In that case, the clerk of court erroneously
assessed the amount of the docket fees which, nonetheless, was paid within the appeal
period, although insufficient.

Duty of the clerk of court (Sec. 6, Rule 40)

What are the duties of the clerk of court after the perfection of appeal?

Within fifteen (15) days from the perfection of the appeal, the clerk of court or the
branch clerk of court of the lower court shall:
1. Transmit the original record of the record on appeal, together with the
transcripts and exhibits to the Regional Trial Court;
2. He shall certify as complete the records, to the proper Regional Trial Court;
 3. A copy of his letter of transmittal of the records to the appellate court shall be
furnished the parties.

Procedure in the Regional Trial Court (Sec. 7, Rule 40)

What is the duty of the clerk of court of the Regional Trial Court after the transmittal of
the record?

Upon receipt of the complete record or the record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of such facdt.

What is the duty of the appellant and appellee upon notice?

1. Within fifteen (15) days from such notice, it shall be the duty of the appellant to
submit a memorandum which shall briefly discuss the errors imputed to the
lower court, a copy of which shall be furnished by him to the adverse party;
2. Within fifteen (15) days from receipt of the appellant’s memorandum, the
appellee may file his memorandum. Failure of the appellant to file a
memorandum shall be a ground for dismissal of the appeal.

What is the course of action of the court after the filing of the memorandum?

Upon the filing of the memorandum of the appellee, or the expiration of the period to do
so:
1. The case shall be considered submitted for decision;
2. The Regional Trial Court shall decide the case on the basis of the entire record of
the proceedings had in the court of origin and such memoranda as are filed.

Appeal from the order dismissing case without trial; Lack of Jurisdiction (Sec. 8, Rule
40)

What is the rule in case an appeal from orders dismissing case is without trial?

In case an appeal from orders dismissing the case is taken without trial, the appeal shall
have the following effects:
1. If an appeal is taken from an order of the court dismissing the case without a
trial on the merits, the Regional Trial Court may affirm or reverse it, as the case
may be.
2. In case of affirmance and the ground for dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try
the case on the merits as if the case was originally filed with it. In case of
reversal, the case shall be remanded for further proceedings.
3. If the case was tried on the merits by the lower court without jurisdiction over
the subject matter, the Regional Trial Court on appeal shall not dismiss the case
if it has original jurisdiction thereof, but shall decide the case in accordance with
the preceding section, without prejudice to the admission of amended pleadings
and additional evidence in the interest of justice.

Applicability of Rule 41 (Sec. 9, Rule 41)

What is the rule on the application of Rule 41?

The other provisions of Rule 41 shall apply to appeals provided for herein insofar as
they are not inconsistent with or may serve to supplement the provisions of this Rule.

NOTICE OF APPEAL (RULE 40)

 REPUBLIC OF THE PHLIPPINES
NATIONAL CAPITAL JUDICIAL REGION
METROPOLITAN TRIAL COURT
Pasig City
Branch ______

MR. X,
Plaintiff,

- versus- CIVIL CASE NO. ______________________________

For: Recovery of possession with damages

MR. Y

Defendant.
x-----------------------------x

NOTICE OF APPEAL

Defendant, through counsel, not satisfied with the Decision dated March 12,
2012, being contrary to law and the evidence presented, and which Order/Decision was
received by appellant through counsel on March 17, 2012, hereby signifies their
intention to appeal, as they hereby appeal, the said Decision to the Regional Trial Court.

Manila, Metro Manila, 30 March 2012.

Counsel for the Defendant

CC: Counsel for the Plaintiff

Registry Return Card:

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s counsel by registered

mail due to time and distance constraints, and for lack of the undersigned’s staff who
can serve the same in person.

HECTOR A. YULO

Flow Chart

Decision/judgment/final orders of the Metropolitan or Municipal Trial Courts

Next

Filing of motion for new trial or reconsideration within the period of taking and
perfecting an appeal except in summary procedure

Next

Appeal by Notice of Appeal within fifteen (15) days or within thirty (30) days from
notice of judgment/decision or final orders applying the fresh period rule to be filed
with the MTC/MCTC
Next

Transmittal of the records of the case to the Regional Trial Court

Next

In case of adverse judgment file a motion for new trial or reconsideration within fifteen
(15) days from notice of judgment under Rule 37

Next

In case of denial of the motion for new trial or reconsideration, file a petition for review
with the court of appeals within fifteen (15) from notice of judgment or the denial of the
motion for new trial or reconsideration under Rule 42

Next

In case of adverse decision on the petition for review, file a motion for reconsideration
or new trial within fifteen (15) days from notice of the judgment under Rule 52 or 53

Next

In case of denial of the motion for reconsideration or new trial a petition for review on
certiorari under Rule 45 with the Supreme Court within fifteen (15) days from notice of
the judgment or the order of the denial of the motion for reconsideration or new trial.

Next

In case of adverse judgment, file a motion for reconsideration or new trial under Rule
52 within fifteen (15) days from notice of judgment.

APPEAL FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS (RULE 41)

Supreme Court Issuances/Circulars affecting lawyers

A.M. No. 12-11-2-SC dated 15 April 2014

Sec. 1 amd Sec. 4 – Order fixing Bail is not subject to appeal
Sec. 5 – Release on recognizance. Accused who has been detained for a period at least
equal to the minimum of the penalty for the offense charged shall be released, motu
propio or on motion, and after notice and hearing, on his own recognizance.
Sec. 8 and 9 – Speedy trial. Case can be dismissed on ground of denial of the right to
speedy trial of the accused if time limits are not observed

OCA Circular No. 34-2015 (Application of RA Nos. 6033, 6034 and 6036) dated 18
February 2015
Reminded all courts about the benefits to which indigent and low income litigants are
entitled to pursuant to laws or the Rules of Court:
1. RA 6033 (An act requiring courts to give preference to criminal cases where the
party or parties involve indigents)
2. RA 6034 (An act providing transportation and other allowances for indigent
litigants)
 3. RA 6035 (An act requiring stenographers to give free TSNs to indigents and low
income litigants and providing a penalty thereof)
4. RA 6036 (An act providing that bail shall not, with certain exceptions, be
required in cases of violations of municipal or city ordinances and in criminal
offenses when the prescribed penalty for such offenses is not higher than arresto
mayor and/or fine of P2,000 or both)
5. Exception from payment of legal fees (Sec. 19, Rule 141 – subject to proof via
affidavits on insufficient income and no valuable real property)

OCA Circular No. 77-2015 (Application of RA No. 10640, or the Sotto Amendment to the
Anti-Drug Law [RA 9165])
RA 10640 provided that the PDEA shall take charge and have custody of all dangerous
drugs and other related drug items, subject to the following:
1. The apprehending team having the initial custody of the dangerous drugs,
among others, shall immediately conduct a physical inventory and photograph
the same in the presence of: (a) the accused or his representative; (b) an elected
public official; and (c) a representative of the National Prosecution Service or the
media;
2. The physical inventory and photograph shall be conducted at the place where
the search warrant is served or at the nearest police station or the nearest office
of the apprehending officer/team; and
3. Non-compliance with the above requirements under justifiable grounds, as long
as the integrity and the evidentiary value of the seized items are properly
preserved, shall not render void and invalid such seizures and custody of said
items.
4. Note: forensic lab results shall be issued immediately and not within 24 hours.

OCA Circular No. 161-2016 (Non-designation of Sheriffs to implement writs issued by

the Non-judiciary agencies) dated 22 July 2016
SC reaffirmed its resolution dated 26 August 2014 wherein that Court Sheriffs caanot
enforce writs of execution issued by quasi-judicial bodies.

OCA Circular No. 233-2016 (Incident Record Form as Additional Evidence in Court) 16
November 2016
IRFs (incident Report Form) will replace the Police Blotter (eventually the Police blotter
will just be used as a log of duly accomplished IRFs and will no longer contain any other
information)

OCA Circular No. 272-2016 (Services of Writs and Court Processes in Connection with
Cases Involving Foreign Governments or Instrumentalities thereof) dated 05 December
2016
All concerned are directed to forward all court processes and writs issued in connection
with cases involving foreign governments or agencies to the department of foreign
affairs for transmission to the foreign embassy concerned by diplomatic vote.

A.M. No. 03-03-03-SC

The Cybercrime courts in Quezon City, Manila, Makati and Pasig shall have authority to
act on applications for the issuance of search warrants involving violations of RA No.
10175, which search warrants shall be enforceable nationwide

Note: Executive Judge of Manila and Quezon City can issue search warrants and
implement on nationwide.

OCA Circular No. 90-2017 (Sections 11, 12 and 13, Rule 114 of the Revised Rules on
Criminal Procedure) dated 10 April 2017
Property Bond – constitutes as lien on the real property given as security for the
amount of the bail
- within 10 days after the approval of the bond, the accused shall cause the
annotation of the lien on the certificate of title on file with the Register of
Deeds or if the land is unregistered, with the registration book of the
Register of Deeds.
- Within the same period, the accused shall submit to the court his
compliance and his failure to do so shall be sufficient cause for the
cancellation of the property bond and the re-arrest and detention of the
accused. (Sec. 11)

Qualification of sureties in property bond - each surety must be a Resident Owner of

Real Estate within the Philippines and his real estate must be worth at least the amount
of the undertaking.
- every surety must be worth the amount specified in his own undertaking
over and above all just debts, obligations and properties exempt from
execution. (Sec 12)

Justification of sureties – every surety shall justify by affidavit taken before the judge
that he possesses the qualifications prescribed in Sec. 12
- No Bail shall be approved unless the surety is qualified

A.M. No. 15-06-10-SC (Revised Guidelines for Continuous Trial of Criminal Cases) dated
25 April 2017

Motions for inhibition shall be resolved immediately or within 2 calendar days from
filling.

Prohibited motions include (1) motion for judicial determination of probable cause; (2)
motion for preliminary investigation filed beyond the 5-day reglementary period, or
when Preliminary Investigation is required or allowed in inquest proceedings and the
accused failed to participate in the Preliminary Investigation proceedings; (3) motion
for reinvestigation once the information has been filed before the court (with
conditions); (4) motion to quash information when the ground is not one of those
stated in Rule 117; (5) motion for bill of particulars that does not conform to Sec. 9,
Rule 116; (6) motion to suspend arraignment based on grounds not stated under Sec
11, Rule 116 or (7) motion to suspend the criminal action on the ground of prejudicial
question when no civil action has been filed

Meritorious motions (III[2][c]) – motions that allege plausible grounds supported by

relevant documents and/or competent evidence (like motion to withdraw information,
motion to quash warrant of arrest, motion to discharge accused as state witness, motion
to suppress evidence, or motion to dismiss on the ground that the criminal case is a
Strategic Law Suit Against Public Participation (SLAPP)
The comment on the adverse party shall be filed within a non-extendible period of 10
calendar days and the court shall resolve the motion within a non-extendible period of
10 calendar days.

Motion for postponement – prohibited, except if its based on (1) acts of God; (2) force
majeure; or (3) physical inability of the witness to appear and testify
Note: Must be accompanied by the original official receipt from the OCC (or CoC)
evidencing payment of the postponement fee

Free legal assistance – if PAO services cannot be availed of, the IBP Local Chapter shall
provide free legal assistance
OCA Circular No. 232-2017 (Admissibility of Parties Stipulations on Forensic
Laboratory Reports in Drug Cases) dated 11 December 2017

Directed judges to admit as admissible in evidence the stipulations entered into by the
parties relative to the certification or chemistry report of the forensic laboratory
examination results, in lieu of the oral testimony of the forensic chemists.

Cited that the Supreme Court, in several cases, held that non-presentation of the
forensic chemist in illegal drugs cases is an insufficient cause for acquittal. Also the
report of an official forensic chemist regarding a recovered prohibited drug enjoys the
presumption of regularity in tis preparation. (Pursuant to Sec. 44, Rule 130)

Stipulations of the forensic chemist regarding the custody of the seized drug during the
interim – from the time it was turned over to the laboratory up to its presentation in
court, as well as stipulations of the parties as to the existence and due authentication of
documents (Chemistry Report: request for investigation: specimen in the Chemistry
Report; and Chain of Custody Form) are admissible in evidence.

Alfredo Mendoza v Pp of the Philippines and Juno Cars, G.R. No. 197293, 21 April 2014

The difference is clear: The executive determination of probable cause concerns itself
with whether there is enough evidence to support the information being filed. The
judicial determination of probable cause, on the other hand, determines whether a
warrant of arrest should be issued.

The Judge does not act as an appellate court of the prosecutor and has no capacity to
review the prosecutor’s determination of probable cause rather, the judge makes a
determination of probable cause independent of the prosecutor’s finding.

Sec. 6, Rule 112 of the Rules of Court gives the trial court three options upon filing of the
criminal information: (1) dismiss the case if the evidence on record clearly failed to
establish probable cause; and (2) issue a warrant of arrest if it finds probable cause;
and (3) order the prosecutor to present additional evidence within five days from
notice in case of doubt as to the existence of probable cause,

It is also settled that once a complaint or information is filed in court, any disposition of
the case, whether as to its dismissal or the conviction or the acquittal of the accused,
rests in the sound discretion of the court.

Noble v Atty Ailes, A.C. No. 10628, 01 July 2015

The practice of law is a privilege bestowed on lawyers who meet the high standards of
legal proficiency and morality. It is a special privilege burdened with conditions before
the legal profession, the courts, their clients and the society such that a lawyer has the
duty to comport himself in a manner as to uphold integrity and promote the public’s
faith in the profession.

With regard to respondent’s violation of B.M. No. 1922, the Court agreed with the IBP
that his failure to disclose the required information for MCLE Compliance in the
complaint for damages he had filed is not a ground for disbarment.

Quisay v Pp of the Philippines, G.R. No. 216920, 13 January 2016

As a general rule, under Sec. 4, Rule 112, complaints or information filed before the
courts without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor (now prosecutor general) renders the same
defective and, therefore, subject to quashal pursuant to Sec. 3 (d), Rule 117 (motion to
quash)

In Pp v Judge Garfin, the Court firmly instructed that the filing of an Information by an
officer without the requisite authority to file the same constitute a jurisdictional
infirmity which cannot be cured by silence, waiver, acquiescence or even by express
consent. Hence, such ground may be raised ay any stage of the proceedings.

CA was correct in holding that the City Prosecutor may delegate his power to
investigate to his subordinates, so the resolutions of the ACP can be approved by the
SACP.

However, with respect to filing the Information, there was no showing that it was
approved by either the City Prosecutor or by the review prosecutors. Instead, only a
Certification by the ACP that there was prior approval thereof appears.

Pp v Hon. Edmar Castillo Sr., G.R. No. 204419, 07 November 2016

Nothing in Sec. 2, Rule 126 does it says that the court issuing the search warrant must
also have jurisdiction over the offense.

A search warrant may be issued by any court pursuant to Sec. 2, Rule 126 and the
resultant case may be filed in another court that has jurisdiction over the offense
committed.

What controls here is that the search warrant is merely a process, generally issued by a
court in the exercise of its ancillary jurisdiction, and not a criminal action to be
entertained by a court pursuant to its original jurisdiction.

In certain cases when no criminal action has yet been filed, any court may issue a search
warrant even though it has no jurisdiction over the offense allegedly committed,
provided that all the requisites for the issuance of such warrant are present.

Estipona, Jr. v Judge Lobrigo, G.R. No. 226679, 15 August 2017

The SC declared that “plea bargaining” is a rule of procedure. Likewise, plea bargaining
is a way if disposing criminal charges by agreement of the parties so that it is
considered to be an important, essential, highly desirable and legitimate component of
the administration of justice.

Knowing the intricacies of pre-trial

Eleuterio Larisma Bathan

RTC Branch 92 Quezon City

MCLE March 3, 2018 4pm

Pre-trial is part of the hearing. Hearing includes the pre-trial stage. It does not preclude
pre-trial (Trocio vs. Labayo, 53 SCRA 97)

Pre-trial in civil actions is mandatory (Development Bank of the Philippines vs. CA, 169
SCRA 409)
It is a procedural device intended to clarify and limit the basic issues between the
parties and to take the trial of cases out of the realm of surprise and maneuvering
(Interlining Corporation vs. Philippine Trust Company, 428 Phil 584 and Permanent
Concrete Products, Inc. vs. Teodoro, 135 Phil 364)

It is a tool to assist the trial court in the orderly and expeditious conduct of trials
(Pioneer Insurance and Surety Corp vs Hontanosas, 78 SCRA 447)

The reason for making pre-trial mandatory is that pre-trial conferences bring parties
together, thus making possible an amicable settlement or doing away with at least the
non-essentials of a case from the beginning. (Pioneer Insurance and Surety Corp vs
Hontanosas, 78 SCRA 447)

It is primarily intended to make certain that all issues necessary to the disposition of a
case are properly raised (LCK Industries Inc vs Planters Development Bank, 538 SCRA
634)

The courts to make full use of the pre-trial proceedings primarily so that all issues
necessary to the early disposition of a case can be properly determined and to explore
all avenues towards a compromise or settlement of the case (Martinez vs. Judge De La
Merced, G.R. No. 82039, 174 SCRA 182)

The purpose of entering into a stipulations of facts is to expedite trial and to relieve the
parties and the court as well of the costs of proving facts which will not be disputed on
trial and the truth of which can be ascertained by reasonable inquiry. Its main objective
is to simplify, abbreviate and expedite the trial, or totally dispense with it. (Interlining
Corporation vs. Philippine Trust Company, 428 Phil 584)

So, to obviate the element of surprise parties are expected to disclose at the pre-trial
conference all issues of law and fact they intend to raise at the trial. (Caltex
(Philippines), Inc. vs. CA, G.R. No. 97753, August 10, 1992)

The parties are bound to honor the stipulations they made during the pre-trial.
(Interlining Corporation vs. Philippine Trust Company, March 6, 2002)

Pre-trial brief

What needs stressing is that the parties as well as the Trial Court must realize that at
the pre-trial, the parties are obliged not only to make formal identification and
specification of the issues and of their proofs, as above described – indeed, there is no
reason why the Court may not oblige the parties to set these matters down in separate
writings and submit them to the Court prior to the pre-trial, and then to discuss, refine
and embody the matters agreed upon in a single document at or shortly after the pre-
trial – but also and equally as peremptorily and directly address and discuss with
sincerity and candor and in entire good faith each of the other subjects enumerated in
the rules. (Tiu vs Middleton, G.R. No. 134998, July 19, 1999, 310 SCRA 580)

Parties are bound by the representations and statements in their respective pre-trial
briefs (Item A.2(f), A.M. No. 03-10-09-SC, Guidelines to be Observed by Trial Court
Judges and Clerk of Courts in the Conduct of Pre-Trial and Use of Deposition-Discovery
measures, effective August 16, 2004)

The lawyers failure to file brief for his client certainly constitutes inexcusable and fatal
negligence on the part of the lawyer (Ballesteros, Sr. vs. Atty Apiag, A.C. No. 5760,
September 30, 2005, 471 SCRA 111) and a ground for dismissal of the case (Spouses
Soriano vs. Atty Reyes, A.C. No. 4676, May 4, 2006, 489 SCRA 328)
For this reason reason, respondent’s failure to submit the pre-trial brief to the court
within the given period constitutes negligence which entails disciplinary action. Not
only is it a dereliction of duty to his client but to the court as well (Spouses Soriano vs.
Atty. Reyes, A.C. No. 4676, May 4, 2006, 489 SCRA 328)

An attorney is bound to protect his client’s interest to the best of his ability and with
utmost diligence. A failure to file brief for his client certainly constitutes inexcusable
negligence on his part. The respondent has indeed committed a serious lapse in the
duty owed by him to his client as well as to the court not to delay litigation and to aid in
the speedy administration of justice. (Galen vs. Atty Paguiringan, 428 Phil 590, citing
Tan vs. Lapak, 350 SCRA 74, cited in Ballesteros, Sr. vs Atty Apiag, A.C. No. 5760, 471
SCRA 111)

But if the pre-trial brief was filed to the court and service to the adverse party through
registered mail and the same were not received by the court and the adverse party at
least three days prior to the scheduled pre-trial, the non-receipt of the court and the
adverse party copy of their pre-trial brief was considered as beyond the control of the
one who served the same via registered mail, and the trial court has the discretion to lift
the order of dismissal after giving credence to the party movant’s explanation.
(Republic vs Oleta, G.R. No. 156606, August 17, 2007, 530 SCRA 534)

In a pre-trial, the judge is not a passive arbiter; he is an active participant who

constantly seeks avenues through which trial can be expedited, simplified or even
avoided by a resort to alternative modes of dispute resolution. (Tiu vs Middleton, G.R.
No. 134998, July 19, 1999, 310 SCRA 580)

So, during the pre-trial, the judge shall be the one to ask questions on issues raised
therein and all questions or comments by counsel or parties must be directed to the
judge to avoid hostilities between the parties. (A.M. No. 03-10-09-SC)

Failure of the trial court judge to conduct pre-trial constitutes gross ignorance of the
law:

In the case of National Power Corporation vs. Judge Adiog, A.M. No. RTCJ-7-2060, July
27, 2011, it was held that ignorance of a basic rule in court procedure, such as failure to
conduct the mandatory pre-trial conference amounts to gross ignorance and warrants a
corresponding penalty.

Authority of attorney-in-fact to appear during pre-trial

The term “to appear for and in its behalf in the above-entitled case in all circumstances
where its appearance is required and to bind it in all said instances” in the Power of
Attorney although the power of attorney does not specifically mention the authority of
representative to appear and bind the principal at the pre-trial conference, the terms of
said power of attorney are comprehensive enough as to include the authority to appear
for the principal at the pre-trial conference. (Tropical Homes, Inc vs. Villaluz, 170 SCRA
577, cited in Citibank, N.A. vs. Chua, 220 SCRA 75)

Proceeding undertaken without pre-trial is voided; exception

Proceedings undertaken without first conducting a pre-trial or with a legally defective

pre-trial, as a rule is void, if either of the parties of the case suffered substantial
prejudice thereby or they were denied their right to due process. (Sagarino vs. Pelayo,
77 SCRA 402; Patalinjug vs. Peralta, 90 SCRA 50; Loquias vs. Rodriguez, 65 SCRA 659
and People’s Realty Brokerage Corp. vs. Lustre, 85 SCRA 545 cited in Martinez vs. Judge
De La Merced, G.R. No. 82039, June 20, 1989, 174 SCRA 182)

If complaint is amended after conducting pre-trial, no need to conduct second or

another pre-trial

There is no need to have another pre-trial if there had already been a pre-trial
conducted prior to the filing of an amended complaint as the conduct of another one
would be impractical, useless and time-consuming to call another pre-trial (Pioneer
Insurance and Surety Corp vs. Hontanosas, 78 SCRA 447 citing Insurance Co of North
America vs Republic, et. al., 21 SCRA 887, cited in Young vs CA, 204 SCRA 584)

No need for second or another pre-trial if parties previously agreed or disagreed to

another one

When the issues had been joined and when the court itself had been satisfied that a
hearing on the merits is the next step to conduct after the pre-trial, and the parties had
previously agreed to disagree to another pre-trial, there is no need to conduct another
one as it will serve no purpose for the court to call again for another pre-trial. It would
be impractical, useless and time-consuming. (Pioneer Insurance and Surety Corp vs
Hontanosas, 78 SCRA 447 citing Insurance Co of North America vs. Republic, et. al., G.R.
No. L-26794, Nov. 15, 1967, 21 SCRA 887, cited in Young vs. CA, G.R. No. 812, December
4, 1991, 204 SCRA 584)

If the court sets the case for second pre-trial despite the parties disagreement, action
for second pre-trial setting is tantamount to action without authority, and if, let say
defendant failed or did not appear on the said second pre-trial, plaintiff cannot be
allowed to present evidence ex-parte because second pre-trial is not mandatory (Viron
Transportation Co., Inc., G.R. No. 117020, April 4, 2003, 400 SCRA 570)

Parties and lawyers appearance during pre-trial conference is mandatory; exceptions

Parties and lawyers appearance during pre-trial conference is mandatory, their

presence cannot be excused, except:
1. Valid excuse; and
2. Appearance of a representative on behalf of a party who is fully authorized in
writing to enter into a amicable settlement, to submit to alternative modes of
dispute resolution, and enter into stipulations or admissions of facts and
documents (Durban Apartments Corporation vs. Pioneer Insurance and Surety
Corporation, G.R. No. 179419, January 12, 2011, 639 SCRA 441)

The non-appearance of a party and counsel may be excused if:

1. Valid cause is shown; or
2. There is an appearance of a representative on behalf of a party fully authorized
in writing to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions of facts and
documents.

What constitutes a valid cause is subject to the court’s sound discretion and the exercise
of such discretion shall not be disturbed except in cases of clear and manifest abuse.
(Ultra Mar Aqua Resource, Inc. vs. Ferminda Construction Services, G.R. No. 191353,
April 17, 2017)

“The practice of some lawyers of sending their messengers or clerks to ask for
postponement evinces disrespect to the court, detracts from the decorum and dignity of
the judicial proceeding, and is tantamount to trifling with the court and belittling the
presiding judge. The practice should not be allowed.”

We have to discourage such practice because it can lead to name dropping the judge. To
avoid name-dropping, court employees should be barred from becoming messengers of
litigants or their lawyers. They usually start with postponements until it leads to
something else that the judge is clueless about. (People vs. Tibayan, G.R. No. L-39075,
30 September 1978)

Effect of failure to appear during the pre-trial conference

If the plaintiff fails to appear during the scheduled pre-trial conference despite due
notice, it shall be cause for the dismissal of the complaint. The dismissal is always with
prejudice, unless the order says that dismissal is without prejudice. If the order is silent,
the dismissal is with prejudice; Plaintiff failed – defendant may be allowed to present
evidence on his counterclaim, if any; Defendant failed – plaintiff’s presentation of ex-
parte evidence, and the court to render judgment on the basis thereof (Section 5 of Rule
18, 1997 Revised Rules of Civil Procedure)

If the defendant is the one not attendant in court despite due notice to him, it shall be
cause for the dismissal of his counterclaim and plaintiff shall be allowed to present
evidence ex-parte. (No non-suited)

On motion for postponement during pre-trial conference

The High Court has repeatedly ruled that motions for postponements are granted only
upon meritorious grounds and no party has the right to assume that such motion would
be granted. (Intestate Estate Prebitero, Sr. vs. CA., G.R. No. 102432, January 21, 1993,
215 SCRA 372 cited in Ballesteros, Sr. vs. Atty. Apiag, A.C. No. 5760, September 30,
2005, 471 SCRA 111)

In one case, respondent’s non-appearance in the pre-trial conference held on 5

February 2002 was due to his assumption that the trial court would grant the Motion
for Postponement filed by counsel for plaintiffs, and the High Court held that
respondent’s reason for his non-appearance at the pre-trial conference is faulty and
unacceptable (Ballesteros, Sr. vs. Atty. Abiag, A.C. No. 5760, September 30, 2005, 471
SCRA 111)

The only issues defined are the only issues to be resolved, no more no less:

In the case of Permanent Concrete Products, Inc. vs. Teodoro, G.R. No. L-29766,
November 29, 1968, 26 SCRA 332

The argument, however, ignores the admitted fact that at the pre-trial conference held
in the court below, all the parties agreed to limit the issues to only three questions of
law affecting all the parties alike. At the said pre-trial conference, the appellant failed to
put in issue his alleged non-participation, in spite of the clear allegation in the amended
complaint that “defendant xxx was the contractor.” Clearly, the question now sought to
be argued and discussed by the appellant was waived by him. For indeed, the
delimitation of issues at the pre-trial conference bars the consideration of other
questions on appeal.”

Therefore, the delimitation of issues at the pre-trial conference bars the consideration
of other questions on appeal.
Abagatnan vs. Clarito, G.R. No. 211966, August 7, 2017, the non-inclusion of the issue in
the Pre-trial Order barred its consideration during the trial. This is but consistent with
the rule that parties are bound by the delimitation of issues that they agreed upon
during the pre-trial proceedings.

Counsel appearing for and in-behalf of client failed to present any authority during pre-
trial

In United Coconut Planters Bank vs. Magpayo, G.R. No. 149908, May 27, 2004, 429 SCRA
669, the complaint was dismissed because although the counsel for complainant was
present during the pre-trial hearing, the Court affirmed such dismissal on account of
said counsel’s failure to present any special power of attorney authorizing him to
present the complainant during pre-trial.

Revised Guidelines for Continuous Trial of Criminal Cases

MCLE March 3, 2018
Judge Eleuterio Bathan

Motion for inhibition

Motion for inhibition based on grounds for under Rules 137 shall be resolved
immediately or within two (2) calendar days from the date of filing.

Though motion, no need to set the case for hearing in the morning of Friday.

Disqualification of judges

No judge or judicial officer shall sit in any case, in which he, or his wife or child, is
pecuniarily interest interested as heir, legatee, creditor or otherwise, or in which he is
related to either party within the sixth degree of consanguinity or affinity, or to counsel
within the fourth degree, computed according to the rules of the civil law, or in which
he has been executor, administrator, guardian, trustee or counsel, or in which he has
been presided in any inferior court when his ruling or decision is the subject of review,
without the written consent of all parties in interest, signed by the and entered upon
the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those mentioned above. (Section 1, Rule 137,
Rules of Court)

Challenge for inhibition on disqualification of judges

If it be claimed that an official is disqualified from sitting as above provided, the party
objecting to his competency may, in writing, file with his objection, stating the grounds
therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom,
in accordance with his determination of the question of his disqualification. His decision
shall be forthwith made in writing and filed with the other papers in the case, but no
appeal or stay shall be allowed from, or by reason of, his decision in favor of his own
competency, until after final judgment in the case (Section 2, Rule 137, Rules of Court)

See also: Section 5, Canon 3, A.M. No. 03-05-01-SC: New Code of Judicial Conduct for the
Philippine Judiciary effective June 1, 2004

Judges shall disqualify themselves from participating in any proceedings in which they
are unable to decide the matter impartially or in which it may appear to a reasonable
observer that they are unable to decide the matter impartially. Such proceedings
include, but are not limited to, instances where
a. The judge has actual bias or prejudice concerning a party or personal knowledge
of disputed evidentiary facts concerning the proceedings;
b. The judge previously served as a lawyer or was a material witness in the matter
in controversy;
c. The judge, or a member of his or her family, has an economic interest in the
outcome of the matter in controversy;
d. The judge served as executor, administrator, guardian, trustee or lawyer in the
case or matter in controversy, or a former associate of the judge served as
counsel during their association, or the judge or lawyer was a material witness
therein;
e. The judge's ruling in a lower court is the subject of review;
f. The judge is related by consanguinity or affinity to a party litigant within the
sixth civil degree or to counsel within the fourth civil degree; or
g. The judge knows that his or her spouse or child has a financial interest, as heir,
legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or
in a party to the proceeding, or any other interest that could be substantially
affected by the outcome of the proceedings;

Archival of cases when allowed and when proper

Administrative Circular No. 7-A-92 provides that a criminal case shall be archived only
if, after the issuance of the warrant of arrest, the accused remains at large for six (6)
months from the delivery of the warrant of arrest to the proper peace officer.

Such case shall likewise be archived motu propio or upon motion of any party when
proceedings therein are ordered suspended for an indefinite period because of the
following reasons:
1. The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently, or to undergo trial, and he has to be committed to a mental
hospital.
2. A valid prejudicial question in a civil action is invoked during the pendency of
the criminal case unless the civil and criminal case unless the civil and criminal
cases are consolidated.
3. An interlocutory order or incident in the criminal case is elevated to and is
pending resolution/decision for an indefinite period before a higher court which
has issued a temporary restraining or a writ of preliminary injunction; and
4. When the accused has jumped bail before the arraignment and cannot be
arrested by his bondsman.

In Visbal vs. Vanilla, A.M. No. MTJ-06-1651, April 7, 2009 (584 SCRA 11), It was held
that archiving the case immediately after issuing the warrant of arrest is violative of
Administrative Circular No. 7-A-92 and therefore, constitute ignorance of the law.

Revival of provisionally dismissed cases

Revival of provisionally dismissed cases shall conform to the requisites and the periods
provided for under Section 8, Rule 117. Provisional dismissal of case of offenses
punishable by imprisonment not exceeding six years or a fine of any amount or both
shall become permanent one year after issuance of the order without the case having
been revived. Provisional dismissal of offenses punishable by imprisonment of more
than six years, shall become permanent two years after the issuance of the order
without the case having been revived. (365 days not 360 days)
For revival of Provisionally Dismissed cases purposes

Order dismissing the case provisionally, when considered interlocutory? When

considered final?

An “interlocutory order” is one which does not dispose of a case completely, but leaves
something more to be adjudicated upon (Bañares II vs. Balising, G.R. No. 132624, March
13, 2000, 328 SCRA 36)

A final order issued by a court has been defined as one which disposes of the subject
matter in its entirety or terminates a particular proceeding or action, leaving nothing
else to be done but to enforce by execution what has been determined by the court. An
order dismissing a case without prejudice is a final order if no motion for
reconsideration or appeal therefrom is timely filed. (Olympia International vs. CA, G.R.
No. L-43236, December 20, 1989, 180 SCRA 353).

The dismissal of the case, and the lapse of the reglementary period (15 days) to
reconsider or set aside the dismissal, effectively operated to remove the case from the
courts docket. Even assuming the dismissal to be without prejudice, the case could no
longer be reinstated or “revived” by mere motion in the original docketed action (filed
after 15 day period but not more than 1 or 2 years), but only by the filing of another
complaint accompanied, of course, by the payment of the corresponding filing fees if
prescribed by law. (see Ortigas & Company Limited Partnership vs. Velasco, cited in
Balising)

Concept of provisional dismissal

A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party (First Paragraph, Section 8 Rule 117,
2000 Revised Rules on Criminal Procedure)

Provisionally dismissing the case as authorized by A.M. No. 12-11-2-SC dated March 18,
2014 (Guidelines for Decongesting Holding Jails by Enforcing the Rights of the Accused
Persons to Bail and to Speedy Trial, effective May 1, 2014)

Sec. 10. Provisional Dismissal

(a) When the delays are due to the absence of an essential witness whose
whereabouts are unknown or cannot be determined and, therefore, are subject
to exclusion in determining compliance with the prescribed time limits which
caused the trial to exceed 180 days, the court shall provisionally dismiss the
action with the express consent of the detained accused.
(b) When the delays are due to the absence of an essential witness whose presence
cannot be obtained by due diligence though his whereabouts are known, the
court shall provisionally dismiss the action with the express consent of the
detained accused provided:
a. The hearing in the case has been previously twice postponed due to the
non-appearance of the essential witness and both the witness and the
offended party, if they are two different persons, have been given notice
of the setting of the case for third hearing, which notice contains a
warning that the case would be dismissed if the essential witness
continues to be absent; and
b. There is proof of service of the pertinent notices of hearings or subpoenas
upon the essential witness and the offended party at their last known
postal or e-mail addresses (e-notice rule) or mobile phone numbers.
Duty:
 (c) For the above purpose, the public or private prosecutor shall first present during
the trial the essential witness or witnesses to the case before anyone else. An
essential witness is one whose testimony dwells on the presence of some or all
of the elements of the crime and whose testimony is indispensable to the
conviction of the accused.

The rules is that:

1. The prosecution is required to first present during the trial, the essential witness
or witnesses to the case before anyone else. A witness is considered as essential
witness if his supposed testimony will dwell on the presence of some or all of the
elements of the crime and whose testimony is indispensable to the conviction of
the accused;
2. When there are delays in the presentation of an essential witness or witnesses
due to his/her absence/absences whose whereabouts are unknown or cannot be
determined, or when the delays are due to the absence of the essential witness
or witnesses whose presence cannot be obtained by due diligence through
his/her (or their) whereabouts are known, the trial court at the instance of the
public prosecutor, can order the provisional dismissal of the case (what if the
move comes the defense?)

So, the trial court has to satisfy two (2) procedural requirements:

First, the accused and his/her counsel’s conformity to the provisional dismissal of the
case; and

Second, the offended party is duly notified of that hearing. These requirements are not
directory, but mandatory.

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 (Los Baños vs Pedro, 586 SCRA 303)

Situationer

Accused is arraigned; after arraignment, jumped bail; consequently, the pre-trial

conference will be ordered terminated and case proceeds/ trial in absentia.

Despite the several settings with due notices, prosecution witnesses (essential or not)
failed to appear.

In situation like this, the public prosecutor cannot ask for suspension of the
proceedings, neither can ask to have the case archived, because the accused had already
been arraigned.

He cannot ask for the provisional dismissal of the case, because he cannot secure the
express consent or conformity of the accused, because he jumped bail.

The defense counsel cannot ask for the dismissal of the case on the ground of speedy
trial, because the accused had jumped bail. Otherwise, the accused will be rewarded of
violating the conditions of his bail if his case will be ordered dismissed on ground of
speedy trial (permanent dismissal in character)

So, to address this kind of situation and to help the trial court declog its docket, the
Author humbly suggests that the case can be ordered provisionally dismissed at the
instance of the trial court.

Logic and fairness dictates, motu propio provisional dismissal of the case is more
acceptable, because the prosecution of the case is more acceptable, because the
prosecution has one (1) or two (2) years period defending upon the penalty imposable
within which to revive the case and, wherein the accused has also the same period of
time within which to meet the time bar-rule. The sword of Democles is hung within the
time bar-rule.

Remedies available to the accused upon the filing of the information

1. File a Motion to Quash Search Warrant;

2. File a Motion for Preliminary Investigation;
3. File a Motion for re-investigation of the case;
4. File a Motion for Reconsideration to the Order Finding of Probable Cause, with
Prayer to Recall Commitment Order (if detained) or Warrant of Arrest (if at
large), or Motion for Judicial Re-Determination of Probable Cause;
5. File a Motion for a Bill of Particulars;
6. Post a Bail (if bailable);
7. Apply for Bail (if not bailable) if not arrested – surrender first;
8. File a Motion to Quash Information;
9. File a Motion to Dismiss Information for Violation of Accused Right to Speedy
Disposition of his Case;
10. File a Motion to Suspend Arraignment;
11. File a Motion to Dismiss Information, if the case is a SLAPP case.

Rule on Prohibited Motion

Motions of prohibited character shall be denied outright before the scheduled

arraignment.

Motion for Judicial Determination of Probable Cause

Prohibited (Revised Guidelines for Continuous Trial of Criminal Cases, effective

September 1, 2017, particularly Item III. 2. (b), i of the Guidelines)

Instead of filing a motion for judicial determination of probable cause, just file a motion
for reconsideration to the order finding probable cause and it will be treated as motion
for judicial re-determination of probable cause.

Motion for Preliminary Investigation filed beyond the five (5) day reglementary period
in inquest proceedings under Sec. 6, Rule 112, or when preliminary investigation is
required under Sec. 8, Rule 112, or allowed in inquest proceedings and the failed failed
to participate in the preliminary investigation despite due notice. – Prohibited

Motion for reinvestigation partakes the nature of prohibited motion: (1) if it is filed
without prior leave of court; (2) when preliminary investigation is not required; (3)
when regular preliminary investigation is required and has been actually conducted,
and the ground relied upon in the motion for investigation are not meritorious, such as
issues of credibility, admissibility of evidence, innocence of the accused, lack of due
process when the accused was actually notified.
The private complainant may also ask for the re-investigation of the case (Leviste vs
Alameda)

Motion to Quash Information when the ground is not one of those stated in Sec. 3, Rule
117 is prohibited pleading. Example. Motion for preliminary investigation is not a
ground to quash information.

Motion to Quash Information such as: (1) the facts do not constitute an offense; (2) lack
of jurisdiction; (3) extinction of criminal liability; and (4) double jeopardy is treated as
meritorious motion and are not considered prohibited, therefore, allowed. These
grounds are not waivable – can be raised at any time.

True that the following are also grounds enumerated under Sec. 3, Rule 117, viz:
1. That the officer who filed the information had no authority to do so; and
2. It does not conform substantially to the prescribed form.

But to avoid delay, the court should order the quashal of the Information. Instead, the
court should order the prosecutor to amend and to cure the defect right then and there
(ask the chief prosecutor to sign the approval portion)

Motion to Quash Information based on the following grounds: (1) that the officer who
filed the information had no authority to do so; (2) that it does not conform
substantially to the prescribed form; (3) that more than one offense is charged except
when a single punishment for various offense is prescribed by law; (4) that it contain
averments which, if true, would constitute a legal excuse or justification: is considered a
meritorious motion only if it is supported by relevant documents and/or competent
evidence.

The ground that the court trying the case has no jurisdiction over the person of the
accused includes illegal warrantless arrest.

Motion for Bill of Particulars

It is prohibited if it does not conform to Section 9, Rule 116

“The accused may, before the arraignment move for a bill of particulars to enable him
properly to plead and to prepare for trial. The motion shall specify the alleged defects of
the complaint or information and the details desired.

Motion to suspend arraignment

It is prohibited if it is not based on grounds stated under Sec. 11, Rule 116

Grounds
1. Accused appears to be suffering from an unsound mental condition which
effective renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;
2. There exists a prejudicial question; and
3. Petition for review pending before the Department of Justice or at the Office of
the President, suspension shall not exceed sixty (60) days counted from the
filing of the petition with the reviewing office.

In order 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:
 1. the 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 (Prado v.
People, 218 Phil 573)

Motions that allege plausible grounds supported by relevant documents and/or

competent evidence, except those that are already covered by the Revised Guidelines,
are meritorious motions:
1. Motion to Withdraw Information filed by the fiscal as a result of reinvestigation
or review. This remedy is available to the prosecutor. Take into consideration
that when confronted with a motion to withdraw Information on the ground of
lack of probable cause based on a resolution of the DOJ secretary, the trial court
is still duty bound to make an independent assessment of the merits of such
motion. Having acquired jurisdiction over the case, the trial court is not bound
by such fiscal’s resolution, but is required to evaluate it before proceeding
further with the trial and should embody such assessment in the order disposing
the motion (Santos v. Orda, G.R. No. 189402, May 6, 2010)
2. Motion to downgrade the charge in the original information filed by the fiscal as
a result of reinvestigation, reconsideration or review;
3. Motion to exclude an accused originally charged therein filed by the fiscal as a
result of the reinvestigation, reconsideration or review;
4. Motion to quash warrant of arrest;
5. Motion to suspend arraignment on the ground of unsound mental condition
under Sec. 11(a), Rule 116;
6. Motion to suspend proceedings on the ground of prejudicial question where a
civil case was filed prior to the criminal case under Sec. 11(b), Rule 116
7. Motion to Quash Information on the ground that the facts do not constitute an
offense, lack of jurisdiction, extinction of criminal action or liability, or double
jeopardy (a, b, g, I, Section3, Rule 117). (to be meritorious, supporting
documents must be attached to the motion)
8. Motion to discharge accused as a state witness under Sec. 17, Rule 119. (hearing
is required, present affidavit). Here, the prosecution is required to present
evidence in support thereof, such motion shall be submitted for resolution from
the termination of the hearing. Trial court is mandated to resolve within a non-
extendible period of ten (10) calendars days thereafter.
9. Motion to quash search warrant under Sec. 14, Rule 126, or motion to suppress
evidence.
10. Motion to dismiss on the ground that the criminal case is a SLAPP under Rule 6,
of the RPEC

Motions that do not conform to the requirements of the guidelines shall be considered
unmeritorious and shall be denied outright.

Comment to motion of meritorious character

Comment of the adverse party to the motion labeled as meritorious character shall be
filed within a non-extendible of ten (10) calendar days from notice/receipt of the order
of the court to file the same.

Court shall resolve the motion within a non-extendible period of ten (10) calendar days
from the expiration o the 10-day period, with or w/o comment.

Reply and memorandum need not be submitted (if can be submitted without resulting
in delay, allowed)
Motion for reconsideration

The motion for reconsideration of the resolution of a meritorious motion shall be filed
within a non-extendible period of five (5) calendars days from receipt of such
resolution.

The adverse party shall be given an equal period of five (5) calendar days from receipt
of the motion for reconsideration within which to submit its comment.

Thereafter, the motion for reconsideration shall be resolved by the court within a non-
extendible period of five (5) calendar days from the expiration of the five (5) calendar
day period to submit comment.

Again, motion for reconsideration that do not conform to the requirements of the
Guidelines shall be considered unmeritorious and shall be denied outright. (ministerial
denial)

However, if the motion is Guidelines compliant, the court can either grant or deny the
motion based on the facts, evidence, arguments, law and/jurisprudence adduced by the
movant – an exercise of judicial discretion.

Motion for postponement is prohibited, except if it is based on acts of God, force

majeure or physical inability of the witness to appear and testify.

If the motion is granted based on such exceptions, the moving party shall be warned
that the presentation of its evidence must still be finished on the dates previously
agreed upon.

A motion for postponement, whether written or oral, shall at all times be accompanied
by the original official receipt from the Office of the Clerk of Court evidencing payment
of the postponement fee under Section 21 (b) of Rule 141, to be submitted either at the
time of the filing of said motion or not later than the next hearing date. The Clerk of
Court shall not accept the motion unless accompanied by the original receipt. (See Item
III.2 (d) [Procedure], A.M. 15-06-10-SC; see also A.M. No. 11-6-10-SC: Guidelines for
Litigation in Quezon City Trial Courts [effective April 16, 2012])